DUI with Fatality to Bicyclist, 0.23% BAC, Set Aside

Our client, age 29, had gone out for dinner and drinks with her boyfriend.  After dinner, they went to Flights, a sports bar on El Segundo Boulevard near the 405 Freeway.

The two enjoyed a few drinks there and left about 9:15 p.m. to head back home to Carson.  Our client was less intoxicated than her boyfriend, who had drank so much that he was barely able to get into our client’s car. 

 

Our client, who had lupus, decided to drive.  She had also consumed a few glasses of wine.  She was above the legal limit.  Perhaps demonstrating her intoxication level, she went north on the 405 to drive home to Carson.  She did not recognize her error until she neared UCLA, where she regularly went for medical treatment for her lupus.

She then realized she was going the northbound on the 405, rather than southbound, and attempted to get off the freeway to a surface street and then get back on the freeway to reverse direction.

She never made it back onto the freeway.  Instead, she got off at Wilshire Avenue and went west bound to get onto an onramp to go south.  As one may know if familiar with the area, turning west leads one past the Veteran’s Administration and towards Santa Monica.

Our client quickly realized she was passing the onramp to go south and ventured into the residential neighborhoods to try to turn around.

As she was driving down one of the residential streets, with her boyfriend passed out in the front passenger seat, our client ran over a man riding a bicycle.  The street had speed bumps on it and, we believe, our client did not realize she had hit a bicyclist because she mistook driving over his bike and him as another speed bump.

A Ring doorbell video camera captured the collision and was provided to police.

Our client continued down the street, only to crash into a parked car and a tall sound wall separating the 405 from the residential area.

Two bicycle officers on patrol nearby at the Veterans Administration heard a traffic collision in the neighborhood area and rode to the area, arriving on scene at 9:35 p.m.  A police report prepared later quoted the officer as saying he estimated that it took him eight minutes after he heard the collision to get on scene, meaning our client last drove at 9:27 p.m.

The collision was near the intersection of Church Lane and Chenault Street.

More emergency response personnel arrived and our client was arrested on suspicion of being  DUI, as well as suspicion of violating Penal Code § 191.5(a), gross vehicular manslaughter due to alcohol, and felony hit and run.

She was taken to a local hospital, as she suffered minor injuries.  When she was released, she called up and met with Greg Hill.  She retained our office.

For the DMV hearing, Greg reviewed the voluminous traffic collision report (and all its supplements) and quickly noticed that the because the blood draw took place at 0028, more than three hours had passed after our client last drove.

To be exact, our client’s blood was drawn three hours and one minute after our client last drove.  This meant that our client’s BAC (0.23%) could not be presumed to be the same BAC as when she last drove because the presumption of this available under Vehicle Code § 23152(b).

Greg argued at the DMV hearing that, while the case was certainly tragic because a person died as a result of our client being DUI, the DMV could not prove that our client’s BAC was above 0.08%, let alone 0.23%, at the time she last drove due to the three hour and one minute delay.  Therefore, the DMV had to reinstate our client’s driving privileges.

The DMV agreed, which made our client extremely happy. 

We offer this summary to exemplify how no matter how bad the facts may be in a case, it is well worth it to approach every case with attention to detail because sometimes, as here, there is one small fact that becomes significant.

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