MARTINEZ -- The misdemeanor drunken driving case against state Assemblyman Roger Hernandez, D-West Covina, is in the hands of a Contra Costa County jury.
Hernandez, who since the trial began was declared the California Assembly's next majority whip, is accused of driving with a .08 blood-alcohol level -- the minimum level for drunken driving -- after leaving a Concord bar March 27. The jury was prohibited from hearing that Hernandez is a politician, or that he was driving a state-issued car without permission when he was pulled over with a date in the passenger seat shortly after 2 a.m.
Hernandez told police that he had two glasses of wine that night: one at 9 p.m. and another that he finished just before closing time. He said he doesn't remember the name of the Concord bar where he was drinking.
Officers testified that Hernandez and the date, Kaiser Permanente community and government relations manager Darcie Green, neither of whom testified, smelled like alcohol and had blood shot and watery eyes. The arresting officer said Hernandez failed three field-sobriety tests, and "politely" refused to take a blood test until they told him they were going to handcuff him, hold him down and have his blood drawn anyway.
During closing statements Thursday, defense attorney Peter Johnson said Hernandez was driving reasonably that night, contrary to the prosecution's assertion, and the arresting officer had no probable cause to pull him
Wind, sloped pavement and error in administration of the field tests caused Hernandez to do poorly, he said.
Johnson further argued that there were major problems with the handling and testing of Hernandez's blood sample. A defense expert witness testified that the phlebotomist shook the sample, when he should have inverted it, causing a breakdown of whole blood cells that can cause a wide range of error in testing. The phlebotomist testified a second time to say that he did use the inversion method, and misspoke when he said shook, but Johnson asked the jury to rely on his initial testimony.
"The chain of custody, the way the blood was drawn, the integrity of the sample: All those things are critical," Johnson told jurors. "(The prosecution's) own witness said it could have been a .07.
"Clearly, clearly, clearly, this case has not been proven beyond a reasonable doubt," Johnson said.
Prosecutor Dana Filkowski argued the case was proved numerous ways and the defense focused on things that were possible but unreasonable.
"The defense in this case really was 'it's everyone else's fault by Mr. Hernandez,'" Filkowski said.
She argued that police, scientists and the phlebotomist performed their duties well and to legal standards, and asked the jury not to lend credibility to the defense's "hired guns."
"The defense tried to raise reasonable doubt, but it was completely unreasonable," Filkowski said.
While most misdemeanor DUI trials take one or two days, the Hernandez case lasted three weeks from jury selection to closing statements, including sporadic days that court was not in session. If convicted, he could receive two days in County Jail, probation and license suspension, according to the Contra Costa District Attorney's Office.
Jury deliberations begin Friday morning.
Contact Malaika Fraley at 925-234-1684. Follow her at Twitter.com/malaikafraley.