Third Time DUI, BAC 0.24%, No Driving, No File Metro Court

At 6:45 p.m. on a late July evening, our client, age 39, was found passed out in her parked white Toyota Corolla on South Ridgeley Avenue, a street that connects Washington Boulevard with Venice Boulevard.  The area is a residential neighborhood in the West Los Angeles / Culver City area. 

Our client’s car had major front end damage.  Offices apparently suspected our client had been involved in a collision and then stopped before losing consciousness for some reason.  Therefore, our client may have been involved in a hit and run.

According to the Los Angeles Police Department Officer who found our client, the car was running, perhaps for air conditioning, but the car was parked and the doors were locked.

Officers knocked on the window of the car, but our client did not respond.  Officers tried to rock the car, but this caused no response from our client either.

Finally, officers were about to break open the car window when our client awoke and, surprised by the officers surrounding her car.  She opened the door and stepped out when so instructed by police.

According to the LAPD report, our client emitted a strong odor of alcohol and had trouble standing up without leaning into her car.  The officer writing the report did not ask our client when she parked or even if she recalled being involved in a car accident.

Officers suspected she was drunk, but also were concerned she had suffered a head injury due to the collision her car’s front end suggested.  They consequently transported her to Kaiser West Los Angeles Hospital for evaluation.

Once at the hospital, the emergency room staff began to ask her questions about her status.  Our client explained that she had just stopped her car alongside the curb to nap and nothing more.  She refused to answer any questions regarding whether she had been drinking.  She denied any injuries or pain anywhere.

The officer then attempted to administer field sobriety tests of our client at the hospital, but our client was unable to perform any due to poor balance.  The officer then asked our client to submit to a preliminary alcohol screening (PAS) test and she refused.  She was then arrested for DUI and taken to the police station.

Once at the police station and perhaps two hours after officers first found her, she agreed to submit to a breath test.  The alcohol content (BAC) in her breath sample was measured at 0.243% and 0.229%, or roughly three times the legal limit.

The client was then held at the Pacific Division LAPD station for about 12 hours before being released.  When released, she signed a promise to appear in the Metropolitan Courthouse in about one month.

The client called Greg Hill & Associates about three days later, based on the recommendation of a friend.  The client explained what had happened and Greg rather quickly realized that there was a “no driving” defense.  Greg explained that under Mercer v. DMV (1991) 53 Cal. 3d 753, driving for purposes of DUI requires “volitional movement of the vehicle.”  If the officers did not see our client moving the vehicle, this case could not be a DUI regardless of what our client’s BAC was and regardless of whether police found her seated behind the driver’s wheel in a car with the motor running.  There still was no evidence of volitional movement.

Since the police did not ask our client when she last drove, there was no other evidence of driving. 

The client then retained Greg Hill & Associates for what would have been her third DUI within ten years.  Greg promptly wrote a letter to the Los Angeles City Attorney’s Office suggesting that the case be rejected for filing, as there was no evidence of driving under Mercer, supra.

Our office received no response to the letter, which was not unusual.  However, when Greg appeared in the Metropolitan Courthouse for our client’s arraignment.  The case was rejected for filing.  This made our client very much relieved, as a conviction for a third DUI requires a minimum of 120 days in county jail.

In closing, we just state that we cannot attribute the decision to reject the case for filing to our letter.  The Los Angeles City Attorney’s office may have reached the same conclusion independently and with no consideration of our letter.

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