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Single Vehicle DUI Accident in Manhattan Beach, DMV Win
Our client, age 49, was driving his Volkswagen ID.4 south along Pacific Coast Highway to home in Torrance after a work-related happy hour in El Segundo. It was about 9:15 p.m.
A witness to our client’s driving described him as traveling at “about 90 miles per hour” as he approached the intersection of Pacific Coast Highway and Longfellow, just past the Skechers’ corporate offices. Due to construction in the area, the slow lane (rightmost) was blocked off and a flashing sign warned approaching motorists to merge to the left.
Our client slammed into the sign (weighing several hundred pounds) and spun around, coming to rest just before his car would have been totaled by a cement wall.
According to another witness in the area, our client emerged from his car and ran away, as if pretending to be out for a casual evening jog.
Officers from the Manhattan Beach Police Department responded to the scene and located our client as he jogged back toward the accident scene, pretending to be out on a run.
By this time, well over two hours had passed since the client last drove and he was taken to the hospital, where he agreed to submit to a blood test. The blood was drawn at 00:22, or more than three hours after several witnesses had seen the client crash. Our client’s blood alcohol content (BAC) was measured at 0.164% and 0.161%.
After our client had been released from jail, he called our office and described his car accident and his arrest for DUI, his second. He had many questions about how the process worked and this initial phone conversation took close to two hours.
One of the topics discussed was the DMV hearing and how it proceeded.
The client retained Greg Hill & Associates and Greg then appeared for the DMV Hearing, which proceeded telephonically only (not in person) due to continuing COVID-19 protocol.
At the hearing, Greg first objected to admission of the Age 21 and Older Officer's Statement (also called the DS-367). Greg objected to this document as being hearsay (Evidence Code section 1200) and containing double hearsay (McNary v. DMV (1996) 45 Cal. App. 4th 688) because the author of the document quoted a lay witness, who was not a police officer trained in observation and description techniques.
And for the police officer to note our client had an unsteady gait after a major traffic collision was just meaningless, bordering on police negligence or misleading.
Greg also objected to the Traffic Collision Report as being hearsay, as it was an out-of-court statement being offered for the truth of the matters stated therein. Normally, it would be admissible under Government Code section 11513 if it was otherwise not subject to other objections, which here exist, such as foundation (Evidence Code section 1400). It was also inadmissible as an official government records under Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. It was also not signed under penalty of perjury.
As to the Los Angeles Sheriff's Department Blood Alcohol Records, Greg objected on foundation grounds. The DMV did not establish a chain of custody for the blood sample to show that the blood tested was actually from our client (authentication). Under Title 17, such a chain of custody must be established. See also Bullcomings v. New Mexico (2011) 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610. The result was not hearsay (because the blood machine cannot be cross-examined because it cannot talk!) that would be admissible under Government Code 11513 and it cannot be admitted as an official government record without authentication from a government worker. Moreover, it was prepared for purposes of litigation, so it inadmissible under Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.
Second, Greg argued that the results were not legally relevant because the blood was drawn more than three hours after our client last drove because the collision time was noted as before 0021 in six places as follows: on page one of the traffic collision report, on page five of the same report, in the summary of two witness statements and in the officer’s description of his review of two store security camera videos from nearby businesses that recorded the collision.
Moving forward, the hearing then progressed to the three issues for a DMV hearing. Greg agreed that a preponderance of the evidence established that the arresting officer had reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153 (issue one) and that he was lawfully arrested (issue two).
However, as to issue three, whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight, Greg argued the answer had to be no because no evidence showed the presumption of Vehicle Code section 23152(b) applied to permit the DMV to regard the BAC as the client’s BAC when driving because nothing showed our client was driving within three hours of the blood draw.
A witness to our client’s driving described him as traveling at “about 90 miles per hour” as he approached the intersection of Pacific Coast Highway and Longfellow, just past the Skechers’ corporate offices. Due to construction in the area, the slow lane (rightmost) was blocked off and a flashing sign warned approaching motorists to merge to the left.
Our client slammed into the sign (weighing several hundred pounds) and spun around, coming to rest just before his car would have been totaled by a cement wall.
According to another witness in the area, our client emerged from his car and ran away, as if pretending to be out for a casual evening jog.
Officers from the Manhattan Beach Police Department responded to the scene and located our client as he jogged back toward the accident scene, pretending to be out on a run.
By this time, well over two hours had passed since the client last drove and he was taken to the hospital, where he agreed to submit to a blood test. The blood was drawn at 00:22, or more than three hours after several witnesses had seen the client crash. Our client’s blood alcohol content (BAC) was measured at 0.164% and 0.161%.
After our client had been released from jail, he called our office and described his car accident and his arrest for DUI, his second. He had many questions about how the process worked and this initial phone conversation took close to two hours.
One of the topics discussed was the DMV hearing and how it proceeded.
The client retained Greg Hill & Associates and Greg then appeared for the DMV Hearing, which proceeded telephonically only (not in person) due to continuing COVID-19 protocol.
At the hearing, Greg first objected to admission of the Age 21 and Older Officer's Statement (also called the DS-367). Greg objected to this document as being hearsay (Evidence Code section 1200) and containing double hearsay (McNary v. DMV (1996) 45 Cal. App. 4th 688) because the author of the document quoted a lay witness, who was not a police officer trained in observation and description techniques.
Greg also objected on relevance grounds (Evidence Code section 400) because it contained no objective signs of intoxication that were reliable. The odor of alcohol only indicates one drank alcohol, but is unrelated to one’s BAC.
Moreover, our client’s eyes were watery because he was crying due to being arrested, not due to alcohol consumption. Bernice Espinoza v. Jean Shiomoto (2017) 10 Cal. App. 5th 85, 215 Cal. Rptr. 3d 807 states that there can be multiple causes of the "objective signs of intoxication" and that intoxication is an improper conclusion to make since such "signs" can have causes other than intoxication by alcohol or drugs.
And for the police officer to note our client had an unsteady gait after a major traffic collision was just meaningless, bordering on police negligence or misleading.
Greg also objected to the Traffic Collision Report as being hearsay, as it was an out-of-court statement being offered for the truth of the matters stated therein. Normally, it would be admissible under Government Code section 11513 if it was otherwise not subject to other objections, which here exist, such as foundation (Evidence Code section 1400). It was also inadmissible as an official government records under Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. It was also not signed under penalty of perjury.
As to the Los Angeles Sheriff's Department Blood Alcohol Records, Greg objected on foundation grounds. The DMV did not establish a chain of custody for the blood sample to show that the blood tested was actually from our client (authentication). Under Title 17, such a chain of custody must be established. See also Bullcomings v. New Mexico (2011) 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610. The result was not hearsay (because the blood machine cannot be cross-examined because it cannot talk!) that would be admissible under Government Code 11513 and it cannot be admitted as an official government record without authentication from a government worker. Moreover, it was prepared for purposes of litigation, so it inadmissible under Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.
Second, Greg argued that the results were not legally relevant because the blood was drawn more than three hours after our client last drove because the collision time was noted as before 0021 in six places as follows: on page one of the traffic collision report, on page five of the same report, in the summary of two witness statements and in the officer’s description of his review of two store security camera videos from nearby businesses that recorded the collision.
Moving forward, the hearing then progressed to the three issues for a DMV hearing. Greg agreed that a preponderance of the evidence established that the arresting officer had reasonable suspicion that our client was driving a motor vehicle in violation of Vehicle Code section 23152 or 23153 (issue one) and that he was lawfully arrested (issue two).
However, as to issue three, whether our client was driving a motor vehicle with a BAC of 0.08% or higher by weight, Greg argued the answer had to be no because no evidence showed the presumption of Vehicle Code section 23152(b) applied to permit the DMV to regard the BAC as the client’s BAC when driving because nothing showed our client was driving within three hours of the blood draw.
Based on this, Greg requested that the DMV set aside the suspension of our client’s driving privileges and reinstate his license. The DMV agreed in a ruling issued about two weeks later. Our client was very happy.
For more information about DMV hearing issues, please click on the following articles:
