Set Aside (DMV Win), No Driving Defense, Culver City

On a late July morning in 2023, our client. age 39, was stopped in her car, using her rear view mirror to put on make-up, while playing loud music in her car.  Her car was located at a stop sign, but her car was partially blocking through traffic.  Apparently, about three feet of the left side of her car was in the traffic lane and the other five feet or so of the right side of her car was in a parking lane.

Apparently, while she was partially impeding traffic, another person called 911 to report our client obstructing traffic.  While calling 911 to report someone putting on makeup would seem like a misuse of the 911 system, Culver City Police Department officers responded to the location reported and found our client still stopped at the stop sign. 

Our client was found “dancing in her car” to the loud music in her car, as the police report described her.  Officers tapped on her window to get her attention.  When officers finally got our client’s attention, she assumed that they wanted her to move her car over to remove it as an obstruction to other through traffic, so she started the engine and put the car in drive.  The police reported that officers then banged on her car, telling her to turn the car off.

In other words, our client was found in a car with its ignition off and just listening to the radio, but partially blocking through traffic.

Our client was then ordered to get out of her car and she did.  The police report stated that officers then detected the “strong odor of alcohol” and that our client “had trouble standing up and had to lean into her car to not fall over.” 

Officers asked our client if she had been drinking and she denied drinking at all.  She was then arrested and taken to the Culver City Police Department.

The officers did not ask our client when she last drove and did not feel the hood of the car to see if it was warm, which would suggest the car had been recently driven. 

Once at the station, our client submitted to a breath test, which measured her ethanol content in her breath at 0.263% and 0.267% blood alcohol content (BAC). 

Our client was then held at the police station for about twelve hours until she seemed to sober up.  She was released on her own recognizance after signing a promise to appear in the Metropolitan Courthouse in about six weeks.

The client then called up Greg Hill & Associates and spoke to Greg.  The client described what had happened.  The client asked what would happen to her in court and at the DMV Hearing.  This was our client’s second arrest for DUI in three weeks, so she had another DUI that had not been filed yet.

Greg then described the minimum and maximum punishment for a second-time DUI, as well as the license suspension applicable after a second-time DUI conviction and losing at the DMV on a second-time DUI.

Greg then discussed the defenses that might apply both in court and at the DMV.  Greg explained that the time of our client’s last driving would be an issue, so it would be important to know when the alleged 911 calls were made reporting our client as stopped at the stop sign, obstructing or impeding traffic.  This was important because unless a time of driving is established, the blood alcohol content of her breath is meaningless because the presumption of Vehicle Code § 23152(b) that such a BAC was the same as when the person was driving would not apply unless the time of driving was within three hours of the test.

Second, Greg explained that a “no driving” defense might apply.  This would possibly be available 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 explained that the term “drive” for purposes of DUI was different 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.”

At the client’s DMV hearing, the police report and the DS-367 were silent as to when our client last drove and any evidence of our client causing “volitional movement” of her car, so Greg argued that a set aside was proper.

The DMV agreed and reinstated our client’s driving privileges, which made our client very happy.