Westminster, Hit and Run, BAC 0.16%, Set Aside at DMV

Our client, a 29 year old schoolteacher, was returning to her home in Westminster after a night out with friends at Fred’s Bar in Laguna Niguel.  It was mid-June, after school had ended for a summer break, but before summer school started.  It was only about 9:15 p.m.

Our client told police later that she had consumed two beers in the afternoon, then two mixed “Rainbow” drinks with her friends and a glass of wine. 

As she was driving home and she was just a quarter mile from home, she suddenly was hit by another car trying to change lanes from the lane to her left, by moving right into her lane.  The two cars collided.  The front left of our client’s car was damaged.

Our client was shocked and did not know what to do.  The other car sped away and our client, shaking from adrenaline and thankful that nothing more happened, gathered herself and drove the remaining quarter mile home.

A driver behind our client witnessed the collision and followed our client while calling 911 on her cell phone to report the collision.

Our client made it home and then parked her car inside her garage while the witness remained on the 911 call, telling dispatch our client’s location and waiting until Westminster Police arrived just three or four minutes later.

Our client had turned off her car and just sat in her car, crying hysterically from the shock.  Police walked into our client’s garage and tapped on the car window to get the client’s attention.

Our client was shocked to see a police officer in her garage, but opened her car door and got out of the car.  The officer wrote in his police report that he noticed the strong odor of alcohol (alcohol is actually odorless, but what one smells is the fruit from wine or the barley in beer).  He also wrote that our client had bloodshot watery eyes and her speech was slurred, both of which certainly could have been attributable to our client’s crying.

Our client was asked to blow into a preliminary alcohol screening (PAS) device at the scene, in her home’s driveway, but she declined to do so and was arrested for DUI.

Once at the station, our client agreed to provide a breath sample, wherein her breath’s alcohol content was measured at 0.16% twice.  This is double the legal limit, as the reader may be well aware.

After being released the next day from the Westminster police station, the client called Greg Hill and explained what happened.  The client asked many questions about what would happen to her driver’s license and if she would face any time in jail.  Greg explained how both the court side of the case would proceed and what the DMV Hearing would consider.

The client then retained Greg Hill & Associates.

At the DMV Hearing, which was telephonic (in person DMV Hearings were suspended during COVID-19 and had not resumed as of late 2023), Greg appeared on the client’s behalf.

During the hearing, the driver’s attorney is able to make evidentiary objections to the evidence.  In making these objections, Greg has learned over time that while certain objections have merit in court, those objections can be ignored and overruled (for example hearsay) at the DMV Hearing.  However, other objections can be sustained at the DMV Hearing and make a difference.

In our client’s case, Greg objected to admission of the DS-367 (also called the Age 21 and Older Officer’s Statement) on relevance grounds because the officer’s description of what led him to contact with the client merely stated that he responded to an already proceeding DUI investigation at a certain address in Westminster and that he then transported our client to the police station.

This description was not relevant toward the first issue for a DMV Hearing, whether or not the officer personally developed reasonable suspicion that our client had violated Vehicle Code § 23152 or 23153.  The document should have contained the statement of the officer who decided to conduct a DUI investigation and why he chose to do so.

Surprisingly, the DMV sustained this objection and the DS-367 was excluded from evidence.  While the officer’s decision to arrest our client was proper since our client admitted to being involved in an accident and her BAC was 0.08% or higher, the reasonable suspicion required to detain and then arrest our client was not contained in the documents.

The DMV therefore set aside the client’s suspension of her license.  Our client “won” at the DMV Hearing.  She was happy with this, as it is relatively unusual to win at the DMV.

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