Our client, age 41, was returning home from a baby shower that became somewhat of a party for just the husbands and lasted into the night with plenty of drinking. Our client had consumed at least three or four beers. It was about 11:15 p.m. and our client was driving eastbound on Victoria Avenue near Cal State Dominguez Hills.
As our client was nearing the intersection of Victoria Avenue and Cairo Street, our client’s wife called him on his cell phone. Our reached for the cell phone and dropped it between the center console and the driver’s seat, into a crack that let his phone fall underneath his driver’s seat.
As our client was reaching under his seat, trying to retrieve the phone before his wife hung up, the client inadvertently let the left tires drive up on the center divider. As the client felt this happening, he quickly jerked the wheel in the opposite direction and caused his car to roll over and then slide to a stop.
While rolling over, our client cut his arm and broke his neck at C2. However, he was conscious and could walk around. He got out of his car and while surveying the situation, a CHP officer arrived at the scene.
The officer immediately asked our client if he had been drinking that evening and our client admitted, “just a little.” Our client complained about the pain in his neck and the cuts to his arm, but the officer ignored our client’s concerns.
The CHP officer told an ambulance not to come to the scene because he believed our client was feigning an injury to avoid performing field sobriety tests.
When the client offered to call an ambulance himself, the CHP officer reluctantly agreed to drive our client to Torrance Memorial Medical Center. Along the way, while driving to the hospital, the officer allegedly asked our client if he would submit to a breath or blood test.
As the experienced reader of this website may know, if a DUI suspect is taken to the hospital for medical attention, only a blood test is proper or requested, not a breath test.
The client was then examined and had his neck x-rayed, which revealed a fracture at C2. The CHP officer was told about this and left the hospital, never even taking our client’s driver’s license or issuing our client a ticket with a promise to appear in court.
The client was then transferred to another hospital, treated for a few days and released. His neck fracture was remarkably minor. It would heal on it own, although even a year later, our client continued to have pain in the location and continued treating.
About two months after our client left the hospital, our client received a letter from the CHP stating a case had been filed against him in the Compton Courthouse.
The client then called Greg Hill & Associates and told Greg about the letter. Despite well more than two months having passed, our office called the DMV and requested a DMV Hearing. We explained that our client had been hospitalized with a broken neck from the crash and that he was never issued a temporary license that advised him of any license suspension or his obligation to contact the DMV for an admin per se hearing. Remarkably, the DMV granted our client a DMV Hearing.
Our office then demanded the CHP report, the Age 21 and Older Officer’s Statement and any other documents the DMV intended to rely upon at the DMV Hearing.
Such documents were received by our office about a month prior to the DMV Hearing. According to the Age 21 and Older Officer’s Statement (also called the DS-367) prepared by the CHP officer, the officer observed our client driving and there was no collision or car accident. The time of the arrest was left blank. The report did say our client refused to submit to a Preliminary Alcohol Screening (PAS) test and a regular blood or breath test. Page 3 of the DS-367, wherein the officer is required to describe probable cause leading to the arrest, was entirely blank. The officer also did not sign the report at all that he served the order of suspension on our client (which was true because he did not give it to our client).
On page two, wherein the admonition is signed by the officer giving the warning, the area for the officer to check for a suspect receiving medical attention was not checked at all.
At the DMV Hearing, Greg pointed out these problems with the DS-367 and argued that there was not probable cause to arrest the client (actually there truly was with an accident, but the accident was not described in the DS-367), so the arrest was not legal and the admonition was not properly given because the officer, according to the documentation, asked our client to submit to a breath test or blood test.
These major errors in the CHP officer’s preparation of the report persuaded the DMV to set aside the suspension and reinstate our client’s driving privileges. The client was happy with this because otherwise, he faced a one year suspension of his driving privileges with no option for a restricted license.
For more information about DMV Hearing issues, please click on the following articles: