Second Time DUI, Car Crash, 0.192% BAC & Drugs, Set Aside

He then got into his 2010 Honda CRV at about 3:00 a.m. and crashed into two parked cars near his home near Main Street and 69th Street.  The crash took place about 50 yards from the corner of the two streets, on 69th Street.

No one was inside either parked car at the time and our client was uninjured.

Our client got out of his car and sat on the curb nearby, amazed at what had just happened.  People living in the nearby homes were awakened by the noise of the crash and came out.  They immediately began talking to our client and at some point, a person called 911 to report the crash, but also stated that there were no injuries.

Apparently because there were no reported injuries, officers of the Los Angeles Police Department took their time coming to the scene and did not arrive until 3:45 a.m., almost a full hour after our client last drove.

Officers detected the odor of alcohol on our client and he was immediately arrested, as there was a car accident.  Such an arrest without a warrant is permissible under Vehicle Code § 40300.5. 

The client then agreed to a blood test, but his blood was not drawn until 5:58 a.m., which may have been over three hours after he last drove.  His blood alcohol content (BAC) was measured at 0.192%.  Police also ran a screen for the presence of drugs and our client’s blood was positive for cannabinoids and cocaine metabolite.  

The client was released from the 77th Street Precinct jail about 4:00 p.m. in the afternoon.  

He called up Greg Hill & Associates about a week later and described his car accident and what he anticipated would be shown in the blood tests.  The client also explained that this DUI would be considered his second DUI because he had suffered a “wet reckless” conviction in the Inglewood Courthouse about nine years earlier.


As to the DMV Hearing, Greg appeared on the client’s behalf telephonically.  

The principal issue in the DMV Hearing was whether the blood draw at 5:58 a.m. was within three hours of when our client last drove.  In the Age 21 and Older Officer's Statement (also called the DS-367), there was no time stated for the time of the collision, meaning the time our client last drove.

Our client was asked by the LAPD what time he last drove or how long after driving / the collision did he wait for law enforcement to arrive and he stated, "I don't remember."

Greg argued that the lack of such information had to be regarded by the DMV as a "material omission" rendering the DS-367 non-compliant with Vehicle Code § 13380.  This code section requires officers to place all information relevant to an enforcement action in a sworn report and the DS-367 is the only sworn report.

This also meant that the presumption under Vehicle Code § 23152(b) of one’s BAC being the same as when that person last would not apply because there was no evidence that our client last drove within three hours of the blood draw or breath sample.  

Greg further objected to the DS-367 as containing irrelevant information.  On page two, the Statement of Probable Cause, it contained a narrative cut and pasted from another report, but that other report was not included in the discovery provided from the DMV, so, Greg argued, the DS-367 was inadmissible as a statement of probable cause and moreover, it could not be assumed that the cut and pasted statement was contemporaneously made in compliance with Evidence Code § 1280(b) (also called the timeliness requirement); see also Downer v. Zolin (1995) 34 Cal. App. 4th 578, fn. 5.  It may have been made well after the DS-367 was signed.

Greg argued that this lack of a known time of preparation also must be regarded as a "material omission,” further rendering the DS-367 non-compliant with Vehicle Code § 13380. 

Based on the foregoing, Greg requested that the DMV set aside the suspension of our client’s driving privileges and reinstate his license.