Compton, Third Time DUI, 0.19% BAC, Plea to Wet Reckless

Our client had two DUI’s from out of state within the past five years.  He was in Compton on business and feeling depressed over his divorce.  So he went to a local hotel and proceeded to down seven shots of Jăgermeister.  He then got in his car and drove to a local restaurant to have dinner.
Synopsis:  Compton, third-time DUI and 0.19% BAC resolved as a wet reckless and first-time offense with no jail time.
He arrived at the restaurant at about 6:45 p.m.  He then ate a very leisurely dinner in the rather busy restaurant.  By eating slowly, he drew attention to himself from the restaurant staff, who also noticed he was quite drunk.  When he finished his dinner at about 8:15 p.m., he then sat in the restaurant lobby.

After the restaurant staff noticed him sitting in the lobby for about thirty minutes, they wanted him to leave.  So at about 8:45 p.m., they called the Compton Sheriff’s, who arrived at about 9:00 p.m.  

Our client freely admitted to being drunk, described how much he drank and stated that he had driven to the restaurant some time earlier.  The Sheriff’s then had him perform some field sobriety tests and arrested him about 9:30 p.m.

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The Sheriffs then took him to their station, where our client gave a breath sample at about 10:10 p.m., almost three and a half hours after when he last drove.  According to the breathalyzer, our client’s BAC was 0.19%.

When Greg Hill appeared for the arraignment of our client, he had to pinch himself because the District Attorney’s background search on our client failed to reveal our client’s two prior DUI’s.  

Greg then pointed out to the District Attorney how the lapse in time of over three hours for the breathalyzer meant the presumption under California Vehicle Code § 23152(b) did not apply.  Under § 23152(b), a presumption exists under California law that the blood alcohol content measurement taken within three hours of a suspect’s last act of driving is the blood alcohol content of the suspect when he was driving.

Here, that presumption could not apply, so it would be incumbent upon the prosecution to reverse extrapolate our client’s blood alcohol content.  That, however, is a highly criticized process, as no two people metabolize their alcohol the same way.  In other words, although the average person metabolizes ethanol at the rate of 0.18% BAC per hour (meaning our client would have had a 0.25% BAC when last driving according to this rate), the rate varies with one’s lung capacity, hematocrit, lean body mass, fatigue level and about ten other factors.

Moreover, in our case, there was no way the District Attorney could show our client’s BAC when he last drove was not under 0.08% BAC if our client chugged the Jăgermesiter shots and then quickly got in his car and drove before the alcohol could increase his BAC about 0.08%.

Our client, however, was fearful of the District Attorney doing any additional research into his criminal record, so when he offered him a wet reckless, he accepted.

Our client was happy that he was able to resolve the case for a wet reckless and not a DUI under the circumstances, especially with his high BAC.

For more information about DUI in general, click on the following articles:
  1. What Punishment Do I Face for First-Time DUI?
  2. Why Is a “Wet Reckless” Better Than a DUI?
  3. I Got a Bill from the CHPAafter My DUI – What Should I Do?
Watch our video about DUI by clicking here.
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