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Second-Time DUI, Car Accident, 0.21% BAC, Set Aside
In the following DUI case, our client’s second in the last ten years, our client hit a parked car at about 12:15 p.m., in broad daylight near the corner of President Avenue and 246th Street in Harbor City.
After hitting the parked car, our client, age 75, kept driving. However, the owner of the damaged parked car, ran out from her house, got in her car and drove after our client, eventually catching up with our client and bringing her car to a stop in front of him, forcing him to stop.
She then called 911 and the Los Angeles Police Department, Harbor Division, came to the scene. According to the police report, our client was so drunk, he could not walk. He was immediately arrested and taken to the Harbor Division station, only to be released about twelve hours later.
Once released, the client called Greg Hill & Associates and spoke with Greg. Greg had represented the client in his prior DUI case and had it dismissed under military diversion under facts similar to the pending matter – a daytime car accident and a high BAC.
The client explained the facts of what happened, although he commented he did not recall quite a bit because he had blacked out at some point.
Greg explained that the case would be handled by the courts as a first-time DUI, as his first case was dismissed. Coincidentally, the DMV would also regard the DUI as a first-time DUI, but only because he had luckily won at the DMV in the first case, too.
The client retained Greg Hill & Associates and our office soon received the police report from the DMV prior to the DMV hearing.
Our office then handled the DMV hearing, which was telephonic due to continued social distancing procedures started during the COVID-19 pandemic.
Greg first objected to the DS-367, or age 21 and Older Officer’s Statement as being irrelevant because a Title-17 compliant two-sample breath test was not administered within three hours of when our client last drove. Our client last drove at or about 12:30 p.m., according to the police report. The two-sample breath test was administered at 4:05 (or 4:07 on the breath test machine receipt) and 4:10 p.m. (or 4:11 on the receipt).
An earlier breath test at 2:10 p.m., consisting of only a single breath sample, violated Title 17, § 1221.2(a)(1). Section 1221.2(a)(1) of Title 17 states, "(a) Procedures for breath alcohol testing shall meet the following standards: (1) For each person tested, breath alcohol testing shall include analysis of 2 separate breath samples which result in determinations of breath alcohol concentrations which do not differ from each other by more than 0.02 grams per 210 liters of breath.” Therefore, the 2:10 p.m. test could not be considered by the DMV and the other two-sample test after 4:00 p.m. was too late.
Greg acknowledged that such an omission was not necessarily always fatal to the DMV enforcement action. MacDonald v. Gutierrez (2004) 32 Cal. 4th 150, disapproving Solovij v. Gourley (2001) 87 Cal. App. 4th 1229, and Dibble v. Gourley (2002) 103 Cal. App. 4th 496.
MacDonald holds that Vehicle Code § 13380's sworn report requirement must be interpreted in conjunction with Vehicle Code § 13357 (authorizing the DMV to consider "the sworn report . . . and any other evidence accompanying the report") and Government Code § 11513(c) (permitting unsworn hearsay if reasonably relied upon by people in the conduct of serious affairs). However, here, there was no other evidence which addressed the time our client last drove, so in this case the omission of the last time driving is fatal to the DMV enforcement action.
Greg then stated that this must be regarded as a "material omission” rendering the DS-367 non-compliant with Vehicle Code § 13380, which requires officers to place all information relevant to an enforcement action in a sworn report. Here the time of the last driving, to make the breath test results relevant, is omitted and thus, 13380 is violated.
The missing Page 2 Statement of Probable Cause may be excused in most cases as well as long as another document, even unsworn, contains facts addressing this issue. However, here it could not be assumed that the unsworn statement in the undated and unsigned LAPD report was contemporaneously made in compliance with Evidence Code § 1280(b) (also called the timeliness requirement); Downer v. Zolin (1995) 34 Cal. App. 4th 578, fn. 5. It may have been prepared after the DS-367 was signed by the officer.
This also must be regarded as a "material omission” rendering the DS-367 non-compliant with Vehicle Code § 13380.
Greg then objected to admission of the Los Angeles Police Department Two Page Report as hearsay, as was an out-of-court statement being offered for the truth of the matters stated therein. Normally, it would be admissible under Government Code § 11513 if it was otherwise not subject to other objections, which here existed, such as timeliness under Evidence Code section 1280(b). It is not dated and also not signed under penalty of perjury.
Moving forward, the hearing then progressed to the three issues. First, did the arresting officer have reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code § 23152 or 23153? To establish the truth of Issue 1, the DMV must establish by a preponderance of the evidence that the arresting officer had reasonable suspicion to believe both:
A) That our client was driving (this was established because our client admitted to driving); and
B) Driving while under the influence of alcohol.
Here, the officer reported symptoms that our client was under the influence of alcohol.
Second, was our client lawfully arrested? Yes was Greg’s position because Vehicle Code § 40300.5 permits a police officer to arrest a drivers suspected of DUI who is involved in a car accident and this certainly applied in this case.
Third, was our client driving a motor vehicle with a BAC of 0.08% or higher by weight? Greg argued no was the answer because the DMV could not find our client’s two breath samples, taken well over three hours after he last drove, enjoyed the presumption under Vehicle Code § 23152(b) of being the same BAC as when he last drove.
Moreover, general intoxication evidence (i.e., odor of alcohol, red/watery eyes, unsteady gait, slurred speech, poor driving, poor performance on field sobriety tests) is insufficient to prove 0.08% or higher BAC. There must be direct evidence of the driver's BAC. Baker v. Gourley (2002) 98 Cal. App. 4th 1263; Wheeler v. DMV (1994) 34 Cal. App. 4th 228.
Greg therefore submitted that the DMV had to set aside the suspension of our client’s driving privileges. The DMV agreed, which made our client very happy.
