Underage charged with CVC 23152 A/B

[Halfbreed]

I live in CA, was pulled over last night for flashing my lights at a car at a stop sign with the intent of signaling them to go first.. Turns out it was a cop car.. They get behind me, flip on their lights.. I signal and pull over.

Asked me if I had been drinking, I said no. He gave me an eye test, then asked me to perform a field sobriety test, which I didn't stumble, lean, slur on at all (according to my friend who was next to me) .. But I also felt I had done well.. After the test he pulled out a breathalyzer and told me that based on the breathalyzer results he had to take me down to the station..

Took another in-station breathalyzer test about 30 minutes later, and was told I blew a .16 .. The officer kept telling me that I wasn't acting/sounding like I was drunk, but he had to take me in because of what I blew.. I asked him what was gonna happen and he told me that I should schedule a court date, and that he would not show up for it. To my knowledge, if the officer doesn't show up, isn't the case dismissed??

Either way.. I'm in a pickle, and I would really appreciate any advice I can get right now. Should I hire an attorney? What are some things I could do right now to help my case.

Thanks in advance
-



*Edit* I was never read my rights.. and how do I go about scheduling a DMV hearing?? And should I have an attorney for that?

 

[SIN EATER]

How old are you ?

 

[ERAUPIKE]

I live in CA, was pulled over last night for flashing my lights at a car at a stop sign with the intent of signaling them to go first.. Turns out it was a cop car.. They get behind me, flip on their lights.. I signal and pull over.

Asked me if I had been drinking, I said no. He gave me an eye test, then asked me to perform a field sobriety test, which I didn't stumble, lean, slur on at all (according to my friend who was next to me) .. But I also felt I had done well.. After the test he pulled out a breathalyzer and told me that based on the breathalyzer results he had to take me down to the station..

Took another in-station breathalyzer test about 30 minutes later, and was told I blew a .16 .. The officer kept telling me that I wasn't acting/sounding like I was drunk, but he had to take me in because of what I blew.. I asked him what was gonna happen and he told me that I should schedule a court date, and that he would not show up for it. To my knowledge, if the officer doesn't show up, isn't the case dismissed??

Either way.. I'm in a pickle, and I would really appreciate any advice I can get right now. Should I hire an attorney? What are some things I could do right now to help my case.

Thanks in advance
-



*Edit* I was never read my rights.. and how do I go about scheduling a DMV hearing?? And should I have an attorney for that?

The officer doesn't need to show up, you blew twice the legal limit. Prepare yourself to be convicted of DUI.

 

[SIN EATER]

The officer doesn't need to show up, you blew twice the legal limit. Prepare yourself to be convicted of DUI.

Where did you ever get such hooey ???

In this great country, a person is innocent until proven guilty, and s/he has a right to confront the witnesses against him/her.

The cop is the main (possibly only) witness & must be there to testify, or Halfbreed walks free.

 

[ERAUPIKE]

Where did you ever get such hooey ???

In this great country, a person is innocent until proven guilty, and s/he has a right to confront the witnesses against him/her.

The cop is the main (possibly only) witness & must be there to testify, or Halfbreed walks free.

In this great country there are laws and procedures in the judicial system system that contradict your general and uneducated statement. Please refrain from giving inaccurate and ignorant opinions in the future. If you plan to attempt to contradict me show some proof or citation to support your obviously incorrect stance.

There are two situations in which a police officer is asked to appear in court and where his failure to appear could result in a dismissal or breakdown: 1) a hearing on a motion to suppress (the evidence against the defendant, which is filed by an attorney on the defendants behalf); and 2) at trial. Absent the need for a hearing or a trial on the merits, there is no reason for a police officer to 'show up' for court. If an attorney does not file a motion to suppress and give the police officer a reason to come to court, he/she may never be required to do so. It is the filing of this motion that places the police officer in the position of having to appear in court, and places the defendant in the position of potentially having a case dismissed.

 

[CdwJava]

Asked me if I had been drinking, I said no. He gave me an eye test, then asked me to perform a field sobriety test, which I didn't stumble, lean, slur on at all (according to my friend who was next to me) .. But I also felt I had done well.. After the test he pulled out a breathalyzer and told me that based on the breathalyzer results he had to take me down to the station..

How much had your friend been drinking? He may not be all that credible a witness.

And it should be noted that the tests do not JUST measure stumbling, leaning or slurring - those are only some of the things an officer is trained to look for in the tests.

Took another in-station breathalyzer test about 30 minutes later, and was told I blew a .16 ..

Oops for you ... that's an enhancement.

The officer kept telling me that I wasn't acting/sounding like I was drunk, but he had to take me in because of what I blew.. I asked him what was gonna happen and he told me that I should schedule a court date, and that he would not show up for it. To my knowledge, if the officer doesn't show up, isn't the case dismissed??

Either you were too drunk to comprehend what this officer said, or he's an idiot.

First, he should never have made those statements to you.

Second, this is NOT a traffic ticket, he WILL show up pursuant to a subpoena.

Third, hire yourself an attorney.

*Edit* I was never read my rights.. and how do I go about scheduling a DMV hearing?? And should I have an attorney for that?

Miranda is only required after you are in custody and then interrogated. Most arrests never require Miranda - DUI being one of them.

On the back of the "Admin Per Se" document you were provided the night of your arrest, it has all he info you need to schedule a hearing. You have ten days from the time of the arrest to schedule a hearing with the DMV or your license will be suspended 30 days after the arrest. You do not need an attorney for the DMV hearing, but you can pay one to go with you all the same. It's up to you and your wallet.

- Carl

 

[CdwJava]

Where did you ever get such hooey ???

In this great country, a person is innocent until proven guilty, and s/he has a right to confront the witnesses against him/her.

The cop is the main (possibly only) witness & must be there to testify, or Halfbreed walks free.

The first hearing is the arraignment ... the officer does not need to be present. In fact, I can say with certainty that he will NOT be present.

Assuming no suppression motion are made that require the officer's testimony, the next hearing would be the preliminary hearing. This will usually require the officer's presence, but it CAN be done through a hearsay process known as "Prop 115", so the officer may not have to appear even for that. It is not until trial that the officer would definitely have to appear.

It should be noted that very, very few DUIs go to trial. Most plead because they are ... well ... not all that difficult of cases to make, and there can be some beneficial deals out there for the first time or low BAC offender.

This is no a traffic case where a motion can be made for a lack of prosecution if the officer isn't there. And if the officer fails to appear at a DUI trial, you can bet that the local DA will be all over the Chief's tail end, and he will be all over that officer's supervisor's tail end, and that officer would soon be walking the line at a soup kitchen if he made such decisions to blow off criminal trials!

- Carl

 

[Halfbreed]

Alright, so I guess my question now is.. what do I do?
Is there ANYTHING I can do to help my chances of not being convicted of a DUI?
Or is there any possibility that I can still have my license to drive to school/work instead of just being suspended?

You're saying there's no way I can get out of being convicted of a DUI then?

-No I wasn't incoherent..
-I'm 19.
-The officer said I didn't seem drunk, but was taking me in regardless because of what I blew. (Is there a possibility that he could have some how given me a break in paperwork or some other way?)
-My friend had less to drink than me.

Are all field sobriety tests recorded? Could I use that to show that I wasn't driving recklessly?

And since the reason he pulled me over was because I was flashing my lights at him, and not because of my driving, could that help me at all??

Lastly.. when do you recommend I get a lawyer?

 

[garrula lingua]

No, Carl.

A Preliminary Hearing is only for a felony.

This is definitely a misdemeanor DUI - no serious injuries, prior felony DUI which would make it a felony.

You can't prop 115 on a misdemeanor (no PH & probable cause is decided based on the filings).

Misdemeanor DUIs are simply set for arraignment and pretrial.
They should go to trial within 30 days if the defendant is in custody, 45 if out of custody. Most defense counsel waive time and continue the trial date.
Witnesses have to show up for the trial & as Carl said, they are subpoenaed (including LEOs).

Sin is right - OP can't be convicted without a witness - in this case, the cop.

Yes, the trial would be at a later appearance, but:
quote Eurapike:
The officer doesn't need to show up, you blew twice the legal limit. Prepare yourself to be convicted of DUI.

The cop does need to show up for a conviction, unless it's the result of a plea.

As Eura quickly backtracked in his/her second post, the cop would have to show up for trial.

Eura: the cite is the Constitution.

My 'general and uneducated' opinion comes from being a retired Prosecutor and a licensed and practicing attorney in two states.

Where does your general & uneducated opinion come from ??

 

[garrula lingua]

The first hearing is the arraignment ... the officer does not need to be present. In fact, I can say with certainty that he will NOT be present.

Assuming no suppression motion are made that require the officer's testimony, the next hearing would be the preliminary hearing. This will usually require the officer's presence, but it CAN be done through a hearsay process known as "Prop 115", so the officer may not have to appear even for that. It is not until trial that the officer would definitely have to appear.
- Carl

No, Carl.

A Preliminary Hearing is only for a felony.

This is definitely a misdemeanor DUI - no serious injuries, prior felony DUI which would make it a felony. There are no PHs for misdemeanor DUIs.

You can't prop 115 on a misdemeanor (no PH, & probable cause is decided based on the filings).

Misdemeanor DUIs are simply set for arraignment and pretrial.
They should go to trial within 30 days if the defendant is in custody, 45 if out of custody. Most defense counsel waive time and continue the trial date.
Witnesses have to show up for the trial & as Carl said, they are subpoenaed (including LEOs).

Sin is right - OP can't be convicted without a witness - in this case, the cop.

Yes, the trial would be at a later appearance, but:
quote Eurapike:
The officer doesn't need to show up, you blew twice the legal limit. Prepare yourself to be convicted of DUI.

The cop does need to show up for a conviction, unless it's the result of a plea.

As Eura quickly backtracked in his/her second post, the cop would have to show up for trial.

Eura: the cite is the Constitution.

My 'general and uneducated' opinion comes from being a retired Prosecutor and a licensed and practicing attorney in two states.

Where does your general & uneducated opinion come from ??

 

[CdwJava]

I knew a DUI was a misdemeanor, I was just in error on the Prelim part. The vast majority of court proceedings most cops go to are preliminary hearings, and most of those seem to result in the defendant being bound over for trial and the defendant subsequently pleading to a lesser offense (often a misdemeanor). So, I guess I got it skewed because of all those cases I go to court on that get dropped down after they are bound over.

My bad.

I hate it when that happens!

- Carl

 

[Halfbreed]

Great argument and all, but you know.. It would be great if someone could answer my last post..

 

[CdwJava]

Alright, so I guess my question now is.. what do I do?

The obvious answer would be to consult an attorney.

Is there ANYTHING I can do to help my chances of not being convicted of a DUI?

Hiring an attorney can help ... you might also get lucky and receive a plea offer.

Or is there any possibility that I can still have my license to drive to school/work instead of just being suspended?

After a short period of suspension, you can request a restricted license to travel to and from work and/or school.

You're saying there's no way I can get out of being convicted of a DUI then?

There's always a chance, but we don't know what the officer saw and how he will testify. If he is a clod, then you might prevail. If he is competent, you probably won't.

-No I wasn't incoherent..
-I'm 19.

Maybe you can plead to 23140 - being underage with a BAC of .05 or higher?

-The officer said I didn't seem drunk, but was taking me in regardless because of what I blew. (Is there a possibility that he could have some how given me a break in paperwork or some other way?)

Stupid of that officer to say something like that ... don't count on him recalling making that statement on the stand.

-My friend had less to drink than me.

Maybe HE should have driven.

Are all field sobriety tests recorded? Could I use that to show that I wasn't driving recklessly?

In CA very few cars have video cameras. Some agencies have more than others, and unless the car was a dedicated DUI car the chances of a camera are slim. But, there is that possibility.

And since the reason he pulled me over was because I was flashing my lights at him, and not because of my driving, could that help me at all??

Not really. So long as the cause for the stop is valid, then that's all they need.

Lastly.. when do you recommend I get a lawyer?

BEFORE your first court appearance.

- Carl