Client Found Asleep on Freeway, DUI, Set Aside at DMV

On a January evening in early 2024, our client and his girlfriend went to a party hosted by some friends from our client’s work.  The two enjoyed themselves and each had a few drinks.

As they were coming home to Wilmington on the 405 Freeway at about midnight, traffic suddenly stopped.  It had been raining heavily that evening and there was a car accident just south of the 405 / 710 interchange.

As is not uncommon, those who stopped were blocked from moving forward while fire trucks and paramedics made their way along the parking lane to the accident scene.  Multiple CHP officers also rushed to the scene.  Traffic, meanwhile, remained stopped.

After the traffic accident was cleared, traffic began to proceed forward again, but not our client.

Eventually, a CHP office noticed our client’s car still stopped and approached the car.  It was still raining heavily.  The CHP officer tapped on the window and awoke our client, who the officer suspected was DUI.

The officer directed our client off the freeway and after detecting the odor of alcohol, arrested him for DUI.  Our client was then taken to the Long Beach Police Department Station, where he submitted to a breath test there on the Intoxilyzer 5000 EN machine, providing a sample that was measured at 0.12% blood alcohol content (BAC).

After being released a few hours later, the client called Greg Hill & Associates upon the advice of a friend who had worked with us in the past.

Greg listened to the client explain what had happened.  The client then asked many questions about what would happen in both court and at the DMV Hearing.  Greg answered the client’s questions and the client retained Greg Hill & Associates.

1. The Age 21 and Older Officer's Statement (also called the DS-367): Greg objected to this on three grounds.  First, relevance. The reporting officer did not observe our client driving, as defined by Mercer v. DMV (1991) 53 Cal. 3d 753, at 763, which requires "volitional movement" of a vehicle.  After all, the police report stated the officer observed our client's vehicle "stopped in the # 3 lane." The report further did not even state if the engine was running or if the hood was warm, suggesting the car had been recently operated, as is often noted in a report.

   Second, relevance. The report did not provide any evidence of when our client last drove the vehicle, such as an estimate of how long he had been stopped prior to the officer making contact with him.  Therefore, it could not be established that the breath test was administered within three hours of when the client last drove.

   Third, foundation.  The CHP officer did not establish that he continually observed our client for fifteen minutes prior to the breath test at the station, as required by Title 17, section 1219.3.  He did not state that he drove our client to the station, which would establish such continual observation.  Indeed, the report says our client “was transported to the Long Beach Police Department . . ." which implies someone else did so or else the officer would have written "I transported him to the Long Beach Police Department . . ."  Without knowing that the breath test was performed after fifteen minutes of continual observation as required by Title 17, the DMV really could not assume it was, Greg argued, and therefore should not admit the results of the breath test. 

   Greg then argued that these three missing items of information had to be regarded as "material omissions” 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. 

2. CHP DUI Arrest Report. The report was subject to the same objections as applicable to the DS-367 - relevance, relevance, foundation (violation of Title 17, section 1219.3), and relevance (violation of Vehicle Code § 13380).

3. Long Beach Police Department Breath Alcohol Test Results.  Greg objected on foundation grounds because the police officer operating the machine violated proper Intoxilyzer 5000EN testing procedures in two ways.  First, he did not perform a diagnostic check of the machine as required on page 11 of page 32 of the Intoxilyzer 5000EN manual before having our client provide his first breath sample.  Second, he further failed to run a second diagnostic check after the first blow and before the second blow.

If the breath samples are not tested properly, Greg argued, the police officer’s sworn certification that he administered the test pursuant to Title 17 is not true because Title 17 requires that the operator of the breath test machine follow the machine's prescribed operating procedures. 
 
Moving forward, the hearing then progressed to the three issues.
 
First, did the arresting officer have reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153?

To establish the truth of Issue 1, Greg argued, the DMV had to establish by a preponderance of the evidence that the arresting officer had reasonable suspicion to believe both: A) That our client was driving; and B) That he was driving while under the influence of alcohol.

Here, the officer did not observe driving under Mercer and so he certainly could not say such driving was under the influence of alcohol.
 
Second, was our client lawfully arrested?
 
No is the answer, Greg argued, because probable cause is required to arrest someone.  Probable cause is a higher standard than reasonable suspicion and there was no reasonable suspicion of DUI here.

Third, was our client driving a motor vehicle with a BAC of 0.08% or higher by weight?

No is the answer because the DMV cannot find our client was driving and the DMV cannot rely upon the BAC measurements because the police officer failed to follow the correct operating procedures for the breath machine.

Based on the foregoing, Greg requested that the DMV set aside the suspension of our client’s driving privileges and reinstate his license.  The DMV agreed to this.