Signal Hill Arrest, Client Age 24, 0.10% BAC, Wet Reckless

It was about 1:40 a.m. on a warm June Sunday morning.  Our client and his girlfriend had gone out to dinner and they each had a few drinks.

Our client, age 24, was an electrician.  He worked enormous hours, but was paid well for his hard work.  He had recently purchased an Audi A3 and was proud of his car.

Our client and his girlfriend did not get along that evening.  The two argued non-stop and when our client dropped off his girlfriend back at her house, the two continued to argue.  Our client had meant to just come to a very short stop at his girlfriend’s place, so he did not pull over right next to the curb.  He was about thirty-six inches away from the curb.

A Signal Hill police officer was passing by the location, near the intersection of Walnut Avenue and East 29t Street.  He observed our client’s car, with its front passenger door open and our client’s girlfriend leaning into the car.  They also observed our client in the driver’s seat.

The officers stopped their car and advised our client to move his car out of the traffic lane for his safety.  The officers did not note in the report whether the car engine was running or not.  The officers did not say whether the car’s ignition was in park or drive.  The officers also did not report if the hood was warm to the touch, suggesting the car had been recently driven.

They allegedly detected the odor of alcohol, which could have been from our client or his girlfriend.  Our client admitted that he had consumed some alcohol earlier in the evening at a restaurant.  The officers did not ask when he left the restaurant or even when he stopped driving before stopping along East 29th Street.

The officers then arrested our client, who is African American, and took him to the Signal Hill police station.  At the station, our clint submitted to a breath test, which measured his blood alcohol content (BAC) in his breath at 0.10% twice.  

Before being released from the station, our client signed a promise to appear in the Long Beach Courthouse in about two months.

When he got home from jail, he called Greg Hill & Associates based on a recommendation from a friend.  The client discussed the case facts with Greg Hill.

Greg explained that there may be a “no driving” defense under Mercer v. DMV (1991) 53 Cal. 3d 753, holding that for the DMV to find a person drove a vehicle, the officer must observe that the person imparted some type of “volitional movement” of the vehicle, either by turning a steering wheel, accelerating the car, or using the brakes to slow down a car.  Greg explained that this may allow our client to keep his driving privileges at the DMV Hearing, which our office reserved for the client.

The client in fact did “win” at the DMV Hearing, which was about two months later, so the client kept his driving privileges.

Greg explained that with a 0.10% BAC, resolving the court case as a “wet reckless” would be unlikely because his BAC was just too far above 0.08%, the legal limit for a DUI.  However, Greg promised the client he would try his best.

The case ultimately did resolve in the Long Beach Superior Court as a “wet reckless,” meaning the District Attorney’s Office amended the complaint to add a count three, a violation of Vehicle Code § 23103 pursuant to Vehicle Code § 23103.5.  This came after nine months of negotiating with the District Attorney’s office and pointing out all the shortfalls with the police report as noted above.

The terms were what is referred to as a “heavy wet,” meaning while our client did enjoy just one year of informal (summary) probation, in contrast to three years as is required in a DUI, the client otherwise was placed on probation with an obligation to enroll in and complete the three month alcohol awareness program (the AB 541 program); to pay a $390 court fee and fine (not $150 as is common in wet reckless resolutions otherwise); to attend the Mothers Against Drunk Driving (MADD) victim impact panel; and to perform 50 hours of approved community service.

The client was happy with this resolution, as he would not suffer a driver’s license suspension due to the conviction, as would happen with a DUI conviction, so his work as an electrician would not suffer.