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Palos Verdes Estates, Rising BAC, 0.14% BAC, Wet Reckless

Our client, a bouncer in a Hermosa Beach bar, had visited Terranea with co-workers and friends. It was a warm summer day. They had sat outside and enjoyed a few drinks. It was nice to be a customer and enjoying a bar, rather than working it as they were used to doing.

In 50 Words or Less:  DUI arrest in Palos Verdes Estates, client gives a breath sample measured at 0.14% BAC, but we show he had a rising BAC and case resolved in Torrance Court as a wet reckless.

As our client was returning home to Hermosa Beach, he drove north from Terranea along Palos Verdes Drive West, going from Rancho Palos Verdes into Palos Verdes Estates. As he headed into the Lunada Bay section of Palos Verdes Estates, he was travelling about 35 miles per hour, which is the speed limit. He was unfamiliar with the area.

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As he approached the stop sign at Paseo Lunado, it surprised him because it is positioned just over a rise in the road. He did come to a full stop, but it was only after his front tires had passed the white line indicating where to stop. As luck would have it, a Palos Verdes Estates Police Officer was sitting in his car about twenty feet away, watching every car stop, apparently in order to pull over anyone who did not stop behind the line.

The police officer then pulled over our client.

Our client’s front seat passenger was a rough looking guy with many tattoos, including on his neck and face. The police focused on our client’s passenger first, rather than even telling our client what the traffic stop was even for. The police asked the passenger if he was on parole, if he was on probation, why he was in the neighborhood, if they could search his pockets, etc.

The police then turned to our client, who did smell of alcohol. When the passenger turned out to be simply a guy with a lot of tattoos, rather than anyone on parole, or probation or with any warrants, the police told our client that they stopped him because he came to a stop too suddenly. They then explained that it was because he stopped past the limit line. Then they said he was speeding.

Torrance CourthouseTorrance Courthouse

Our client was respectful and cooperative with the police, but appreciated the pre-textual nature of the stop. Our client then submitted to a breath test at the side of the road. His breath measured 0.10% at a time about 45 minutes after he stopped driving.

The client was then arrested and taken to the police station. After he was booked and processed, he submitted to a further breath test at the station, about 40 more minutes after his first breath test at the side of the road. At this time, instead of his BAC dropping to .08% or 0.09%, as one would expect with the metabolism of ethanol, his BAC had risen to 0.14%.

This unusual rise in the BAC suggested that when he was last driving, if the same rate of increase had been steady, that his BAC was below 0.08% when he last drove, or when the police officer pulled him over. The concept is called reverse extrapolation in a mathematical, academic context.

The client retained Greg Hill & Associates. Greg listened to the client explain the traffic stop and how he thought he was stopped just for his passenger’s appearance.

More interesting to Greg, however, was the rising BAC issue. Greg explained this issue to the Torrance District Attorney handling the case, who agreed that while a 0.14% BAC is not normally a candidate for a wet reckless, she would offer such a plea bargain under these facts.

This meant that the DUI was dismissed and our client instead entered a plea to reckless driving (Vehicle Code § 23103). He would avoid the conviction for DUI, which meant he would avoid the DMV’s requirement that he install an ignition interlock device (IID). This was a big relief for him, as he did a great deal of driving and having an IID is rather expensive.

For more information about the issues in this DUI case, please click on the following articles:

  1. Traffic Stop Ruled Improper and Evidence Seized by Police Suppressed When Officer Lacked Reasonable Suspicion to Stop Driver
  2. Why Is a “Wet Reckless” Better Than a DUI?
  3. What Punishment Do I Face For a First-Time DUI?
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