El Segundo, Second Time DUI, Driving Wrong Way on Road

Our client, age 29 and living outside California, was charged with one count of driving under the influence of alcohol (Vehicle Code Section 23152(a)), a misdemeanor, and one count of violation of driving while having a 0.08% or higher blood alcohol level (Vehicle Code Section 23152(b)) after an officer noticed him driving literally less than five feet in the wrong direction on a divided road in El Segundo. Our client was staying at a hotel nearby for business and was unfamiliar with the local roads.  In other words, the driving error had absolutely nothing to do with impairment due to alcohol consumption.  He would have made the same error if entirely sober.
Summary:   El Segundo, second-time DUI, driving wrong way on Sepulveda Blvd., negotiated for minimum terms.
It was our client’s second DUI in the last five years.

Our client was intending to go to the local mini-mart to get some Pepto-Bismol for an upset stomach that was causing him to burp continuously.  This is significant because in certain individuals, acid reflux disease or GERD (gastroesophageal reflux disease) can elevate the quantity of alcohol in a breath sample significantly above the blood alcohol concentration, leading to an inaccurate breath sample reading. 

The officer who stopped him immediately began asking him about drinking.  Our client admitted to having had “a few drinks.”  The overzealous officer then administered several field sobriety tests, including a portable alcohol screening (PAS) test.  Our client gave a breath sample at the arrest location that indicated a 0.10% blood alcohol content (BAC).  He then submitted to a second PAS test at the police station which recorded the same BAC.

The first issue was whether the officer administered the PAS test too soon, as the police report was silent as to when the officer actually began observing our client.  An officer must observe the suspect for fifteen minutes before giving the test (see People v. Sandra Molenda (2009)).  The second issue was whether the PAS readings were accurate due to our client’s burping during the test.

As this was a second time DUI, the Airport Courthouse prosecutors were extremely callous and unsympathetic to our arguments.  Greg Hill of our office appeared NINE TIMES in court over seven months, filing a Motion to Suppress the Evidence and pushing the case all the way to trial.  Greg Hill went to each District Attorney’s supervisor, and then the supervisors’ supervisor, eventually negotiating with the Airport Courthouse’s highest ranking district attorney.  He also sought to plead in the open to the judge handling the case.  Everyone was deaf to the premature PAS test issue as well as the acid-reflux issues elevating the breath alcohol level.

In the end, our client accepted the plea bargain offered rather than face the penalties that might follow if he were convicted at trial.  The deal offered was the minimum for a second time offender, but not the “first time offender” deal or wet reckless that our office sought for our client.  The client was disappointed, but satisfied that we tried everything possible to get him justice.

For more information about GERD and suppression motions, click on the following articles:
  1. What Is GERD and How Does It Affect DUI?
  2. Traffic Stop Ruled Improper and Evidence Seized by Police Suppressed When Officer Lacked Reasonable Suspicion to Stop Driver
  3. What Punishment Do I Face for a Second-Time DUI?
Watch our video about DUI by clicking here.
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