Cops waited while blood alcohol rose.

[deckscrew]

From CA.

Question out of curiosity. I met someone who got a DUI. He was pulled over at a traffic checkpoint. He blew a .06. The police made him wait at the check point for about an hour and they retested him. He then registered .08. He was then cited for a DUI. He was easily with in 15 minutes of his house. Is this legal? Should he have refused the second test? Curious how he should have handled this.

 

[xylene]

From CA.

Your friend should handle this by getting a lawyer, like all DWI cases.

 

[Free_Advice]

your buddy should have asked "am i free to go?" .. if not, ask to contact his attny ('cause he would be under arrest at that point) & discontinued giving samples roadside.

The 0.06 should help him. The error on this machine may account for the 2 readings if his BAC was actually 0.07.

The law is the actual BAC, not what a machine reads (some laws/regs its the actual machine reading regardless of the true value).

Now he must go and spend $$ on a lawyer.

 

[BOR]

From CA.

Question out of curiosity. I met someone who got a DUI. He was pulled over at a traffic checkpoint. He blew a .06. The police made him wait at the check point for about an hour and they retested him.

I have never heard of a BAC rising with time?

One point about a DUI checkpoint is that just because a driver goes through one is not automatic authority for the police to conduct a breath test etc.

If signs of impairment are noticed, then a continued detention is justified to conduct an invetigation. If they knew some trick to wait and the BAC would rise to the "per se" level of .08, when no other outward signs were visible to start with, that may be a defense? However, what cause did they have to demand a BAC in the 1st place if not others signs were noticable, surely there must have been.

An hour fior an investigative detention does seem a little high, but there is no time test, the independent facts will justify or not justify it.

He then registered .08. He was then cited for a DUI. He was easily with in 15 minutes of his house. Is this legal? Should he have refused the second test? Curious how he should have handled this.

The distance from his home is constitutionally irrelevant. He could have refused the 2nd test as well as the 1st, but refusal upon a legal request to ask for a BAC will result in a DL suspension.

A 2nd test could have exonerated him, but here it did not.

I will say this, if probable cause for an arrest did NOT exist after he blew a .06, then wating until it reached an .08 a hour later "may" be defense, yes.

 

[CdwJava]

From CA.

Question out of curiosity. I met someone who got a DUI. He was pulled over at a traffic checkpoint. He blew a .06. The police made him wait at the check point for about an hour and they retested him. He then registered .08. He was then cited for a DUI. He was easily with in 15 minutes of his house. Is this legal? Should he have refused the second test? Curious how he should have handled this.

Since we do not know why he was asked to remain, and why a second test was administered, there is no way to say what he should have done.

If he had been arrested, then he could not go anywhere. If arrested for DUI then he could not legally refuse the second test. The standard for the test is if taken anywhere within 2 hours of the contact it is generally good.

Note, also, that one can be impaired (i.e. DUI) with a BAC of .06.

Your friend can hire an attorney and argue a rising BAC and hope that there is insufficient proof to show that he was impaired at the time of the stop.

 

[AnimeGrl]

I know that in PA, the law says "operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration is at least .08% but less than .10% within two hours after the individual has driven, operated, or been within actual physical control of the movement of the vehicle. Therefore, being 15 minutes from home would not matter. They could pinch him in the driveway under this wording of the law.

Alcohol levels can certainly go up with time. I know a guy who is an alcoholic and drinks heavily just before leaving his office for the 10 minute ride home. He insists that the alcohol will take 20 minute to "hit him." But over the course of the evening, with his wife and children, he appears to become drunker and drunker. He is now facing a DUI in PA.

 

[Zigner]

I know that in PA, the law says...

This, of course, is totally irrelevant for out OP who happens to be on the other side of the country.

 

[AnimeGrl]

This, of course, is totally irrelevant for out OP who happens to be on the other side of the country.

Um, ok, that's why I specified where I was writing about. I didn't know that this was the case until I read it on the charges for a family member. So I guess I should have included the suggestion to the OP to see if that is the case in CA.

Sheesh.

 

[Zigner]

Um, ok, that's why I specified where I was writing about. I didn't know that this was the case until I read it on the charges for a family member. So I guess I should have included the suggestion to the OP to see if that is the case in CA.

Sheesh.

No, what you SHOULD do is to post information specific to the state the OP is in.

ETA: Sheesh!

 

[Legal Man]

You can't refuse a test and if he blows it, he's got it. It's the law.

 

[HighwayMan]

You can't refuse a test and if he blows it, he's got it. It's the law.

Not sure what you actually mean but these cases are not always so clear cut.

I am getting the impression that you missed something. Or a few things.

 

[lwpat]

Unfortunately the party did not know their rights and they could have refused the second test. However, he could have still been charged with a DUI based on the 0.6 and the filed sobriety tests. He needs a California DUI attorney to review the video and the paperwork from the tests. the attorney can also check the maintenance reports on that particular machine. The attorney may be able to negotiate for a "dry" reckless rather than a DUI.

California DUI Attorneys