Case Study: Orange County DUI Dismissed

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How to Dismiss a DUI case in Orange County.

This Case Study: Orange County DUI Dismissed examines how a prepared Orange County DUI Lawyer can use their education, and experience, to obtain a win for a client by having the DUI case completely dismissed.  Note that we have redacted the names of our client in this case study.  In this case, our client was completely cleared of all charges, because the defense obtained a dismissal of all charges in the case.

Listening to the Client’s DUI Arrest Story:

The client came into our office as a personal referral from another lawyer, after being arrested for DUI in the city of Irvine.  Irvine DUI cases are common, as that city’s no tolerance policy for crime, and their reputation as “America’s Safest City”, mean that they will make sure that anyone caught drunk driving in Irvine will be prosecuted to send a message and discourage future criminal conduct.

The client relayed that they were arrested for DUI by the Irvine Police Department, and given a written promise to appear in court on DUI charges. (Note the indication of arrest for CA Vehicle Code 23152(a), Driving Under the Influence).

DUI Dismissed Promise to Appear

Exhibit 1: Client’s release promise to appear for DUI. (Click on an image to make any image on this page larger and more readable)

The DUI Police Report

We obtained the police report that had been prepared by the Irvine Police Department regarding the DUI arrest.

DUI Dismissed Police Report

Exhibit 2: A portion of the police report showing the reason for the DUI stop and the officer’s observations. (Click on an image to make any image on this page larger and more readable).

The client was directly observed with no front license plate, and also weaving by the Irvine Police Department officer behind the client’s vehicle. The report shows that the defendant “appeared to be intoxicated”.

The report further states that the officer observed of the driver that, “his eyes were watery, red, sleepy and his face was flushed.  As I spoke to him, I detected a strong odor of an alcoholic beverage coming from his breath.”

The report shows above that the driver admitted to having “two beers”.  The police officer performed the horizontal gaze nystagmus test, and found evidence of nystagmus, which shows impairment.  The officer took the keys and detained the client. Eventually, this client was arrested for DUI and taken to the Irvine Police Department.

The DUI Breath and Blood Testing Results

Both breath tests, and blood tests were taken with the results of a .09%/.11% blood alcohol level at the time of driving.  Because the test was taken within three hours of driving, in accordance with California law and California’s breath testing regulations, it was presumed that the driver in the case was driving above the legal limit, and impaired based upon the FSTs, at the time of driving.

The DUI Police Statement of Probable Cause

DUI Dismissed Probable Cause

Exhibit 3: The officer’s sworn probable cause statement for the legal reason for the DUI arrest. (Click on an image to make any image on this page larger and more readable).

As the officer’s probable cause statement shows, the officer noted that the vehicles involved “did not have a front license plate, in violation of CVC 5200(a) – No Front License Plate”, and further observed the vehicle weaving between the number one and number two lane, of travel”, a “violation of CVC 21658(a) – Lane Straddling”. The defendant was arrested, and the police also noted that he “appeared to be intoxicated”.

The Filing of DUI Charges and Arraignment

In court, at the Harbor Justice Center, in Newport Beach, the driver was charged with both Vehicle Code section 23152(a), driving under the influence, and VC 23152(b), driving while above a .08% blood alcohol level, as the complaint shows.

DUI Dismissed Criminal Charges

Exhibit 4: The Orange County District Attorney’s complaint, showing the criminal charges alleging DUI and being above a .08%.  Note also the blood alcohol content alleged on the complaint.  (Click on an image to make any image on this page larger and more readable).

We entered a plea of “not guilty” at the arraignment, and obtained a blood split or retest order, authorizing the release and retest of the blood sample.  We had an independent lab retest the blood.  Not only does the blood retesting look at the alcohol level, but also the preservative levels.  They also do a bacterial culture, to see if there is bacterial growth in the vial.

The Retesting of the Client’s DUI Blood sample.

DUI Blood Bacterial Contamination

Exhibit 5: The blood retest bacterial sample, showing contamination of the blood.  (Click on an image to make any image on this page larger and more readable).

As you can see in the lab report from our expert, the blood vial was contaminated – bacillus bacteria was isolated in the vial, and was shown to be actively growing through a culture test.

Bacterial in the vial can ferment the blood, and create alcohol.  That can cause the blood alcohol level to be higher and overstated (important for cases where the blood alcohol limit is near a .08%), and shows that the blood is contaminated.  When the main evidence in a DUI is compromised and contaminated, it cannot be used as evidence at trial.

DUI Dismissed expert opinion

Exhibit 6: The expert witness’ report on the effect of the bacterial contamination of the blood.  (Click on an image to make any image on this page larger and more readable).

Our forensic toxicologist indicated in his report that, as stated in the image above:

“The bacterial growth culture on the obtained blood sample determined that bacterial activity was present in spite of the level of NaF [preservative] present.  Therefore, the quality of the blood sample cannot be guaranteed.”

Despite that evidence from an expert in blood testing, the prosecutor refused to dismiss the case.  The prosecutor felt that the blood vial information was something that a jury should learn about and be subject to a ruling at trial.  They refused to dismiss the case, stating their policy of being tough on DUI cases in Orange County.

Another tactic for dismissing the case – a motion for exclusion of evidence based upon a lack of probable cause.

As a result, we attacked the case from a different angle – the probable cause for the stop.  Legally, the police must have a valid reason under the law to pull someone over.  The US Supreme Court states that police must have “articulable facts that lead to an observation, or suspicion, that criminal activity is occurring or has occurred.”

Our office filed a motion to suppress evidence based upon the invalid stop.

DUI Motion to Dismiss

Exhibit 7: The motion to suppress evidence filed with the court.  (Click on an image to make any image on this page larger and more readable).

As mentioned above, the police had indicated on the statement of probable cause that the stop was because of lane straddling, in violation of the vehicle code.  That was in addition to the police’s allegations of a missing license plate, as observed directly by the officer.

As stated in our motion under the facts that were stipulated by the prosecutor related to the DUI stop:

DUI Dismissed Statement of Facts

“Officer Wong makes the claim, in the unsworn police report that is attached, that from his vantage point, he could see that both vehicles did not have a front license plate, in violation of CVC 5200(a)…”

DUI Dismiss Motion Argument

Exhibit 7: The motion to suppress argument.  (Click on an image to make any image on this page larger and more readable).

As noted, the argument focused on the initial observations regarding the license plate, and logically argued that it was impossible.

Our motion pointed out the inconsistencies in what the officer observed, and requested a dismissal.

shim-yoo-signature-page

Exhibit 8: The motion to exclude conclusion.  (Click on an image to make any image on this page larger and more readable).

In this case, once our fully prepared, and well researched motion was filed with the court, and the officer was subpoenaed into court, the prosecutor had, for the first time, a chance to ask the officer directly about the inconsistencies in the report as to why the subject was pulled over.

Although that conversation took place privately, between the prosecutor and the police officer, after that discussion, and our motion, the prosecutor decided to dismiss the case against our client.

Another tactic for dismissing the case – a motion for exclusion of evidence based upon a lack of probable cause.

Because the prosecutor agreed to dismiss not only the DUI charges, but dismiss all charges, there was no need for a trial. Having the entire case dismissed met the client’s goals as discussed in the beginning of the case.

shim-closing-letter

Exhibit 9: The closing letter to the client regarding dismissal of all DUI charges.  (Click on an image to make any image on this page larger and more readable).

As we mentioned in our closing letter to the client, a dismissal of all charges is the best possible result in a DUI case.  There was no reduction of charges, no probation, no fines, classes, or insurance increases.  The client never had to deal with the court again.

And, in this case, our client was very happy that they hired our services.

Contact our DUI defense firm if you need us.

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This is only one of a long list of DUI dismissals we have obtained in Orange County.

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