DUI without formal arrest

[CaliMommy86]

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

I'll try to make this as short as possible. My daughters father was coming home from a bar after an altercation in which he was struck in the head numerous times. While he was driving he hit a pole back. He then left the scene and went home, later going to the hospital for a possible head injury (the altercation + accident) While at the hospital the ran normal tests and ended up releasing him. He got a fine for the pole which he paid promptly. He never heard anything about it since then.

Now two years later he has been arrested on a bench warrant and is being held in Jail on a 23153 (A)VC - F - DUI ALCOHOL/DRUGS He had one court date so far where they offered a 60 day jail sentence, 2 years probation and 2 years license suspended. His public defender declined the deal stating that their case is pretty unsubstantiated. From my research I've read that they have to test your BAC within 3 hours of a suspected DUI arrest or accident. At the time he was admitted to the hospital, they had no knowledge of the accident therefore there is no way to know if the blood test was done within 3 hours. On the paperwork for the drug test it shows Time drawn: Unknown Drawn by: Unknown. They also did not ask his consent before testing for BAC. I understand having a CA license means you may be asked to take a BAC test at any time, but you do have the option to decline in which your license will be suspended. On top of everything, they showed evidence of mailing out paperwork related to the crime with a court date, and said he had a FTA however he never lived at the address they showed they sent it to, it wasn't even in a city he had ever lived in.

Anyways, he's on probation for a prior domestic issue with a past girlfriend. I'm wondering if this would be considered a probation violation. He was put on probation in August 2012, this incident happened in March 2011.

 

[FlyingRon]

There is something missing here. A bench warrant most likely indicates he failed to appear on the charge at an earlier time. There's no requirement that they give you the opportunity to decline. You can however proactively decline it (and in many cases the sample can still be compelled). I'd defer to the lawyer with direct knowledge of the actual case details, but it does sound like the timeliness of the BAC testing could well be challenged. If there is no subjective evaluation of intoxication at the time of driving, and no prima facie intox from the chemical test, there would appear to not be much of a case. Just because he had been in a bar and he struck a pole doesn't in itself prove intoxication.

As for the probation violation, if he indeed got charged for one or more offenses and didn't report them he could indeed be violated. If he plead guilty or was convicted of one, he can be violated. I'd be keeping my PO informed as to what exactly is going on.

 

[CaliMommy86]

There is something missing here. A bench warrant most likely indicates he failed to appear on the charge at an earlier time. There's no requirement that they give you the opportunity to decline. You can however proactively decline it (and in many cases the sample can still be compelled). I'd defer to the lawyer with direct knowledge of the actual case details, but it does sound like the timeliness of the BAC testing could well be challenged. If there is no subjective evaluation of intoxication at the time of driving, and no prima facie intox from the chemical test, there would appear to not be much of a case. Just because he had been in a bar and he struck a pole doesn't in itself prove intoxication.

As for the probation violation, if he indeed got charged for one or more offenses and didn't report them he could indeed be violated. If he plead guilty or was convicted of one, he can be violated. I'd be keeping my PO informed as to what exactly is going on.

They had sent out paperwork for a court date to some random address in Sacramento. His public defender is gathering evidence to prove that he never lived at nor has no ties to that address (therefore making the court papers improperly served) Since he never got paperwork he never went to the court (hence the FTA) However he was in jail from May 2012-August 2012 and I would think if he had an active bench warrant at that time that they would have ran his information upon booking and settled it then. He literally had no clue about any outstanding warrant or charges.

He's on informal probation so he does not have a parole officer assigned to him. Who should he contact to let them know the outcome of this case? He had thought that since he was not on probation when the incident occurred that it would not be a violation, although if he is charged it will be during his probation period.

 

[CdwJava]

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

I'll try to make this as short as possible. My daughters father was coming home from a bar after an altercation in which he was struck in the head numerous times.

Soooo ... he had been drinking, had been assaulted, and was operating a motor vehicle while likely impaired and injured? Why didn't he call the police when he was attacked?

While he was driving he hit a pole back.

What is a "pole back?" Is that a light pole? A telephone pole? The back of someone from Poland?

He then left the scene and went home, later going to the hospital for a possible head injury (the altercation + accident)

Ah, so, he compounded his problems and committed another crime for hit-and-run.

While at the hospital the ran normal tests and ended up releasing him. He got a fine for the pole which he paid promptly. He never heard anything about it since then.

He got a "fine" for hitting the pole ... what was he convicted of?

Now two years later he has been arrested on a bench warrant and is being held in Jail on a 23153 (A)VC - F - DUI ALCOHOL/DRUGS

That's a FELONY DUI. What that means is that he was charged with DUI causing injury to another. Apparently someone believed he had a passenger or hit someone in his previous collision. Or, he had a collision you were not aware of. Do you know if it is for the same incident he has already been convicted of? If so, and he had paid all his fines and done his time for the offense, then he shouldn't be able to be charged for it again ... something's not adding up.

He had one court date so far where they offered a 60 day jail sentence, 2 years probation and 2 years license suspended. His public defender declined the deal stating that their case is pretty unsubstantiated.

Hope the defendant was in on the decision because he could spend a few years behind bars if he is convicted at trial. His attorney's tough stance could result in baby-daddy's-daddy being out of the picture for a long time if convicted.

From my research I've read that they have to test your BAC within 3 hours of a suspected DUI arrest or accident.

Where did you read that? And, apparently you didn't do enough reading to know that they do not even NEED a chemical test for a conviction of DUI with injury (i.e. felony DUI).

At the time he was admitted to the hospital, they had no knowledge of the accident therefore there is no way to know if the blood test was done within 3 hours.

I guess the DA is making an educated guess. Chances are they have a pretty good idea when the crash occurred, and they will have a GREAT idea of when the blood was drawn. And, assuming he didn't swing by another bar or a liquor store while ion his way to the hospital and pounded back a few, they likely have a good idea of his state when the accident occurred. The defense will likely argue a rising BAC and the state will likely argue a declining BAC. Depending on his BAC at the hospital, it may be an unwinnable argument for one side of the other. But, since the specific BAC is not necessary for a DUI, it may not even be an issue.

On the paperwork for the drug test it shows Time drawn: Unknown Drawn by: Unknown. They also did not ask his consent before testing for BAC.

The hospital records are what they are. Unless the state broke the law in obtaining those records, baby daddy's daddy will have to address any malpractice with the hospital ... though so long after the fact, I doubt he would be able to. And, chances are, he did sign a release allowing them to conduct tests. It's pretty SOP.

I understand having a CA license means you may be asked to take a BAC test at any time, but you do have the option to decline in which your license will be suspended.

You never mentioned the police in this incident. Was he arrested two years back? Did the police show up at the hospital then? What was he convicted of? (Yes, I asked it again ... it's important.)

On top of everything, they showed evidence of mailing out paperwork related to the crime with a court date, and said he had a FTA however he never lived at the address they showed they sent it to, it wasn't even in a city he had ever lived in.

Then how did they get that address? Could it be the address he provided to the police, the court, or the hospital? His defense attorney might be able to argue due diligence to void the arrest and any evidence seized as a result, but since the SOL for a felony is three years and that time has not yet tolled, he would still have to answer for the offense.

Anyways, he's on probation for a prior domestic issue with a past girlfriend. I'm wondering if this would be considered a probation violation. He was put on probation in August 2012, this incident happened in March 2011.

Wow ... driving impaired, hit-and-run, fighting, and domestic violence!!! And these are just what are known?!?

Since the precipitating incident occurred prior to his 2012 probation, I doubt he can be violated for it. However, if convicted, you bet it could violate his probation and he could do time on both offenses. But, I think probation is the least of his worries if he has been charged with felony DUI.

 

[CaliMommy86]

Sorry, I had just written out a somewhat lengthy response but after I hit submit it said my post would have to be approved by a moderator. I wondered why and then looked at the top bar and it said I was logged in under a different name. I couldn't remember my login I recently used, so I recovered this one using my email address. Hopefully that clears up any confusion about posting with a different screen name.

Cdwjava we had spoken in a thread and via PM regarding my ex's previous case (The domestic violence incident) just to jog your memory he was driving and his girlfriend was in the passenger seat intoxicated. She was angry with him and attacked him with brick while he was driving. He tried to restrain her and when he could not he hit her. In case you're wondering the outcome, once her story started falling apart and the evidence suggested that his account of the events matched the evidence. He could have waited in prison for a trial or was offered a plea deal. He took the deal in order to get out of prison that day, he served a little over 60 days and is on probation for 5 years.

 

[CdwJava]

I remember the incident you describe. But, if charged with felony DUI and he has not previously been sentenced for offenses related to the DUI crash, then he will have to deal with this. Even if the arrest is somehow voided, the charges will remain. And since a warrant had been issued for the FTA there will be no issue for the statute of limitations. In short, he will have to address the facts of the case - there is no easy dodge to avoid this.

 

[CaliMommy86]

I remember the incident you describe. But, if charged with felony DUI and he has not previously been sentenced for offenses related to the DUI crash, then he will have to deal with this. Even if the arrest is somehow voided, the charges will remain. And since a warrant had been issued for the FTA there will be no issue for the statute of limitations. In short, he will have to address the facts of the case - there is no easy dodge to avoid this.

Right, I understand he can't dodge it as he's currently in county jail awaiting a hearing this Thursday. It sounds to me like the public defender thinks the evidence and whole case is going to be hard to prove and convict and thinks it will be dropped. I'm concerned that this would be considered a violation of probation, but was thinking that it wouldn't be since the actual incident happened before he was on probation. It wouldn't make much sense to me if he has been behaving and not been in any trouble in the past year, but this which happened 2 years ago would violate his probation. That was my main question.

I also don't understand how they can charge him with the DUI if there was no law enforcement called and no one to have seen him actually driving the car, and administer sobriety tests at that point. According to him he had only 2 drinks at the bar went home to cool down after the altercation, had a few drinks at home and then had someone drop him off at the hospital. I believe they said his BAC was 0.12

 

[CdwJava]

I also don't understand how they can charge him with the DUI if there was no law enforcement called and no one to have seen him actually driving the car, and administer sobriety tests at that point.

The law does not require that FSTs be administered.

One of the exceptions to the observed driving is that he was in a collision. So, as long as they can show he was driving and was in a collision - and he likely admitted this to the doctors - that part is done. And the investigation of the hit and run to the pole or to the passenger likely resulted in the followup investigation and the charges.

However, if there was an FTA (failure to appear) that would mean that he was served with a warrant, a summons, or otherwise served with notice to appear in court. If he had not received prior notice then this wouldn't be an FTA warrant, it would simply be an arrest warrant.

According to him he had only 2 drinks at the bar went home to cool down after the altercation, had a few drinks at home and then had someone drop him off at the hospital. I believe they said his BAC was 0.12

But ... didn't you write that he went from the collision to the hospital?

His attorney can argue whatever he wants, but it strains believability to think that he hit the pole and injured himself and a passenger, THEN went home, downed a few, THEN went to the hospital. If his passenger corroborated that story, great. But, if one or both of them told anything different to the medical staff, then he's in trouble.

At this point all that can be advised is for him to listen to his legal counsel.

 

[robertreck19]

hello

He should listen to his lawyer on what he can do for this. I guess a bench arrest is done when you fails to comply with a court order or requirement.