Long Beach, Car Accident, 0.21% BAC, Set Aside at DMV

Our client, age 32, went over to his friend’s house in Long Beach to meet with a few other friends and enjoy an NBA game on television.  Everyone brought some beer or hard cider and the group ordered pizza.

After the game ended, everyone lingered at house while continuing to drink into the early morning hours.  According to our client, he was not too sure what really happened because at some point, he blacked out.

However, at 4:22 a.m., he awoke to a tapping on his driver’s side window of his BMW M3, which had stopped next to a tree in the front yard of a home three doors away from his friend’s home.  Police had been called to the location based on a 911 call from a resident about 100 yards away.  The call was ambiguous as to when the call was received and what the caller observed, or perhaps only heard.

The client’s car ignition was off and our client could not exit his car due to damage to his driver’s side door.  He exited his car, consequently, through his front passenger-side door.  Our client was not injured.  He admitted to officers to drinking “too much,” but officers strangely did not ask him if he was driving, did not state in their report if he had car keys in his pocket or in the ignition and did not state if the hood of the car was warm (suggesting it was recently operating).

Our client then refused to submit to a breath sample with a portable alcohol screening (PAS) device.  The client also refused to perform any field sobriety tests and was then arrested.  This was our client’s first DUI and first criminal case.  He had a good job, so this arrest was tremendously worrisome.

Once at the Long Beach Police Department station, our client submitted to a breath test, which measured his breath at a blood alcohol content (BAC) at 0.213% and 0.218%. 

The client was held at the police station for about ten hours before being released.  When he finally was released, he signed a promise to appear in the Long Beach Courthouse in about three months.

A few days later, the client called Greg Hill & Associates and explained what had happened.  The client, at this time, did not know what his breath’s blood alcohol content measurement had been, but commented that he thought it would be well above the legal limit.

The client asked Greg what he thought would happen both in court and at the DMV Hearing. 

As to the DMV Hearing, Greg commented that in general, single-vehicle car accidents can present facts that allow a “no driving” defense if no one saw the suspect driving the car, which is defined as causing “volitional movement of the vehicle” as required by Mercer v. DMV (1991) 53 Cal. 3d 753, 271 Cal. Rptr. 885. 

In Mercer, the California Supreme Court distinguished the term “drive” for purposes of DUI from the term “driver” in Vehicle Code § 305, as used in various regulatory offenses (i.e., driving with expired registration, driving without insurance, driving without a valid license or with a suspended license).  The Court explained that “drive” in the context of DUI required that defendant cause “volitional movement of the vehicle.”

Solo vehicle DUI accident police reports often also omit the time of the accident because the driver passes out and has no idea what time it is when this takes place.  Police officers also often do not ask the driver.  This may render the breath or blood test meaningless because under California Vehicle Code § 23152(b), such a measurement must be within three hours of when the suspect last drove to be presumed to be the same as when the suspect last drove.

In this case, both of these issues helped our client.  The 911 call did not report seeing our client actually causing “volitional movement of the car,” i.e., steering or braking the car.  Our client also did not admit to driving the car and the police did not note if the car keys were in the ignition or if the car was even running. 

Similarly, the police report did not state when our client last drove or crashed.  The officer also did not ask our client any questions in this regard.  The report also did not describe the hood of the car as warm.

Therefore, at the DMV hearing, Greg argued a “no driving defense” and that even if one could assume our client drove the car, there was no evidence establishing the time of last driving.

The DMV agreed and set aside the driver’s license suspension.  Our client was very happy.