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

[SharksHockey]

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

First DUI, first arrest, first time witnessing a drunk tank, and I don't ever want to smell that place again. Here's what happened...

Had a few drinks at Karaoke bar, and sang my butt off. Drank some water, melted ice, etc. I felt a little buzzed at the joint, but that went away quick. It was hardly drunk, barely buzzed, and felt pretty damn sober. I'm 5'9", 190 LBS, and I play hockey just to give you an idea of my physique.

I drove with my friend to go get tacos, but pulled into the wrong parking lot and was asked by security to find another place to park - ok. I pull out of the parking lot, hang a right towards a street light (red) about 30 yards, come to a complete stop, turn right and the cop (SJSU University Cop) sirens me. He says that my passenger didn't have her seat belt on, which she did. We both explained that we had JUST pulled out of the parking lot, but he said he didn't even realize we did. Asks to see my license (not my registration), then does the pen test on me. Then asks me to step out for the FST.

I perform the tests, and IMO, did them perfectly fine. He asked me a series of Q's about my location, the time, how to get home, etc. I swear, I didn't slur my words once or even hesitate to answer a Q. Then he asks me to wait while his partner comes over with the breathalyzer. I take it twice, within minutes of each other. First time I blew a .09, second time I blew a .082. He arrests me, and takes me to processing. We were only blocks away from the station, and in processing sat me down on another breathalyzer and I took two more blows - .07, TWICE, within minutes of one another. The time that had passed between the field test and this one was about 30 minutes. He looked a bit stunned, as did another office who saw the results. The arresting officer made a phone call and then turned away to consult another office, came back and said everything will still proceed.

So I go to the drunk tank, and I'm sure you all know what happens after all that.

So here's my questions:

Whats the difference between the FIELD test and the STATION test, and which one carries more weight in court? I did receive a receipt from the STATION test which both shows a .07 result. My cousin who has been through this, though in a different county, said that the field test is not admissible in court that only the station test is - is this true? The fact that the field test produced two completely different results (.09 vs .082, within minutes), in my opinion, proves the inaccuracy of the device. Perhaps it wasn't properly collaborated? Are the field test devices as accurate as the stations machine? Whats the point of the station test?

Do I have a case? I wasn't driving reckless - no speeding, swerving, etc. In fact, the office only saw me come to a complete stop, and turn right - THAT'S IT. He said he pulled me for the passenger's seat belt, and that only (there was no seat belt violation issued). I am going to get a copy of the police report, but if the officer is HONEST, I can't see it suggesting that I failed any of them. I even asked him if I did, and said I didn't fail but he did see SIGNS that I was intoxicated.

Also - should I hire an attorney for this? What are the chances that this gets thrown out of court because of the .07 result, or at the very least a reduced sentence?

Any information would be greatly appreciated.

[seniorjudge]

Q: Also - should I hire an attorney for this?

A: Yes.

[SharksHockey]

Originally Posted by seniorjudge

Q: Also - should I hire an attorney for this?

A: Yes.

Thanks for the response, but can you please elaborate a little? Would a Public Defender not be able to argue my case? I appreciate your response!

Also, what would attorney fee's be VS. DUI fee's?

[FlyingRon]

The numbers from the PBT are not uncommon, which is why it's used as a screen rather than prima facie proof. .07 on the approved chemical tests (blood or at the station breathalizer) is below the prima facie limit, but you can still be found guilty of DUI.

A public defender is not for people who are just unwilling to pay for private counsel, it is for the indigent. If you have the option of paying for a private counsel, you won't qualify.

Your lawyer (PD or private) will look at the probable cause for the stop, the validity of the evidence against you and make an estimation of how to proceed. You're not likely to fare well on your own.

[SharksHockey]

Thank you. I just consulted an attorney over the phone and she insisted that the STATION Breath Test is what matters with the DMV license suspension, and that portion will be dropped right away.

Can anyone else confirm this as well? (I will be consulting more in the next several days).

[FlyingRon]

The DMV administrative sanction may be dropped, but only if you request a hearing and bring up the low BAC.

Of course, if you are convicted of DUI, the administrative sanctions are the least of your worries.

[Alex23]

Originally Posted by SharksHockey

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



Had a few drinks at Karaoke bar, and sang my butt off. Drank some water, melted ice, etc.

I always try to drink a lot of melted ice when I'm trying to sober up.

[LakersFan]

First thing is to ask for DMV hearing and with BAC less than .08 you should be have the suspension put aside.

IMO, there's a good chance DA will drop the case, so you may want to wait before hiring a lawyer, which will save you some money.

[garrula lingua]

OP: Go to the arraignment without a lawyer (you will be appearing 'pro per'-representing yourself).
Ask to speak with the Prosecutor to find out what the offer on your case is (if any).

You will find out if the Prosecutor has dropped the charges, or whether s/he reduced them to a 'wet and reckless' or whether they are going forward as a DUI.

If the offer is unacceptable, and you don't qualify for the PD, ask the Judge for a continuance to hire an attorney - all Judges will allow that on a first appearance.

The Prosecutor's decision will probably be a reflection of the facts: if your driving was really bad and the FSTs were not performed as demonstrated, or if you mouthed off to the cop, it will probably be a DUI or a Wet.

If you were courteous and your driving was not erratic or dangerous, it may be a 'decline to prosecute' which means when you show up, you will find that nothing was filed.

DO show up at court at the day and time noted on the ticket, even if someone tells you not to come to court.

You have to be quick to request an administrative hearing to ensure that your driving privileges are returned - there are two different proceedings ... court, with the criminal charge, and DMV with the administrative suspension of your driving license. They are separate proceedings.

[Shakaama]

1. first i wouldn't touch a public defender with a 10 foot pole.
2. and don't get a cheap lawyer.
3. the trade off, is you could pay the court thousands of dollars and still end up with a ding on your record or pay a lawyer a decent amount and have the case dismissed.
4. i think your case could easily be dismissed. there was no probably cause to stop you. most states do not allow police or any subsidiary thereof to stop someone based on them not having their seat belt on. most seat belt laws are clear on this. also once that is taken care of, the baby gets thrown out with the bath water.
5. you can always say no to and field tests
6. there was a supreme court case a few years back that said it is unconstitutional to have a per se law, i.e. that by you driving above the legal alcohol limit that you are automatically convicted of DUI.
7. the breath test at the precinct confirms you were not driving under the influence and furthermore i would challenge the breath tests ability to single out ehtonol from the breath. again case dismissed.

a public defender would immediately enter a plea and ding your record and move on to the next case. This case is easily dismissable by a competent dui lawyer.

Reference this page for the stuff i didn't quite cite: [url=http://lasvegasnevadadui.com]Las Vegas Nevada DUI Home[/url]

[CdwJava]

Originally Posted by Shakaama

1. first i wouldn't touch a public defender with a 10 foot pole.

You don't have to. And if you can afford a private attorney, they probabyl would not assign you a public defender anyway.

2. and don't get a cheap lawyer.

Expensive does NOT necessarily equal "good". An experienced lawyer - one with DUI experience - is prefrred for this sort of thing.

3. the trade off, is you could pay the court thousands of dollars and still end up with a ding on your record or pay a lawyer a decent amount and have the case dismissed.

Or, as is most common, you pay the attorney a lot of money for a preliminary hearing and then a plea deal. But, it's often worth a try to see if a hole can be found in the state's case. If no hole at prelim, and no successful suppression motion, then it is typically tim to deal.

4. i think your case could easily be dismissed. there was no probably cause to stop you. most states do not allow police or any subsidiary thereof to stop someone based on them not having their seat belt on. most seat belt laws are clear on this. also once that is taken care of, the baby gets thrown out with the bath water.

In California we CAN stop if someone is not wearing a seatbelt. Plus, the standard for the detention is the officer's reasonable belief that a violation was occurring, not an absolute certainty or proof that it occurred. Even if the officer acknowledges he might have been wrong, the stop can still be valid.

5. you can always say no to and field tests

Yep.

6. there was a supreme court case a few years back that said it is unconstitutional to have a per se law, i.e. that by you driving above the legal alcohol limit that you are automatically convicted of DUI.

This case must have been ignored by the entire country as 'per se' laws still exist.

I think you are misinterpreting some case law or are recalling some lower court decision that was likely later appealed and overturned.

7. the breath test at the precinct confirms you were not driving under the influence

No. The test result of .07 just shows that he was no driving above the 'per se' level of .08. One CAN be charged with, and convicted of, DUI at a level below .08. In CA the legal presumption of sobriety exists below .05 ... between .05 and .08 the legal presumption is neutral, and at or above .08 the legal presumption is that the driver is impaired. The key here would be the results of any tests and observations by the officer.

and furthermore i would challenge the breath tests ability to single out ehtonol from the breath. again case dismissed.

What?!? What is "ehtonol"? Are we talking biofuel here? Or are we talking about ETHANOL? In either case, what's your point?

a public defender would immediately enter a plea and ding your record and move on to the next case. This case is easily dismissable by a competent dui lawyer.

Yeah ... okaaaaay ... I'd say it is POSSIBLE to beat the charge, but not easy. The burden of proof will be on the state to show that the driver was impaired. If the FSTs were not conclusive, there were no or marginal observations of the objective signs of impairment present, and no bad driving was observed, then the case might be dropped. Most likely, the plea offer will be to "wet reckless" per CVC 23103.5. Whether this would be a preferred choice for the original poster or not is up to him. He'll have to weigh the possibility of losing at trial versus the guarantee of a slightly lesser offense.

- Carl

[FlyingRon]

The poster is referring to a goofball Virginia lower court decision that the 1985 Francis v. Franklin US Supreme Court Decision invalidated the per se DUI law. Nearly everybody decided that this clown misapplied Francis, all Francis says is that despite the fact that you have some overriding presumption of guilt in the statute (such as perhaps the per se limit), it still can be rebutted in court.

That's not of much use here as it never had any standing in California (and it really has no standing in Virginia either).

[CdwJava]

I've only found one decent reference to the case and I still can't find a link to any USSC to VA SC court case on this. From what I did find, it appears to be non-binding, ergo it must be a lower court ruling and not a "published" decision even in the state of origin.

- Carl

[FlyingRon]

Correct, it wasn't an appellate decision so it's pretty meaningless. It was a goofball local GDC (traffic / misdemeanor court) judge (in my county even). Rather than allowing the rebutting of the presumption in court (which is what Francis says) he just decided the statute was defective and tossed all his DUI cases.

This judge, O'Flaherty has been involved in several judicial screw ups in the past. He also volunteered an opinion as to a witnesses veracity to the jury.

Other than a few people who's DUI trials were dismissed by this judge here, the "decision" is meaningless.

The "interpretation" was changed at the circuit court level. It keeps that statute valid while allowing the Francis-based decision that the defense may attempt to rebut the presumption. I however don't know anybody around who has successfully done so.

The poster who alleged this as a useful defense is what happens when you rely on Google and certain blogs for you legal advice without researching the casework that the were being espoused.

[BigMistakeFl]

most states do not allow police or any subsidiary thereof to stop someone based on them not having their seat belt on. most seat belt laws are clear on this.

I feel the need to clear this up because the above statement is incorrect. 26 states operate with PRIMARY seat belt laws. Primary seat belt laws allow law enforcement officers to ticket a driver for not wearing a seat belt, without any other traffic offense taking place. California (OP's state) is in that list of primary seat belt law states, and that includes front and back seats, all passengers.

23 states have secondary seat belt laws, meaning law enforcement officers may issue a ticket for not wearing a seat belt only when there is another citable traffic infraction. But in many of those 23 states and even those few that have neither primary nor secondary seat belt laws, that applies only to the driver, children in the vehicle without restraints can still get you pulled over.