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Bell Gardens DUI, 0.08% BAC, Speeding, DMV Set Aside

Our client, age 24, was out with two friends. The group was returning home from a bar near U.S.C. It was about 1:30 a.m. on a Saturday morning. Our client, who had no criminal history, had been drinking and using cocaine. However, he did not drink as much as his friends because he was the driver and so he tried to limit his drinking.

In a Nutshell: It is very rare for the calibration of a breath test machine to matter, but it can be a big deal if the client’s blood alcohol content is measured at 0.08% and the calibration data shows the machine was reading 0.01% or more high. This was the situation in the following case, which helped our client “win” at the DMV hearing for his DUI.

As our client was heading eastbound on Florence, coming through Bell Gardens, a Bell Gardens police officer spotted him going a bit too fast. The officer pulled over our client and told him he was at least fifteen miles per hour over the posted 35 miles per hour speed limit.

Fifteen miles per hour is quite a bit, but it is less than twenty miles per hour. If one is convicted of DUI while driving over twenty miles per hour above the speed limit on city streets, there is a mandatory minimum of sixty days in county jail that must be served under Vehicle Code § 23582.

image descriptionCommerce DMV Office

The officer asked our client and his friends to step from the car and sit on the curb nearby. The officers then searched the inside of the car and found a small baggie with a white powdery substance that the officer immediately recognized as cocaine. There was only about two grams in the baggie.

The officer looked at our client and asked him if the cocaine was his, as it was found in the front seat, but on the passenger’s right-side pocket. The client did not answer, hoping one of his passengers (who did in facts own the cocaine) would speak up. However, neither passenger did, so police attributed the cocaine to our client because it was in his car.

Our client was then asked to step aside and submit to a preliminary alcohol screening (PAS) test, which he did. His breath alcohol was measured at 0.08%, which is supposed to be a reflection of his blood alcohol content (BAC).

Our client was then arrested and taken to the Bell Gardena police station, where he was booked and released about ten hours later. While at the station, he submitted to a further breath alcohol test, with identical results.

After being released and going home, he received a mountain of mail from various attorneys advertising their services (“jail mail”). However, after about five days of mail, he contacted Greg Hill & Associates, who does not send out “jail mail.”

The client described what had happened and asked Greg Hill what our firm could do. Greg explained that the breath alcohol results from the scene would not be given too much weight, if any, depending upon the BAC results from the breath test taken at the station. Greg explained further that we would request the police report and the calibration records for the breath machine, which Greg explained would not be relevant unless the client’s BAC at the station was 0.08%.

The client then retained Greg Hill & Associates and our firm requested the police report, as well as the calibration documentation from the Bell Gardens police station. The police report showed our client had a measured BAC of 0.08% at the station and the calibration data for the Datamaster DMT (identified by the serial number). The calibration data clearly showed that the particular machine was 0.01% high both three days before the client’s test and six days later.

We then showed this information to the DMV, which agreed that such documentation showed our client’s BAC was 0.07% and thus, not 0.08% or higher by weight as was required for the DMV to suspend our client’s driving privileges. Here, that simply was not the case, so the DMV reinstated our client’s driving privileges.

For more information about DMV issues, please click on the following articles:

  1. What Is a DMV Hearing for a DUI?
  2. Little Known Facts About Your Rights in DUI and the DMV
  3. For a DMV Hearing, What Is Reasonable Cause to Believe DUI?
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