During Banda's first trial, his passenger, Jorge Adame Ariza, also an undocumented immigrant from Mexico, testified under a grant of immunity during the defendant's two-day preliminary hearing in June that he and Banda had a number of beers that night before the accident.
Adame said Banda got into a fight with another man outside a Chula Vista restaurant. Adame told them he picked up Banda but later moved into the passenger seat with Banda behind the wheel during the crash.
San Diego police Officer Michael Muniz testified in the first trial that Banda's blood-alcohol content measured .151 and .152 percent -- the legal limit is .08 -- during two breathalyzer tests.
Federal immigration officials said Banda has been deported from the United States 17 times.
Immigration and Customs Enforcement officials told 10News if Banda is not tried again (and effectively not convicted) he may or may not be deported. ICE has requested that he be forwarded to the agency's custody upon any potential release. Banda's release will be subject to the Sheriff's Department under the California Sanctuary Law, ICE officials said.
A judge will decide Friday whether a third trial will take place.