breath test accuracy???

[delayjf]

What is the name of your state? California

I was recently pulled over and ticketed for DUI. I blew .09, but noticed on the ticket that they listed my weight as 200 lbs, in reality I weight 250 lbs the license was about 6 years old. If they used 200 pounds in calculating my BAC, then it seems to me that their calculation would be way off. Using some of the online BAC calculators my correct weight and a very liberal estimation of what I drank that night, I was way under the legal limit. They never weighed me, nor did they asked me what my weight was. I also had heart burn that night which I later found out can induse a unreliable high reading. The police officer asked me if I had thrown up or regurgetated but he said nothing about burping.

Is there a defense here somewhere.

Also, I got a letter from the DMV telling me that my suspension had been set aside. What exactly does that mean?

[fagettaboutit]

How much did you drink and within what time period?

Be honest with your information

[delayjf]

I would honestly say that a liberally guessing that I drank about 8-10 drinks starting at 6:30 p.m , with at least 6 of them in the early part of the evening, I was given the breath test about 1:30 a.m. that morning.

As a point of reference, I felt more intoxicated after four draft beers within a two hour span setting at home than I did when I was pulled over
I know you've heard all this before, but I really feel I was not drunk.

[CdwJava]

Originally Posted by delayjf

If they used 200 pounds in calculating my BAC, then it seems to me that their calculation would be way off.

The breath machines are generally coinsidered to be accurate to within +/- .02 BAC. And the BAC is what it is - it is not based upon your height and weight, but upon the concentration of alcohol found in your deep lung air.

I also had heart burn that night which I later found out can induse a unreliable high reading. The police officer asked me if I had thrown up or regurgetated but he said nothing about burping.

Heartburn should have no effect on the BAC, and your burping should also have no effect on the reading of any machine put into service in CA in the past 10 years or so. While it is still asked, the manufacturers guarantee (for what that's worth) that the burping will have no effect ... and since it is deep lung air that the device reads and NOT mouth air, a burp should have no effect.

Is there a defense here somewhere.

If you have the money, you can hire a good DUI lawyer and hire a lot of experts to challenge the validity of the machine ... but be prepared to spend money foir a crap shoot.

Also, I got a letter from the DMV telling me that my suspension had been set aside. What exactly does that mean?

It sounds like they have decided NOT to suspend your license at this time. This usually means that the officer either submitted incorrect DMV paperwork, or, it was not submitted in its enirety by the agency.

This does NOT mean it won't be yanked if you are convicted.

- Carl

[Alchohol_Free]

What exactly were you pulled over for? Did the officer suspect you under the influence or was it something else and he discovered you'd been drinking?

[delayjf]

He claimed that I was weaving within my lane. But I was never cited for reckless or speeding or anything else. I don't think I was, but the car I was driving was not mine and it did have a tighter steering than my car.
and there had been construction on the interstate so the lanes were not well marked.

In as much as this is my only offense, what are the chances of a plea?? I would just suck it up and plead guilty except that I'm in the Military and this would kill my chance for promotion and affect my ability to get a clearance.
If I am guilty I don't mind paying the price, but, given the circumstances in this case, I don't think it should cost me my career

[CdwJava]

Originally Posted by delayjf

He claimed that I was weaving within my lane. But I was never cited for reckless or speeding or anything else.

He would have been remiss had he actually cited you. Had he issued you a citation for the reckless driving or weaving, or whatever, you cvould have pled guilty to the lesser offense and then claimed double jeopardy on the DUI (yes, it HAS happened). This is why we should never issue a citation for a moving violation that is part of the DUI case.

If it IS charged, it will be folded in to the DUI. More than likely it will simply be an element to help establish the cause for the stop and the DUI.

I don't think I was, but the car I was driving was not mine and it did have a tighter steering than my car.
and there had been construction on the interstate so the lanes were not well marked.

And these may be legitimate reasons, but they probably wouldn't preclude the officer from making an enforcement or investigative stop.

In as much as this is my only offense, what are the chances of a plea??

Depends on what you want. If you want the DUI dropped, probably not good. If you want no jail time, fines, court probation and counseling, probably good.

And I'm not sure how a plea to a "wet reckless" might effect your military options, so even that might not be a good idea.

I would just suck it up and plead guilty except that I'm in the Military and this would kill my chance for promotion and affect my ability to get a clearance.
If I am guilty I don't mind paying the price, but, given the circumstances in this case, I don't think it should cost me my career

Maybe it shouldn't, but it just might do so. I'm not sure that a DUI will effect your ability to get a clearance, but it certainly can show a lack of judgement, and THAT can kill a career.

However, you might be given the opportunity to remain in ... and with a little time, even this can be set behind you. I have known a number of Marines that have had fine careers even after a DUI conviction.

- Carl

[delayjf]

And I'm not sure how a plea to a "wet reckless" might effect your military options, so even that might not be a good idea.

What exactly is wet reckless??

Maybe it shouldn't, but it just might do so. I'm not sure that a DUI will effect your ability to get a clearance, but it certainly can show a lack of judgement, and THAT can kill a career.

I've seen that happen with Enlisted Marines, but not officers. I've already talked to a military lawyer and he thinks it would be a career ender.

Depends on what you want. If you want the DUI dropped, probably not good. If you want no jail time, fines, court probation and counseling, probably good.

I would not expedt them to drop the charge. but whats the best I might hope for??

[CdwJava]

Originally Posted by delayjf

What exactly is wet reckless??

It's a lesser conviction than a full-blown DUII. Sorry, but I don't know much about it.

I've seen that happen with Enlisted Marines, but not officers. I've already talked to a military lawyer and he thinks it would be a career ender.

Ah! Okay ... I didn't know you were an officer. I worked for more than 8 years in the San Diego area and never popped an officer for DUI, so I just assumed you were enlisted. I know it happened, I just never came across it. I did assist in the arrest of a 1st Sgt. on the night of the USMC Birthday Ball back in 1996, I think it was. Not a pleasant experience for anyone ... particularly when the arresting officer was also a former Marine.

I would not expedt them to drop the charge. but whats the best I might hope for??

Probation, fines, and counseling. A good attorney might be able to get a deferral (if that's possible) so that it drops off your record after a year or so.

You might be well advised to consult a DUI attorney and see what they might be able to do. You never know, there may be some hole in the report or procedures that could give you some wiggle room.

- Carl

[Alchohol_Free]

What time of the day or night were you driving?

[delayjf]

I went to the court house for my first hearing and was told that the DA had decided not to file my case and had returned my case back to the CHP.
The clerk there said that usually there were remarks to indicate why the case had been returned, but that in my case there were none.

They gave me a piece of paper telling me that a case could be filed at a later date. Any idea what maybe going on??? Along with the DMV not suspending my license. Is this a good thing or am I getting my hopes up??


With regrard to an earlier question, I was pulled over at night.

[CdwJava]

It sounds like something important is missing from the report. It coul dbe a misfiled paper, or it could be something substantial. I guess you'll just have to sit back and wait to see what happens at this point.

- Carl

[Alchohol_Free]

Here where I'm at, if it's your first DUI pullover, the officer issues a temporary license that's good for 30 days. Perhaps you're in a similar situation by not having a suspension.

You certainly have an interesting case going on.

The idea of pleading guilty to your pullover ticket and claiming double jeopardy on the DUI is really creative.