Long Beach, 0.17% BAC, Plea to Three Month DUI Program

Our client was returning a full day of USC Football.  He had helped set up a high-end tailgate party, enjoyed the tailgate party, watched the game from the tailgate party, helped clean up after and was driving home.  Throughout the day, he had been drinking.
Without All the Details, What Happened?:  Long Beach DUI, 0.17% BAC, Driving Cargo Van and Swerving on Freeway, Case Resolved for DUI and 3 Month Alcohol Class, Minimum Fine, No Jail.
He had no prior criminal history.  He had a good job in marketing.  He was 39 years old and recently married.

As he was returning a cargo van that brought food and drinks to the tailgater, he transitioned from the south 110 (I-110) to the southbound 405 (I-405).  He had been awake for close to 20 hours, mostly dedicated to the tail gate.

As he was approaching the I-405/I-710 interchange a CHP officer allegedly noticed the van swerving from lane to lane.  Our client allegedly swerved first to the lane to his right, then back across two lanes to another lane to his left.  The officer quickly made a traffic stop.

The officer claimed that he immediately smelled the strong odor of alcohol upon approaching the van, even before seeing eye to eye with our client.  This odor, however, was partially because the van had bags filled with empty, yet open beer bottles and other liquor containers opened at the tailgater.  

The officer, however, never asked about this and attributed the entire smell to our client.  He also attributed our client’s red eyes to alcohol, without asking him how long he had been awake.  

Curiously, the officer had his MVARS tape (mobile video and audio recording system) operating, but he did not record our client’s weaving.  He only recorded our client’s performance on the field sobriety tests (FST’s), which our client truly did fail.  The officer then had our client provide a breath sample on the roadside into a preliminary alcohol screening (PAS) device.  Our client’s blood alcohol content (BAC) was measured at 0.17%.  He was then arrested and taken to the Long Beach Police Station.

Upon his release, the client immediately called up Greg Hill & Associates and met with Greg Hill the same day.  Greg listened to the client explain his driving and what happened.

What interested Greg most was the reason for the traffic stop.  When a driver makes a lane change that a police officer considers unsafe, it is usually described as a violation of Vehicle Code § 22108, which requires a driver to activate his or her vehicle’s turn signal for 100 feet prior to making a lane change.  Greg asked the client if the officer claimed our client affected the safety of any other car.  The client said the officer never said this.

The CHP report arrived about four weeks later.  Our office eagerly looked to see if the report claimed our client’s alleged swerving had affected any other cars.  The CHP report was silent in this regard.  

Greg was consequently able to argue that the holding in People v. Paul Carmona (2011 DJDAR 7744) applied.  In Carmona, a La Habra police officer pulled over Mr. Carmona for allegedly making a turn without using his turn signal, in violation of Vehicle Code § 22108.  The officer subsequently searched Carmona’s car and found methamphetamine.  Carmona was then arrested and charged with possession of a controlled substance, as well as other crimes.

Carmona challenged the traffic stop as being improper because his alleged unsafe turn did not give the officer probable cause to make the traffic stop.  The trial court denied the motion.  On appeal, however, the appellate court agreed with Carmona, dismissing the case.  In its ruling, the appellate court explained that for an officer to pull over a motorist for an unsafe turn, the officer must observe the turn affecting the safety of other drivers.  Since Carmona did not do that, the traffic stop was improper and all fruit from the poisonous tree of the unlawful stop had to be suppressed.

In our client’s case in Long Beach, Greg argued this with the Long Beach City Prosecutor, who dropped the plea bargain terms from a nine-month alcohol awareness program to a three month program if our client agreed not to file the motion to suppress.  The prosecutor also stated that if we filed the motion and the judge denied it, then she would restore the nine month alcohol program as part of a plea bargain.

Our client had a hard decision to make.  He knew that he was saving perhaps $1,000 by reducing his alcohol awareness program by six months, but he also understood that the motion seemed solid.

He decided to accept the improved offer in lieu of filing the motion, which was a practical decision.  He was happy to avoid the longer program and the increased expenses associated with it.

For more information about traffic stops based on improper lane changes, field sobriety tests and what to do if stopped for DUI, click on the following articles:
  1. Drug Evidence Suppressed When Police Improperly Stop Vehicle
  2. What Do DUI Field Sobriety Tests (FST’s) Actually Show?
  3. 10 Things to Do if Stopped for DUI
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