Under .08 dui

[Californianurse]

What is the name of your state? California

I was arrested at 0100 on 04-23-05 and charged with misdemenor DUI.

I have 2 questions basically:

1. Provided my BAC comes back under .08 which I'm quite sure it will, what are my chances of getting this dismissed and what should I do to make that happen?

2. How do I get ahold of my BAC results?

Here's the story:

I have a couple drinks (2 beers) early at dinner with some friends (around 1730 - 1830). At 1830 we move next door to a bar and grill and I order a scotch. After I get my scotch, the place gets busy and our waitress disappears. Thus, no drinks for another 2.5 hours. Its now 2300 and our waitress shows up. We order an appetizer plate and I get another scotch, so this, my last drink, was with food. We left an hour later at 2400 and I felt zero effects of alcohol nor was I tired.

I drive north for an hour and by that time I was getting very tired and having trouble keeping my eyes open. I'm on the freeway and I hit the side of the lane and the reflectors but dont swerve over my lane. I'm immediately lighted up and pulled over.

The CHP officer takes my license and registration and asks me if I'd had anything to drink that night. I told him the truth and said I'd had 4 drinks over the past 7 hours, but that I was not inebriated at all, just sleepy because I'm a nurse and work tough hours and the night prior I'd not gotten much sleep.

A few minutes later, they come back and get me out of the car. Just as they do, a 2nd cruiser pulls up and a 3rd officer gets out. He walks up and the first officer says, "this is officer so-and-so, he'll be performing a field sobriety test." The 3rd officer holds up a pen and prompts me to follow it with my eyes without moving my head, which I did with zero difficulty. He then told me to lift my foot up and hold it out in front of me which I did for what seemed to be a long time, it must have been at least 30 seconds. I did so with zero difficulty. I didnt lean to one side, I didnt stumble, my foot only moved a very small bit because I was shaking I was so nervous.

He told me to put my foot down and told me I was under arrest for driving under the influence. He had me in his car and he'd not been out of his car 60 seconds. Now, I tell you with all honesty and I have no reason to lie, that I was stone-cold sober. I was feeling 0 effects of alcohol and hadnt when I left the bar either.

I objected to being arrested and said, "sir, i'm not drunk, I'm just tired. You didnt even give me a breath test. Let me take one, I'll prove it to you."

At this, he became really upset and shouted, "you want to take a breath test??? you want to take a breath test??? Fine!" At that he went to his trunk and got out the machine. I blew a .07 at which I said, "see, I'm not drunk, just tired." He said, "close enough," and he slammed the door and took me to the county jail.

I have zero prior DUI record. I dont have my BAC level yet because I dont know how to get it. Any advise is appreciated as well as how good or bad my case looks.

 

[itsacatsworld]

Depends on the DA in CA if your unable to control your vehicle your dwi even though under .08. Im curious what was your bac at the station/

 

[Californianurse]

The only number I know is the single breath test on the side of the road which I stated was under .08. I am at a loss as to how to find out my blood level that was drawn at the station.

 

[CdwJava]

The only number I know is the single breath test on the side of the road which I stated was under .08. I am at a loss as to how to find out my blood level that was drawn at the station.

The PAS device used in the field is not likely an E-PAS so it is not admissable and may not be as accurate as the blood draw. The results of the blood draw may not be available for a month or so. When they are available, your attorney can get the results. And if charges are dropped, you will know that it likely came back under .05 (which is what I would expect if your times and drink totals are accurate ... unless you're a midget).

If they file, then it likely means that the alcohol came back .05 or higher, or that they found drugs.

Keep in mind that in CA there are essentially two charges you can face - CVC 23152(a) for DUI and CVC 23152(b) for having a BAC of .08 or higher. You CAN be convicted of DUI with a BAC of less than .08.

- Carl

 

[fagettaboutit]

You need to hire a QUAFIFIED DUI attorney. I mention a qualified DUI attorney because there a many lawyers who claim they know DUI laws, they don't. You're facing serious charges so hire a lawyer who truly understands the dynamics of how you ended up arrested. I suggest a lawyer from the National College for DUI Defense. You can google their website: "ncdd"

That said, under .08 means nothing really. It's up to the DA as to whether you'll be charged or not. You would think the legal limit is .08. It's not.

I blew a .07 at which I said, "see, I'm not drunk, just tired." He said, "close enough," and he slammed the door and took me to the county jail.

Close enough. That's all it takes.

Tired nurse means nothing. IF the cops thinks you're drunk, that's all that matters. That's the DUI laws now.

You personally can't get hold of BAC readings. You need to hire a lawyer to get those results for you. Yes, hire a lawyer.

Your biggest mistake in all of this - admitting you drank anything. Oh those roadside tricks you performed were merely evidence building against you. No one really passes those little monkey tricks. The cops make you do those tricks so they can use them against you - never as a gauge to let you go.

I didnt lean to one side, I didnt stumble, my foot only moved a very small bit because I was shaking I was so nervous.

Yea, there is no "nervous" on the "rating" chart. Everyone is nervous yet the roadside tricks never allows for "nervous."

How were those tests administered - and in what conditions. Your lawyer should check to see if there was an in car camera. I doubt, but it's worth checking into. A good DUI lawyer will challenge how the tests were administered.

It's your honest word and the cop. He thinks you were drunk. So there you have it.

You're facing criminal charges. That's how DUI laws work. If you think you're truly innocent, don't let anyone tell you otherwise.

Welcome to the DUI MADDness.

 

[CdwJava]

You need to hire a QUAFIFIED DUI attorney. I mention a qualified DUI attorney because there a many lawyers who claim they know DUI laws, they don't. You're facing serious charges so hire a lawyer who truly understands the dynamics of how you ended up arrested.

Certainly a reasonable suggestion.

Tired nurse means nothing. IF the cops thinks you're drunk, that's all that matters. That's the DUI laws now.

Not exactly true. Maybe for the arrest, but not for the conviction. It still has to be proven.

No one really passes those little monkey tricks. The cops make you do those tricks so they can use them against you - never as a gauge to let you go.

Not true. I know plenty of instances where people have been released at the conclusion of the FSTs. There aren't many, but they do exist.

Yea, there is no "nervous" on the "rating" chart. Everyone is nervous yet the roadside tricks never allows for "nervous."

Actually, they do.

How were those tests administered - and in what conditions. Your lawyer should check to see if there was an in car camera.

Not many of those in CA. And I can't think of any in CHP cars I've seen unless they are part of a regional DUI team.

A good DUI lawyer will challenge how the tests were administered.

Maybe. It's usually the only shot they have depending on the results of the chemical test. If they can somehow defeat the probable cause for the arrest, then there is a good chance of the charges being dropped. It rarely works (never has in my experience) but I suppose it can.

- Carl

 

[fagettaboutit]

Oh Carl. Defend your own. Please.

Carl: Not exactly true. Maybe for the arrest, but not for the conviction. It still has to be proven.

Oh, but there is still an arrest record. Right? How much does that arrest cost to be removed, Carl?

No one really passes those little monkey tricks. The cops make you do those tricks so they can use them against you - never as a gauge to let you go.

Carl: Not true. I know plenty of instances where people have been released at the conclusion of the FSTs. There aren't many, but they do exist.

Oh nice thought, Carl. Operative words would be "there aren't many" -- BUT they do exist. And NOT many.

Quote:
Yea, there is no "nervous" on the "rating" chart. Everyone is nervous yet the roadside tricks never allows for "nervous." [/quote]

Carl: Actually, they do.

Really, where is that on the chart? What's the actual phrase on the chart? More importantly, how often is that question used as an actual "driver tired"?

A good DUI lawyer will challenge how the tests were administered.

Maybe. It's usually the only shot they have depending on the results of the chemical test. If they can somehow defeat the probable cause for the arrest, then there is a good chance of the charges being dropped. It rarely works (never has in my experience) but I suppose it can.

I suppose it can?? I think that would be the same where they let a driver go because they performed the roadside tricks perfectly.

When it goes to court, it's not about probable cause for the arrest. It's a matter of convincing the jury the accused was drunk.

How does one (like yourself) do so? My bet would be the reading you get from that machine. That machine that could never be put on the stand. The reading that could never be challenged.

Provide it without the machine, it's reading, or your roadside tricks.

Drunk is drunk. .07 is an easy target for an excuse to solve a problem that hasn't been solved in years. Only a DA, a lame cop and MADD representative would happy to arrest a tired nurse after consuming four drinks in seven hours. Even after the government claims those numbers are okay.

I think that sums it up best, Carl

Ironically, no one would even care that she drove tired. Only she drank alcohol.

 

[CdwJava]

Oh, but there is still an arrest record. Right? How much does that arrest cost to be removed, Carl?

Uh ... none. There IS no arrest record when someone is detained in the field and released.

Carl: Not true. I know plenty of instances where people have been released at the conclusion of the FSTs. There aren't many, but they do exist.

Oh nice thought, Carl. Operative words would be "there aren't many" -- BUT they do exist. And NOT many.

It's true, though. There are people that pop their spouses and are not arrested for domestic violence as well ... as there are people that commit all manner of crimes where there may be cause to make an arrest but aren't for one reason or another. All because you don't like the way the fact is stated doesn't mean that it is not true.

Quote:
Yea, there is no "nervous" on the "rating" chart. Everyone is nervous yet the roadside tricks never allows for "nervous."

Really, where is that on the chart? What's the actual phrase on the chart? More importantly, how often is that question used as an actual "driver tired"?

I don't know what "chart" you refer to. And nervousness is one of the reasons why the standardized FSTs are designed to be taken as a battery and not typically singly.

How does one (like yourself) do so? My bet would be the reading you get from that machine. That machine that could never be put on the stand. The reading that could never be challenged.

I have gotten convictions for drugs and alcohol without the chemical test. And the machine CAN be challenged - where have YOU been? It's challenged all the time ... usually unsuccessfully, but many DUI attorneys try. The machine or the blood test makes it easier.

Only a DA, a lame cop and MADD representative would happy to arrest a tired nurse after consuming four drinks in seven hours. Even after the government claims those numbers are okay.

Of course you are assuming that the story is completely true. You also did not observe whatever the officer at the scene did. I have no idea what the officer(s) saw - and neither do you. Maybe it was fatigue ... maybe it wasn't. Since the chemical test results aren't in, there's no way to know.

And the last time I checked, MADD didn't have people on the road making arrests or telling me what to do. You seem to have a heck of a bone to pick with them, but MADD has nothing to do with the enforcement process. They are a lobbying group like so many others. If you want to complain about a powerful lobbying group, talk to the NRA.

Ironically, no one would even care that she drove tired. Only she drank alcohol.

When they come up with a way to prove weariness, I'll be all for it. Until then, we can only cite for the observed bad driving for driving tired.

Start lobbying for the tired law!

- Carl

 

[Curt581]

1. Provided my BAC comes back under .08 which I'm quite sure it will, what are my chances of getting this dismissed and what should I do to make that happen?

As stated earlier, it's going to depend on the DA, and how well the officer articulated signs of impairment in his report.
You should understand the the .08 limit is what's known as "prima facia" or "good on it's face" evidence... that means that the State doesn't need to prove intoxication at that BAC. At .08 the court assumes you are drunk. At lower levels, it's still quite possible to obtain a conviction, it's just a little more complicated.
As for your making a dismissal happen, you can't. Only the DA or the court can.

2. How do I get ahold of my BAC results?

Not sure how it works in CA, but where I work, the State Hygiene Lab mails a copy of the results to the offender, as well the DA's office and the court. If CA doesn't, you can get those results at your initial appearance through a legal process called "Discovery". Your attorney can explain it to you.

I have a couple drinks (2 beers) early at dinner with some friends (around 1730 - 1830). At 1830 we move next door to a bar and grill and I order a scotch. After I get my scotch, the place gets busy and our waitress disappears. Thus, no drinks for another 2.5 hours. Its now 2300 and our waitress shows up. We order an appetizer plate and I get another scotch, so this, my last drink, was with food. We left an hour later at 2400 and I felt zero effects of alcohol nor was I tired.

Two beers and two Scotchs could be a fairly significant amount, depending on your body weight and elapsed time of consumption. Add in the fact that you're already sleep deprived, and it's a potentially dangerous combination.

I drive north for an hour and by that time I was getting very tired and having trouble keeping my eyes open. I'm on the freeway and I hit the side of the lane and the reflectors but dont swerve over my lane. I'm immediately lighted up and pulled over.

Classic DUI driving indicators. There may have been some fog line crossing that you're unaware of. After all, you're having trouble keeping your eyes open, right? Did you see the squad car behind you?

The CHP officer takes my license and registration and asks me if I'd had anything to drink that night. I told him the truth and said I'd had 4 drinks over the past 7 hours, but that I was not inebriated at all, just sleepy because I'm a nurse and work tough hours and the night prior I'd not gotten much sleep.

As I said, a recipe for disaster. As a medical professional, you should know this.

A few minutes later, they come back and get me out of the car. Just as they do, a 2nd cruiser pulls up and a 3rd officer gets out. He walks up and the first officer says, "this is officer so-and-so, he'll be performing a field sobriety test." The 3rd officer holds up a pen and prompts me to follow it with my eyes without moving my head, which I did with zero difficulty.

Of course you didn't. It doesn't look for 'difficulty'. That was called the Horizontal Gaze Nystagmus test. The clues they were looking for are:

1. Lack of smooth pursuit of a moving object.
2. Distinct jerking at maximum deviation.
3. Nystagmus occurs before 45 degrees of lateral movement.

Total of six clues, three per eye. This test alone is accurate in more than 70% of cases in detecting a driver who is over .08.

He then told me to lift my foot up and hold it out in front of me which I did for what seemed to be a long time, it must have been at least 30 seconds. I did so with zero difficulty. I didnt lean to one side, I didnt stumble, my foot only moved a very small bit because I was shaking I was so nervous.

The One Leg Stand. There is normally another test, called the Heel to Toe, Walk and Turn test that accompanies the first two. The three comprise the Standardized Field Sobriety tests approved by NHTSA.

He told me to put my foot down and told me I was under arrest for driving under the influence. He had me in his car and he'd not been out of his car 60 seconds. Now, I tell you with all honesty and I have no reason to lie, that I was stone-cold sober. I was feeling 0 effects of alcohol and hadnt when I left the bar either.

That's the trouble with alcohol. You can be pretty impaired and not realize it. The first symptom is diminished judgement and inhibitions. No person under the influence is objectively able to judge their own impairment level.

I objected to being arrested and said, "sir, i'm not drunk, I'm just tired. You didnt even give me a breath test. Let me take one, I'll prove it to you." At this, he became really upset and shouted, "you want to take a breath test??? you want to take a breath test??? Fine!" At that he went to his trunk and got out the machine. I blew a .07 at which I said, "see, I'm not drunk, just tired." He said, "close enough," and he slammed the door and took me to the county jail.

That was a PBT, or preliminary breath tester. They are not an admissible evidentiary test, and carry the same legal weight as one of the field sobriety tests. They can be used as probable cause to arrest only.

I have zero prior DUI record. I dont have my BAC level yet because I dont know how to get it. Any advise is appreciated as well as how good or bad my case looks.

You should know that a blood test result is often slightly higher on BAC than a breath test. It will also depend on whether your level was on it's way up, peaking, or on it's way down. If your story hold true, then it was likely on it's way down, but I can't know for sure.

I spent quite a bit of time assigned as my agency's court liaison officer. I processed all the DUI arrests my colleagues made through the DA's Office. To be honest, I'd say your case doesn't look good. I recommend hiring a competent attorney.

 

[gmcgann]

I'm not sure about California, but you probably have a good chance of pleading to a reduced charge at least. It depends on whether or not the DA has the political leeway to negotiate.

What most people don't understand is that you can violate the DUI law two ways. Under CVC 23152(b) it is illegal to operate a motor vehicle with a BAC of 0.08 or higher. Whether or not you are actually impaired has nothing to do with it - it's a statutory limit. You could do back flips on a tightrope while juggling to show you're sober and it wouldn't matter.

Under CVC 23152(b) it is illegal to operate a motor vehicle "under the influence" of alcohol. (North Carolina has a higher standard; you must be "impaired") What this means is that if, in the opinion of the officer, you are "under the influence" you are guilty of violating the law even if you don't meet the .08 standard.

It's much harder to beat a charge of exceeding .08 because the machine is considered to be correct. On the other hand, proving you were under the influence rests on the testimony of the officer. Veteran officers usually have a standard speech they can rattle off in their sleep, but younger officers sometimes have trouble when questioned by a good attorney.

In your case you blew .07, and the blood test will also probably be below .08 so the burden of proof is much harder to meet. If you actually drank what you say you did, though, it doesn't add up. The rule of thumb for most people is that it takes about an hour for the body to metabolize one drink, meaning an ounce of 80 proof alcohol or 12 ounces of 3-4% beer. If you drank what you say you did, when you say you did, you should not have blown anything on the breath tester. You had two beers prior to 1830, so by 2030 at the latest they should have been gone. You had a scotch at 1830-1900, then nothing until 2300. Again, your BAC should have been near zero. You then had another drink, 2300-2330, and you were stopped at 0100. Again, you should have blown 0. Either your body does not metabolize alcohol well, meaning you should have been pretty drunk at dinner, or the drinks were pretty big or very strong. If the beers were triple bocks at 13% and the scotches were doubles I can see .07 two hours later. Most cops have a pretty good feel for how much people have had to drink, so the cop was probably thinking the same thing I am.

 

[shibashaba]

That was a PBT, or preliminary breath tester. They are not an admissible evidentiary test, and carry the same legal weight as one of the field sobriety tests. They can be used as probable cause to arrest only.


Is this true in California only or also in virginia?

 

[CdwJava]

That was a PBT, or preliminary breath tester. They are not an admissible evidentiary test, and carry the same legal weight as one of the field sobriety tests. They can be used as probable cause to arrest only.


Is this true in California only or also in virginia?

It is the same in CA. Except here we call it a PAS (preliminary alcohol screening) device. We also have to give a specific admonishment prior to giving the PAS test.

- Carl

 

[BigMistakeFl]

Ok

When it comes to BAC, time is not your friend. Think of the bell curve.... the time it takes for alcohol to work its way through your sytem, blood stream and into the lungs. If I drank ten shots of whiskey right now and was stopped at the end of my driveway for a BAC, I'd be under the limit. Stop me in an hour or two and I'd be way over.

To get the BAC, you have to have a lawyer I think. If you truly counted and your total drinks consumed were exactly five or fewer, no heavy shots and not one extra beer, then you may be right at the .08 line. Any more and you were most likely over. So if you were over that limit, there's little point in fighting unless you just like paying a lawyer to get you a no contest plea to the charges in the end. That, you can do on your own.