Imagine getting a call that the DMV is trying to suspend your client’s driver’s license after police found them passed out in a car with a staggering 0.20% blood alcohol concentration (BAC). On paper, it looks like an open-and-shut case for the state. But as seasoned California DUI defense attorney Matthew Ruff recently demonstrated, even the highest chemical test results mean absolutely nothing if the police fail to establish the most basic foundation required by law: the time of driving.  

In a recent DUI Administrative Per Se (APS) hearing, attorney Matthew Ruff successfully exposed glaring evidentiary gaps in a Torrance Police Department investigation, forcing the DMV to issue a complete Order of Set Aside and fully reinstate the licensee’s driving privileges.  

Here is a breakdown of how this “unwinnable” case was dismantled piece by piece.

The Illusion of an Open-and-Shut Case

On February 3, 2026, Torrance Police officers responded to a radio call regarding a “possible abandoned vehicle”. Upon arrival, they discovered a vehicle sitting at the curb with its engine idling, lights on, and the transmission selector in “Drive”. The driver was unresponsive in the front seat with their eyes closed and a foot on the brake.  

After being woken up, the driver displayed clear signs of intoxication, accidentally shifted the car into reverse instead of park, and failed initial field sobriety checks. Subsequent chemical breath tests registered a 0.20% BAC—two and a half times the legal limit of 0.08%.  

To the untrained eye, the driver was caught red-handed. But Matthew Ruff spotted the fatal flaw in the state’s case right away.  

Defense Strategy 1: Exposing the Unknown “Start Time”

Under California Vehicle Code 23152(b), the DMV relies heavily on what is known as the three-hour presumption. This legal rule states that if a chemical test is performed within three hours of a person driving, the law presumes the BAC at the time of the test matches the BAC at the time of driving.  

However, a presumption requires a factual foundation. To start a three-hour clock, you have to know when the clock actually started.  

Ruff pointed out the following critical gaps in the police report:

 An “Abandoned” Vehicle: The police initially responded to a call for an abandoned vehicle, which by definition implies the car had been sitting stationary for an unknown period.  

 No Witnesses to Movement: The arresting officers never saw the vehicle in motion, and no independent witnesses were cited who could verify when the car was actually driven to that location.  

 The Four-Hour Gap: The driver stated they had been drinking between 1400 and 1500 hours—more than four hours before the police even arrived at 1905 hours.  

Because the police could not prove exactly when the vehicle was last driven, the DMV lost the right to use the three-hour presumption.  

Defense Strategy 2: Untethering the Chemical Evidence

Once Matthew Ruff successfully blocked the three-hour presumption, the DMV’s case collapsed like a house of cards.  

Without the statutory presumption, a breath test result is merely a snapshot of a person’s blood alcohol level at the exact minute the machine captured it (in this case, around 1955 hours). It does not prove what the blood alcohol level was an hour, two hours, or three hours prior.

The Legal Burden: As established in seminal California cases like Santos v. Department of Motor Vehicles (1992), the DMV cannot simply guess or infer a driver’s BAC at the time of operation without supporting evidence. Without the three-hour rule, the DMV is legally required to provide expert testimony—such as a toxicologist performing “retrograde extrapolation”—to prove the BAC was illegal while driving.

Because the Department provided no such expert testimony, the 0.20% BAC reading became legally irrelevant.  

Defense Strategy 3: No Proof of Volitional Movement

To sustain an administrative driver’s license suspension under California Vehicle Code §13353.2, the state must prove the individual was actually “driving”.  

Citing the landmark California Supreme Court case Mercer v. DMV (1991), Ruff reminded the hearing officer that merely sitting in a stationary vehicle with the engine running does not constitute “driving” under California law.  

While the police notes mentioned that the vehicle rolled backward during the contact, Ruff successfully argued that this was an accidental, non-volitional movement caused when the disoriented driver was ordered by police to put the car in park. Because the movement was not a volitional act initiated for the purpose of driving, the DMV failed to fulfill its most elemental burden of proof.  

The Verdict: A Complete Set Aside

Faced with a bulletproof legal memorandum detailing the breakdown of foundational facts, DMV Hearing Officer Markson had no choice but to follow the law.  

On May 17, 2026, the DMV officially issued an Order of Set Aside. The suspension was completely canceled, the client’s driving privileges were fully reinstated, and they were permitted to retain their valid California driver’s license.

The Takeaway

This case serves as a powerful reminder of why we have a legal system rooted in constitutional protections and strict evidentiary rules. Police officers cannot cut corners. A high chemical test reading is not a shortcut around the law.

When the state attempts to take away a citizen’s driver’s license using assumptions rather than facts, it takes an attorney who willing to stand up, look at the fine print, and hold the state accountable to the letter of the law.

Matthew Ruff is a Torrance DUI Attorney with over 30 years experience.