Hermosa Beach, 0.13% BAC, Plea Bargain to Wet Reckless

Our client was driving home on Pacific Coast Highway after an afternoon get together with friends.  He had drank a few glasses of wine, but felt fine.  As he drove north on PCH, a police officer pulled alongside him and allegedly saw our client driving without his seatbelt fastened.
Synopsis:  Hermosa Beach, 0.13% BAC taken one hour after arrest, resolved for wet reckless (Vehicle Code § 23103).
The Hermosa Beach officer then pulled over our client and immediately began to berate our client for not wearing his seatbelt.  Our client did not appreciate the yelling and asked the officer to lower his voice.

At this point, the officer decided to arrest our client for DUI so he proceeded to badger our client about whether he had been drinking.  Our client, without evading any of his questions, answered each truthfully, but the officer insisted our client was lying.  Our client then volunteered to undergo the field sobriety tests.  The officer quickly accepted this invitation and, perhaps not surprisingly, wrote on his report that our client failed all the tests.

The officer then drove our client to the Hermosa Beach Police Station and immediately had our client provide a breath sample.  This rush to provide a test meant the officer failed to comply with section 1219.3 of Title 17 of the California code which obligates the officer administering the breath test to continuously observe the subject for 15 minutes prior to the test, during which time the subject must not vomit, smoke, drink, burp or eat.  This requirement is meant to assure that the subject’s breath is free from any substance that might interfere with the alcohol content of his or her breath.  It is also a requirement set by the manufacturer of the breath machine.

The officer obviously failed this requirement, as while he was driving and looking forward, he could not have continuously observed our client behind him.  Indeed, throughout the arrest and the ride to the police station, our client was burping continuously, as he suffered from GERD, which caused him to continually discharge stomach gas out his mouth.

Our client then provided his breath sample, which read a BAC of 0.13%.  Had he given his BAC at the scene, it is likely that , due to the passage of time, his BAC would have been higher, perhaps as high at 0.15%.

When advised of the officer’s improper procedures in eliciting a breath sample, the Hermosa Beach City Prosecutor correctly responded that such problems do not make the results inadmissible.  However, he acknowledged that the poor protocol did go toward the weight that a jury would be free to give – less we would argue – and that therefore this case could be resolved as a wet reckless.

Our client accepted the plea bargain offered, relieved that he had avoided a conviction for DUI.  More importantly for him, by avoiding a DUI, he avoided the DMV’s requirement that he install an ignition interlock device on his car, which would have been a significant problem for him since he regularly drove in his car with clients.

For more information about the issues in this case, click on the following articles:
  1. Why Is a “Wet Reckless” Better Than a DUI?
  2. Was There a Bad Cop on Your Case? What Is a Pitchess Motion?
  3. What Is GERD and How Does It Affect DUI?
Watch our video about DUI by clicking here.
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