Signal Hill, No Driving, No Time of Driving, DMV Set Aside

Our client, age 24, and his girlfriend were driving home to their apartment in Signal Hill and began arguing.  The two had been out to dinner and drinking.

The argument got heated enough that our client pulled off Walnut Avenue and turned onto eastbound 29th Street, a residential street.  He then pulled over to the side of the road and stopped the car.  It was about 1:30 a.m.  It was a warm early June evening.

Our client’s girlfriend, upset, opened up her car door and stepped out, walking away in anger.  Our client decided not to chase her or try to coax her back into his car.

Instead, he sat in his car, just puzzled and frustrated.  He lost track of time, but quickly snapped back into realizing what was happening when he spotted the flashing blue and pink overhead lights of a Signal Hill police car behind him, with their floodlight pointed at his car.

Our client was confused why the police were stopped behind him.

The police immediately asked our client why he was parked where he was and told him his position was too far away from the curb.  They claimed his car was thirty-six inches away from the car.  Our client then explained what led him to park where he was and how he was concerned about his girlfriend’s safety.

Police ignored our client’s concern for his girlfriend and instead focused on the odor of alcohol they allegedly smelled in our client’s breath.  Our client told the officers that he had been out to dinner with his girlfriend and that during dinner, he had two beers.

The officers asked our client to submit to a preliminary alcohol screening (PAS) test and he agreed.  The ethanol content in his breath was measured at 0.106% and 0.116% and officers immediately arrested our client.

He was then taken to the Signal Hill Police Station and submitted to a further breath test there, during which his breath alcohol content was measured at 0.10% twice.

Our client was then held for several hours before being released after he signed a promise to appear in the Long Beach Superior Court for his arraignment in about three months.

The client immediately called up Greg Hill & Associates and talked with Greg Hill.  The client explained what had happened and Greg told the client that the case would not be filed because there was no proof of the client driving, which under California law must be an observation of the client imparting “volitional control over the vehicle,” meaning steering the car, accelerating or braking the vehicle while it was moving.  Mercer v. DMV (1991) 53 Cal. 3d 753.

Greg Hill & Associates then reserved a DMV Hearing for the client and demanded a copy of the police report, the DS-367 and the dispatch log from the DMV.

When such documents arrived, Greg was pleased to see on page one of the DS-367, where it is asked “What time did you stop driving or how long after driving / collision did you wait for law enforcement to arrive?”  The answer was blank.

Moreover, the police report contained no information about a 911 call that alerted the officers to the client.  The police report also did not describe the car keys as being in the ignition or out, or whether our client even had such keys (in his pocket, for example).  The police report also did not describe the hood of the car as warm, to suggest our client recently drove. 

The police never even asked our client when he last drove or even when he left the restaurant.

At the DMV Hearing, Greg objected to the Signal Hill Police Department report and the DS-367 as being irrelevant without any description of our client driving and without any information about when our client last drove.  This meant driving could not be established by the DMV and the blood alcohol content (BAC) measurements were not established as being elicited within three hours of when our client last drove (so that the presumption under Vehicle Code § 23152(b) applied).

The DMV agreed and set aside the suspension of our client’s driving privileges.

The criminal case was also rejected for filing.

Our client was very happy with these outcomes.

For more information about DMV Hearing issues, please click on the following articles: