Can the DUI ever be challenged & dismissed?

[Evershine]

What is the name of your state? CA.

Had a couple of beers at friends before leaving for home at around 9pm. Sped to change lanes due to a car tailgating and high-beaming right behind me on the fast lane and knowing there were several cars next to my lane. At that moment the CHP pulled over with his flashing lights. I slowly pulled over to the shoulder and stopped.

The CHP asked me for my license and registration which I handed over. He told me that I was going too fast, at which I explained the above scenario. He bent over close to me and told me that I was “under the influence” since he smelled my breath and then told me to come out. He took the routine physical and then the chemical air tests, after which he immediately handcuffed me and said I was over the limit.

While filling out his forms, he asked me if I had any medical problems or taken any medications. I gave him the information on my current health situations and medications that I had taken that morning (one of which was Vicodin).

On the way to the detention, sitting in the front passenger side, I pleaded with him a couple of times explaining away the circumstance of speeding, my health conditions and that I only drink very few occasionally. I also mentioned that both my DMV and background records are clear and in good standings and that I was as sober as daylight. He obviously hesitated to understand my situation and gave me his own lecture, though I did respect him for his duty. I was polite and friendly all the while.

At the detention, he took another breath test and then called a nurse for a blood test. The nurse was unable to draw the blood. I was then left at the mercy of the detention for about 7 hours.

My question are (as the topic suggests), can the alcohol chemical air test be wrong and challenged on medical grounds? Can a lawyer contest for the scenario above and my otherwise good standings and lastly what are my chances for dismissal in this case if any? Any other recommendations would be appreciated. Thanks.

 

[FlyingRon]

Can the test be wrong? Perhaps.
Can it be challenged? Sure, you can try. A good DUI lawyer knows the angles.
Can it possibly be reduced? Possibly, again a good lawyer may get it to "wet reckless".

Things that won't work:
Failure to draw blood.
The fact that you were impaired by other drugs (vicodin). You are warned not to drive and warned not to drink while taking this drug.
There's no excuse for the speeding either.

 

[Evershine]

Thank you for your response, FlyingRon.

Things that won't work:
Failure to draw blood.
The fact that you were impaired by other drugs (vicodin). You are warned not to drive and warned not to drink while taking this drug.
There's no excuse for the speeding either.

After having counselled by several lawyers, I was told that "failure to draw blood" by them was in my favor since blood tests reveal more accurate results than breathalyzer.

I took 1/2 of Vicodin that morning around 7am and consumed a couple of beers at around 7pm. Though it clearly states to avoid alcohol, it does not give specific timeframe. It is usually understood not to consume alcohol immediately after or before taking the medication or at least for some time (few hours). I had also taken other medications as well that mentions it could possibly boost alcohol content and/or may cause drowsiness. Neither Vicodin nor other medications warn about NOT TO DRIVE but rather "take caution while driving". I've been taking certain medications for years now, including Vicodin (as needed) and have beers on occasions without any untoward consequences. The medicinal factor, as per some lawyers, may also strongly help in my case along with doctor's notes and my other medical problems that exist, including but not limited to wearing contact lenses.

While there's no excuse for speeding, there's always those momentary circumstances that are rather unavoidable or may create further menace, as in my case described above. This can be initiated at the hearing to BUILD the case for the probable cause towards my sane judgement, as per one lawyer.

Some lawyers told me that being your first DUI misdemeanor, there is no jail time, while a few others stated that there is a possibility and hence must hire an attorney. All other penalties are pretty much standard for all first timers.

Being my first "traffic violation" ever, I am all too confused and already stressed out. Not sure if I hire an attorney to fight the case or appear myself and simply submit to violation and get over with and save attorney's fees. One of the lawyers whom I spoke to seemed very knowlegeable and compromising and took the time to hear me out and explained the scenario. He said we must first get the "discovery" to analyze your violation before the hearings and then if necessary, gather all the facts and figures presented by me and fight it out for probable dismissal. Should we loose the case, the penalties would apply the same as if guilty on the first time basis and perhaps reduced with the help of the lawyer. His fees are $2000 to begin with before the trial.

Any thoughts and recommendations? Thanks.

 

[FlyingRon]

Additional recommendation? Hire the most experienced lawyer you talked to.

 

[CdwJava]

After having counselled by several lawyers, I was told that "failure to draw blood" by them was in my favor since blood tests reveal more accurate results than breathalyzer.

Not if the officers observed objective signs of impairment and your performance on the FSTs was poor. You can be impaired due to alcohol or drugs even without a test.

I took 1/2 of Vicodin that morning around 7am and consumed a couple of beers at around 7pm. Though it clearly states to avoid alcohol, it does not give specific timeframe.

Unfortunately for you, the law does not make an exception to DUI for unintentionally driving impaired. I'm not sold that the vicodin was a factor given the time frame (assuming you took the prescribed dose as indicated), but in combo with other drugs and alcohol it might have been a factor.

I had also taken other medications as well that mentions it could possibly boost alcohol content and/or may cause drowsiness. Neither Vicodin nor other medications warn about NOT TO DRIVE but rather "take caution while driving".

One should never drive after consuming multiple meds. Again, these are not legal defenses as intent is not a requirement for DUI.

Some lawyers told me that being your first DUI misdemeanor, there is no jail time, while a few others stated that there is a possibility and hence must hire an attorney. All other penalties are pretty much standard for all first timers.

The usual plea is to a "wet reckless" per CVC 23103.5.

Not sure if I hire an attorney to fight the case or appear myself and simply submit to violation and get over with and save attorney's fees.

It is always best to consult an attorney in these matters. For $2,000 he ought to be able to get you a plea ... but, even a cheaper attorney might do that. There is a chance he could take it to trial and win, but that will depend on the strength of the officer's report and investigation. if there are no big holes, then a plea is likely in your future.

- Carl

 

[Evershine]

Thank you for thoughtful responses, Carl.

JFYI, please be adviced that I am not being argumentative just for the sake of deliberate pretense, if anyone may wonder, but presenting factual and truthful scenario as gathered, administered and to the best of my knowledge.

Not if the officers observed objective signs of impairment and your performance on the FSTs was poor. You can be impaired due to alcohol or drugs even without a test.

I believe that can be rebutted for my old age, medical problems (including arthritus), medications and contact lenses towards poor performance on PST. I was never "impaired" (as it strongly sounds) to begin with.

Unfortunately for you, the law does not make an exception to DUI for unintentionally driving impaired. I'm not sold that the vicodin was a factor given the time frame (assuming you took the prescribed dose as indicated), but in combo with other drugs and alcohol it might have been a factor.

Agree.

One should never drive after consuming multiple meds. Again, these are not legal defenses as intent is not a requirement for DUI.

I've been taking multiple meds on a daily basis for years (my unfortunate symptoms), but never encountered driving problems nor seriousness of meds to NOT TO DRIVE but rather "take care or caution while operating vehicle". On the contrary, I seldom drink and if I do, never immediately but rather late in the afternoons or evenings. All my medications are taken during morning hours except one at bedtime.

It is always best to consult an attorney in these matters. For $2,000 he ought to be able to get you a plea ... but, even a cheaper attorney might do that. There is a chance he could take it to trial and win, but that will depend on the strength of the officer's report and investigation. if there are no big holes, then a plea is likely in your future.

I strongly beleive that it is that chance that I am willing for the lawyer to undertake which could possibly result in dismissal for all we know. But I am not sure what would happen, as in penalties, should we loose the case. Can you please enlighten me? Would you mind recommending a good attorney, as per your knowledge, experience and being a senior member on this board, who could handle my case as duly related, for the Riverside County, CA? You can either PM or email me, if you'd like. Thanks.

 

[Evershine]

I have another question though, besides the above. Can I get the "discovery" on my own? If so, from where and how? I was told that the discovery consists of CHP's paperwork and audio/video if any. I wanted to check what's on my records and how serious it is before hiring an attorney to see if its even worth pursuing a lawyer and fighting the case. Thanks.

 

[Zigner]

I have another question though, besides the above. Can I get the "discovery" on my own? If so, from where and how? I was told that the discovery consists of CHP's paperwork and audio/video if any. I wanted to check what's on my records and how serious it is before hiring an attorney to see if its even worth pursuing a lawyer and fighting the case. Thanks.

JimInCA has a lot of information about that - try PM'ing him - make sure to tell him Zigner recommended you talk to him

 

[Evershine]

JimInCA has a lot of information about that - try PM'ing him - make sure to tell him Zigner recommended you talk to him

Thanks Zigner, but I couldn't find any PM messaging button nor could I locate JimInCA since the members list is disabled. In any case, here's my email address should Jim or anyone may want to be touch with me and address my concerns: [email protected]

 

[tranquility]

You can get discovery on your own, but why? You don't have the expertise to analyze the information to see if there was a weakness. Realistically, the system is set up to have you plead and be punished. An attorney probably won't make too much of a difference, but such an expert (one with experience with DUI) is the *ONLY* way you could get this dismissed. One thing he'll tell you is to stop talking about your regular use of medication as though it is a defense in some way. Use of drugs (even prescribed) which affect the things tested by the FST will be used against you in court towards elements of the crime of DUI.

 

[CdwJava]

I believe that can be rebutted for my old age, medical problems (including arthritus), medications and contact lenses towards poor performance on PST. I was never "impaired" (as it strongly sounds) to begin with.

It depends entirely upon the FSTs, the observations, and the officer's training. Many CHP officers are highly trained in the recognition of drug and alcohol influence so unless the officer was sloppy or relatively new, his opinion will tend to hold a great deal of weight.

But I am not sure what would happen, as in penalties, should we loose the case. Can you please enlighten me?

This varies a great deal by county and DA. You can expect fines and possible jail time if convicted, plus the likely suspension of your license. A plea deal often keeps you out of jail and holds slightly lesser fines - AND it allows you the opportunity not to say you were convicted of a DUI.

But, this is something your attorney should know ... about the local DA and court, that is.

Would you mind recommending a good attorney, as per your knowledge, experience and being a senior member on this board, who could handle my case as duly related, for the Riverside County, CA? You can either PM or email me, if you'd like. Thanks.

Sorry, I do not know any DUI attorneys in Riverside County. I could only recommend you consult the local Bar Association or search for one of a number of DUI attorney organizations for recommendations in your area.

And, remember, all because your medication does not explicitly SAY do not operate a vehicle, many/most medications taken in conjunction with others - AND alcohol - have what is referred to as a synergistic effect on the body ... the otherwise nearly benign impairment that might be present with ONE medication might be magnified several-fold with some other med. or alcohol. You may not FEEL the impairment, but it can certainly be there.

- Carl

 

[Evershine]

You can get discovery on your own, but why? You don't have the expertise to analyze the information to see if there was a weakness.

I am certainly not an expert in analyzing "discovery", but I'm sure there are guidelines and perhaps detailed analytical renderings found on the Internet. It will also tell me the BAC and other written remarks made by the CHP before, during and after my arrest, if any, to fish out on "correctedness". I may also have a police officer (my wife's friend's cousin) look at it if necessary.

Realistically, the system is set up to have you plead and be punished. An attorney probably won't make too much of a difference, but such an expert (one with experience with DUI) is the *ONLY* way you could get this dismissed.

True and I am trying to capitalize on one by this forum members help for which I am truely grateful.

One thing he'll tell you is to stop talking about your regular use of medication as though it is a defense in some way. Use of drugs (even prescribed) which affect the things tested by the FST will be used against you in court towards elements of the crime of DUI.

Just about all lawyers I've insofar spoken to, all have submitted to my use of prescribed drugs and my medical conditions as grounds to substantiate a reasonable plea towards dismissal, along with other factors of course. Just today, I received a consent and other regulatory forms from one of lawyers I'd previously spoken to whom I've not yet retained, in which one of a full page questionaire is all about medical. I'm surprised by your statements above.

 

[CdwJava]

I'm surprised that any attorney would argue that your medication - and the possible objective signs of impairment - could be a defense against DUI!

I doubt that the attorneys are actually going to try and argue that it was okay to be impaired because you were on your prescription meds! CVC 23152(a) does not require intent, only impaired driving.

I suspect what they are looking for is whether or not your medications might MIMIC some of the symptoms observed, but not actually cause impairment. There are some medications (common among some psych. meds) that do just that.

In my years has a drug recognition expert I have had only TWO false positives, and both were when I made a cautioned opinion of a CNS stimulant when the person had taken Risperitol.

- Carl

 

[Evershine]

Carl, it is not just the medications alone to take up the defense and impairment issue, but a whole plethora of other factors leading to DUI arrest, as previously elaborated. I am not venting out on my own but as per several consultations with various attorneys. As I stated earlier, that I am just so confused and stressed out to evaluate the best course. As of this moment, I am simply debating to let an attorney handle the entire situation (while I sit back and drink beer, lol) and get it over with. I was told that the punishments are usually reduced on the first DUI violation (in fact my first ever traffic incident) and that no jail time is given. But that too seems wishy-washy after learning from various sources. Good heavens.

 

[CdwJava]

I was told that the punishments are usually reduced on the first DUI violation (in fact my first ever traffic incident) and that no jail time is given. But that too seems wishy-washy after learning from various sources. Good heavens.

Yes, they are ... usually as a result of a plea to CVC 23103.5. At the end of a jury trial, and a conviction for 23152(a), the penalties can be a tad more serious - including the possibility of jail time.

- Carl