MARTINEZ -- A Contra Costa County judge on Tuesday dismissed a lingering misdemeanor drunken driving charge against state Assemblyman Roger Hernandez, saying she wasn't confident a second jury would convict based on the same facts.
A jury in August found Hernandez, D-West Covina, not guilty of driving under the influence but was hung 6-6 over a second count of driving with a blood-alcohol level of 0.08 or higher.
Hernandez, 37 was arrested in Concord on March 27 after leaving a downtown bar about 2 a.m. Authorities said his blood-alcohol level tested 0.08, the point at which someone is deemed too intoxicated to drive in California. Hernandez said he had only two glasses of wine, one about 9 p.m. and another just before the bar closed.
Defense attorney Peter Johnson attacked the handling of Hernandez's blood sample and the science behind it. Whereas most misdemeanor DUI trials take one or two days, the Hernandez jury heard more than seven days of testimony, including conflicting expert opinions.
The state's own witness testified that there could have been a 0.01 percent error in Hernandez's blood test results, which may have been the reason the jury was hung, Judge Mary Ann O'Malley said.
"It's not really, really strong evidence that it was above a 0.08," O'Malley said.
The judge cited an analysis of the evidence, the burdens surrounding a retrial, and Hernandez's lack of criminal history as reasons behind her decision to dismiss the lingering charge. O'Malley said it was unlikely that anyone would be able to present a better case against Hernandez than deputy district attorney Dana Filkowski did at trial.
A Concord police officer testified that he pulled over Hernandez that morning because he wove within a traffic lane and twice turned without signaling before driving into the parking lot of the Crowne Plaza Hotel. Officers said Hernandez and his date, Kaiser Permanente community and government relations manager Darcie Green, both smelled of alcohol and had bloodshot and watery eyes. Hernandez failed three field sobriety tests before he was taken into custody.
Neither Hernandez nor Green took the witness stand. The jury was barred from hearing that Hernandez is a politician, and was driving a state-issued car.
"We believed in the case that we had, but we respect the decision by the jury, and the court today," Filkowski said.
Johnson criticized the Contra Costa DA's Office for not announcing whether it intended to retry Hernandez after the hung jury.
"They left it to a judge to make the decision when, in reality, if they would have been acting correctly, they would have dismissed it on their own," Johnson said.
Contact Malaika Fraley at 925-234-1684. Follow her at Twitter.com/malaikafraley.