DUI in Harbor City, Black Out, 0.206% BAC, DMV Set Aside

Our client, age 34, went to a private party in Hermosa Beach where his friend’s band was playing.  Alcohol was served and our client had six or seven beers before deciding to leave and drive home to San Pedro. 

As he was leaving the party, he texted his girlfriend and said he was leaving the party.  It was about 11:45 p.m.

His girlfriend had a tracking device on our client’s phone and observed that our client seemed to be driving around the parking lot repeatedly for about ten minutes, only to park again, but not leave the car. 

The day after, our client and his girlfriend discussed this and our client said it was one of the things he last remembered.  He could not find the exit from the parking lot, only to park to take a quick nap.

The client apparently then woke up and found his way out of the parking lot.  He then drove southbound on Pacific Coast Highway, through Redondo Beach and then into Hollywood Riviera past South High School.  He then drove through Torrance and into Lomita and then Harbor City.  He later would say he remembered nothing of driving home.

As he neared Vermont Avenue, he apparently had to stop at a traffic light and it was there that he fell asleep at a stop, with his car engine still running.

Los Angeles Police Department officers from the Harbor Division came to the intersection and found our client asleep at the wheel.  They tapped on the driver’s side window many times and stated in their police report that they were just about ready to break a window when our client suddenly awoke.

Our client looked at the police officers and immediately tried to move forward and drive away, but then realized there was a police car parked in front of his car to prevent this.

The client then rolled down his window to speak with the police and, it was then that officers “detected the strong odor of alcohol.”

Our client was asked to submit to various field sobriety tests (FST’s) and a breath test at the scene on a preliminary alcohol screening (PAS) device.  Our client refused to submit to any FST’s and refused to submit to a PAS test.  He was then arrested and taken to the Harbor City police station.

Once at the police station, he submitted to a breath test there and his breath alcohol was measured at 0.206% and 0.203% blood alcohol content (BAC).

He was then placed in a cell to sober up for a few hours.  It was only after several hours in a cell that he emerged from his blacked out state and realized where he was. 

The client was later released from the police station and called Greg Hill & Associates.  The client tried to explain what happened, but could not because he was blacked out and could only explain what the police told him at the station as he was being released and what his girlfriend told him about her watching his tracking device.

The client believed, in speaking to Greg, that he pulled over to the side of the road in Harbor City to take a nap and that he then turned off his car’s engine. 

Greg then explained how a DMV hearing for DUI worked and what the three issues would be for him since he did submit to a breath or blood test.

Greg explained that if the car engine was turned off, then there would be a good defense of when you last drove (one cannot be considered legally driving if the engine is off) and that any breath test was legally irrelevant if not given within three hours of one’s last driving.  

However, Greg cautioned, sometimes there is a witness, perhaps from a local business (such as the donut shop nearby the PCH and Vermont intersection) who watched our client park and told police the time.

The client then retained Greg Hill & Associates and our office reserved a DMV Hearing.

Our office then received the police report from the DMV and looked upon it with sadness that our client was stopped in traffic lanes with his car engine still running.  However, the report suggested our client had put the car in park because the police described our client, when awaken, as frantically trying to put the car in gear to drive away. 

As the day for the DMV hearing arrived, we were told that the DMV was going to set aside the suspension.  No reason was given.

We looked upon this result with curiosity.  What was the reason to set aside the ruling?  We can only conclude that the DMV believed that if a car was in park, it could not be driven, so our client was not capable of driving the car.  Therefore, the time of last driving was not known and the breath test results could not with certainty be regarded as being within three hours of his last driving.  The breath tests were given one hour and forty minutes after our client was first contacted by police.

This reasoning by the DMV, however, is legally wrong.  A car in park, with the engine running, is considered driving.

We present this summary to the reader to exemplify how the DMV often makes incorrect legal decisions, however, in this case, it was to our client’s advantage.  More often than not, however, the faulty legal decisions disadvantage our client and we are upset at the DMV.

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