Whittier, 0.12% BAC, Resolved as Wet Reckless (VC 23103)

Our client, an Army veteran and age 26, was arrested in the early morning hours alongside the 605 Freeway, while parked at the side of the road.  He was with several of his friends, who were urinating in the brush nearby.  Our client was sitting in the driver’s seat, but the ignition was off.
Summary:  Whittier, Wet Reckless, Our Client Had 0.12% BAC, Hired “DUI Expert” Attorney Who Made Three Attempts at Wet Reckless.
He had not been driving.  He merely sat in the driver’s seat because he had been cramped up from sitting in the backseat.  While the others ran to the bushes, he decided to stretch out his legs and relax in the driver’s seat.

When he explained this to the CHP officers who stopped behind the car and found him in the driver’s seat, they did not believe him.  Instead, police arrested our client for DUI after he registered a 0.12% BAC. The officer seemed dubious of our client’s explanation and arrested him anyways, without asking any of the other occupants to verify or refute our client’s status as only a passenger.

Our client was very concerned about his arrest, as he drives an armored car for a bank for a living now.  His employer would allow him to continue his employment with a wet reckless, but not a DUI.

He promptly hired a very expensive “DUI expert” attorney.  The attorney represented our client at the DMV hearing and lost.  She then represented him in court three times, declaring to him that anything other than a conviction for DUI was “impossible.”  She told him that the Whittier District Attorney’s office had taken a “no tolerance” policy toward anyone with a BAC of 0.08% or higher.

The client then hired our office.  Greg Hill substituted in as counsel of record, explained to the District Attorney the circumstances and discussed some of the most important California cases concerning when our client last drove and what constitutes “driving” for the purposes of driving under California DUI law.  Greg discussed People v. Mead (1954) 126 Cal.App.2d 164, 271 P.2d 619, which stated that for purposes of arresting a suspect for Vehicle Code § 23152(a) (DUI without any blood alcohol content), the officer must observe the suspect driving and must observe substantial impairment.  Here, the officer never even saw our client driving, so the 23152(a) count would be tough to prove. 

As to the Vehicle Code § 23152(b) count, the prosecutor would have to establish when our client last drove.  The CHP report contained nothing that stated when our client last drove and the breath test given was almost two hours after he was arrested.  Therefore, if our client had been on the side of the 605 for over an hour, the presumption under 23152(b) did not apply.  This presumption is that the BAC measured within three hours of one’s last driving was the BAC when last driving.

The District attorney agreed to resolve the case as a wet reckless (Vehicle Code § 23103 pursuant to 23103.5) and dismiss all charges of DUI.

Our client was extremely happy, as he was able to keep his job and avoid a conviction for DUI and an ignition interlock device (IID) requirement.

For more information about a DMV hearing for a DUI, wet reckless and what happens if one loses at the DMV, click on the following articles:
  1. What Is a DMV Hearing for a DUI?
  2. Why Is a “Wet Reckless” Better Than a DUI?
  3. I Lost My DMV Hearing – Now What?
Watch our video about DUI by clicking here.
 
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