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Administrative Review Hearing in California

By law, a person who drives a motor vehicle is deemed to have given her consent to chemical testing of her blood or breath for the purpose of determining the alcoholic content of her blood, if lawfully arrested for driving under the influence. Before giving a sample, the officer shall tell the motorist that her failure to submit to, or failure to complete, the required chemical testing will result in her license being suspended.

If the motorist refuses to submit or fails to complete a chemical test, the officer shall notify the Department of Motor Vehicles. The department shall give notice of intent to revoke to both the arresting officer and motorist. Within 10 days of receiving notice, the motorist may request a hearing. At the hearing, the department must show by a preponderance of the evidence that (1) the peace officer had reasonable cause to believe that the motorist was driving under the influence, (2) the person was placed under arrest, (3) the motorist refused or failed to complete the chemical test or tests after being requested by a peace officer, and (4) the person had been told that her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing. The motorist is allowed to present her own evidence disproving any of these elements. If the department determines, by a preponderance of the evidence, that any of those facts were not proven, the department shall rescind the order of suspension and reinstate the motorist’s license.

There are a few defenses to the administrative review hearing. One defense is incapacity to refuse due to a medical condition unrelated to alcohol consumption. For example, a motorist refusal to take the breathalyzer test could not be held guilty where she had sustained skull fracture and serious injury to the head during a motorcycle accident which made it difficult, if not impossible, for her to understand implied consent advisory. Furthermore, in determining whether the motorist can or cannot understand the implied consent statute, the judge is allowed to consider evidence of the motorist’s capacity and not confined to the reasonableness of arresting officer’s conclusion that the motorist was capable of refusing to submit to test.

But certain conditions do not make a motorist “incapable.” Self-inducing condition rendering motorist incapable of understanding and refusing to submit to chemical test does not excuse his failure to take test, particularly if resulting from alcohol consumption. Accordingly, a motorist who self-inducing herself to the point of being too drunk to understand proffered information or explanations does not excuse refusal to take chemical test. Moreover, a motorist who is dead, unconscious, or otherwise in a condition rendering her incapable of refusal, is not a defense. Courts normally held that the California Statute is to be interpreted liberally and apply even to those who are unable to refuse. It should be noted that the law treats a medically incapacitated motorists differently from one who is dead, unconscious, or otherwise incapable of refusal. The medially incapacitated motorist can still answer “yes” or “no.” This motorist is excused from her response because due to a medical condition, she cannot understand the implied consent statute. A dead or unconscious motorist has no opportunity to say “yes” or “no.” Furthermore, it is unclear if the motorist could or could not understand the implied consent statute; as such, the law assumes that she consented.


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