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keeanna

Junior Member
What is the name of your state? OC, California.

I’m writing for some one else.
After going to court and nothing was filed, received notice today saying the DA was filing a DWI. The BAL was 0.07 whish is under the legal level. He is on formal probation. Has hired an attorney.
Need to know what to expect.
 


CdwJava

Senior Member
A .07 BAC is under the per se limit, but it is still plenty sufficient to build a DUI case upon.

Your friend can expect to pay between $5,000 and $15,000 in attorney's fees if it goes to trial - more if there are experts called to testify. If found guilty, the fines and fees can be around three thousand or so including a suspension to his license and possibly counseling and probation.

If already on formal probation, this could violate that probation and he might be remanded back into custody even before it goes to trial. Hopefully his probation is not for an alcohol related offense, and he has been in good standing with his probation officer.

His attorney is in the best position to say what he faces if found guilty in his jurisdiction.

- Carl
 

tony317536

Junior Member
Question about this one ... If the limit is .08 and he was at .07 ... How can they build a criminal case against him? From my understand (by IN state law), driving under the influence of alcohol is not illegal. The state legal limit defines the term intoxication, correct? As in .. Operating While Intoxicated (OWI) or Driving While Intoxicated (DUI).
 

garrula lingua

Senior Member
Tony, in CA (& most states), there are two sections for DUI (driving under the influence):

VC23152(a) - 'impaired' driving (under .08 alcohol, or drugs [ver the counter or prescription, or illegal]), and

VC23152(b) - driving while .08 BAC or higher.

OP can be charged under the 'a' count.
Also, if the BAC is close to .08, a zealous Prosecutor can charge the .07 driver and use an expert at trial to testify to the actual BAC while driving (presumably, BAC was dropping from time of stop to time of testing; ergo .08 or + while driving).
 

CdwJava

Senior Member
One can be impaired even when below .08. All .08 says is that at that BAC you are presumed to be impaired going in, and it would be up to you to show that you were NOT at or above .08. Below .08 the state has to show that you were impaired beyond a reasonable doubt. This can be shown by observations, FSTs, etc.

While the specific charge and penalty might be different in your state, don't get caught up in the language or acronym: OWI/DUI/DWI, instead take a look at the code section under which you were cited and use that to evaluate the potential liability.

In CA CVC 23152(a) covers driving under the influence o drugs and/or alcohol. CVC 23152(b) covers driving with a BAC of .08 or greater. They are both "DUI".

- Carl
 

BigMistakeFl

Senior Member
BigMistakeFl

Again, this is why the so-called "legal limit" is misleading. It gives drivers a false sense of security. Driving while impaired is illegal, drinking and driving is not illegal. This is where we get into trouble.
 

shelton442

Junior Member
San Quetin

What is the name of your state? OC, California.

I’m writing for some one else.
After going to court and nothing was filed, received notice today saying the DA was filing a DWI. The BAL was 0.07 whish is under the legal level. He is on formal probation. Has hired an attorney.
Need to know what to expect.
San Quentin 5 to 20 . With good time 5
 

aleshirley

Junior Member
Absurd. I have heard of this quite frequently, especially in my local muni. A woman was sited, charged and found not guilty of DUI with a point .03 blow (no prior anything, anywhere). Unfortunatley the state doesn't care at that point they already have you for OVI.
In OH it is the police officers discression -- no matter what you blow or your BAC is. The court may find you not guilty in the end of a DUI however the COP has already sited you with an OVI and the state automatically suspends your license for 90 days + $425 in reinstatment fees - guilty or not just because a police officer says so. Doesn't sound much like due process to me...
 

keeanna

Junior Member
The FST showed not sign of being impaired. The officer stated you have passed everything then said “follow this” and shone his flashlight in my friend’s eyes blinding my friend. When my friend said “now what am I to do, the light is in my eyes”, the officer said “sorry”, moved the light and continued with the final HGN test. The said “Oh, Oh have to take you in, sorry”. Blood was taken at 1:10 am
All of this took place on a cold mornning in May between 12:45 am and 1:10 am
There were witnessed to the whole thing.
 
Last edited:

CdwJava

Senior Member
keeanna said:
The FAS showed not sign of being impaired.
What's a "FAS"? If you mean "PAS", that is a preliminary breath testing device and is not designed to show impairment, only to show a preliminary BAC reading.

The officer stated you have passed everything
The officer might have been lying ... or, he might have felt that the suspect did "pass" the tests up to that point. No way to know until or unless he is asked.

moved the light and continued with the final HGN test. The said “Oh, Oh have to take you in, sorry”.
When conducted by an experienced and trained officer, the HGN is the single best test for DUI. If I could only conduct ONE of the five standardized FSTs, THAT would be the one test I would do as it is the most conclusive and the least subject to self-control, physical impairment, and experience (being a drunk or conducting FSTs).

- Carl
 

Ohiogal

Queen Bee
Absurd. I have heard of this quite frequently, especially in my local muni. A woman was sited, charged and found not guilty of DUI with a point .03 blow (no prior anything, anywhere). Unfortunatley the state doesn't care at that point they already have you for OVI.
In OH it is the police officers discression -- no matter what you blow or your BAC is. The court may find you not guilty in the end of a DUI however the COP has already sited you with an OVI and the state automatically suspends your license for 90 days + $425 in reinstatment fees - guilty or not just because a police officer says so. Doesn't sound much like due process to me...
The 0.08 is the per se limit. That is where it is automatically considered that someone is too drunk to drive. If you have any alcohol in your system however and are driving improperly you can be charged with an OVI. You get due process when you go to court or the hearing at OBMV for your license.
 

Caveman

Member
???

The 0.08 is the per se limit. That is where it is automatically considered that someone is too drunk to drive. If you have any alcohol in your system however and are driving improperly you can be charged with an OVI. You get due process when you go to court or the hearing at OBMV for your license.
OVI??? OBMV I Am outatouch outatouch ( channeling Hall and Oates here) A good lawyer should get you a dry reckless, but the DMV is another story, they still want their moolah babe. Spend some but not too much on a lawyer, You better "shop around shoparound" Who am I channelling now.

It will not be "dismissed" "Per se" But if you have a good one it can be brought down.

Again, you might have to say goodbye to your license.

Heard it from the Grapvine ( now who is that one) I am not a name dropper anymore, I got chagrined over Mika's BRAVO doing's on. Love that gal. No more for me

Who wants to play name that tune?

Come on? any takers?
 

keeanna

Junior Member
DMV did not take the drivind license, to them a 0.07 is not a DUI.

Have to get this dismissed, cant do get a dry reckless.

Was not drunk
 

CdwJava

Senior Member
keeanna said:
DMV did not take the drivind license, to them a 0.07 is not a DUI.
They just cannot take it BEFORE trial. However, if convicted, you CAN and likely WILL lose your license ... until or unless you are fortunate enough to be granted a restricted one.

Have to get this dismissed, cant do get a dry reckless.
Actually, the term is "wet reckless" pursuant to CVC 23103.5.

Was not drunk
Being "drunk" is NOT the issue ... being IMPAIRED is. One can be impaired and not be "drunk". In fact, clinically, at .07 a person will be impaired. However, whether he or she is legally impaired at that .07 will depend on the observations and actions of the involved parties.


- Carl
 

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