DUI Wet and Reckless and Marijuana ?

[scrd36]

What is the name of your state (only U.S. law)? CA.
Recently arrested for a suspicion of a dui. I was pulled over for speeding but then went though sobriety tests. I blew a .086 on the side of the road with CHP, no priors or any sort of record in past. I elected to have a blood test at local hospital as I thought that it might take longer to get there to do test and in so doing that I might get a lower reading. In retrospect, I forgot that I had been at a party where I had smoked some pot about 35 days earlier. Only time that I had used that stuff in years. Anyways, will this possibly show up on blood test that they conducted and if so what is % or amount that you need to be considered impaired? Arresting officer searched car and never suspected any sort of drug use beyond the alcohol.

In addition if blood test comes back lower than .08 is this the only way to get a lighter sentence or plea of wet and reckless? I have spoken with a few local lawyers and some said that in my county, even with being so close to the limit my only real good chance at reduced plea bargain is with lower bac blood test reading. Please let me know what you think?

thanks!

 

[CdwJava]

In retrospect, I forgot that I had been at a party where I had smoked some pot about 35 days earlier. Only time that I had used that stuff in years. Anyways, will this possibly show up on blood test that they conducted and if so what is % or amount that you need to be considered impaired?

If it is true that your use was 35 days earlier, then you should be okay. Even if it tests minimally positive, to be considered impaired by marijuana you would have to be just as impaired as if you had consumed alcohol. The marijuana is pretty much a non issue here ... assuming your telling the truth.

Also, if the test will be conducted at the state DOJ lab and no a local law enforcement lab, then the only time it will be tested for drugs will be (a) if it is requested, or, (b) if the test comes back with a BAC lower than .08.

In addition if blood test comes back lower than .08 is this the only way to get a lighter sentence or plea of wet and reckless?

It is not the ONLY way, but it is the best way. It should be available at anywhere below .10 ... depending on the practice of your local DA and any priors you might have.


- Carl

 

[scrd36]

I have no priors and am not a habitual user of pot. So, to be clear if my blood tests result in a reading lower that .07 do you think that they'll automatically screen it for thc as well and if so can something taken so infrequently and in a small amount show up that much later to affect my case and potential plea bargain of wet and reckless?

 

[CdwJava]

The mere presence of THC, or, rather the metabolites that result from THC, will not result in a criminal charge for DUI. Depending on the test run, they will be testing for a presumptive amount that shows a relatively high level in your blood and not trace amounts. Even if they DO find it, marijuana is what we call an "F" drug (based upon the public intox laws under PC 647(f)) and it requires the same level of impairment we might find in alcohol impairment. The presence of THC is not sufficient to support the charge. The presence of other drugs (like methamphetamine, heroin, etc.) WOULD be sufficient to support such an allegation of impairment.

In short, if your BAC comes back below .08 and there are no hard drugs found in your blood, then you will have a good chance of getting a plea to the wet reckless offense. Or, if your FSTs and the officer's observations do not show that you are too impaired, the DA may drop the case.

- Carl

 

[scrd36]

Thanks Carl...should be no chance of any hard drugs found, so I will not worry about the thc as it was awhile ago from use and only once. One other ?, I am sure that you probably can't answer but a guess would help. In general is there a discrepancy between blood and roadside breathalyzer tests? Roadside breathalyzer was probably 45 minutes post last drink and blood test was maybe about 1.5 hours I'd guess? Also, if my blood and breath test both =.08, any idea of any chance of plea bargain to wet and reckless?

 

[CdwJava]

In general is there a discrepancy between blood and roadside breathalyzer tests?

Yes. The roadside test is merely one of the FSTs and cannot generally be used to establish your legal BAC (though, there are exceptions). The blood test tends to be much more accurate and is not usually subject to a legitimate legal challenge.

Roadside breathalyzer was probably 45 minutes post last drink and blood test was maybe about 1.5 hours I'd guess? Also, if my blood and breath test both =.08, any idea of any chance of plea bargain to wet and reckless?

Depending on how many drinks you had in the last hour, your BAC was likely starting downward by the time the blood test was taken. However, BAC rises faster than it comes down, so if you had several drinks in the hour before you left, and food, you might have still been on the rise when the roadside breath device was used.

If your BAC is at or near .08 it is likely the wet reckless charge (CVC 23103.5) will be put on the table. However, this practice varies by county. As I said, a lot will depend on the officer's observations of your sobriety. If you were at or under .08 but still acting greatly impaired, then he may go forward.

You should consult local counsel.

- Carl

 

[scrd36]

thanks Carl again!

I have not received the police report yet and I have retained a lawyer but he has just said to sit tight and wait for report and blood tests. I was definitely trending down as I drank more and faster earlier in the night but I also had just eaten before I left to drive home so I'm hoping that the blood and breath were close and the blood test will reveal that it was going down. I'm 6'1" weight about 220 lbs and had about 6 beers in 3-3.5 hours. But as I said wasn't pulled over until 45 minutes post last drink and blood tested 1.5 hours after last drink.

I will try to update my results for help of others as I hear them?

 

[CdwJava]

I was definitely trending down as I drank more and faster earlier in the night but I also had just eaten before I left to drive home so I'm hoping that the blood and breath were close and the blood test will reveal that it was going down.

The food effects absorption, so if you at after most the drinks it likely will not be a significant factor and you were likely dropping, as you suggest.

I'm 6'1" weight about 220 lbs and had about 6 beers in 3-3.5 hours. But as I said wasn't pulled over until 45 minutes post last drink and blood tested 1.5 hours after last drink.

Assuming standard alcohol 12 oz. beers you MAY come back as low as .03 to .04 if that's the case. If so, I would expect that no charges would be filed.

- Carl

 

[scrd36]

Carl, that is wishful thinking for sure but have you ever heard of a CHP mobile breathalyzer being that different than the actual blood test? I'm just hoping for at least a bac of .07 as I only drank beer...during that time period and no more than 6-7 beers for 3-4 hours for sure. Impairment is hard to judge and I did the 4321 deal, lean head back deal and eye follow pen deal....officer didn't seem too convinced of my level until breathalyzer reslut. But also upon pulling me for speeding over almost immediately started to test for dui.

 

[CdwJava]

Carl, that is wishful thinking for sure but have you ever heard of a CHP mobile breathalyzer being that different than the actual blood test?

If you were spiking downward, yes. However, it depends on the device the CHP officer used. If he used the Draeger EPAS, then I suspect that you might drop no more than .01 between the time of the stop and the blood test. Most other handheld devices used by the CHP are not as accurate and not always impeccably maintained for accuracy - because they do not have to be.

Impairment is hard to judge

Only for the person who is impaired ... not so hard for the trained investigator. I almost never utilize the field PBT (preliminary breath test) because if I have to rely on that then my ability to evaluate sobriety is seriously lacking. It helps, but I never rely on it. After all, if you are impaired on drugs, you will blow .000 ... so, if I cannot determine impairment based upon the totality of my observations - including the FSTs - relying on the PBT is a poor crutch.

- Carl

 

[scrd36]

They used a machine that rounds to the thousandth...my reading was .086 so I don't know which that may be but I would guess that it's a newer one? I'd imagine that I will find out when the results of my blood test are received. I have been told that it takes 3-4 weeks for that to happen in my county is that usual? I can't see how I was going up so if portable one is evem somewhat accurate?, then I think that I will be same or maybe, hopefully a bit lower. Also I still haven't gotten police report and it happened in middle of Dec.

 

[CdwJava]

They used a machine that rounds to the thousandth...my reading was .086 so I don't know which that may be but I would guess that it's a newer one?

No way to know. Most the devices used now round to thousandths. If it was the Draeger, then you are likely to be - at best - just below .08.

I'd imagine that I will find out when the results of my blood test are received.

It depends on where they go for testing. If to DOJ, they should have it back inside of about three weeks. if they use a local crime lab, maybe sooner ... maybe later. It depends.

I have been told that it takes 3-4 weeks for that to happen in my county is that usual?

Yes.

Also I still haven't gotten police report and it happened in middle of Dec.

Your attorney can obtain this. At your arraignment, if you are not represented by counsel, you may have an opportunity to seek a copy of the report from the DA as part of discovery. Generally, this is delivered to your attorney.

- Carl

 

[scrd36]

Okay so I got my police report back and it only mentions the 2 charges of dui, nothing with speeding even though their probable cause for pulling me over was going 73 in a 55! Can they still charge me with the speeding as well later, in addition to the dui?

Also, I found out that most use the draeger here in my county. I blew a .089 and .086. This was about an hour after my last drink. My blood was taken about 50 minutes after the breath tests. Assuming that the breathalyzer is somewhat accurate, I have heard that alcohol in general exits the body at a rate of .015/hr. If so, do you think that there is a chance that my blood test will come back at lower than .08 and I might be able to plea bargain to wet and reckless? Of course the rest of the police report is fairly incriminating in regards to fst's and mannerisms. But I'd imagine that is why they arrest you and will describe it as so in police report.

 

[CdwJava]

Okay so I got my police report back and it only mentions the 2 charges of dui, nothing with speeding even though their probable cause for pulling me over was going 73 in a 55! Can they still charge me with the speeding as well later, in addition to the dui?

I suspect the speedin is a lesser included offense. In other words, the speed was a symptom of your impairment.

Why charge the infraction when you have a couple misdemeanors?

Also, I found out that most use the draeger here in my county. I blew a .089 and .086. This was about an hour after my last drink. My blood was taken about 50 minutes after the breath tests. Assuming that the breathalyzer is somewhat accurate, I have heard that alcohol in general exits the body at a rate of .015/hr. If so, do you think that there is a chance that my blood test will come back at lower than .08 and I might be able to plea bargain to wet and reckless?

I can't possibly give you reasonable odds as I don't know your DA. But, if they try to admit the Draeger EPAS reading as proof of BAC at the time of driving, it will be pretty telling. But, you should have a decent shot at wet reckless either way.

Of course the rest of the police report is fairly incriminating in regards to fst's and mannerisms. But I'd imagine that is why they arrest you and will describe it as so in police report.

It's what they used to establish probable cause to make the arrest, yes.

- Carl

 

[scrd36]

Yes, charged with 23152 a and b but no mention of speeding...just was hoping to avoid 3 points off of license right away rather than just the two? I no that there is no way of beating it just hoping to plea it down and pay my punsihment. They tell me that there is little plea bargaining in my county though so I don't know if all ends up around .08 or greater if that will happen or not. Of course the blood will be the tell tale sign as I hear that it's the most accurate of any of the tests.