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DUI Newport Beach, 0.13% BAC, 112 Miles per Hour, Drugs

The Gist of this Article: Thirty-seven year old attorney arrested for DUI with drugs, driving 112 miles per hour on the 405 with a 0.13% BAC.  Case resolved for a minimum term DUI without the 60 days minimum of county jail for the excessive speed while DUI.
Our client, age 37 and an attorney, had just broken up with his girlfriend in San Diego and was driving home from San Diego to Santa Monica.  He was upset by the turn of events, perhaps made more depressed by alcohol he had consumed.

He drove northbound on the 405 in a daze, going faster and faster.  He had driven for perhaps an hour when he reached Orange County and was in the number one lane.  He had in fact downed a few beers earlier in the evening, hours earlier.  He was also taking a variety of prescription medication, some of which contained substances considered controlled substances under California law.

It was about 11:30 p.m. when our client passed Sand Canyon Road and, unbeknownst to him, a CHP officer was entering the freeway (the I-405) just as our client zoomed by in lane 1.  The CHP recognized that the car our client was driving was moving awfully fast, so he sped up as quickly as his sedan would allow.  However, it took seven miles for the officer to catch up, pace our client and then effect a traffic stop at Jamboree.

According to the CHP officer, he paced our client at 112 miles per hour, well more than the 30 miles per hour in excess of the posted speed limit of 65 miles per hour.  If our client were found to be DUI, he would face a mandatory minimum 60 days in county jail above any other sentence imposed pursuant to Vehicle Code § 23582.

Our client submitted to a Preliminary Alcohol Screening (PAS) at the scene, registering a blood alcohol content (BAC) of 0.121% and 0.111%.  He was then arrested and thereafter submitted to a blood test at the CHP station.  The blood test revealed that our client’s BAC was 0.134%.

The client contacted Greg Hill & Associates, concerned that a DUI conviction would mean his license to practice law would be suspended and perhaps maintaining employment would be difficult.  Greg asked him if he had any prior criminal history and the client answered that he did not, so Greg said he knew the client would certainly have to report the conviction, but he most likely would not face any adverse disciplinary proceedings.  The most important thing was simply to report the conviction.

Newport Beach CourthouseNewport Beach Courthouse

The client further described what had happened and asked about how soon or if the DMV would return his license.  Greg explained how the DMV would actually get “two bites  at the apple” through an admin per se administrative hearing at the DMV and then ride the coattails of the prosecutor in the Newport Beach Superior Court to again suspend the client’s license if he was convicted of DUI.

Greg then appeared for the client’s arraignment at the Newport Beach Superior Court.  The client was charged with not only DUI (Vehicle Code §§ 23152(a) and 23152(b)), but also an infraction for driving over 100 miles per hour on a freeway (Vehicle Code § 22348(b)(1)).
The first plea bargain offered from the Orange County District Attorney did not include a 60-day jail term for the excessive speed.  It was more of a “standard first” insofar as the deal included thirty-six months of summary, or informal, probation, an obligation to pay a $390 fine, plus penalties and assessments (our client would be credited $250 toward the based fine due to being in custody from 11:45 p.m. to about 10:00 a.m. the following day for two days), an obligation to enroll in and complete the AB541 alcohol awareness program, provide a DNA sample (this now costs $110) in the District Attorney’s Office and take the Mothers Against Drunk Driving (MADD) victim impact panel (VIP), a roughly two hour class that costs $50.  There was no extra punishment for the 100 miles per hour of driving on a freeway.

Over the next five months, Greg had the client’s blood sample retested at Central Valley Toxicology at no extra cost to the client.  The blood retest was measured at 0.12%, not the significant drop in BAC that we hoped for, but out of due diligence, we had the blood sample retested.

Greg also looked over the MVARS (mobile video audio recording system) tape, which showed our client traveling much faster than surrounding traffic, which was presumably moving at 65 miles per hour.  It also showed our client swerving a small amount as he exited the freeway.

After the third pre-trial hearing, the prosecuted advised us that our client’s blood had been further tested for the presence of certain controlled substances.  It had tested positive for amphetamine, caffeine, normorphine, pseudoephedrine and sertraline.  Most, if not all of these substances were ingested by our client pursuant to prescriptions for him, so they were not obtained illegally, but the issue was much more whether they were of such a quantity as to impair his driving.

Our office made an effort to resolve the case as a wet reckless to spare the client a conviction for DUI and the ignition interlock device requirement from the DMV, even offering to have the client attend the six-month alcohol awareness program (AB762), 200 Alcoholics Anonymous (AA) meetings and attendance at the Hospital and Morgue (HAM) program, something that is commonly only ordered in Los Angeles County (not in Orange County).  To such offers, the DA flatly stated, “here in Orange County, we don’t offer wets.”

However, despite this stubborn posture, the District Attorney declined to amend the complain to allege DUI while under the influence of alcohol and drugs, which was somewhat of a relief.

So, after six months of plea bargaining, reviewing discovery and discussions with the client, the case resolved for the same initial offer made by the prosecutor, except the 23152(a) charge (Count One) was dismissed.  With credit for two days in custody, our client still owed $1,074 dollars, or about $1,000 less than he would with no custody credit.

We offer this summary to exemplify how tough it is negotiating in Orange County and how a first-time DUI with excessive speed case can be resolved with no county jail.

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"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
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