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Anaheim, Client Age 22, Fails FST’s for Alcohol, Set Aside
Our client was heading home after shopping at the Anaheim Target off Lincoln Avenue. It was about noon, so not exactly a time of day when police might expect to suspect someone of being DUI.
However, as our client drove down Lincoln eastward toward State College Boulevard, she could see that an Anaheim police car was following her. She kept looking in her rearview mirror and her mind raced. Was her registration sticker on her license plate up to date? Was a tail light burned out?
As her mind raced, she could feel the anxiety rising, which the meth she recently took seemed to exaggerate. She could herself sweating as she saw the pink and blue overhead lights of the police car behind her flashing and the police officer sounded his car’s siren, with the officer saying “pull over, pull over” though the car’s public address microphone system.
Our client’s nightmare was progressing to the next phase. She turned right from Lincoln (westbound) onto State College Boulevard, heading north and pulled off the street into a small parking lot and stopped, so nervous she felt sweat coming down her forehead as if she had been out running.
The officer then approached the driver’s side window and asked our client if she knew she was weaving down the road. Our client said she did not know this. The officer asked if the car’s steering was broken. Our client said no, the car was just fine.
The officer then asked our client for her license, registration and proof of insurance. Our client could not find her driver’s license, but she found her insurance and registration, which she provided. The officer then took it back to his police car and sat in the car, apparently verifying the information on her identity and the vehicle registration, while also asking dispatch to see if our client had any outstanding warrants or was on parole or probation.
DMV SignThe officer returned to the side of our client’s car and asked our client to step out, which our client did. The officer first performed a Horizontal Gaze Nystagmus (HGN) test on our client, asking her to look straight ahead and follow the tip of his pen from the center of her eyes to her left at about a 45 degree angle, then back across the center and to her far right about 45 degrees from straight ahead.
The officer took a few notes and then asked our client to perform the walk and turn test, wherein she walks nine steps in one direction along an imaginary straight line, then pivots on the right foot around 180 degrees and walks back on the same imaginary straight line, which in this case was an actual line in the parking lot.
The client then performed this test. She remembered that the police officer seemed upset at how well she did, so he had her perform the whole test a second time. After she did it a second time, without any falling off the line and with a perfect 180-degree turn, he seemed puzzled.
The officer then had our client sit down on a nearby curb and he went back to his trunk of his car to pull out a small breath machine about the size of an old cassette tape. He then fiddled with the machine and told our client that it was a breath machine and he wanted to take a sample of her breath, but she could refuse to give such a sample.
The client opted to decline participation in the test, as is her right under California Vehicle Code § 236122(i).
Upon hearing this, the officer told our client to stand up and place her hands behind her back. He then pulled out his handcuffs and put them on her, escorting her then to the back seat of his police car. He then advised her that she was being taken into custody on suspicion of driving while under the influence of a drug and for not having a driver’s license.
Once at the station, she was asked to provide a blood sample, which she did. It was interesting that the officers did not request a urine sample, which is the usual way to test for the presence of drugs. After a few hours at the police station, our client was released upon signing a promise to appear at the Orange County Superior Court, North Justice Center (Fullerton Superior Court), for her arraignment in about eight weeks.
Once she realized the gravity of what had happened, the client called Greg Hill & Associates and spoke to Greg. She described what had happened and what she anticipated the blood results might reveal. Greg discussed how DUI while being under the influence of drugs is prosecuted.
He also explained that reserving a DMV Hearing would be critical so that her license would not be automatically suspended. The reservation would, in a DUI by drugs case, ensure a set aside because the blood results would show no alcohol in her blood (although other substances may be present). Greg’s office therefore reserved the DMV Hearing and explained to the client that the DMV would, once it saw the police report and blood results, would set aside the suspension and reinstate her driving privileges.
This is indeed what took place about six weeks later when the DMV received the blood results.
This summary is offered no exemplify the importance of reserving a DMV hearing to bar the automatic suspension of one’s driving privileges, especially in a case of DUI by drugs because the DMV cannot suspend the license once it must look at the facts of the DUI by drugs case.
However, if one fails to reserve a DMV hearing, the license will be sadly suspended when this could have been avoided.
For more information about DMV issues, please click on the following articles:
