Grounds for DUI

[tazz13]

What is the name of your state (only U.S. law)? California
My 21 yr old daughter upon driving home from a dinner around midnight on a dark windy road, took a turn too fast skidded and flipped her car when she overcorrected the wheel. After coming to she kicked her way out of the drivers door window and was lucky that a car came along. They brought her home where I was thankful she had no broken bones. After calming her I left for the crash site where I met CHP and a tow truck. The CHP followed me home and since my daughter had a few drinks while I was gone (she did not smell of alcohol when I left) they breathalyzer her and cuffed her. What grounds do they have to charge her? No proof drinking and tested her nearly 4 hrs after accident occured.What is the name of your state (only U.S. law)?

[CdwJava]

Originally Posted by tazz13

My 21 yr old daughter upon driving home from a dinner around midnight on a dark windy road, took a turn too fast skidded and flipped her car when she overcorrected the wheel. After coming to she kicked her way out of the drivers door window and was lucky that a car came along. They brought her home where I was thankful she had no broken bones. After calming her I left for the crash site where I met CHP and a tow truck. The CHP followed me home and since my daughter had a few drinks while I was gone (she did not smell of alcohol when I left) they breathalyzer her and cuffed her. What grounds do they have to charge her? No proof drinking and tested her nearly 4 hrs after accident occured.

She was arrested based on the officers establishing probable cause that she ahd been operating a motor vehicle while impaired by alcohol and/or drugs. How solid that probable cause might be is something I cannot answer.

Chances are she was DUI when she flipped the car. However, since it appears she has you for an alibi witness, and there is reasonable doubt that she was impaired at the time of the collision, she will only face the one or two points on her license as a result of the collision and NOT the repercussions of a DUI. Hopefully, this will be an eye opening lesson for her. Next time, she may not be so lucky.

- Carl

[tazz13]

I thank you for your reply. A lesson learned indeed! However, she honestly wasn't intoxicated at time of accident, she did however doze off as she has been burning the candle at both ends with full time work and school. Still no excuse. The officers saw a bottle of Corona which was capped but broken in the "flip over." As a 21 yr old she can legally transport unopened alcohol. They are also charging her with hit and run which they told her "off the record" she wouldn't get charged for, they "just had to write this." They took her to our local police dept where they put her in room for about 20 minutes then drove her home where they had her released in my custody. No fingerprints or mug shot taken. There was a lot of "off the record" talk when she was alone with them and in front of myself and my husband. Make anything of this?

[CdwJava]

First thing to understand is that nothing is truly "off the record". Now, if the officers knew their stuff, they know they likely can't make a DUI charge stick so they are not planning to pursue this matter very hard. And, as a note, while she may not have been "intoxicated" when you saw her, the law doesn't require she be intoxicated, only impaired. If she had been drinking or taking medication/drugs before the collision it could have been as the result of DUI. If so, hopefully she will have learned something. if just weariness, perhaps it is time for her to dial it back a bit.

If she took a chemical test, and the result are higher than one might expect with what she admitted to drinking, it is possible that they could make a DUI charge stick. Likewise if they backtrack and find if she had been drinking somewhere earlier. if she hadn't been drinking, great. But, the presumption will be there because, in all honesty, the majority of people that pull the "I drank after the accident" argument did so intentionally to muddy the DUI case.

If there was damage to any property, it is possible that she could face charges for hit and run - a misdemeanor.

In any event, she faces at least one point on her license for being at fault for the collision, and if cited and convicted for an associated Vehicle Code violation as a result of the crash, she could be hit with another point. And, since she is so young, this will likely result ian significant hit to her insurance rates.

- Carl

[tazz13]

Again thank you, you have been most helpful. The only damage was to her car which is totaled. This happened on a county road with very few homes. Nothing was damaged at all. She hit a bush then overturned and landed in a ditch basically.
Big lesson learned here as she is lucky to be alive given the damage to her car and herself. I have no doubt she has changed her ways!

[tazz13]

So much to learn here and take in! We also have doctors notes that states she suffered a major concusion and her judgement was impaired as a result. Hopefully this helps us as well.

[tazz13]

Met with an attorney this morning and she informed us we have a solid case to have DMV give my daughter her license back and a really good case that should be dismissed. Problem is all this can be acheived with the aid of an attorney but we could not afford her. My daughter doesn't have $2000 for a DMV hearing nor would they work with us. Has anyone had any luck winning these on their own?

[CdwJava]

If she received a piece of paper titled "Admin Per Se" and with a form number of DS 367 from the police the night of her arrest then she has ten days from that time to schedule a hearing with the DMV. What that would mean is that the police believed a chemical test will result or did result in a BAC of .08 or higher and that her license had been seized as a result. She needs to schedule that hearing ASAP or her license will be suspended in 30 days.

If this form was not issued to her, then it will only be an issue if convicted.

When she goes for her arraignment, she will know whether or not the state is charging her. It could be that the state will NOT charge her at that time given the circumstances. So, if the arraignment occurs before the DMV hearing and no charges are filed, then she will have an easier path at the DMV hearing.

If she IS charged, then she needs to get an attorney for the DUI. Having one for the DMV hearing is optional.

- Carl

[tazz13]

Yes she was given a DS367 form and first thing she did was call DMV and schedule a hearing. Not knowing a hearing in person was more the way to go she scheduled a phone hearing. An attorney, if we can find one we can afford, can change this hearing for us. Also we called the court today and since her citation says TBD for court date we were informed the case will be sent to the DA and once they determine - what & if any charges will be made -they will notifiy her by mail but that the court is backed up as far as 6 months for anything to be filed by them.

[CdwJava]

The DMV hearing is very limited in scope, so appearing in person or by phone may not make much of a difference so long as the officer's paperwork is complete.

Did she take a chemical test? if so, which test - blood or breath?

- Carl

[tazz13]

She took a breath test as one of the officers told her to not take the blood test. She took a breath test at the house and then again at the police station.

She was so upset and having a hard time remembering things due to the concussion (have dr letter as proof) that she was crying of course which made her eyes red which now the officers are saying her "red and watery" eyes were a sign of being intoxicated. The attorney we spoke to had a field day over that comment.

[CdwJava]

The attorney may be telling you what you want to hear ... red and watery eyes ARE among a number of objective signs of alcohol impairment. Can they be the sole indicators? Probably not. But, they certainly can be considered and are, in fact, among the objective symptoms taught to officers.

If she received the DS 367 then the station test read .08 or better. Now, if that's the case, and given the time frame from the crash to the officers' contact, she will have to have tied one on pretty heavy in the hour or two before the officers arrive to reach that level. If she told the officers she had a couple of drinks, and then tested at .08, they will know she is lying.

I suspect they just might have a case unless what she told them she drank is consistent with the chemical test.

- Carl

[tazz13]

We met with a second attorney this evening and he is out of our league with his fee. He went into all this talk about science and having to hire a toxologist for the DMV hearing and trial and oh my**************...
I think we will just switch the DMV hearing to in person as advised and state our case. Nothing sounds promising without counsel but we just don't have the money. Best we can hope for is Public Defendant when she goes to court. I don't know what else to do. The info we have collected is just confusing us. Some say no charges will most likely be filed and others tell us the DA will hire all sorts of PI's etc. Crazy!

[CdwJava]

The attorney that told you about hiring a toxicologist for a DMV hearing is one I'd run away from. It would have no bearing there.

The hearing is concerned with three things:

Did the peace officer have reasonable suspicion to believe she was driving a motor vehicle in violation of CVC 23152? Was she placed under lawful arrest?
Was she driving a motor vehicle with a BAC of .08 or higher?

The public defender won't help for the DMV hearing, but will help at trial. However, if your daughter is a dependent (due to being a student or some other reason) and you have assets or funds, then she may not be eligible for a public defender. She'll have to ask at her arraignment ... IF there is an arraignment (the DA may drop the whole thing).

- Carl

[tazz13]

Our daughter hasn't been a dependent of ours in 3 years so she would hopefully qualify for public defender even if on a sliding scale as we were advised. Coming up with 2 to 4 thousand dollars for DMV hearing as we have been quoted is out of the question. Attorney did say that due to the time frame of when the accident happened and when the breathalyzer was adminstered is so sketchy that alone may give the DMV officer reason for pause.
As for the DA we have been advised that there is a slight chance the won't file the charges due to the fact no witnesses to the accident and she was not arrested at that accident but 3 1/2 hours later. That 3/12 hours is based on their 'guessing' when this all occured.