Getting a DUI while under .08 in CA?

[myk7]

What is the name of your state? CA

Hi there you guys. I posted another thread about my DUI the other day, and I have found by the DMV that my chemical result was under .08 and they are setting my case aside and taking no action against my license.

My court date is Jan. 29th. Basically what I want to know is how it is going to go down.

On what grounds would the court be able to justify giving me a DUI? When I was pulled over, the officer even told me that I wasn't driving bad, he just wanted to make sure I wasn't drinking since it was a busy holiday weekend.

I have no record whatsoever. And I wasnt driving wreckless. Tired from a long week I guess. So, what would be a reason for them to charge? I don't see any...

[CdwJava]

Originally Posted by myk7

Hi there you guys. I posted another thread about my DUI the other day, and I have found by the DMV that my chemical result was under .08 and they are setting my case aside and taking no action against my license.

However, if convicted, the court can take said action.

Any idea yet what the BAC actually was?

On what grounds would the court be able to justify giving me a DUI?

If the state can prove beyond a reasonable doubt ("reasonable" being the operative word int he phrase), then the jury/judge can find you guilty.

When I was pulled over, the officer even told me that I wasn't driving bad, he just wanted to make sure I wasn't drinking since it was a busy holiday weekend.

Okay. That doesn't mean your driving was not bad - it does NOT mean you weren't impaired or that the officer did not ultimately come to believe you were not impaired.

It may come to pass that the DA does not file any charges at all.


- Carl

[BigMistakeFl]

The prosecutors that get DUI's are often fresh out of school and looking for action. They want to prevail. If you hire a good lawyer who can present an offer to a lesser charge quickly and provocatively enough, including the DMV's decision, the prosecutor might be inclined to take it. No one can predict that though. I would not go it alone.

[panther10758]

Where the legal limit for "drunk" could be .08 it does not mean your not impaired if below. If prosecution can prove yuo were "impaired" you can still lose! Much will depend on video (if any) Officer testimony of your actions driving and after being pulled over. Fact you were arrested and charged suggest that something you said or did told Officer you were inpaired! I strongly suggest you find an Attorney who deals with DUI's.

[SillyPuddy]

The .08 "legal limit" has nothing to do with whether you will get convicted of a DUI or not.

The "legal limit" was put in place by politicians and MADD as a means of preventing Law Enforment and judges from letting people off the hook because they are family members, friends, celbreties, local politicians, local sports heros, women with big boobs, etc.

If there is a way for them to get a DUI on you, the current legal system will make it happen. Yes, the way current DUI law is being exercised violates the constitution. "Laws" are being made up on the fly, police officers get to ignore procedure, and defense attorneys can represent the State and don't have to represent their DUi clients. But, at the moment there's nothing you can do about it.

You'll most likely become a first time DUI offender.

[Some Random Guy]

SillyPuddy's "the system is unfair" rant has little to do with your case. Get a lawyer experienced in DUI cases, find out your actual BAC and whether there was video taken.

Although the officer said he pulled you without seeing "bad" driving, you have to realize that you can have impaired abilities despite your OK driving for the minute or two you were observed. DUI laws only require that you be impaired while in control of a vehicle, not that you did something wrong while impaired. Therefore, the BAC, field tests and video of your behavior will be crucial to your ability to plead to something lesser to make this go away.

[BigMistakeFl]

I would heed all the helpful advice, and especially that part about the ability to convict a driver whose BAC is under the so-called "limit". Once an arrest is made, they aren't likely to pat you on the back and wish you well. There's a chance they might take a plea deal, but there is a good chance they won't too.

Keep in mind, the DMV side and the court side are totally separate. The finding of the DMV may have no bearing at all on the court's case.

[CdwJava]

Originally Posted by SillyPuddy

The "legal limit" was put in place by politicians and MADD as a means of preventing Law Enforment and judges from letting people off the hook because they are family members, friends, celbreties, local politicians, local sports heros, women with big boobs, etc.

Please cite a source for such an inane allegation. I do not seem to recall EVER reading this as justification - official or unofficial - for establishing 'per se' laws.

Yes, the way current DUI law is being exercised violates the constitution.

Darn that Supreme Court for not catching this "obvious" violation!

- Carl

[BigMistakeFl]

It's like many laws.... written by lawmakers, detours around some are found by other lawmakers. I don't have a problem with the severity of DUI prosecution, I have a problem with the enigma surrounding the law and the false sense of security average people have for the "legal limit". And, I've heard rumor that judges have more leniency when applying penalties to first degree murderers than they do to DUI perps. I'll let the lawyers argue that one.

Anyway, if there's a lesson, it's throw out the 0.08 concept and just don't drive after the first sip of alcohol. That's the only way to be safe..... in every way, for all concerned.

[fagettaboutit]

Originally Posted by SillyPuddy
The "legal limit" was put in place by politicians and MADD as a means of preventing Law Enforment and judges from letting people off the hook because they are family members, friends, celbreties, local politicians, local sports heros, women with big boobs, etc.

Originally Posted by CdwJava
Please cite a source for such an inane allegation. I do not seem to recall EVER reading this as justification - official or unofficial - for establishing 'per se' laws.

So why exactly was the 'per se' law established? And to what - or to whom - purpose does it serve?

[You Are Guilty]

Generally, google "shifting burden of proof" and "presumptions" for the answer to your question.

[CdwJava]

Originally Posted by fagettaboutit

So why exactly was the 'per se' law established? And to what - or to whom - purpose does it serve?

Why do you even ask? We all know that you have your own take as to why they were passed. But, the NHTSA has a rather extensive paper on the topic. The "case" for 'per se' laws can be found here:

[url]http://www.nhtsa.dot.gov/people/injury/research/pub/alcohol-laws/08History/1_introduction.htm#The%20Case%20for[/url]

Also note that there are some 33 organizations listed as in support of per se laws, and this is only a "sampling" of the supporters. Of those 33 organizations only one of them is MADD ... two others are SADD and RID. The remainder are a broad assortment of interests.

But, of course, they were all snookered and are all wrong, and are all under the sway of the evil and all-knowing Templars ... er, I mean Illuminati ... er, I mean, MADD.

- Carl

[tranquility]

Of course, with even a cursory look, one could also find:

[url]http://papers.ssrn.com/sol3/papers.cfm?abstract_id=884228[/url]
Zero Tolerance Drinking and Driving Laws Don't Work
DARREN P. GRANT
University of Texas at Arlington - Department of Economics
February 2006

Abstract:
By 1998 all states passed laws lowering the legal blood alcohol content for drivers under 21 to effectively zero. Theory shows these laws have ambiguous effects on overall fatalities and economic efficiency, and the data show they have little effect on driver behavior. A panel analysis of the 1988-2000 FARS indicates that zero tolerance laws have little or no effect on the level of fatalities, while further analysis reveals virtually no change in the distribution of fatalities by driver BAC.

and:
[url]http://papers.ssrn.com/sol3/papers.cfm?abstract_id=370027[/url]
Changes in the Law vs. Changes in the Penalties: An Application to Blood Alcohol Content Limits
CRAIG A. DEPKEN
University of Texas at Arlington - Department of Economics
January 2003
U of Texas at Arlington Working Paper No. 03-002

Abstract:
This paper investigates the impact of lowered BAC limits on alcohol related traffic fatalities. Unlike previous studies that find significant reductions in traffic fatalities after legal limits are reduced, this paper shows that once controlling explicitly for enforcement efforts and the severity of penalties the impact of lowered BAC limits is insignificant. This study is important because national legislation was passed in 2000 requiring all states to have a legal limit of 0.08 BAC by 2004. At the time, proponents of the legislation claimed an estimated 600 lives would be saved nation-wide because of the new legal limits. This study shows that this estimate was most likely overstated.

and:
[url]http://papers.ssrn.com/sol3/papers.cfm?abstract_id=248594[/url]
Alcohol Control Policies and Motor Vehicle Fatalities
FRANK J. CHALOUPKA
University of Illinois at Chicago - Department of Economics; National Bureau of Economic Research (NBER)
HENRY SAFFER
National Bureau of Economic Research (NBER)
MICHAEL GROSSMAN
National Bureau of Economic Research (NBER), NY Office; City University of New York Graduate Center
July 1, 1993
NBER Working Paper No. W3831

Abstract:
The purpose of this study is to estimate the effects of drunk driving deterrents and other alcohol related policies on drunk driving. The data set employed is an annual time-series of state cross-sections for the 48 contiguous states of the U.S. from 1982 through 1988. Total and alternative alcohol involved motor vehicle fatality rates, for the general population and for 18 to 20 year olds, are used as measures of drunk driving. The results indicate that the most effective policies are increased beer taxes and mandatory administrative license actions. Maintaining the beer tax at its real 1951 value would have reduced fatalities by 11.5 percent anually, on average, during the sample period. A mandatory administrative license sanction of one year would have reduced fatalities by 9 percent. The next most effective policies are a 21 year old legal drinking age, preliminary breath test and dram shop laws and relatively large mandatory fines. These policies each reduce total fatalities by about 5 to 6 percent. No plea bargaining provisions and mandatory license sanctions upon conviction are also found to have some deterrent effect. Other drunk driving laws tested include mandatory jail sentences and community service option, illegal per se laws, and open container laws. None of these were found to have a deterrent effect on drunk driving.

and:
[url]http://papers.ssrn.com/sol3/papers.cfm?abstract_id=225258[/url]
Alcohol Policies and Highway Vehicle Fatalities
CHRISTOPHER J. RUHM
University of North Carolina at Greensboro; National Bureau of Economic Research (NBER); Institute for the Study of Labor (IZA)
July 1995
NBER Working Paper No. W5195


Abstract:
This study investigates the impact of beer taxes and a variety of alcohol-control policies on motor vehicle fatality rates, using fixed- effect models with data for the 48 contiguous states over the 1982 through 1988 time period. The econometric findings highlight the fragility of the parameter estimates to reasonable changes in model specifications. Special attention is paid to omitted variables biases resulting from failing to adequately control for grassroots efforts to reduce drunk driving, the enactment of other laws which simultaneously operate to reduce highway fatalities, and the economic conditions existing at the time of the legislation. In the preferred specifications, most of the regulations have little or no impact on traffic mortality. By contrast, higher beer taxes are associated with reductions in crash deaths and this result is relatively robust across specifications. These findings suggest the limited ability of further regulatory action to reduce drunk-driving but point to a potentially significant role for higher alcohol taxes.

[CdwJava]

Well, we can do the study vs. study thing all day. The fact will still remain, the law is as it is. Since most of us choose not to engage in a theoretical discussion of what the law SHOULD be, it would be frivolous to continue on this tack. As you would like to see DUI laws weakened, and I would like to see them stiffer, it would be a pointless exercise.

- Carl

[BigMistakeFl]

I personally think the powers of DUI arrest are too broad and the process is draconian. However, like Carl, I accept that the laws are there and no elected lawmaker will dare try to reduce them. Not on the subject of DUI. Forget it. So, people need to know and be aware that if they drive after drinking at all, they are subject to DUI arrest and successful prosecution. If you drink and drive, it's just a matter of time before you face a cop and the question, "have you had anything to drink tonight?".