Car Accident, South Central, 0.26% BAC, DMV Set Aside

Our client, age 34, was driving home along eastbound Imperial Highway one evening in June 2024.  He had consumed two glasses of vodka earlier in the evening.  He was alone in his car.  It was about 11:30 p.m. 

As he crossed the intersection of Imperial Highway and San Pedro Street in South Los Angeles, he collided with another car driven by a 71 year old woman crossing the intersection.  It was unclear if the woman or our client was at fault for the accident.

Fortunately, neither party was injured too much.  Both were apparently bruised up, but able to speak with the police at the location. 

Someone had called 911 and a few minutes later, officers from the Los Angeles Police Department arrived at the scene.

Our client was found sitting on the curb next to his damaged car.  Police asked our client to submit to a preliminary alcohol screening (PAS) test and he declined to take the test, as is his right under Vehicle Code § 23612(i).  

He was then arrested and taken to the 77th Street Precinct Station, where he submitted to a breath test that measured his blood alcohol content (BAC) at 0.26% and 0.27%.  This test was given approximately one hour and forty minutes after police arrived at the intersection where the traffic collision took place.   

This was our client’s second DUI, but his first within the last ten years.  He had suffered a conviction for DUI in Colorado more than ten years ago. 

After being released from jail with a date for his arraignment at the Compton Courthouse in about four weeks, he called Greg Hill & Associates.

The client explained what had taken place and that he was a U.S. Army veteran.  Greg thanked him for his service and explained that due to his status as a veteran, he would be eligible for military diversion for his DUI.  Greg would therefore file a motion for imposition of military diversion under California Penal Code § 1001.80 after the arraignment.  Greg asked the client to send him his DS-367 showing his discharge status from the Army.  

Our office then reserved a DMV Hearing for the client and requested all reports from the DMV that it planned to rely upon at the DMV Hearing.

About two weeks before the DMV Hearing, our office received a one page LAPD arrest report and a six page supplemental DUI Investigation report.  No Age 21 and Older Officers’ statement (called the DS-367) was provided.

At the DMV hearing, Greg argued that the DMV really could not suspend the client’s license without the sworn statement from the DS-367.  The LAPD reports were not signed at all, let alone signed under penalty of perjury to be reliable.

More importantly, neither document from the LAPD stated the last time our client drove because there was no time of the accident stated.  Without a last time of driving being within three hours of the breath test, Greg argued, the breath test results could not be imputed under Vehicle Code 23152(b) to be the same BAC level at the time of driving.

In addition, Greg argued, the LAPD officer never observed our client driving.  Greg explained that in Mercer v. DMV (1991) 53 Cal. 3d 753, the California Supreme Court decided held that for the DMV to find a person drove a vehicle, the officer must observe that the person imparted some type of “volitional movement” of the vehicle, either by turning a steering wheel, accelerating the car, or using the brakes to slow down a car.  Mr. Mercer was found asleep in a stopped car with its engine running, while he was slumped over the steering wheel.  This was not sufficient to constitute driving, the Supreme Court held, for purposes of a DMV hearing.

Here, our client was found sitting on the curb near the intersection.  He was not even behind the steering wheel of his car.

Greg therefore argued that based on all these evidentiary shortcomings, the DMV could not suspend our client’s license.

The DMV agreed and set aside the suspension, which made our client very happy.