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Roger Hernandez.JPGAssemblyman Roger Hernández will ask a judge to throw out a blood analysis and other evidence against him Monday, the eve of his trial in Walnut Creek on suspicion of drunken driving.

The West Covina Democrat filed court documents claiming that his constitutional rights were violated by an unreasonable search and, therefore, evidence that includes the blood test, his statements, and observations of witnesses and police officers should not be accepted by a judge, prosecutor Dana Filkowski said.

Peter Johnson, Hernández's attorney, could not be reached for comment this afternoon.

Hernández was charged with driving under the influence after he was stopped March 27 in Concord, where police say the state car he was driving was weaving inside a lane on Concord Avenue.

Lab tests concluded his blood-alcohol level was 0.08 percent, the level at which a motorist can be charged with drunken driving. Hernández has apologized for any embarrassment he may have caused others, but he said that he drank only two glasses of wine between 9 p.m. and the time of his arrest, about 2 a.m.

Filkowski characterized the court papers filed by Hernández as standard in such cases, with largely boilerplate language that does not make specific accusations of wrongdoing against a particular officer.

"What they do is put the burden on us to justify it," Filkowski said of Hernández's treatment by officers.

Hernández's trial is scheduled for Tuesday in Contra Costa Superior Court in Walnut Creek.

PHOTO CREDIT: Assemblyman Roger Hernandez, D-West Covina, talks on the Assembly floor on Thursday, May 17, 2012. (Associated Press / Rich Pedroncelli)



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