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Client Has a 0.32% and 0.34% BAC, 405 Freeway, DMV Set Aside
One day in December, 2022, a man called our office from Texas, explaining that he had a pending DMV Hearing in Los Angeles County for a DUI and needed an attorney to represent him at the hearing.
The man, who would become our client, described the facts of the case to Greg. The client, age 40, told us that he had been drinking heavily all day near LAX Airport and was driving home to Texas when his car ran out of gas literally before he could even get on the 405 Freeway.
The man was about to enter the 405 Freeway and ran out of gas on the onramp. He was too drunk to walk to find a gas station, so he just abandoned his car, a 2010 Lexus 350, and decided to sleep in the bushes nearby. He emphasized to us that he was very drunk. It was about 6:00 p.m.
At some point, he woke up and went back to his car, which was surrounded by police officers and a tow truck about to tow his car. The police immediately accused our client of being DUI after detecting the odor of alcohol and when our client explained that the Lexus was his.
The client was then arrested. He agreed to give a breath sample at the station, but he did not agree to a breath sample at the scene.
Our office then obtained the CHP DUI Arrest Report, as well as the DS-367 Age 21 and Older Officer’s Statement. Our client’s breath sample was measured at a BAC of 0.32% and 0.34% BAC an hour and a half after police first contacted him.
Curiously, police asked our client when he last drove and our client consistently said “four hours ago.” In fact, the documents from the DMV stated this in three different places and there was nothing that said otherwise. The documents also stated that our client’s clothes were very dirty and he had twigs in his hair, confirming our client’s story that he laid down in the bushes after abandoning his car when it ran out of gas.
About two months later, the DMV held the Admin Per Se Hearing for our client and Greg Hill defended him. After the DMV’s documents were introduced, the hearing then progressed to the three issues.
The first issue is “did the arresting officer have reasonable suspicion that Respondent (our client) was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153?”
Greg’s argument was really simple. No was the answer to both Vehicle Code sections because the officer did not see our client driving (so he could not have reasonable suspicion our client was impaired while driving – our client ran out of gas, as he explained to the police) and his BAC was measured from a breath sample taken almost five hours after he last drove so its BAC level could not be assumed to the same five hours later.
Vehicle Code section 23153 did not apply here because there were no injuries involved.
Such a state of facts must be based on a reasonable inference. People v. Morris (1988) 46 C4. 3d 1, 21, in describing what this is said, “a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guess work.” It continued, “a finding of fact must be an inference drawn from evidence rather than… more speculation as to probabilities without evidence.” Id.
The second issue is whether our client was lawfully arrested.
Greg argued that no was the answer because probable cause is required to arrest someone. Probable cause is a higher standard than reasonable suspicion and there was not reasonable suspicion here.
The third and final issue was whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight.
Greg argued that the answer was no, based on the evidence, because the DMV could not find the breath sample was taken within three hours of when our client last drove. Our client was asked multiple times when he last drove and each time, he answered "Four hours ago" which meant the breath sample was taken nearly five hours after he last drove.
Based on the foregoing, Greg requested that the DMV set aside the suspension of our client’s driving privileges and reinstate his license.
The DMV agreed with Greg’s arguments and reinstated our client’s driving privileges, which made our client very happy.
The man, who would become our client, described the facts of the case to Greg. The client, age 40, told us that he had been drinking heavily all day near LAX Airport and was driving home to Texas when his car ran out of gas literally before he could even get on the 405 Freeway.
The man was about to enter the 405 Freeway and ran out of gas on the onramp. He was too drunk to walk to find a gas station, so he just abandoned his car, a 2010 Lexus 350, and decided to sleep in the bushes nearby. He emphasized to us that he was very drunk. It was about 6:00 p.m.
At some point, he woke up and went back to his car, which was surrounded by police officers and a tow truck about to tow his car. The police immediately accused our client of being DUI after detecting the odor of alcohol and when our client explained that the Lexus was his.
The client was then arrested. He agreed to give a breath sample at the station, but he did not agree to a breath sample at the scene.
Our office then obtained the CHP DUI Arrest Report, as well as the DS-367 Age 21 and Older Officer’s Statement. Our client’s breath sample was measured at a BAC of 0.32% and 0.34% BAC an hour and a half after police first contacted him.
Curiously, police asked our client when he last drove and our client consistently said “four hours ago.” In fact, the documents from the DMV stated this in three different places and there was nothing that said otherwise. The documents also stated that our client’s clothes were very dirty and he had twigs in his hair, confirming our client’s story that he laid down in the bushes after abandoning his car when it ran out of gas.
About two months later, the DMV held the Admin Per Se Hearing for our client and Greg Hill defended him. After the DMV’s documents were introduced, the hearing then progressed to the three issues.
The first issue is “did the arresting officer have reasonable suspicion that Respondent (our client) was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153?”
Greg’s argument was really simple. No was the answer to both Vehicle Code sections because the officer did not see our client driving (so he could not have reasonable suspicion our client was impaired while driving – our client ran out of gas, as he explained to the police) and his BAC was measured from a breath sample taken almost five hours after he last drove so its BAC level could not be assumed to the same five hours later.
Vehicle Code section 23153 did not apply here because there were no injuries involved.
Greg reminded the DMV that the reasonable suspicion standard was enunciated in People v. Adair (2003) 29 Cal. 4th 865 at 904, which stated: "it is a state of facts that would cause an ordinary man to entertain a strong suspicion that the person at issue is guilty of a crime." Here, there is nothing to suggest our client did anything except just run out of gas. The officer could not assume our client did not drink after running out of gas or that he had a BAC of 0.08% or higher when he ran out of gas. Our client certainly could have had a BAC below 0.08% that rose after he stopped driving.
Such a state of facts must be based on a reasonable inference. People v. Morris (1988) 46 C4. 3d 1, 21, in describing what this is said, “a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture or guess work.” It continued, “a finding of fact must be an inference drawn from evidence rather than… more speculation as to probabilities without evidence.” Id.
The second issue is whether our client was lawfully arrested.
Greg argued that no was the answer because probable cause is required to arrest someone. Probable cause is a higher standard than reasonable suspicion and there was not reasonable suspicion here.
The third and final issue was whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight.
Greg argued that the answer was no, based on the evidence, because the DMV could not find the breath sample was taken within three hours of when our client last drove. Our client was asked multiple times when he last drove and each time, he answered "Four hours ago" which meant the breath sample was taken nearly five hours after he last drove.
Based on the foregoing, Greg requested that the DMV set aside the suspension of our client’s driving privileges and reinstate his license.
The DMV agreed with Greg’s arguments and reinstated our client’s driving privileges, which made our client very happy.
We caution the reader that this hearing was somewhat lucky in that the DMV did not find that it was unreasonable that a car would sit in a traffic lane on an onramp for four hours before the police and a tow truck arrived. We have had DMV officers in other cases make similar findings that undercut our client’s defense. Here, fortunately, the DMV did not find this was so.
For more information about DMV Hearing issues, please click on the following articles:
