DMV Set Aside, No Driving Defense Prevails, Los Angeles

Our client, age 39, had recently lost her uncle, with whom she was particularly close.  She was devastated and turned to alcohol to help her forget about this.

When she turned to alcohol, she managed to be arrested four times for DUI in about two months.  The first three DUI arrests were within 21 days.

In the third of these, on a late July afternoon, our client was apparently involved in a front-end auto accident.  She incurred major front-end damage to her Toyota Corolla, but then left the scene.  Her air bag had not been deployed.   She drove an unknown distance and then pulled over to the side of a residential street in the Culver City area and parked.  She put the car in park and locked the doors.  Her windows were rolled all the way up.

She then fell asleep in her car with massive front end damage.  She did not turn off her engine, perhaps to keep her air conditioning on, as it was late July and in the late afternoon.

At some time later, our client was awoken by a Los Angeles Police Department tapping on her window and rocking the car from side to side.  The police report described our client as passed out and slumped over the steering wheel.  Apparently, officers had a difficult name awakening our client and were about to break a window to perform a welfare-safety check, particularly because our client apparently had been involved in a significant collision and may have suffered head injuries.  The offices probably also suspected that our client had committed a hit and run (Vehicle Code § 20002) and possibly DUI (Vehicle Code § 23152).

The officers’ suspicion about DUI changed from possible to probable once our client opened up her car door and stepped out of her car.  According to the police report, officers detected the strong odor of alcohol and saw that our client had trouble standing on her own.

Officers then did not proceed in a way that would help resolve whether our client had driven while impaired by alcohol.  They did not ask our client when she parked or stopped driving or touch the hood of the car to see if it was warm from the car being driven recently.  They did not ask her if she was involved in an accident.  They did not ask her if she drank alcohol after stopping and parking.  They did not note in the report whether there was a bottle or were bottles of alcohol in the car.

Instead, they asked our client if she would submit to a preliminary alcohol screening (PAS) test and our client refused.  The officers then immediately arrested her on suspicion of DUI and transported her to Kaiser West Los Angeles Hospital, presumably for a medical evaluation in case she was injured in the car accident that our client’s car suggested had just taken place.

At the hospital, our client was examined for injuries and asked why she thought the police had brought her to the hospital.  She said she did not know.  She explained that she had just pulled over to the side of the road, parked and taken a nap.  The hospital found no injuries to our client and released her.

Los Angeles Police Department Officers then transported our client to the Pacific Division stations and asked to submit to a breath or blood test.  She agreed to a breath test and her blood alcohol content (BAC), measured from her breath sample, was 0.243% and 0.229%.  The client was then held at the station for almost twelve hours before being released.

About three days after being released, she called Greg Hill & Associates and spoke to Greg, explaining what had happened and asking what would now happen to her.  This was her third DUI in about three weeks.

Greg explained the penalties for a third-time DUI, but more fundamentally, commented that he believed a DUI could not be proven.  After all, there was no actual driving observed.  Under California DUI law, driving requires “volitional movement of the vehicle” by defendant. 

Mercer v. DMV (1991) 53 Cal. 3d 753.  Here, our client may have had the engine running, but the car was never seen in actual movement with our client controlling its braking, turning or acceleration.  Greg commented that the Los Angeles City Attorney’s office, the one which would prosecute this case, most likely would not file the case.

Greg also told the client that the DMV may not suspend the client’s license based on a “no driving” defense according to the facts.

Nonetheless, our office, once retained, reserved a DMV Hearing for our client just to preserve her rights and avoid the automatic suspension if no such hearing is reserved.

As Greg predicted, both the Los Angeles City Attorney’s office declined to file the case and the DMV set aside the suspension of our client’s license.  They apparently recognized the “no driving” issue and, despite our client’s high BAC, both refused to proceed.

The client was very happy with this.