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  1. #1
    keeanna is offline Junior Member
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    It it still a DUI at 0.07 BAC

    What is the name of your state? California

    On behalf of a friend:

    On CWP (California Work Program) got a DUI and took a blood test that came back 0.07, all I had to drink was 1 beer, but I had nothing to eat all day except a sandwich at lunch and just a burger patty at 6:00 pm.

    I got the DUI at 00.45 am; blood was taken at 1:20 am. I received a notice from the DMV “After reviewing the information on file, including any evidence which you may have presented, the action effective XX/XX/2007, pursuant to 133532 of the Vehicle Code, is set aside”.

    1. I was on CWP probation and a locked up for that for a “Probation Violation”.
    2. According to my PO if the DUI charges are dropped the PV goes away, as he is the one who arrested me. – True of false
    3. DUI charges have not been filed against me, but talking to lawyers they can file a Driving While Impaired.
    4. I’m due back in court at the end of the month on the PV charges, can the DA still file against me even with the BAC at 0.07, under the limit?

    Does the DMV notice help my caseWhat is the name of your state?What is the name of your state?
  2. #2
    CourtClerk is offline Senior Member
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    The suspension from the DMV is most likely an administrative action by the DMV and has no bearing on the court. In fact, the DMV can suspend your license AND the court can suspend your license at the same time or one can do it and not the other.

    Yes, the DA can file a Driving While Impared charge on you if they find that you were in fact impared. They do it all the time for people who may have taken certain medications and attempted to drive.
  3. #3
    CdwJava is offline Senior Member
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    Quote Originally Posted by keeanna
    On CWP (California Work Program) got a DUI and took a blood test that came back 0.07, all I had to drink was 1 beer, but I had nothing to eat all day except a sandwich at lunch and just a burger patty at 6:00 pm.
    That's bull. ONE beer (one 12 oz. beer) is NOT going to get you anywhere near .07 unless you are about the size of my 7 year old.

    So, unless the lab equipment (very,very unlikely) was majorly busted or you had one mighty big beer (perhaps it was a single 32 oz. beer?), the one beer argument will not hold water.

    I got the DUI at 00.45 am; blood was taken at 1:20 am. I received a notice from the DMV “After reviewing the information on file, including any evidence which you may have presented, the action effective XX/XX/2007, pursuant to 133532 of the Vehicle Code, is set aside”.
    Are you under 21 or do you hold a commercial license? If not, then you were likely issued a DS 367 (also called an Admin Per Se form) and your physical license was seized. This was because the officer likely suspected that your BAC from the blood test would come back at greater than .08. This would result in an automatic suspension in 30 days if not contested. However, the DMV - after receiving notification of the .07 (under .08) - discontinued the suspension as it should have.

    This does NOT mean that the DUI has gone away, only the DMV action. Chances are the officer's observations were sufficient to make him believe you were .08 or better so there is likely still a case for DUI pursuant to CVC 23152(a) and not CVC 23152(b).

    Yes, it is unlawful to drive impaired - even under .08.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  4. #4
    StickyFingers is offline Member
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    Quote Originally Posted by CdwJava View Post
    That's bull. ONE beer (one 12 oz. beer) is NOT going to get you anywhere near .07 unless you are about the size of my 7 year old.

    So, unless the lab equipment (very,very unlikely) was majorly busted or you had one mighty big beer (perhaps it was a single 32 oz. beer?), the one beer argument will not hold water.


    Are you under 21 or do you hold a commercial license? If not, then you were likely issued a DS 367 (also called an Admin Per Se form) and your physical license was seized. This was because the officer likely suspected that your BAC from the blood test would come back at greater than .08. This would result in an automatic suspension in 30 days if not contested. However, the DMV - after receiving notification of the .07 (under .08) - discontinued the suspension as it should have.

    This does NOT mean that the DUI has gone away, only the DMV action. Chances are the officer's observations were sufficient to make him believe you were .08 or better so there is likely still a case for DUI pursuant to CVC 23152(a) and not CVC 23152(b).

    Yes, it is unlawful to drive impaired - even under .08.

    - Carl
    Okay,.....Okay!

    I had 2 beers...

    How about a frisky?
  5. #5
    garrula lingua is offline Senior Member
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    Quote Originally Posted by CourtClerk View Post
    The suspension from the DMV is most likely an administrative action by the DMV and has no bearing on the court. In fact, the DMV can suspend your license AND the court can suspend your license at the same time or one can do it and not the other.

    Yes, the DA can file a Driving While Impared charge on you if they find that you were in fact impared. They do it all the time for people who may have taken certain medications and attempted to drive.
    As I recall, the law changed about October, 2005: DMV took over all DUI suspensions away from Judges - they were too eratic. DMV is in charge of all DUI suspended driver licenses. Is this not correct ???
  6. #6
    CdwJava is offline Senior Member
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    The CVC still uses language indicating that the court "may" or "shall" suspend a license in certain situations even when the authority is not granted to the DMV for the same offense.

    I'm not sure that the DMV has taken this over. Could it have been a policy or rule issue rather than a matter of law?

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  7. #7
    Ohiogal is offline Senior Member
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    I know of one way that one beer can equate to a 0.07 DUI that has nothing to do with the size of the person. Because I could easily show that after one drink.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  8. #8
    CdwJava is offline Senior Member
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    Okay, I'll bite ... aside from consuming a 32 or 40 oz. beer, how does one achieve .07 on a single 12 oz. beer? Note that high alcohol content malt drinks from other countries cannot be sold as beer ... at least that's how it was when I ran a bar.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  9. #9
    Ohiogal is offline Senior Member
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    Quote Originally Posted by CdwJava View Post
    Okay, I'll bite ... aside from consuming a 32 or 40 oz. beer, how does one achieve .07 on a single 12 oz. beer? Note that high alcohol content malt drinks from other countries cannot be sold as beer ... at least that's how it was when I ran a bar.

    - Carl
    I had gastric bypass surgery. My small intestine has been bypassed and my innards reconfigured. One drink for me can get me falling down drunk literally. It is like I mainline it. My BAC level skyrockets. It is NOT an excuse mind you. All GB patients are warned of this and quite a few post-ops have been stopped and found out that their BAC is much higher than it should be. Basically any post op from this surgery or other WLS that is malabsorbtive as well as restrictive will do this. It does not and SHOULD NOT excuse people driving after one beer or other alcoholic serving. But it is possible.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  10. #10
    Ohiogal is offline Senior Member
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    Quote Originally Posted by keeanna View Post
    4. I’m due back in court at the end of the month on the PV charges, can the DA still file against me even with the BAC at 0.07, under the limit?

    Does the DMV notice help my caseWhat is the name of your state?What is the name of your state?
    Ummm yeah it can. Because if you're under the PER SE limit you can still be considered intoxicated based on other factors. The only way to avoid a DUI or DWI is to NOT DRIVE if you have ONE DRINK.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  11. #11
    CdwJava is offline Senior Member
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    Quote Originally Posted by Ohiogal
    I had gastric bypass surgery. My small intestine has been bypassed and my innards reconfigured. One drink for me can get me falling down drunk literally. It is like I mainline it. My BAC level skyrockets. It is NOT an excuse mind you. All GB patients are warned of this and quite a few post-ops have been stopped and found out that their BAC is much higher than it should be. Basically any post op from this surgery or other WLS that is malabsorbtive as well as restrictive will do this. It does not and SHOULD NOT excuse people driving after one beer or other alcoholic serving. But it is possible.
    So, the alcohol bypasses the normal filtering system through the kidneys and liver as a result of this kind of surgery? Interesting. I had never heard that before.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  12. #12
    Ohiogal is offline Senior Member
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    Quote Originally Posted by CdwJava View Post
    So, the alcohol bypasses the normal filtering system through the kidneys and liver as a result of this kind of surgery? Interesting. I had never heard that before.

    - Carl
    I am not a medical individual but I have spoken to many who specialize in this surgery and this is something they warn us post ops of. In addition to me living it there is also studies that support it. Look at this:
    [url]http://www.gastricbypassjourney.com/Alcohol%20and%20the%20Gastric%20Bypass%20Patient.htm[/url]
    “Precautions When Using Alcohol After Bariatric Surgery

    A 36-year old female gastric bypass patient left a party after having only two alcoholic beverages, drove her car into oncoming traffic, causing the death of a 12-year old child*. Her blood alcohol level was above the legal limit for the operation of a motor vehicle and was far higher than would have been expected from the two alcoholic beverages she claimed to have consumed. Was the patient telling the truth about the amount of alcohol she drank at the party or did her surgery affect the way her body absorbed or metabolized the alcohol?

    A recent study reported in the British Journal of Clinical Pharmacology found that the gastric bypass procedure significantly affects alcohol absorption and its inebriating influence. According to the study protocol, a group of gastric bypass patients, three years post-surgery, and their non-surgical controls consumed an alcoholic drink containing 20% v/v alcohol (95% ethanol), and blood alcohol levels were examined over a period of time. The data showed that blood alcohol levels of the gastric bypass patients were far higher and required much less time to peak than those of the non-surgical controls.

    The more rapid absorption of alcohol and heightened blood alcohol levels would cause the bariatric patient to have a more pronounced feeling of inebriation during and shortly after drinking. And, such effects could have serious ramifications with regard to driving an automobile or performing other skilled tasks such as operating heavy machinery, piloting a plane or any other task that may influence the safety of the individual or that of others.

    Why would alcohol absorption be higher for someone who has had gastric bypass (or any other surgical procedure that reduces the size of the stomach and bypasses the upper portion of the gut)? With the gastric bypass procedure, 95% of the stomach and the upper gut (duodenum and a portion of the jejunum) are bypassed. Alcohol passes directly from the stomach pouch, usually without restriction, into the second portion of the gut, known as the jejunum. This portion of the gut has a large surface area and readily and rapidly absorbs the alcohol.

    In addition to anatomical changes in the GI tract that influence alcohol absorption, the gastric bypass patient (or any bariatric patient) may also be more sensitive to the intoxicating effects of alcohol because of the reduced calorie intake that occurs after surgery. A number of studies have found that alcohol absorption is far higher if fasting or when consumed on an empty stomach than if provided with a meal or drank soon thereafter.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  13. #13
    Ohiogal is offline Senior Member
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    So OP have you had surgery to change your innards?
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  14. #14
    CdwJava is offline Senior Member
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    I suppose that's just one more reason why we are supposed to ask about medical conditions or treatment as part of the FST battery.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  15. #15
    ecmst12 is offline Senior Member
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    One of my co-workers actually had a gastrectomy due to stomach cancer - yes that's right her entire stomach was removed - and she's the same way. Any alcohol she drinks absorbs REALLY FAST and also wears off really fast. So it's almost like injecting that one beer's worth of alcohol directly into the blood. But the BAC doesn't stay high for very long.

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