DUI Case Study No. 2 by C. Robert Brooks

My client and a group of friends and family members were at a bar after attending the funeral of a close family friend. After several hours and many rounds of drinks, things got a bit out of hand and the police were called to calm things down.

The cops got everyone out of the bar and told them to calm down. My client was specifically told by the officer not to drive his car, which was parked on the street, almost directly in front of the bar. He agreed that he would not do so.

The group milled around for a while after it appeared the cops had left the scene. According to my client, he decided to go to his car and retrieve his cell phone charger. Unfortunately, whether reflexively or out of habit, my client put the keys in the ignition, turned on the engine, his headlights and turned on  his left blinker indicating he was about to enter traffic.

Appearing out of nowhere, three patrol vehicles surrounded his car and prevented him from driving off. They proceeded to do a DUI investigation, including field sobriety tests, interviewing him regarding how much he had had to drink, asking him to blow into the PAS (Preliminary Alcohol Screen), and subsequently arresting him and taking him off to jail, where he was booked and charged with a DUI after performing another breath test at the station which showed him to be a 0.16 BAC.

When I interviewed the client, his memory was a bit fuzzy as to the specific details about how the arrest went down. He was, however, pretty sure that he had been stopped before he actually had a chance to drive anywhere.

If he had not actually driven, this could be crucial to his defense. Here’s why: California law requires actual driving for a DUI to be committed. Many states do not use this criterion. Instead, they only require physical possession and control of a vehicle. In those states, simply sitting in a vehicle with the keys in your pocket, is enough to justify a DUI conviction if the “driver’s” BAC is above the legal limit.

Fortunately, California requires actual driving. It doesn’t take much to qualify as “driving;” moving the car an inch would be enough to establish a lawful arrest.

I requested a DMV Admin Per Se hearing and waited anxiously for the discovery that the DMV would be relying upon to base their determination. When I received it, it said that they saw him enter his vehicle, start the engine, turn on the headlights and signal that he was about to pull into traffic. That’s when they blocked him from leaving and arrested him on suspicion of DUI. Key to all of this was that the report was silent as to whether the police actually saw the vehicle move.

Not surprisingly, the DMV Hearing Officer subpoenaed the arresting officer who wrote the probable cause section of the document. He was clearly aware that the issue of driving was paramount in this case.

At the actual hearing, the officer was forthright in his testimony that he had not specifically seen the vehicle move, but under cross examination he became rather contentious about the fact that this was a righteous DUI arrest because of the clear and present danger he thought my client posed to the public. Maybe so, but I knew this hearing had already been won. I think the officer really didn’t understand the applicable law.

A week after the hearing, the decision came in the mail. Suspension set aside! Great news for my client. However, for the record, the cop wasn’t completely wrong in arresting my client, this seemed to fit the criteria for “attempted DUI,” and would likely have held up in court if the prosecutor’s decided to file the case. Fortunately, the DMV doesn’t have jurisdiction of “attempted” DUIs. And the prosecutor in the criminal case was also persuaded that, without actual driving, it wasn’t worth their time to pursue the case.  That said, hiring a professional Los Angeles DUI Lawyer is key in your decision making process.