P v Athena S
P v Athena S
Athena was stopped by a CHP Officer for weaving with speeds varying between 20 to 35 mph after leaving the Win River Casino in Redding, California.
She declined the Field Sobriety Tests (FSTs), refused the pre-arrest breath test [which she has a right to do pursuant to CVC § 23612(i)] and did not answer any questions – such as what she had to eat and drink and when.
Upon being arrested, the CHP Officer told Athena that she was required by law to submit to a blood or breath test pursuant to CVC § 23612. In response, Athena asked to speak with her attorney. The officer then advised her that she was not entitled to an attorney and essentially said he was construing her request for an attorney as a refusal even though Athena immediately agreed to take a blood test. The CHP Officer then obtained a warrant and took her to the hospital for a “Forced blood” draw.
Rather than drawing her blood inside the hospital, Athena's blood was taken outside on the loading dock near the entrance to the hospital so that the officer could position his vehicle in such a way as to capture the blood draw with his vehicle's dash cam. This dash cam video was later lost or destroyed and was never recovered. The blood draw caused pain, bruising and clotting around the injection site of Athena's arm.
DMV charged Athena with refusing to take a chemical test – which carries a one year no driving suspension (one cannot even obtain a restricted license during this time). Even though there was overwhelmingly evidence that Athena agreed to take a blood test and did NOT refuse – DMV upheld the suspension of her license at the APS Hearing. When Mr. Hamilton contested DMV's ruling by filing a writ of mandate in the Shasta County Superior Court – Athena's license suspension was quickly set aside – meaning she received her license back as though DMV had never suspended it.
Although she won the civil action against DMV – the Shasta County District Attorney's Office brought criminal charges against Athena for DUI (CVC § 23152(a), BAC of .08 or more (CVC § 23152(b), high BAC (CVC § 23578) and refusing to take a chemical test (CVC § 23577).
When Mr. Hamilton took issue with the blood draw, the trial court declined to suppress it, so Mr. Hamilton filed an interlocutory appeal – which was declined by the Appellate Division and the Third District Court of Appeal.
Because her career depended upon it, Athena did not give up and Mr. Hamilton continued to fight for her.
Though prepared for trial, in late May of 2019, Mr. Hamilton brought a motion to dismiss for lack of speedy trial. The motion went unopposed by the prosecution and was granted by Judge Kennedy of the Shasta County Superior Court.
In the end Athena's tenacity paid off. Her criminal case was dismissed and a .173 DUI with a high BAC and a refusal went away as though it never happened.
No license suspension, no IID, no jail, no DUI school, no VIP classes, no SR-22, no fines, no criminal record, no DMV record – and most importantly – Athena was able to preserved her career and reputation.
Practice area(s): DUI / DWI
Court: Shasta County Superior Court