DUI BAC .18/.18, Admission to Driving and Drinking, Open Containers in Vehicle, APS License Suspension Set Aside! No Suspension!

My client was originally arrested for D.U.I. in Count 1 with a violation of VC § 23152(a) and Count 2 VC § 23152(b). Our office requested an Administrative Per Se (“APS”) hearing to challenge the validity of the Department of Motor Vehicles license suspension.

According to the police reports in the matter, a San Bernardino Sheriff’s Department deputy received a call regarding a subject behind the wheel of a vehicle with open containers in the car. When the deputy arrived he saw my client asleep in the front driver seat with the engine running and holding an open container. My client admitted to drinking an hour prior to the deputy arriving and admitted to driving to the store to purchase more alcohol. My client performed poorly on the Field Sobriety Tests (“FST”) and agreed to complete a chemical test. According to the chemical breath test results, my client had a B.A.C. of .18/.18.

At the APS hearing, the DMV subpoenaed a criminalist to perform a retrograde extrapolation to determine my client’s approximate B.A.C. at the time of driving. The criminalist was unable to determine my client’s B.A.C. at the estimated time of driving and I argued that the DMV was unable to prove that my client’s B.A.C. was 0.08% or more at the time of driving and they have failed to meet the presumption that his B.A.C. was 0.08% or more.

The DMV found my argument persuasive and the suspension of my client’s driving privilege was set aside.

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