Fountain Valley, 0.13%, Client Going 88 MPH on Freeway

Our client, age 21, was arrested after a California Highway Patrol supposedly witnessed him traveling 88 miles per hour in a 55 mile per hour zone along the 405 Freeway in Fountain Valley.  The officer also stated that our client was swerving all over the road.

Upon being pulled over, our client was allegedly uncooperative with the CHP officer, although he did consent to a PAS (Preliminary Alcohol Screening) test at the roadside where he was pulled over.  On this test, which was done after the police officer observed our client for less than the required fifteen minutes, his breath apparently showed a 0.12% blood alcohol content (BAC).  Under Section 1219.3 of Title 17 of the California Code and Sandra Molenda v. DMV (2009) 172 Cal.App.4th 974, this test cannot be performed until the officer has observed the subject for fifteen continuous minutes to ensure the breath sample is not contaminated by vomit, smoking or drinking of any sort.

Our client also opted to have his blood tested, so the CHP officer took our client to the Orange County Jail, where our client provided a blood sample.

Despite clear required protocol concerning a chain of custody for the blood sample (see Bullcoming v. New Mexico (2011) 131 S. Ct. 2705), the Orange County Crime lab failed to show the sample’s whereabouts from the time the sample was given until the time it was tested several days later.  Section 1219.1 of Title 17 of the California Code of Regulations states that, "Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and handled in a manner approved by the Department. The identity and integrity of the [California DUI blood] samples shall be maintained through collection to analysis and reporting."  Title 17 includes in its appendix a sample chain of custody that many Orange County police agencies have incorporated into their blood sample handling protocol.

The Westminster District Attorney handling this case wanted to enhance all punishment for our client because of the speeding and swerving circumstances.  The initial offer was way beyond the statutory minimums normally offered to a first time DUI.  The DA said he wanted “to send a message to this kid.”

Greg Hill of Greg Hill & Associates pointed out the problems with the CHP officer’s administration of the PAS test, as well as the chain of custody problems with the blood test.   Greg even brought a sample chain of custody form from another Orange County case to show an example of how the chain of custody is supposed to be maintained and gave a copy to the young District Attorney for his file. 

After several appearances in the Westminster court and a letter to the young DA’s supervisor concerning the case, the DA agreed to reduce his offer to the minimum offer for an uneventful, cooperative, first-time DUI.  Our client accepted.  This offer included a three month DUI class, a $390 fine, plus penalties and assessments and attendance at one session of MADD, as well as being on summary probation for 36 months.

For more information about why what are the differences between a first-time DUI and a wet reckless, as well as why a chain of custody for the blood is important, click on the following articles:
  1. What Punishment Do I Face for a First Time DUI?
  2. Why Is a “Wet Reckless” Better Than a DUI?
  3. Those Accused Of DUI in California Will Benefit from the U.S. Supreme Court Recently Declining to Create a “Forensic Evidence Hearsay Exception”
Watch our video about DUI by clicking here.
 
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