Our client, age 28, had been at a party in downtown Los Angeles and was heading home rather early at 9:00 p.m. He got on the Harbor Freeway and was heading southbound toward Torrance when he saw headlights approaching from behind at a high rate of speed in the lane to his right. The client stayed in his lane as the car zoomed by to his right and made a lane change to the left right in front of our client, clipping the front right corner of his Toyota Highlander.
The impact caused our client to turn to the left and almost hit the concrete barrier that was along his left side. The client quickly steered his car away from impacting the center divider, but his quick turn of the steering wheel also caused his car to roll over one full rotation and slide on the car’s roof before righting itself back on the tires in an upright position. The car then skidded to a stop.
Luckily, our client was not injured, but his car’s flip caused traffic behind him to slam on the brakes and stop. Our client got out of the car and a passerby stopped to confirm our client was O.K., which our client confirmed, although he was certainly shaken.
About 45 minutes later, the CHP arrived on scene, after our client had moved his car to the right shoulder of the road and the traffic jam had dissipated.
The CHP asked our client if he wanted to submit to a Preliminary Alcohol Screening (PAS) test and he declined. He was then taken to the hospital, as he had minor injuries.
If one if taken to a hospital for one’s injuries after a DUI, the driver must submit to a blood test. A breath test is not an option. Our client then refused to submit to a blood test.
The CHP then phoned in for a search warrant (called a McNeely warrant after the U.S. Supreme Court case, Missouri v. McNeely (2013) 569 U.S. 141, which required a warrant before forcing a blood draw from a suspect), which was obtained and blood was finally withdrawn from our client four hours and 37 minutes after he last drove.
Our client’s blood alcohol content (BAC) was 0.15%. The client was held for a few hours at the 77th Street Station of the LAPD after signing a promise to appear in the Metropolitan Courthouse in about three months.
After the client was released from the hospital, he called Greg Hill & Associates and explained what had happened. At the time he spoke with Greg, the client did not know his BAC yet and he was not even sure if more than three hours had elapsed after he last drove before his blood was drawn, but Greg explained that a delay over three hours is not uncommon when there is a significant traffic accident.
The client then moved to North Carolina, which Greg explained to the client meant he’d have to file a 1650 waiver with the DMV in order to get credit for the DUI courses without doing them in person. With a 1650 waiver, the client would be able to reinstate his license in California and then have no problem getting a North Carolina license.
Greg then appeared in the Metropolitan Courthouse for the client and received the CHP report, as well as the blood alcohol report for the client. Greg was somewhat shocked to see that the client’s BAC was 0.15% so long after the time he last drove, which meant his BAC when driving may have been 0.23 or even 0.24% when he last drove, assuming an ethanol metabolization rate of 0.18% per hour.
Nonetheless, Greg understood that the long delay meant the People would have to reverse extrapolate the BAC for our client by using a blood alcohol expert, which is notoriously junk science. Greg understood quite well that any such expert would be cross-examined and jurors could doubt application of simplistic assumptions to our client.
Greg therefore asked the Los Angeles City Attorney assigned to the case for a wet reckless, explaining the facts of the case.
This was certainly audacious, but the response was yes, with further terms of one year of summary probation, a requirement that our client enroll in and complete the AB 1353 (nine-month) alcohol awareness class, pay a court fee of $375 plus penalties and assessments (with credit for two actual days in custody) and perform 150 hours of community service. Our client happily accepted this offer, knowing he would avoid the DMV-ordered ignition interlock device (IID) because it was not a DUI.
This was an exceptional result that we caution the reader should be regarded as unusually lucky.