Our client, age 54, went on a short vacation of wine-tasting with his wife in the Murrieta vineyards. He had never been arrested in his life. He had a good job as an executive with a national corporation that involved significant travel each week. His two children had already graduated from college. This vacation was hard-earned. He deserved it.
As he was returning with his wife from the vineyards to their hotel, traffic became congested. A driver in front of him slowed suddenly, causing our client to also slow suddenly.
A police officer about 100 yards behind noticed this back up and immediately made a traffic stop of our client. Upon making contact with him, he smelled the odor of alcohol coming from inside the car. Our client’s wife had drank considerably more than our client, but the officer attributed the odor entirely to our client. So the officer proceeded to ask our client to submit to an Evidentiary Preliminary Alcohol Screening (EPAS) breath test.
An EPAS is a device rarely used in Los Angeles or Orange County. It is similar to a portable PAS that is commonly used at the roadside in Los Angeles and Orange County as a field sobriety test only. PAS results are usually inadmissible in court.
The EPAS results, however, may be used in court as evidence because the device is of higher reliability and the suspect usually signs a consent form to have his breath sample not saved for retesting. This permission is called a Trombetta waiver (California v. Trombetta (1984) 467 U.S. 479, 104 S. Ct. 2528).
What to Take Away: First-time DUI for client, age 54. Arrested as he left wine-tasting at a Murrieta vineyard. 0.13% BAC; resolved for a wet reckless (Vehicle Code § 23103 pursuant to § 23103.5).
In our case, the arresting officer administered the EPAS test without waiting the required fifteen minutes and without securing a Trombetta
waiver. Our client, however, registered a 0.13% BAC, which is more than one and a half times the legal limit.
The client was then arrested and spent the night in the Murrieta jail, which was quite traumatic for a 54 year old man with no prior record. He was subsequently charged in the Murrieta Superior Court with a violation of California Vehicle Code § 23152(a) (“Driving Under the Influence of Alcohol or Drugs, or Both”) and California Vehicle Code § 23152(b) (“Driving with a BAC of 0.08% or higher”).
The client then retained Greg Hill & Associates. He came to our office and explained to Greg what had happened on his vacation. Greg listened to the client and explained how the Murrieta District Attorney’s office has a “standard first offer” for any person charged with DUI for the first time with a BAC of 0.15% or lower. This offer mandated six days in the Riverside County Jail. Greg explained that in the past, he had been able to then plea bargain more favorable terms for his clients there, but it was often difficult and time consuming.Murrieta Courthouse
Greg Hill then appeared on behalf of the client in the Murrieta Superior Court. He negotiated with the handling District Attorney and, later, with the head district attorney.
Finally, after several months, the head DA agreed to resolve the DUI with a reduced offer of a “wet reckless” (Vehicle Code § 23103) and a dismissal of the DUI charges. The police officer’s failure to properly follow the EPAS procedures did not mean the case would be dismissed or dropped, but it allowed the jury to assign less weight to the results, which worried the DA. Moreover, the DA understood that the client had no prior criminal history and was an otherwise upstanding, solid citizen who simply had a lapse in his normally better judgment.
The Client was happy with this result, as he avoided a DUI and the problems with driving in Canada that a DUI caused with renting a car there. Due to his work demands, he often traveled to Canada, so this was a great relief.
For more information about a wet reckless and, in general, a traffic stop for DUI, click on the following articles:
- Why Is a “Wet Reckless” Better Than a DUI?
- What Happens If Police Say I Refused a Breath or Blood Test?
- 10 Things to Do If Police Stop You for DUI
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