Can I beat this DUI case?

[topwerks]

What is the name of your state (only U.S. law)? California.

Last month I got arrested for DUI, refused the breathalyzer, but got blood tested. The Misdemeanor notice to appear was written with only 23152(a).

Today at court, it had 3 counts; 23152(a)+(b), 23103(a) and Blood test was .09. The court paper said I was doing excessive speed over 85mph?!?!? WTF!!! I know I did unsafe lane change but it was 4 am. But speeding, I had my cruise control on around 75mph! The CHP wrote that while he was following me and had to speed up to catch up cuz I was going too fast, was another lie! I saw his head lights behind about6-10 car length then had my cruise control set at 65. Then he was behind me for another 2 mile or so before he turn on the lights and pulled me over.

I also asked for "split" test, police report, and plea not guilty!
Do I have a chance of getting away with this.
1. maybe a dirty blood test!
2. Police lie about speeding! video camera on the patrol car that show my speed.

 

[BigMistakeFl]

Do you want to take this case before a jury? What will the jury see? What sort of voters will comprise the jury? What evidence will they see? Whose word will they be most likely to believe?

 

[MagicMan08]

most of the time the speeding will be dismissed.....so that is out

bad blood test? In MN you get the blood test on your own.....if it is dirty...well then your screwed....and the breath test refusal here is an automatic 1 year revocation regardless

Sounds like the traffic stop was also justified....I am not going to sugar coat it for ya, and seems like others on this board don't either.....save your money and plead guilty

The cop who said he had to speed up to catch up with you is an idiot....if you are further behind someone going the same speed you will need to go faster to catch up....lol

 

[SIN EATER]

1. They ticketed as the (a) count, because they knew you were impaired, but had no BAC level.


2. The charging Prosecutor can add any count which can be proven beyond a reasonable doubt, at any time up to trial.

3. There was no refusal - there was a blood test. Offenders in CA have a choice of breath or blood.

4. You may be found guilty of the reckless, as well as the DUI. Your driving must have been heinous for them to charge a reckless (the 23103). They may drop this as part of a plea deal, but the reckless was filed as a misdemeanor, not a traffic violation.
However, the Prosecutor may have meant to file a 'wet and reckless', meaning an alternative to the DUI - it's priorable as a DUI, but the sentencing is lighter and it isn't easy for potential employers to ID as a DUI.

So, the Pros. may have filed three alternatives (DUI without BAC or, DUI based on the BAC, or Wet & Reckless).
The reckless may also be a separate and provable charge based on several violations of the Vehicle Code.

PS: No, I don't think you can beat it, but you may get a fair plea bargain under 23103 per a -wet & reckless.

 

[CdwJava]

3. There was no refusal - there was a blood test. Offenders in CA have a choice of breath or blood.

Actually, it sounds he DID refuse, and they then compelled blood. We call that a win-win in law enforcement parlance. We get our test, and the DMV suspends the license.

PS: No, I don't think you can beat it, but you may get a fair plea bargain under 23103 per a -wet & reckless.

If at .09 I'd say your right and the 23103.5 - wet reckless - is a viable alternative. Provided the DA puts the offer on the table.

- Carl

 

[SIN EATER]

It sure sounds as though you're right - OP said he refused the breath test, but ...
I don't know of any county in CA that's compelling blood testing unless it's a vehicular homicide/manslaughter case.

Are CA counties now compelling blood tests ?

I thought they were too worried about liability & concerned about overtaxing cooperative hospital staff.
Boy, that'll pull patrol cops off the street for quite a while, hanging around the hospital, instead of just processing a refusal (.09, too).

OP, did they charge with a 23612(d), refusal ? It would be stated on the complaint as a refusal. You get extra punishment for that.

 

[CdwJava]

It sure sounds as though you're right - OP said he refused the breath test, but ...
I don't know of any county in CA that's compelling blood testing unless it's a vehicular homicide/manslaughter case.

Are CA counties now compelling blood tests ?

It's a matter of agency policy rather than any county policy. I have worked for an agency that would not let us compel blood absent a felony, and where I work now we can ... so long as the drawing of the blood meets the established Constitutional standard of reasonableness and safety. Our DA doesn't require us to compel blood, but if we don't, a refusal is as good as an acquittal. Ergo, we draw it.

In San Diego, the DA would move ahead with prosecution based upon the officer's observations and testimony. This is not the case in every county. Perhaps it is lazy DAs that force us into that position, but I know of many agencies in many different counties that can compel blood on a misdemeanor or even an 11550 ... I know about the same number whose agencies will NOT permit a forced draw.

I thought they were too worried about liability & concerned about overtaxing cooperative hospital staff.

It depends on where and how they are done. A refusal to give consent is not the same as being combative or resistive. Some agencies have phlebotomists that will come to the agency or the jail, others require the services of a hospital. We have to go to a hospital here. In San Diego, by the time we would get the test at a hospital, the draw would have been well past three hours after the stop ... bad news for the prosecution. Hence, I suspect, one of the reasons they did not require it.

Boy, that'll pull patrol cops off the street for quite a while, hanging around the hospital, instead of just processing a refusal (.09, too).

In some counties (like mine) a refusal would mean no charges if we couldn't force the blood.

- Carl

 

[topwerks]

I did refused the breathalyzer and opt for blood test instead, cuz that was the option that he gave me.
So, if the blood has some kind of contamination from the beginning and split test would shows, they could still pin me down w/ wet n reckless????
I'm in LA county

 

[CdwJava]

I did refused the breathalyzer and opt for blood test instead, cuz that was the option that he gave me.

Okay. Your post wasn't clear and I interpreted it that you refused. It doesn't change the end result, however.

So, if the blood has some kind of contamination from the beginning and split test would shows, they could still pin me down w/ wet n reckless????
I'm in LA county

How will a "split test" change things? The CA crime labs almost exclusively use the "whole blood" method to test for blood. If there was any contamination, it would have been in the laboratory, and unless they switched the samples, the chances of someone managing to accidentally pop your BAC to .09 is almost nil. When these accidents happen, they tend to pop the results off the charts, not to barely above the per se level.

In any event, it will be incumbent upon the defense to challenge the validity of the test. This can be quite expensive. Expect to spend between $5,000 and $10,000 on your defense depending on how vigorous the defense is and how many experts they intend to call.

- Carl

 

[mindmltn]

In California the Police may now force a blood test upon refusal.
We do have the right to choose between the two unless there are other circumstances like an accident or they see drugs or pills and then they can make you take a blood but they can absolutely fore you o give them blood by force.
It is on the DUI Paper work I have from my dui the other night.
They have one checkbox for refusal and forced blood draw and the cops told me when I said I was refusing everything that they would strap me down to a chair and draw the blood either way so it was in my best interest to just d the breath test.

 

[paguy88]

hold on.

I am confused.

He said refused the breath test. Does he mean the hand held devise at road side? I was under the impression that you do not have to do that in any state? it is only part of the FST. thus that is not a refusal?

 

[CdwJava]

In California the Police may now force a blood test upon refusal.

We've been able to do it for a couple decades or more ... as long as I have been at it anyway.

However, some agencies do not permit forced blood draws for non-felonies. My current agency permits it - my previous agency in San Diego County did not. But, the DA there would go to trial based upon the officer's investigation even without a chemical test.

- Carl

 

[CdwJava]

hold on.

I am confused.

He said refused the breath test. Does he mean the hand held devise at road side? I was under the impression that you do not have to do that in any state? it is only part of the FST. thus that is not a refusal?

There might be one or more states where a roadside test IS required, but CA is not one of them. For us, you are correct - it is merely one of the FSTs and the officer must relate it as such to the suspect as well as giving him the option to decline. However, if you are under 21 you may not have that option.

- Carl