Part 3: DMV Hearing Officer Questions the World’s Worst Witness

The DMV Hearing

The hearing took place at our local DMV office six weeks after the accident .  I have paraphrased all witness testimony and am recounting it as I remember it.  I am also trying to set the tone of the witnesses, to give you a feel for how everything played out.

The hearing officer, who, I think, meets mostly with lawyers, representing clients, was nice enough, patient and extremely serious. He may have been a little jaded, but considering he probably gets lied to all the time, he hid it pretty well.

The evidence, as written in the report was damning. The blood alcohol tests measured .012 (the 2 breathalyzer tests at the scene) and the blood taken at the hospital tested at .014. To refute the report, we had to convince the hearing officer that there were inconsistencies, and mistakes. The biggest hurdle was to convince him that the officer had lied about witness testimony on the report.

I had written everything out ahead of time and tried to keep my testimony relevant and on point.

The DMV, IS ONLY interested in the answers to three questions.  To get them to set aside the suspension you have to show that one of the following things did not happen:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation or lawfully arrested?
3. Were you driving a motor vehicle when you had 0.08% BAC or more while driving a noncommercial vehicle?

 

1. The first question wasn’t one I really felt we could refute. My husband reeked of alcohol, there had been an accident and there was a motorcycle involved. That seems like reasonable cause to assume that the answer to question number 1 is yes. My assumption is that reasonable cause equates with probable cause, but that may not be accurate.  He had probable cause to investigate.  Did he have reasonable cause after investigating to believe it… maybe.  I do think that if he was sure after the investigation, that my husband had been riding, while under the influence… he would not have had to stack the deck in his favor, by changing witness testimony on the written report.

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2. Was my husband lawfully arrested?  This second question, I could work with.  My husband and I both testified that the first clue we had, that he had, in fact been arrested, was 5 days later, when our mail box was flooded with offers to represent him from DUI attorneys.  Can a person be lawfully arrested and not know it? I wouldn’t think so.

The contents of the report were vague, at best, with regards to the Miranda Warning.

The report states that the time of the incident as 19:20, the CHP estimates ETA at 19:25, and the time of arrest is listed as 19:40. The report states my husband was read his rights at 20:35.  According to my husband and witnesses at the scene, the CHP was still asking questions and hammering my husband as he was  loaded into the ambulance.  The CHP then followed the ambulance to the hospital, 5 to 7 minutes, where he accompanied my husband, as he was treated for his injuries.  He was relentless.   At any time (except for the 5-7 minute transport time) he could have issued a Miranda Warning. My husband says the Miranda Warning never happened at all.

It was news to me, to discover that the Officer is not required to issue a Miranda Warning, but if he does not, he must stop all questioning.  Since the questioning never stopped, legally my husband should have been Mirandized, at the time he was placed under arrest.  Normally, a DMV Hearing Officer would not have any reason to doubt the CHP, if he reported that he had Mirandized the suspect.  But, there were some problems with the actual report.  There is a 55 minute lag time between the arrest and the Miranda, during which questioning continued.

In the report there are questions about the Miranda Warning.
With these rights in mind, do you wish to talk to us? the officer did not check the yes or the no box. Instead he wrote the shorthand for Not Applicable.

In the Waiver Statement box the Officer wrote “continued talking”.  That hardly constitutes a waiver or indicates suspect clearly understands he has a choice here. The Miranda Warning seems to have been white washed, if it happened at all. The answers on the report seem evasive. Either the suspect waives his rights or he doesn’t. N/A as an answer takes away the protection of the Miranda Warning. There should never be any question in the mind of a suspect, whether he has ,or has not, waived his rights. No peace officer should be allowed to obscure the Miranda Warning, by changing the wording, breaking it up into parts, or hiding it in the guise of an ongoing conversation. My husband didn’t know he had been arrested, because this Officer, did not make it clear. He obscured it, to increase his chances of getting an incriminating statement, post arrest. Not Right. Not Legal.

Next there is the issue of the Blood taken at the hospital to determine, BAC.   When the nurse took blood, my husband thought it was necessary for the treatment of the injury. He thought he had already done the Breathalyzer, at the scene. (Neither of us knew that the breathalyzer given at the scene is only preliminary, and another BAC test is always done post arrest. ) As I understand it, you have a choice of Breathalyzer or Blood.  Implied consent means that you are allowing them to test you;  it doesn’t mean that you’ve given up the choice of which type of test you agree to take.  The BAC test of Urine is no longer a choice, unless Blood or Breathalyzer  testing is unavailable. I don’t know if the Urine test was still an option in 2007.  I haven’t done the research.

As my husband put it to the DMV Hearing Officer: “There really was a three-foot puddle of blood. I had lost enough blood that day.  If given a choice, I would have opted for a Breathalyzer test.” Again, the reason the blood was being drawn, was obscured. That explains why he wasn’t given a choice. It would have given him a pretty solid clue that he was under arrest, something the Officer did not want him to realize.

You may be thinking, these are technicalities. Getting off on a technicality, doesn’t mean you didn’t commit the crime.
At this point in time, I don’t think anything we had said or done was going to impact the decision of the Hearing Officer.

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3. The third question is the biggie. Was he riding the motorcycle with a blood alcohol of .08 or higher?

I never told the CHP Officer my husband was drinking prior to the accident. I told him he wasn’t. The report states that I had told him he had drunk beer and a Margarita, before the accident. That was a flat-out lie. I was the one who drank the Margaritas, and that was after he failed to return home and had already broken his leg (which I had been unaware of.) There was no beer mentioned at all.

The three of us testified that the bike was broken down. To get it home, my husband needed a truck. His brother had been called to transport the bike, before the accident. I had also received a call prior to the accident notifying me the motorcycle wouldn’t start. (A point that could have been verified with phone records).  My husband testified that he repeatedly asked the officer to touch the engine, so he would realize it was cool and had not been running.  He tried to talk the officer into trying to get the bike started, so he would realize it wouldn’t start. Neither of those things happened.

After our testimony, we are still nowhere with the Hearing Officer.  But we still have the witnesses, supposedly standing by waiting for the call. (Or so they had promised me.)

The officer had a statement on the report saying a bartender gave my husband a shot of Bacardi after he saw the extent of the injury.   There is the proof that he drank alcohol post accident.

Two of the three witnesses, listed on the CHP report did not answer their phones, even though the hearing officer dialed them several times.

When the Hearing Officer got ahold of the bartender he said that he had not seen the accident (that was in the report). He heard is buddy yelling “Oh my God!” and went to investigate. He said he was horrified at the amount of blood and at being able to see the bone.

He said “If that was my leg, I’d beg someone to knock me out until they fixed it.”

Did you bring the injured man a shot of rum?

“Not a shot, a bucket, man and not Just Rum, this was the strong stuff, 151, Dude. I thought
it  would make him feel better. He downed it,  so I brought him another one.”

What is a “bucket” ?

“It’s a glass that holds three shots, instead of one”

(We were hearing about the bucket and the 151 for the first time)

Did you tell this to the officer?

“I told him the same thing, I’m telling you, I gave the guy 2 full buckets of 151 cause his leg was so bad. I thought it might make him not think about it. I told him the guy just downed a bunch of booze and he sure didn’t seem very drunk. Maybe he was in shock or something, …didn’t seem like the alcohol was really working. He wasn’t freaking out though. I know I would have been. Maybe it was working, keeping him calm, ya know… or maybe he’s one of those dudes, that’s just that way. It was gross, man. I don’t even like to think about it.”

This is helpful, but, it didn’t tip the scales in our favor. The Officer hadn’t out and out lied. He had only minimized the amount and type of alcohol consumed, post accident.

For half an hour the Hearing officer had been periodically dialing the other two witnesses. They weren’t answering and he was wrapping things up, ready to dismiss us. I pleaded with him to just try the numbers one more time. This time the guy, who am pretty darn sure is the Worst Witness in the World, answers his phone.

It is embarrassing!  The hearing officer kept rolling his eyes during the conversation.  We all listened on the speaker phone, mortified. This witness was sworn in and he sounded like a sitcom version of a stoned, dumb, surfer duuuuuuude…….

He said he saw the bartender (his cousin) bring the shots, and the injured guy drink ’em down.   He was a little confused on some of the details and not always making a lot of sense.

Finally, the Hearing Officer asked him if they had been drinking that day.

“Oh man, we were wasted! It was the Fourth of July. We were partying.”

Weren’t you working in the kitchen at the time?

“Yeah, but everybody’s cool. I work with my cousins. We were doing the boss a favor, man. We weren’t gonna be open that day. We were doing her a big favor.”

When did you start drinking?

“Oh man early…. probably around 6:00”
 

AM?????

“Yeah, It was the 4th of July, Man. ‘ Course.”

So you were drunk at the time of the accident?

“I already told you man, we were wasted!”

(by this time the Hearing officer is kind of smiling and shaking his head, like he can’t believe this guy was the best the CHP could come up with for a witnesses (or that we could be foolish enough to think he could help our case)  We are trying to figure out how to distance ourselves from this guy, who can’t possibly do us any good.

Had you consumed any drugs, that day…. or was it just the alcohol?

“Oh sure, we smoked some bowls, the good kind. It was the 4th of July, man, I told you… we were partying.”

Have you consumed any alcohol today?

“No man, I just got home from school.”

Have you consumed any drugs today?

“No man, Well… I just smoked a bowl, before you called… but nothing else… if that counts. But, I’m good.”

By this time, the hearing officer, still shaking his head, has a big ‘ol grin on his face. He looks like he might start laughing. We are still squirming.

The CHP Officer wrote on the report that you saw the defendant, riding the bike in the parking lot, prior to the accident, hot- rodding and popping wheelies.  Is this what you told…..

The stoner witness doesn’t even let him finish. He cuts him off sounding very indignant.

“I KNOW MAN! I HEARD THAT! I COULDN’T BELIEVE THAT. It really kinda pissed me off, cause I never said nothin’ like that. What ‘s he doing that for…? That just AINT RIGHT.”

That was it. The guy who had been honest about drinking and drugging, was telling the truth. He sounded Indignant. He really was pissed about the contents of the report. It really bothered him.  You just couldn’t doubt his genuine reaction.

You just knew the guy was telling the truth. We all knew it. This guy, a little too honest for his own good, was deeply offended to have been misrepresented by the Highway Patrol, in the accident report.  The Hearing Officer looked up at us and I could see it in his face. He knew, this was the truth.  He got lied to all the time.  But this guy was absolutely telling the truth.

This witness, that no one would ever willingly pick to bolster their case, if they had a choice, had just turned the tables in our favor.

It really did feel like a Perry Mason Moment.  Up to that point, I don’t think the hearing was going our way.

There was a few more questions, where it was established that the witness never saw my husband riding the bike, never heard the engine, and had noticed him working on it, before the accident.

When we left the hearing, we thanked the officer, who told us we would get his decision in the mail within 10 days.

I had to ask, “so what do you think?

All he said was:

“Well, the witnesses do tend to bring into question, the Officers version of events”

10 days later, My husbands Drivers License was returned in the Mail with the Set Aside Order.

Part Two: Injury, DMV, DL, DUI and CHP Report

THE INJURY

 

If you read Part 1: The Accident, you are probably wondering how my husband ended up at home instead of hospitalized or on the night of the accident  . I will try to be brief about the medical stuff, It isn’t central to the story and  my message.

 

The injury was severe: a compound fracture with very jagged edges.  They put a temporary cast on it (I guess to immobilize ), the night of the accident.  They then sent my husband home, with a prescription for painkillers and instructions to make an appointment to see his Orthopedic Specialist, and have it looked at.   We have good Insurance. What we don’t have is an Orthopedic Specialist on speed dial.  We called everyone who practices locally. . The soonest any one of them would see him, even after we explained the circumstances, was 10 days away.

This led to an agonizing weekend filled with excruciating pain for my husband (because of the jagged bone ends grinding together, we later learned.) Over this long weekend we made two more trips to Emergency, where they administered Morphine.  I spent a good part of the weekend covering my ears, because my husband was literally screaming in pai.n and there was nothing I could do for him.

The 3rd visit to emergency, a doctor gave my husband a his  business card.  Instead of a 4th visit to the ER, my husband  called the number on the card at 4:00 AM Monday Morning. Within minutes there was a call back from the Orthopedic Surgeon. He told my husband to be at the Surgery Center in 3 hours.  This was a huge relief to us.

Because it had been more than 24 hours since the injury, the leg was put into a contraption to stabilize it

Fixation Device

The fixation device (similar to the one in the picture) is screwed into the bone, above and below the injury, to keep it from moving or rotating.

This was a temporary measure, until the swelling went down and the break could be properly set.

The 2nd Surgery (involving metal plates and many. many more screws) was scheduled for a month down the road.
Prompt treatment of the injury would have eliminated the need for a two costly surgeries, when one would have sufficed.

Arrest?  What Arrest?

Obviously, we were both preoccupied with my husband’s injury. What neither of us realized, was that my husband had actually been arrested for DUI. The last my husband saw of the CHP officer at the hospital, he was still trying to get him to confess to something he swore he hadn’t done.

The first hint we had of the arrest,  began arriving in the mail, in a flood of very informative literature from DUI attorneys. Drumming up business with a little post-holdiday ambulance chasing.

My husband did realized his Drivers License was missing from the wallet he had handed  over to the CHP at the scene, because he was asked for it in one  ER visits.

Neither of us had ever had any experience with DUI procedures, but we were about to get an education

In California, when you are arrested for DUI, typically you are taken to jail and your vehicle is impounded. There isn’t much room for doubt.

My husband really thought the cop had interviewd the witnessess, and realized he was telling the truth and had decided not to arrest him.

A couple days after the DUI brochures, we received a notice Order of Suspension/Revocation from the DMV in the mail , notifying us we had 10 days to contact them, if we wanted a civil hearing (to review the matter.)
The literature from the various attorneys explains that you are not just facing criminal charges for DUI, but that forfeiture of your DL is automatic and, and considered a civil matter, unrelated to any criminal charges by the DA. The attorneys claim that only 5% of all DMV civil hearings, result in a Set Aside (return of license and driving privileges) for those defendants not represented by a Lawyer.  Because they are trying to drum up business, this is probably not accurate.

I did read somewhere that in 2007 only 9% of all DMV hearings were decided in favor of the defendant. I have no idea what the real stats are, but suffice it to say that very few cases, represented by lawyer or not, result in the defendant walking away with their driving privileges intact.

When you are notified that you have 10 days to schedule the hearing, you have to act fast. We could not afford a lawyer, but my husband insisted we fight this because he was innocent. Because of my husband’s severe injury, most of the planning and preparation for the administrative DMV hearing, was left up to me.

First thing to do when you are going into battle: learn the rules of engagement.

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The following info comes from the Department of Motor Vehicles website:

WHAT HAPPENS TO MY DRIVER LICENSE?
The officer will give you an Order of Suspension/ Revocation. If you have a valid California driver license, the officer will take your driver license and send it to the DMV (to be destroyed). The Order of Suspension/Revocation includes a temporary driver license valid for 30 days from the issue date

(usually the date of your arrest). At the end of the 30 days, the suspension/ revocation action goes into effect. If the officer does not serve you with an Order of Suspension/ Revocation, the DMV will mail you one.

The temporary driver license does not allow you to drive if there is another DMV or court-imposed driver license action in effect.

The APS suspension or revocation is independent of any jail, fine, or other criminal penalty imposed in court if you were convicted of a DUI offense.

WHAT DOES DMV DO?
DMV automatically conducts an administrative review which may include an examination of the officer’s sworn report and any accompanying documents, such as an arrest or traffic collision report.

If the review shows there is no basis for the APS suspension/revocation, it will be set aside. DMV will notify you in writing only if the suspension/revocation is set aside.

WHAT CAN I DO ABOUT THE SUSPENSION/REVOCATION?
You have 10 days from the receipt of the Order of Suspension/Revocation to request a hearing to show that the APS suspension/revocation is not justified. DMV will conduct a telephone hearing unless you request an in-person hearing. The APS suspension/revocation will not be stayed (delayed) unless:

You request a hearing within 10 days from the issue date of the order and the DMV cannot provide a hearing before the effective date of the suspension/ revocation.
Before the hearing, and upon request, you may see and/ or obtain copies of DMV’s evidence. If you want copies released to someone else, such as an attorney, you must give the person signed permission. You have the right to have a sign or language interpreter present at your hearing. Immediately notify DMV if you require an interpreter.
You may represent yourself or at your own expense, an attorney or another person may represent you at the hearing. You may present oral testimony and other evidence. Your testimony will be taken under oath or affirmation and the hearing will be recorded.

DMV ordinarily does not arrange to have the peace officer testify. However, DMV reserves the right to call the officer if his/her testimony is needed. You may subpoena the officer or any other witness(es) you feel may help your case and have relevant testimony or evidence to present. You are responsible for paying the required fees and for making sure your witness(es) receives the subpoena.

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We scheduled an  in-person hearing was scheduled for the end of August. My husband was issued a temporary DL, good until the hearing officer has decided the case, (approximately 10 days, post hearing.)  The temporary DL, was a moot point for us, as my husband was still a  months away from being able to drive.
In preparation for the hearing, we immediately requested the copies of the DMV evidence. This basically consisted of the CHP Report filed by the officer who responded to the scene and test results of the breathalyzer.

The DMV, is  ONLY  interested in the  the answers to three questions. To get them to set aside the suspension you have to show that one of the following did not happen:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation or lawfully arrested?
3. Were you driving a motor vehicle when you had 0.08% BC or more while driving a noncommercial vehicle?

 

 

THE EVIDENCE AND THE CHP REPORT

The evidence against my husband wasthe CHP report and the results of the Blood Alcohol Tests (BAC).The CHP officer’s report, stated as fact, exactly what he thought happened. It had 4 witnesses, including myself.

The officer wrote that I told him my husband and I were drinking Margaritas in our hot tub, prior to the accident.  I knew it wasn’t true and that I never told him that. It was something he had made up, based on what I did tell him. It is legal for him to tell a lie to my husband to extract a conviction. It is not legal for him to use that lie in his report. It became evident at that point, that the report was not truthful.
The report stated that, according to the three witnesses, my husband was popping wheelies, and racing around the parking lot, showing off, when he lost control of his motorcycle. (My husband would have to be a lot drunker and stupider than he is to pull a stunt like that on 4th of July, down the street from a CHP office, knowing he would be stopped at checkpoint to gain access to our street, on his way home.—that would be akin to ASKING to be arrested for drunk driving.
According to the report,  two of the three witnesses reported they had observed this out of control display of showmanship just prior to the accident. The witnesses all worked at the hotel. Two of them had been on a break at the time of the accident. One of them was the hotel BARTENDER. And now you know where the alcohol came from.
We contacted each of the witnesses. The bartender said he told the officer he brought shots out to my husband two times. The other two witnesses both were surprised to hear the officer had said they saw my husband riding the motorcycle. They had noticed him working on the bike, but neither one of them had told the officer he was riding it, much less showing off and popping wheelies. They agreed to testify to this on our behalf at the DMV hearing. They promised to make themselves available to the hearing officer by phone, as did the Bartender.
It is important to note that we did not pick these witnesses. They are not our friends of ours. We didn’t even know their names until we saw the report.  We are 25 years older than them and to this day, I’ve never met them. My husband met them briefly, in the 5 minutes after the accident happened– never before, never since.   These witnesses were listed on the CHP report as witnesses. supporting the CHP version of events.

The report stated that bartender witnesses reported that he had given a shot of Bacardi after he called 911. That isn’t exactly accurate, which I’ll get into on the next post.
There are other inconsistencies on the report.

• The officer states the alcohol was given to my husband 10 minutes before his arrival, (but after the accident happened.)  The eta on the report is 5 minutes after the 911 call.

• The supplemental report is dated July 4, 2007.  The date of the report and the date of the accident are listed in separate boxes, next to each other.    The report could not have been created on the 4th, since key witnesses were not interviewed until the 5th.  Witnesses were interviewed the following day, per the written report.

• The report states the bike was lying next to my husband in one place on the report and that it had been moved by witnesses prior to his arrival,  elsewhere in the report.

• The report states that the CHP Officer observed my husband, who had an “unsteady gait” (this was one of the things that led him to conclude my husband had been drinking. )This is clearly wrong. He couldn’t have observed a gait (unsteady or otherwise), due to the injury.

• The report states that the time of the incident as 19:20 and the time of arrest is listed as 19:40. The report states my husband was read his rights at 20:35. My husband says he never even knew he had been arrested or was in custody,  and that he was never read his rights.

 

• The report has 3 boxes regarding the Admonition of Rights:

1.    Do you understand these rights? box checked “Yes
2.   “With these rights in mind, do you wish to talk to us? no check in either yes or no      boxinstead, has a hand written N/A
3.     Waiver Statement box has the words “continued talking” written in it

These might seem petty, but CHP Officers are held to certain standards and their reports are expected to be accurate. That’s one way to protect the rights of citizens from overzealous law enforcement.
Unfortunately this report went far beyond having a few inconsistencies and typos. Parts of it were fabricated, including my testimony and the testimony of other witnesses.

The report also falsely states that while still at the scene of the accident:

• My husband admitted drinking alcohol prior to the accident (If he had, the officer wouldn’t have continued to hammer him for the next two hours, to get him to confess to it.)
• My husband admitted that he was riding the motorcycle at the time of the accident (a pretty neat trick for a motorcycle that he’d arranged transport for, because it wouldn’t start)

At the DMV hearing, we address each  questions the DMV is interested in. They are the only thing that the DMV considers relevant, and the only things considered  grounds for a Set Aside of the DL Revocation

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I know I promised you a “Perry Mason” moment. I will deliver on that promise in the next post, where I cover the actual DMV Hearing

Part One: The Accident

Part 1: The Accident

One Break Down, One Bad Break,  One Mysterious Man bearing Booze, Two  Annoyed Paramedics,   One Eager CHP  Officer,  One  Good Break

July 4, 2007, County of Santa Cruz, CA

For years our neighborhood has had a reputation as the place to go berserk on the 4th of July. The fireworks (many of them, small sticks of dynamite) begin going off in earnest, a week in advance.  The holiday  itself, starts out fun, but eventually it starts to feel like a war zone. overlapping rockets, and explosions, coming from all directions, with no quiet time in between—and it literally goes on for hours and hours.  Every animal goes to ground, or runs terrified into the night, often to be mowed down by some inebriated (or not) party goer.  The house continues to shake and the windows continue to rattle for days after the big party has ended.  The neighborhood is tired of it. The police are tired of it.

The streets fill with people, and it is a complete madhouse. Every one should experience it at least once. It kind of reminds me of the spring break in Florida or boat parties that go on at the Delta (Sacramento River) where Jack Daniels (or a similar vendor) sets up a booth at one of the small islands. House boats and ski boats come from everywhere, lining the docks and dropping anchor. There is Loud Music, Wet T-Shirt Contests, Bawdy Games and Chugging Contests.

People have an absolute blast: bathing suits come off’; boat keys get lost; there’s always a few fights; inappropriate PDAs; people puke; someone always gets hurt; someone always leaves in handcuffs.

Everywhere you look there is something going on, and someone acting like an idiot. It’s crazy fun– but you wouldn’t want the party at your house. When you’ve had enough, you want to go home. It’s stops being fun, when 300 guests have over-stayed  their welcome. That is our neighborhood on the 4th of July.

The Santa Cruz Police Department has tried to contain it. They get a bit more restrictive each subsequent year, in their efforts to lock it down. That’s a tall order. This year they added big fines for anyone found in possession of fireworks (Safe and Sane, included). It seemed to be getting  better in recent years, until this year, when all hell broke loose right around the corner from us. A large tree and three cars went up in flames, neighboring houses  were evacuated.   And without missing a beat, the explosions continued, unabated, as throngs of people milled about, continuing to light fireworks in the street, in plain view of firefighters and police working the scene. Mayhem all around — again fairly normal for the 4th of July in our neighborhood.

In 2007 the police had the beach access blocked early in the day, with a rented chain link fence that ran from south of the San Lorenzo River to the Santa Cruz, Yacht harbor. Access to the beach was controlled  at several gates.  There, the police were diligently checking ice chests for alcohol, and bags, blankets, and portable BBQ’s for fireworks. (Smart and determined types bury the goodies in the sand ahead of time, for later retrieval.). Road access to the neighborhood is blocked off later in the day, but well before dark, via the feeder streets. Once the streets are blocked, you can only enter the neighborhood by car, if you are a resident. You have to show your driver’s license and answer a couple of questions from an officer at the check point to prove it. By 2007, we had lived here for years, and like other residents, were well aware of the road blocks.

If you go to a party somewhere else, and want to come home after, you better be sober or have a designated driver. If you knew you had to go through a checkpoint on the way home, would you risk a drunk driving arrest by drinking alcohol –in a state where one drink can put you over the limit, and a first offence costs an estimated $10,000?.—NO!.. well, neither would we.

My husband had to work the on the holiday in 2007. He had spent most of his spare time, in the week leading up to it, repairing his motorcycle. It had been down for a while, waiting for parts to arrive. He had just gotten everything back together fairly late on the evening of the 3rd.

When he got off work it was the first opportunity he had to take it out for a spin and see how it ran with the new parts. He changed his work clothes and left the house, promising me he would try to be back, before they blocked off the streets, to start the BBQ. I told him If he took too long, I was going to blend and drink the first batch of Margaritas without him.

He called an hour or so later to tell me the motorcycle had broken down on him. He was in a parking lot behind the Laundromat, in Aptos (a nearby town). He was waiting for his brother, to come with the truck. so he could haul the bike home. His brother, wasn’t happy about it, he was coming but  he said the soonest he could be there would be half an hour, if the traffic wasn’t too bad. (Summer beach traffic is bad enough but weekends and holidays can be a nightmare.)

My husband really doesn’t like asking for favors. He would not have called his brother (or anyone else) if he thought there was any chance of getting the bike started. But he’s a mechanic, he had a time to kill, while waiting, and this bike was his baby, so he continued to make adjustments and try to get it running, or at least figure out what the problem was.

The parking lot he was in is big and poorly maintained. It has broken asphalt and pot holes, truckloads of varying sizes of rock and gravel have been deposited on it over the years to make it passable. It is sparsely populated by a few businesses, that don’t use it for customer parking, because they back up to it. The parking lot has one place where there is a very short and slight incline.

My husband tinkered with the motorcycle, making several attempts to start it. After making an adjustment here or there, he would try to start it. He would run along side the bike, pushing it to try to get some speed going, until he reached the incline. At that point he would jump on the bike, pop the clutch, hoping it would kick in. He had already done this twice. without success.

This third time he tried it, approaching the incline, he tripped, slipping on the gravel, legs akimbo, he lost one the handlebars, the wheel turned in.  and the bike came down on him, gouging into his lower leg and snapping his tibia (shin bone.) near the ankle. It was a compound fracture, very jagged, leaving several bone fragments loose in the surrounding tissue

Though most of the near by businesses were closed for the holiday, the accident was witnessed by a couple of guys who were smoking outside the kitchen entrance to an old hotel.   Blood began spurting out of the wound immediately, but the smokers were too far away to see it. When my husband didn’t get up, one of the two guys, who been smoking came over to investigate. When the guy saw the hole in his leg and how much blood there was, he said  “oh my God, stay right there, I’ll get you an ambulance”.    My husband, not realizing how bad he was hurt, managed to sit up and , said “its alright, my brothers on his way”.  The guy said “Dude, you’re hurt bad.  I’m going to call an ambulance. — do you want me to bring you a towel and some ice?  How about something to drink?  You want me to bring you a shot of something?

And then my husband does something really stupid.. He says “yeah, sure.” That’s the turning point. This is where the CHP’s version of events and my husband’s part ways.

At this point I am sure you think it is pretty odd that a complete stranger would run to call 911 and then return with a glass of unknown liquor to give to an injured man, while he waits for an ambulance. Not only that, He did it twice.

My husband, injured or not was an idiot for accepting the booze. I do think he would have drank water, orange juice, coke or beer, if it had been handed to him. He  may even have been in shock.

If you are skeptical, that this is how it went down… you will be able to imagine how the CHP Officer, who arrived on the scene shortly after, felt about it. He didn’t believe it for a minute. He was an eager investigator and he just knew my husband was a lying, drunk motorcyclist. Perfectly understandable. It’s a fishy story… but I’ve gone into great detail laying the foundation out for you. If you don’t believe it now, you will by the end of an upcoming post, after I reiterate the testimony of the subpoenaed witnesses. It is almost like a “Perry Mason Moment”, only a lot funnier.

The officer had every right to doubt the story. Sounds pretty unlikely, right? It sounded strange even to me. Sure, some complete stranger appears out of nowhere and gives you shots right before the ambulance gets there?  You don’t know this guy? Are you sure? Why would he do that? He just happened to be carrying a bottle of hard liquor on him? 

It sounded unlikely to me, and I knew things the officer didn’t. I knew my husband worked all day, that he came home,  changed clothes and left, without having a drink. I knew he certainly sounded sober (and disappointed) an hour later when he called me about broken down bike.  I knew he was in the parking lot because he waiting to get his bike transported home.  He could not have been driving  (coasting maybe….) when  the  accident happened..  Still, the man with the booze was a pretty bizarre twist. (And you don’t know the half of it, yet and neither did we until a couple of months later).

Unaware of the accident, I was impatiantly waiting at home.

Meanwhile… back in the parking lot… it is chaotic. The paramedics arrive just before the CHP (5 minute ETA on the report). They are just beginning the initial assessment trying to get baseline readings and determine the extent of the injury. The (eager) CHP officer interrupts them several times, sticking his breathalyzer between them and their patient, cutting off their questions, with ones of his own,  trying to conduct a modified field sobriety test. The paramedics repeatedly ask the officer to step aside and let them do their job. The Officer thinks his business is more important than theirs and keeps getting in the way. My husband, probably reeking of booze, keeps insisting to the officer that he fell while pushing the bike. The officer keeps saying “come on, you can tell me the truth, we both know you were riding it”. My husband wants to show him that the bike won’t start, but he is incapable of doing so, and the officer isn’t interested anyway. He really isn’t interested in anything but an admission of guilt. After the second breathalyzer test, one of the Paramedics finally gets fed up and snaps at the officer to GET OUT OF THE Way!

It is, into this chaotic scene, that my husband’s brother pulls up in his truck. He is stunned to see his brother on a stretcher, about to be loaded into the ambulance.   And off to the side, mostly forgotten, the broken. troublesome, killer bike (with nothing but a scuff mark on it, ) is about to be rewarded for its treachery, with a vacation from the open road,  that will last for many months, while my husband heals from 2 surgeries and learns to live with one leg  shorter than the other.

It is here that we get our first break, (2nd, if you include the leg;)  Instead of being impounded, (as it surely would have been) the officer releases the ungrateful  bike to my brother-in-law. It rides home, in the back of his truck, just as it would have, had the accident never happened.

The timely arrival of my brother-in law, a few minutes after the ambulance and CHP officer arrived on scene, never would have happened if he had gotten the call to pick up the bike after the accident (when 911 was called). Holiday beach traffic was worse than expected and it took him longer than half and hour to get to Aptos.. (That’s why my husband rides a motorcycle) . The quick arrival of transport certainly supported my husband’s claim that he couldn’t have been riding the bike, because it was, in fact, not running and awaiting rescue, when the accident happened. I don’t really know if the Officer gave it any consideration at all,  He was happy to release it to my brother-in-law, (instead of waiting for the tow service) so he could follow the ambulance to the hospital and work on getting a confession out of my husband.

My husband pointed out the guy that gave him the drinks before the ambulance arrived saying ,  “Talk to him; he’ll tell you”  the Officer responded  “Oh believe me…, I plan to.”
At home, I was spitting mad.. My husband wasn’t answering his phone, neither was his brother. I had no idea there had been an accident.   I was DONE waiting. I hit the hot tub AND the margaritas at the same time.

I got the phone call around 8:15 pm. It was the CHP officer and he said there had been an accident.   He  wanted me to come to the hospital and pick my husband up. He said he also had a few questions for me. I told him the street was barricaded, I had drunk a couple margaritas in the hot tub and there was no way I could legally drive right then. He said “That’s all right, your husband’s brother is here. He’s going to give him a ride home”, leaving me to wonder why he called to tell me my husband needed a ride.

After he spoke to me, the Officer went back into the room where they were treating my husband, and said “Your wife says the two of you were drinking Margaritas in the hot tub.” I never told him that, but cops are allowed to lie to people they suspect of a crime, when they are trying to get a confession. Its lousy but it is legal. My husband knew it was a lie, because it never happened, and he told him so: “She did not say that. She sure wouldn’t make up some lie to try and get me IN trouble. If you really think that’s what she said, you better call her back, because you misunderstood her.”

Not too much later, my brother-in-law drives up, and together, we helped my husband into the house.

To be continued in Future Posts!