CA DUI san diego, close one .07

[desertdragon609]

What is the name of your state? California

on march 10th i was pulled over at 150am because i had a trailer hitch blocking my licence plate. The officer stated he couldnt read the tag and stopped me for the violation. he followed on by saying he smelled alcohol, I had 3 beers and one shot within 1 1/2 hour timeframe, and drank water for 30 minutes before i headed home. The SFST included gaze nystagmus, one leg stand test, walk and turn, and standing alphabet, as well as internal clock test. I apparenty did not pass all sections of the test and was asked to take a breath test, in which i blew .089. timeline: stopped at 0150, breath test at 0208. I was then taken downtown, and at 0233 i submitted a blood test. The results came back .07%. My argument is that I never actually reached .089 and that there is no way i could have came down to .07 in the 25 minutes between the PAS and the blood test. Can i expect this case to even goto trial?

 

[Zigner]

What is the name of your state? California

on march 10th i was pulled over at 150am because i had a trailer hitch blocking my licence plate. The officer stated he couldnt read the tag and stopped me for the violation. he followed on by saying he smelled alcohol, I had 3 beers and one shot within 1 1/2 hour timeframe, and drank water for 30 minutes before i headed home. The SFST included gaze nystagmus, one leg stand test, walk and turn, and standing alphabet, as well as internal clock test. I apparenty did not pass all sections of the test and was asked to take a breath test, in which i blew .089. timeline: stopped at 0150, breath test at 0208. I was then taken downtown, and at 0233 i submitted a blood test. The results came back .07%. My argument is that I never actually reached .089 and that there is no way i could have came down to .07 in the 25 minutes between the PAS and the blood test. Can i expect this case to even goto trial?

Hopefully it will go as far as it needs to for you to understand that you have a problem.

 

[synthius]

Hopefully it will go as far as it needs to for you to understand that you have a problem.

thanks for contributing no help whatsoever to his question !

 

[desertdragon609]

thanks for that useless tidbit of information.

 

[Zigner]

thanks for contributing no help whatsoever to his question !

I know I contributed nothing, as the OP's next post indicated.
OP shows no remorse for his actions and is trying to prove that he wasn't intoxicated.
I have no regrets about my first post on this thread.

 

[Zigner]

thanks for that useless tidbit of information.

Precisely.

 

[paguy88]

What is the name of your state? California

on march 10th i was pulled over at 150am because i had a trailer hitch blocking my licence plate. The officer stated he couldnt read the tag and stopped me for the violation. he followed on by saying he smelled alcohol, I had 3 beers and one shot within 1 1/2 hour timeframe, and drank water for 30 minutes before i headed home. The SFST included gaze nystagmus, one leg stand test, walk and turn, and standing alphabet, as well as internal clock test. I apparenty did not pass all sections of the test and was asked to take a breath test, in which i blew .089. timeline: stopped at 0150, breath test at 0208. I was then taken downtown, and at 0233 i submitted a blood test. The results came back .07%. My argument is that I never actually reached .089 and that there is no way i could have came down to .07 in the 25 minutes between the PAS and the blood test. Can i expect this case to even goto trial?

they got blood from you in 25 mts? where how?

the average human burns off .02 per hour... asuming your liver is health now this is always not true as people damage there liver from drinking or other health issues.... its is possilbe to go from .089 too .07 in a hour time..

the PBT is only looking for probale cause ... and usually can not be used in court. but the blood will be.


BTW-- the FST is objective... the cop could just say you failed.. no way of really knowing... exactly what you did wrong... the eye test is the most accurate of any tests. think about it your playing simon says at 2am...

 

[desertdragon609]

almost immediately after the PAS test we headed downtown which was about a 15 min ride. I was tested within the first 5 minutes of getting to the station, which came back a few days later at .07. I still fall under part A of the code...unless all evidence is ruled out?

 

[garrula lingua]

It depends on the jurisdiction, and whether you are to be prosecuted by City Prosecutors or the County Dist Atty's Office.

The County is more likely to reject the filing (you go free).
The City may file.

At .07, with no bad driving, it is triable (at under .08, the Prosecutor will have to prove 'impairment' and without bad driving, it's a toughie).

If those facts are correct, you have about an 90% chance of beating it.
I'd take it to trial.

You have an alternative to trial - the Prosecutor may offer a reduced charge, such as a 'dry' and reckless. It doesn't count as a DUI, and usually just involves fines and points on your license (you will pay about 5k for trial, unless you qualify for the PD - then it should be approx 1k.)


... I'm impaired at .05; I'm not responding to whether I believe you were impaired.
If your facts are correct, then it will be hard for the Prosecution to get a guilty verdict (s/he may, with a really good testifier-cop, objective signs, and some bad driving).

Again, you probably won't be charged. There's too many (seriously) over .08 DUI cases.

I think you're going to luck out; but, you do have a problem not recognizing when not to drive, and may be a time bomb for some innocent driver.

OT: to the drinkers (I consider myself one). I don't give a rat's patootie how often or how much you drink ... just don't drive after drinking (and, don't handle guns, or electric saws, or other weapons).

 

[desertdragon609]

Def was no bad driving, the facts in the police report indicate the standards...bloodshot eyes, slurred speech, and the botched up sfst's. and .089 PAS. A good lawyer can get most of that thrown out though right?

 

[desertdragon609]

latest news..the .089 PAS isnt admissible in court because I only took it one time? The officer asked me to blow again to compare results and I declined. Then I was in cuffs. Any thoughts?

 

[BigMistakeFl]

BigMistakeFl

I can only speak for Florida, but I know for certain that if you do the first blow and don't do the second, it's considered a refusal, hands down. They have to have more than one test to assure there is minimal differential between the two readings.

 

[desertdragon609]

true..this was the PAS on scene...I submitted blood 25 mins later when i got downtown and came back .07.

 

[CdwJava]

As a prelude - I use to be an officer in your area, and I made plenty of DUI arrests ... never lost one in San Diego County.

on march 10th i was pulled over at 150am because i had a trailer hitch blocking my licence plate. The officer stated he couldnt read the tag and stopped me for the violation.

Lawful, but a violation that caused the local traffic court to issue an edict in the late 90s saying that the plate had better be very obstructed or they would just toss those out - they got tired of these violations used as a pretext for a stop. Things may have changed in the 7 years I have been away.

he followed on by saying he smelled alcohol, I had 3 beers and one shot within 1 1/2 hour timeframe, and drank water for 30 minutes before i headed home.

Okay. So, in other words, he had a reasonable belief that you might be impaired and sufficient cause to move ahead with the investigation.

Given your list of drinks and time, I would estimate a BAC of about .065 - assuming these were 12 oz. beers and you are neither a dwarf nor a giant.

The SFST included gaze nystagmus, one leg stand test, walk and turn, and standing alphabet, as well as internal clock test.

The HGN (nystagmus), one leg stand and the walk and turn are part of the NHTSA standardized field sobriety tests - the others were just gravy.

I apparenty did not pass all sections of the test and was asked to take a breath test, in which i blew .089.

The field test is ALSO a field sobriety test.

The results came back .07%. My argument is that I never actually reached .089 and that there is no way i could have came down to .07 in the 25 minutes between the PAS and the blood test. Can i expect this case to even goto trial?

Unless they have lowered their standards in San Diego, yes.

However, the field test (the PAS) is just one of the FSTs. I doubt that they will try to make an argument to support that you were over .08, but if it was the Drager E-PAS, they just might, as that is the device maintained and calibrated by the DOJ. But, the DA will likely go with the .07 from the blood test and run from there.

Note that you can be impaired under .08 - CVC 23152(a) is driving while impaired. CVC 23152(b) is a SEPARATE offense for driving with a BAC of .08 or higher. My lowest DUI conviction was for, as I recall, .044 or thereabouts.

*IF* the FSTs and or driving demonstrated impairment, then the DA will likely proceed. These can usually be plead down to "wet reckless" per CVC 23103.5.

- Carl

 

[CdwJava]

Def was no bad driving, the facts in the police report indicate the standards...bloodshot eyes, slurred speech, and the botched up sfst's. and .089 PAS. A good lawyer can get most of that thrown out though right?

What makes you think that?

If the officer poorly documented his observations or is poorly schooled in DUI evaluations, a good attorney might be able to establish reasonable doubt ... but, getting things "thrown out"? That requires something more - like, malfeasance on the part of the officer.

- Carl