Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
Client Crashes into Center Divider on I-10, Set Aside
Our client, age 29, was on probation for a DUI out of the El Monte Court when she went out with friends for dinner and a few drinks.
In her first DUI, the one she was on probation for, she had narrowly avoided a head-on collision on a side street just blocks from the El Monte Courthouse. In that case, she swerved toward an oncoming vehicle and came so close to a collision that her driver’s side rearview mirror was torn off. Our client then continued driving about two more blocks before she stopped. Her blood alcohol content (BAC) was measured at 0.176% and 0.182%.
Twenty-one months later, she went out with friends for dinner and drinks. On her way home, at 3:46 a.m., she collided with the center divider on the westbound I-10 Freeway near the Santa Anita Avenue exit. Her car was spun around and eventually came to a stop with her car’s headlights facing oncoming traffic. Luckily, she was not injured and no other cars were involved in the accident.
The CHP arrived and immediately arrested her. She refused to submit to a preliminary alcohol screening test (a violation of the terms of her probation), but she did submit to a blood test. Her BAC was measured at 0.19% twice. She was later released from custody after signing a promise to appear in the El Monte Courthouse for her arraignment about three months later.
The client sheepishly called Greg Hill & Associates and explained what had happened. Our office immediately reserved a DMV Hearing for her.
At the DMV hearing, the only documents the DMV provided were the Age 21 and Older Officer's Statement (also called the DS-367) and the client’s driving record printout. There was no CHP DUI Investigation Report or even a CHP Traffic Collision Report.
Greg Hill then defended the client at the telephonic DMV Hearing. After the DMV introduced the DS-367, Greg objected to this document as lacking foundation. Specifically, the narrative on page two may be a cut and paste from another report, but that report was not produced.
Greg argued that this must be regarded as a "material omission” rendering the DS-367 non-compliant with Vehicle Code § 13380, which requires officers to place all information relevant to an enforcement action in a sworn report. Therefore, the narrative should be excluded from the DMV's consideration as not properly supported. After all, Greg argued, the DMV did not know if the printed portion is a cut and paste from another report at all or if it was cut and pasted, whether the other report was contemporaneous (Evidence Code section 1280) or subject to any other objection.
Moreover, the time of the last driving, to make the BAC relevant, is omitted and thus, 13380 is further violated.
Moving forward, the hearing then progressed to the three issues.
As to the first issue, did the arresting officer have reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153?
Greg explained that for the DMV to establish the truth of Issue 1, the DMV must establish by a preponderance of the evidence that the arresting officer had reasonable suspicion to believe both:
A) That our client was driving (this was established because you admitted to driving); and
B) Driving while under the influence of alcohol.
Here, the officer reported "Objective Symptoms of Intoxication" i.e., bloodshot / watery eyes, the odor of an alcoholic beverage and slurred speech. Such "symptoms" can also be symptoms of other events. Bloodshot / watery eyes may be a symptom of crying, which is common for a female after a traumatic event like a traffic collision. The odor of an alcoholic beverage can be detected after a person drinks even a small amount of alcohol, certainly far less than required to cause intoxication. Slurred speech can also be caused by anxiety.
What was not stated, as often is in such reports, was that our client failed any field sobriety test. It was also noteworthy that the officer did not observe an unsteady gait.
Moreover, Greg argued, the fact that our client was involved in an accident did not establish impairment by alcohol. Auto accidents can happen for many reasons and to simplistically attribute the accident to impairment by alcohol is unfairly presumptive. In fact, the officer never asked our client why she had the collision, but if the officer had asked the question, then the officer would have had to evaluate if impairment by alcohol was still a factor. Instead, the officer just assumed the collision was due to our client’s impairment by alcohol.
Therefore, the officer could not state that our client was driving under the influence of alcohol.
The second issue was whether our client was lawfully arrested. Here, the answer was yes because Vehicle Code § 40300.5 permits a police officer to arrest a driver suspected of DUI who is involved in a car accident.
The third issue was whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight. No was the answer because the chemical test result strip was not attached to the DS-367 and because the time of last driving was not stated in the report.
In her first DUI, the one she was on probation for, she had narrowly avoided a head-on collision on a side street just blocks from the El Monte Courthouse. In that case, she swerved toward an oncoming vehicle and came so close to a collision that her driver’s side rearview mirror was torn off. Our client then continued driving about two more blocks before she stopped. Her blood alcohol content (BAC) was measured at 0.176% and 0.182%.
Twenty-one months later, she went out with friends for dinner and drinks. On her way home, at 3:46 a.m., she collided with the center divider on the westbound I-10 Freeway near the Santa Anita Avenue exit. Her car was spun around and eventually came to a stop with her car’s headlights facing oncoming traffic. Luckily, she was not injured and no other cars were involved in the accident.
The CHP arrived and immediately arrested her. She refused to submit to a preliminary alcohol screening test (a violation of the terms of her probation), but she did submit to a blood test. Her BAC was measured at 0.19% twice. She was later released from custody after signing a promise to appear in the El Monte Courthouse for her arraignment about three months later.
The client sheepishly called Greg Hill & Associates and explained what had happened. Our office immediately reserved a DMV Hearing for her.
At the DMV hearing, the only documents the DMV provided were the Age 21 and Older Officer's Statement (also called the DS-367) and the client’s driving record printout. There was no CHP DUI Investigation Report or even a CHP Traffic Collision Report.
Greg Hill then defended the client at the telephonic DMV Hearing. After the DMV introduced the DS-367, Greg objected to this document as lacking foundation. Specifically, the narrative on page two may be a cut and paste from another report, but that report was not produced.
Greg argued that this must be regarded as a "material omission” rendering the DS-367 non-compliant with Vehicle Code § 13380, which requires officers to place all information relevant to an enforcement action in a sworn report. Therefore, the narrative should be excluded from the DMV's consideration as not properly supported. After all, Greg argued, the DMV did not know if the printed portion is a cut and paste from another report at all or if it was cut and pasted, whether the other report was contemporaneous (Evidence Code section 1280) or subject to any other objection.
Moreover, the time of the last driving, to make the BAC relevant, is omitted and thus, 13380 is further violated.
Moving forward, the hearing then progressed to the three issues.
As to the first issue, did the arresting officer have reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153?
Greg explained that for the DMV to establish the truth of Issue 1, the DMV must establish by a preponderance of the evidence that the arresting officer had reasonable suspicion to believe both:
A) That our client was driving (this was established because you admitted to driving); and
B) Driving while under the influence of alcohol.
Here, the officer reported "Objective Symptoms of Intoxication" i.e., bloodshot / watery eyes, the odor of an alcoholic beverage and slurred speech. Such "symptoms" can also be symptoms of other events. Bloodshot / watery eyes may be a symptom of crying, which is common for a female after a traumatic event like a traffic collision. The odor of an alcoholic beverage can be detected after a person drinks even a small amount of alcohol, certainly far less than required to cause intoxication. Slurred speech can also be caused by anxiety.
What was not stated, as often is in such reports, was that our client failed any field sobriety test. It was also noteworthy that the officer did not observe an unsteady gait.
Moreover, Greg argued, the fact that our client was involved in an accident did not establish impairment by alcohol. Auto accidents can happen for many reasons and to simplistically attribute the accident to impairment by alcohol is unfairly presumptive. In fact, the officer never asked our client why she had the collision, but if the officer had asked the question, then the officer would have had to evaluate if impairment by alcohol was still a factor. Instead, the officer just assumed the collision was due to our client’s impairment by alcohol.
Therefore, the officer could not state that our client was driving under the influence of alcohol.
The second issue was whether our client was lawfully arrested. Here, the answer was yes because Vehicle Code § 40300.5 permits a police officer to arrest a driver suspected of DUI who is involved in a car accident.
The third issue was whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight. No was the answer because the chemical test result strip was not attached to the DS-367 and because the time of last driving was not stated in the report.
The DMV then terminated the hearing and issued its ruling my mail a few days later, setting aside the suspension and reinstating our client’s driving privileges. The client was ecstatic about this ruling.
