First DUI in CA, blew a .07 at the station

[SharksHockey]

**UPDATE**

So I did end up getting a call and letter from the DMV saying my license is not suspended because of my .07 BAC - so that was one thing cleared out of the way.

I called my local police department to find out how to get a copy of my Police Report, but they said since the arraignment hasn't occurred (Feb 6th), I have to ask the DA if I can get a copy of it. Well I haven't asked yet, but on the DA site it says I can only get a copy AFTER the arraignment.

What sucks is this is what I wanted to see before determining if I should hire an attorney or not. So I guess I'll take Garrula's advice and appear and find out what charges (if any) the prosecutors have filed.

Another Q, how do I know if I wouldn't qualify for a PD?

Thanks again everyone, and wish me luck!

[CdwJava]

Originally Posted by SharksHockey

**UPDATE**

So I did end up getting a call and letter from the DMV saying my license is not suspended because of my .07 BAC - so that was one thing cleared out of the way.

Kinda what I expected should happen.

I called my local police department to find out how to get a copy of my Police Report, but they said since the arraignment hasn't occurred (Feb 6th), I have to ask the DA if I can get a copy of it. Well I haven't asked yet, but on the DA site it says I can only get a copy AFTER the arraignment.

That's common. Your attorney might be able to obtain a copy at the arraignment.

What sucks is this is what I wanted to see before determining if I should hire an attorney or not. So I guess I'll take Garrula's advice and appear and find out what charges (if any) the prosecutors have filed.

I suspect that unless you are under 21 you may face only CVC 23152(a) (the typical DUI).

Another Q, how do I know if I wouldn't qualify for a PD?

You'll have to check with the local court or the PD's office (if there is one). Some counties are pickier than others, and you might have to jump trough a lot of hoops to prove you are indigent. If you have assets and a decent job, you probably will not qualify ... but, that depends on the local rules, I suppose.


- Carl

[viper6383]

Originally Posted by SharksHockey

**UPDATE**

So I did end up getting a call and letter from the DMV saying my license is not suspended because of my .07 BAC - so that was one thing cleared out of the way.

I called my local police department to find out how to get a copy of my Police Report, but they said since the arraignment hasn't occurred (Feb 6th), I have to ask the DA if I can get a copy of it. Well I haven't asked yet, but on the DA site it says I can only get a copy AFTER the arraignment.

What sucks is this is what I wanted to see before determining if I should hire an attorney or not. So I guess I'll take Garrula's advice and appear and find out what charges (if any) the prosecutors have filed.

Another Q, how do I know if I wouldn't qualify for a PD?

Thanks again everyone, and wish me luck!

Listen, about 8yrs ago, I was nailed for a VERY similar incident in which the cop said I was "swerving within my lane" but wrote me up for a tag light. But that was it. He asked me to play his bull**** FS game in front of his car and I said, let's just go because we are wasting each other's time. We both know you are arresting me whether I can dance on my head or not.

He agreed that his game was bull**** and we were rolling. He did allow someone to come get my vehicle. When we got to the jail, I blew a .078!! Talk about close. Of course he just moved right ahead with his game and charged me with DUI.

I only hired a lawyer because mine was a god friend and charges were low. It was totally smoked out and dropped because they HAVE TO HAVE a moving violation to pin you with DUI under the legal limit. blow a .078 and run a red light, you are screwed. Get pulled over for no seat belt and blow a .078, you walk. Bet on it.

What I recommend is be SMART when you talk to the prosecution. Tell them you will be pro-se and politely ask for your police reports and the in car video. I know in this state, you cannot be pulled over to sited for a seatbelt without another violation. Bottom line, You have a 98% chance of walking. I would not pay a lawyer but that is just me. Why pay thousands when you are in the right! Better watch it though, because your luck WILL run out. Let this one be your wake up call. House parties are great. find a couch.

[CdwJava]

Originally Posted by viper6383

When we got to the jail, I blew a .078!! Talk about close. Of course he just moved right ahead with his game and charged me with DUI.

One can be impaired - and charged with DUI - even if they are not .08. In most every state, .08 is a separate charge from the impairment.

Logically, someone higher than a kite on drugs would have a BAC of .000, so the BAC cannot be the sole determinant.

It was totally smoked out and dropped because they HAVE TO HAVE a moving violation to pin you with DUI under the legal limit.

Doubtful. It helps, and it may be a local preference of the local DA or court, but it's not a legal requirement in my state or most others.

blow a .078 and run a red light, you are screwed. Get pulled over for no seat belt and blow a .078, you walk. Bet on it.

I wouldn't, because that's just plain not true. Perhaps you'd care to mention what state this is in so we could look up the statutes and find out if a moving violation IS required.

What I recommend is be SMART when you talk to the prosecution. Tell them you will be pro-se and politely ask for your police reports and the in car video.

The prosecutor will not likely speak to him until he has gone before the judge and announced that he will be acting pro se. Until then, he is not likely to receive discovery on his own.

know in this state, you cannot be pulled over to sited for a seatbelt without another violation. Bottom line, You have a 98% chance of walking.

The OP is not in your state - he is in CA where a person can be pulled over for such a thing.

- Carl

[viper6383]

Originally Posted by CdwJava

One can be impaired - and charged with DUI - even if they are not .08. In most every state, .08 is a separate charge from the impairment.

Logically, someone higher than a kite on drugs would have a BAC of .000, so the BAC cannot be the sole determinant.


Doubtful. It helps, and it may be a local preference of the local DA or court, but it's not a legal requirement in my state or most others.


I wouldn't, because that's just plain not true. Perhaps you'd care to mention what state this is in so we could look up the statutes and find out if a moving violation IS required.


The prosecutor will not likely speak to him until he has gone before the judge and announced that he will be acting pro se. Until then, he is not likely to receive discovery on his own.


The OP is not in your state - he is in CA where a person can be pulled over for such a thing.

- Carl

Did you have anything constructive to add? The words I wrote are based on a lot years knowing a DUI attorney. Thing you do not get is in order to get a CONVICTION of DUI under the legal limit, you have to demonstrate impaired driving. A seat belt does NOT fall into that category. You bet they can try it, but it would take a straight up crooked judge to convict that one.

You are absolutely correct about me no being in CA. I was simply stating facts from my own state. Are you an atty by chance??? Seems most like to scratch each other's back and insist an atty is the only way to prove innocence. He has a case and you know it.

My statements about needing a moving violation do NOT pertain the the piglets that will undoubtedly write such a bull**** ticket, it is a matter of conviction in the end. Luckily most judges are not as crooked as the cops rolling the streets or we would all be in trouble.

[CdwJava]

Originally Posted by viper6383

Did you have anything constructive to add?

Sure. Did you read the rest of the thread?

The words I wrote are based on a lot years knowing a DUI attorney.

I bet I know more DUI attorneys than you do ... like it matters.

Your tale about a years-old conviction, in another state under different laws might be relevant in a discussion of past events or your experiences, but they have no bearing on an offense in CA, and certainly no direct bearing on the poster's situation as the laws are different here. Your blanket suppositions regarding DUI are just not true. They MIGHT be true in your state or as part of common practice in your locale, but they are not true here.

Thing you do not get is in order to get a CONVICTION of DUI under the legal limit, you have to demonstrate impaired driving.

Not true. The state must show (a) driving, and, (b) impairment ... not that the driving was even bad. It helps, but it is NOT a requirement. DUI cases based upon stops for equipment violations occur with some regularity throughout the nation. perhaps you'd be kind enough to post your state so that we can check to see if actually bad driving is required for UI where you live.

Are you an atty by chance???

Nope. What I do is in my signature.

Seems most like to scratch each other's back and insist an atty is the only way to prove innocence. He has a case and you know it.

The BEST way to prove innocence is to use an attorney. Without one, he has to do a lot of waiting and a lot of guessing. As I have said from the beginning, it seems the state's case against him is weak. But, they are still going ahead even with a BAC of .07 which indicates to me that the DA thinks there is something here. Whether there is a case or not is something none of us know. The only thing that IS clear is that what we refer to as the "b" section (CVC 23152(b)) is not present because the mandated test came back with a BAC under .08. The "a" section (CVC 23152(a)) is still applicable provided the state can demonstrate impairment AND driving.

- Carl

[viper6383]

Kansas is where I live. I am sure you can look up the statues and baffle me. The largest problem we have is you are on "the force" and so is my family. Except my family is more involved on the IA side. This is mostly why I take a strong offense to pretty much all "guys in blue". Don't take it too personal, I am just too much in the know about all the corruption. Cops either beating his wife, cheating on his wife, beating up suspects, lying to the courts, using profanities, I have hear it ALL! And it happens in every city. You know, the things we (major law breakers) would be arrested for. How many cops do you know with a DUI!!!!! "hey man, would you show some professional courtesy". Where is mine, I pay taxes too!!

OK, I could go on all night and that seemed a bit out of line. I am not pointing at you, I just have a drugged outlook on "the force". Regarding the post, my responses are stemmed from known cases as well as my own. Yes, my case was washed clean VERY fast. Even the DA said " I can;t believe this is even on my desk". Remember, "proving it", that is what gets a conviction. I just know from past experiences that without proof of impairment on something like is a tall order for DA. Maybe if you could post up the language of statutes that pertain to an under limit DUI, we can build the case right here.

Bet = To stake or pledge upon the event of a contingent issue; to wager.

This does not mean the same as guarantee. This means, if I was to wager on this case right now, I would lean hard on the defendants side. You are right though, I do not have all the facts and what I am stating is merely from listening to one side of the story. Maybe he will post up the actual facts and charges and that will help weigh the case a bit better.

[lenny71]

I respect the police and do not advocate drunk driving.

That said, this case makes me want to reiterate two important tenants:

1) Do not speak to the police when pulled over. Just provide name, license registration and insurance.

2) Do not take any field sobriety tests or the portable breath test.

Only take the breath or blood test at the station.

[CdwJava]

Originally Posted by viper6383

Kansas is where I live. I am sure you can look up the statues and baffle me.

I suppose I could. Do you really want me to?

The largest problem we have is you are on "the force" and so is my family. Except my family is more involved on the IA side.

How is that a problem "we" have? Who are "we"?

Oh, and a side note, I am an IA investigator ... and you point is?

This is mostly why I take a strong offense to pretty much all "guys in blue".

I don't get it ... your family are on "the force" yet you all have problems with "guys in blue"? I don't get it ... you're not making much sense.

I'm sorry you don't like cops. Not much i can do to change that. Hopefully you'll never be a victim of a crime and will never need one. I'm sure they don't want to spend a lot of time with you, either.

Don't take it too personal, I am just too much in the know about all the corruption. Cops either beating his wife, cheating on his wife, beating up suspects, lying to the courts, using profanities, I have hear it ALL!

I have heard it all ... I watch TV shows, too.

Fortunately, most the "real" stories are untrue or overblown, though some are true. Most are a matter of competing perspectives. Be that as it may, I can't speak to what the cops in your neighborhood do as I am not even in your state.

And it happens in every city.

No, it doesn't. It doesn't happen in my city, sio it does not happen in "every city". But, I won't be able to convince you of that fact, so it's moot.

How many cops do you know with a DUI!!!!!

That are still working? I can think of only one ... maybe two, but I haven't heard if one is still working or not.

"hey man, would you show some professional courtesy". Where is mine, I pay taxes too!!

Out here, drive DUI and even a cop will get popped. Will it always happen? No. there will always be someone who will decide that they will cut a "brother" a break. But, at least in my state, that "wall" has been largely torn down in the last 20 years.

Does it happen that a cop will be arrested and booked for DUI? Yep! Been there and done that.

I am not pointing at you, I just have a drugged outlook on "the force".

Sorry to hear that your experiences are so poor. But, painting a broad brush on such a limited experience is like me saying that women are bad drivers because my wife, my sister, and my mother have all crashed cars. One does not necessarily equate to the other, and making a broad statement or claim of absolute fact based on a limited subset of the whole is fallacious.

Remember, "proving it", that is what gets a conviction. I just know from past experiences that without proof of impairment on something like is a tall order for DA. Maybe if you could post up the language of statutes that pertain to an under limit DUI, we can build the case right here.

The key issue will be the observations made by the officer. What objective symptoms of impairment were observed before the stop, during the contact, and during the investigation? The worst person to judge their performance ion the FSTs and how they appeared to others is the person who is (allegedly) impaired. Many sloppy and falling down drunks will claim they did just fine. there is no way we can establish guilt or innocence here, because we don't have the officer's report.

Now, if I could read the report and evaluate the officer's observations, I might be able to make an evaluation as to the officer's training and experience, and the validity of his observations (I am also a DUI/FST instructor). Lacking that, there is no way to say. I suspect that a plea to "wet reckless" (CVC 23103.5) will be offered here, but the OP may decide to go to trial. That will certainly be his call. However, if the officer is good or even adequate at his task (the articulation of the objective signs of impairment) then a guilty verdict could be forthcoming.

The fact that the DA has decided to pursue this in spite of the test results indicates to me that there is some merit to the impairment accusation. It could be because he's hoping to press for a plea deal, or, it could be that the DA believes that the officer can make the case. I have made cases without chemical tests, and have gotten convictions for BAC results as low as .043, so, it can be done and is done every day.

- Carl

[viper6383]

Nuff said.

[garrula lingua]

Sharks,
The Defense's copy of the police report is usually in the court's file.

At arraignment, defense counsel will pick up the copy from the clerk at check-in, or you can ask the Judge for a copy of the report.

At your request, a Judge will allow a (short - usually two weeks) continuance to hire an attorney.

Most Prosecutors will not file charges on the facts you state (there are too many egregious violators to be charged).

Hopefully, when you show up at the arraignment, the Prosecutor will have declined to charge.
If they just don't want to give up a case, they may charge you with a lesser offense (?how old were you?).

It might help you to go to several Alcohol Anonymous meetings (and have them sign a sheet stating you attended the meeting). Telling the Judge and the Prosecutor you did this voluntarily and showing them the sheet may help you regarding the plea bargain, if any is necessary, offered.

Good luck.

PS: What county did this occur in ?

[SharksHockey]

Hi again guys, and thanks for the replies. To follow up, I have NOT received ANYTHING from the Court regarding my case. It should be known that I did move recently and didn't update my address with the DMV until I called for the DMV hearing. However, I did provide the officer for my current address at the time of the arrest.

I am 28, and this happened in Santa Clara county.

I'm not sure if I was supposed to receive any document or confirmation to appear in court separate from what I received exiting the jail. If anyone has any input on that I'd appreciate it.

I understand now that I should have just kept my mouth shut pre and post arrest, but I didn't say anything ridiculous. In fact, the officer admitted at one point to playing a video game that I played as well, and even said it wouldn't be necessarily "inappropriate" to share contact information to play the game. I guess you could say we were shooting the ****. Maybe that was a bad thing, but I was fine, the guy was about my age, and I was hoping that through communication he would see that I wasn't impaired.

Probably the most arguable reference to any impairment by myself (that I'm aware of, at least) was at the station when he said he was going to put the BAC report in my wallet. Well, my wallet has a pretty distinct emblem on that I immediately recognize, and I didn't see it. Stupidly, I mentioned that didn't look like my wallet. He flipped it over, and it was. Stupid me. But honestly, it was a honest mistake - I suppose thats what they all say. Who forgets what their wallet looks like, right? If one can't recognize their own property, let alone their wallet, that they take with them every day, how can he operate a vehicle? I guess sitting there in handcuffs, cold (it was cold AND rainy that night), nervous, seeing all the ACTUAL drunk asses acting like idiots, and especially tired (it was past 3 am), and only being able to see a small portion of it, I thought there was some mistake.

All this was after the fact, but it wouldn't surprise me to see that appear in my police report.

So I'm planning on going in on Friday as Per Se, asking to see the report, and pleading not guilty and/or ask for a continuance to hire council. I'm not sure I would accept a wet-reckless. I'm hoping for the best case, but planning for the worst.

Any extra advice/tips/suggestions would greatly be appreciated.

[CdwJava]

Originally Posted by SharksHockey

Hi again guys, and thanks for the replies. To follow up, I have NOT received ANYTHING from the Court regarding my case. It should be known that I did move recently and didn't update my address with the DMV until I called for the DMV hearing. However, I did provide the officer for my current address at the time of the arrest.

Any paperwork from the DMV will likely come through your DMV address, and from the court it might originate from either source. many courts use your DMV address, so beware.

I'm not sure if I was supposed to receive any document or confirmation to appear in court separate from what I received exiting the jail. If anyone has any input on that I'd appreciate it.

Yes. Show up at the place, date and time on the citation you received from the jail unless you receive something else in writing from the court.

- Carl

[SharksHockey]

Thanks. I'll post an update on Friday. I'm pretty nervous about all this. I've never been in trouble with the law. We'll see if luck is on my side, although this whole process has certainly humbled me already.