Will I still be prosecuted for a bac of .04 or less?

[paguy88]

Let's just say that I was stopped for suspicion of DUI. I would likely fail the "walk the line" test (I've broken each ankle at least once)...and I'd probably fail the balance test (I get dizzy when I look straight up). I can't think of any others right now (but, I've never been given any of these tests).
What's going to save me? No smell of alcohol. Cooperative. Blows a -0- on the breathalyzer...and, if it got so far as the police station, I'd have a -0- on my blood draw.

I guess not drinking and driving (not drinking, in my case) really helps, huh?

Exactly!

now on the other hand and someone correct me if I am wrong but you can decline the FST's in all 50 states.

And if if you did fail the FST, blow a zero lets say the cops asked for a blood draw you got arrested... stilling going to have to go thru the hassel of getting that off your record. still a pain in the ^%$

 

[theyerb]

FST are a load of crap anyway. I honestly cannot believe they are used to determine things such as a dui.

Good news. They are not used to determine things such as a dui.

They are only used to determine whether you need to be carried to the cop shop for some real tests.

This is the best piece of info so far, IMO. FST tests are not an exact science which is why the field test at the station is used.

 

[CdwJava]

just to play devils advocate..

Bloodshot eyes?-- allergies

odor of alcohol -- booze was spilled on someone-- it happends

unsteady wobbling--- phycial injury

slurred speech-- how do you know I don't normally talk that way?

now to get someone with all those things in reality is rare but could happen.

But, they ARE indicative of one who is impaired by alcohol, and, having them all together is what adds to the likelihood of impairment. It certainly helps build the probable cause.

Any ONE thing by itself is not sufficient - hence the reason that for ANY arrest it is the totality of the circumstances, and the training and experience of the officer that must be evaluated to determine the validity, or reasonableness, of an officer's actions.

now you know as well as I do the cop is supposed to be a objective observer.. having said that then why don't they state anything the arrested person did correct?

They do ... if they fail to indicate any observed clues, the implication is that the test was performed adequately.

as an objective observer I would be willing to bet some do pass sections of the FST.. do not fumble getting wallet whatever. They are to be objective. and I can not believe that just by defult these drunks driver don't do something correct..

Can you imagine how verbose such a report might be if we identified everything that indicated he might not be impaired? Hence, the reason we indicate those things that help establish probable cause.

One defense tactic is to actually ASK about the un-named things and ask the officer if the client performed them without any indication of impairment ... "Did he get his license withou a problem? Was his speech slurred?" etc.

- Carl

 

[CdwJava]

If you don't lie, then good for you, but unfortunately you are probably one of the few.

No. I am in the majority. I am sorry if your experience has been otherwise.

Fact of the matter is that if an officer pulls someone over for suspicion of a DUI and then states that they need to submit to a chemical test, obviously in their eyes, they "failed" the field sobritey tests......even if they didn't. So in order to back up their story about how the defendent needed to submit to a chemical test, they are going to reflect that in their report and state how the person failed the tests, perhaps when they didn't.

An arrest need only be based upon probable cause. Probable cause can be established even if the person is not significantly impaired. This is a rather low level of proof that is required.

If the suspect did not appear impaired, and there was no probable cause, why make the arrest in the first place?

FST are a load of crap anyway. I honestly cannot believe they are used to determine things such as a dui.

They are used to establish probable cause and to help in the evaluation of impairment. You may think they are "crap", but the validated battery are actually VERY good indicators of impairment.

They shouldn't even be administered.....if the cop suspects a dui, then breathalyze or blood test the person, don't waste time on pointless tests.

And how do you arrest someone without probable cause? We can't just say, "Come with me."

As a cop I'm sure you're going to say exactly the opposite and how there is such and such research, etc. etc. but it's all crap. There is absolutely no baseline to compare these tests to on an individual, and they are designed for you to fail.

Not true ... and apparently you are not well schooled in them. They are NOT designed for failure, and neither do they lack a "baseline".

I just tried walking in a straight line (one foot in front of the other) and I slipped on one of the steps. Funny considering I haven't had an ounce of alcohol today. Of course if that was to happen on a FST, it would be evidence against me that I was intoxicated. It's all ridiculous.

That is why they are to be performed as a BATTERY. If the officer bases his evaluation on ONE or even TWO of the tests, then the odds of a correct evaluation drop.

However, it should be noted that the officer is not trained to use just the FSTs for an evaluation of DUI ... there are different aspects of the procedure that I will not outline here, but the actual field SFSTs are only one part of the entire process.

And just to let you know, there has been extensive research done that shows absolutely no correlation between an odor of alcohol and BAC.

I don't know anyone who ever said there was. The odor is only one indication that a person may have been drinking, and is often sufficient to permit further detention to investigate. By itself, the odor means nothing.

- Carl

 

[CdwJava]

now on the other hand and someone correct me if I am wrong but you can decline the FST's in all 50 states.

Yep.


- Carl

 

[theyerb]

So is he going to get prosecuted if his blood tests come back at .04? I think the DA will dismiss based on my scant knowledge and experience.

 

[CdwJava]

So is he going to get prosecuted if his blood tests come back at .04? I think the DA will dismiss based on my scant knowledge and experience.

To reiterate: prosecution is VERY unlikely unless the SFSTs and observations come back really, really bad. When a BAC is below .05, the legal presumption is that the person is NOT impaired - thus, the state has a very high burden of proof.

- Carl

 

[paguy88]

One defense tactic is to actually ASK about the un-named things and ask the officer if the client performed them without any indication of impairment ... "Did he get his license withou a problem? Was his speech slurred?" etc.

ok I got a courosity question on this point.

If you do not write down the things(key stuff) they did correct.

and DUI take a long time to go to trial(well atleast they do in PA i can not speak for Cali) how do you or any police officer remember what the person accused of duiy did correct if you refer back to your notes for what they did wrong?

 

[CdwJava]

ok I got a courosity question on this point.

If you do not write down the things(key stuff) they did correct.

and DUI take a long time to go to trial(well atleast they do in PA i can not speak for Cali) how do you or any police officer remember what the person accused of duiy did correct if you refer back to your notes for what they did wrong?

Well, the report should refresh your memory ... but, in general, if the anomaly is not mentioned, then the assumption might be that they did it correctly. Some things ARE written down, some aren't. Officers are generally trained to write DUI reports in a similar manner and this manner often includes observations that play to the suspect's favor. But, if I wrote down what they did right, I might un-necessarily extend a report. They already take long enough ... why spend even MORE time?

- Carl

 

[garrula lingua]

heyitsme:
The DA won't proceed.
They will reject the case when they receive the blood results.

Problem is, the blood results take time - often they're not back in time for court.

Just appear in court for the arraignment and you will find out then (if the results are in).

If they do intend to proceed, ask for a continuance to hire an attorney (they won't if your BAC is low).

There is some variance with City Prosecutors and County Deputy Dist Attorneys regarding prosecution - DDAs in L.A. don't, normally, go forward with a BAC under .08 (unless there's drugs or a vehicular manslaughter involved).

 

[tranquility]

"I would bet a million dollars that this cop will lie in the police report and state that I failed all of the tests, that I had bloodshot eyes, that I was stumbling, etc."

Wow! I'd take that bet ... if you had a million dollars!

Come on Carl, you've read DUI reports, don't they seem a little....proforma to you? I mean really. It was a long time ago, but I recall copying many phrases from previous reports. It was the way I was taught. "[Suspect] had bloodshot and watery eyes and had a moderate oder of an alcoholic beverage emiting from his breath and person." And, on an on. I'd take the bet and it would be better than even that you'd need to sell the house to pay.

 

[CdwJava]

Come on Carl, you've read DUI reports, don't they seem a little....proforma to you? I mean really. It was a long time ago, but I recall copying many phrases from previous reports. It was the way I was taught. "[Suspect] had bloodshot and watery eyes and had a moderate oder of an alcoholic beverage emiting from his breath and person." And, on an on. I'd take the bet and it would be better than even that you'd need to sell the house to pay.

Why re-word them if the facts are present? Why should we develop different ways to say the same thing?

Now, I doubt you were taught to write that a suspect had bloodshot and watery eyes if he did not. If it was a lie, I doubt the officer would write it knowing that to be the case ... why? I am sure it has happened occasionally, but it's rare and very stupid.

Of course the structure is often boilerplate - so are traffic collision reports and DRE reports. The training presents the basics that must be presented in the report, and the language can be pretty specific. Some agencies are more specific than others, but the elements that should be showing the report are generally going to be the same. This is because the same training (or based on the same material) is presented nationwide.

- Carl

 

[heyitsme]

heyitsme:
The DA won't proceed.
They will reject the case when they receive the blood results.

Problem is, the blood results take time - often they're not back in time for court.

Just appear in court for the arraignment and you will find out then (if the results are in).

If they do intend to proceed, ask for a continuance to hire an attorney (they won't if your BAC is low).

There is some variance with City Prosecutors and County Deputy Dist Attorneys regarding prosecution - DDAs in L.A. don't, normally, go forward with a BAC under .08 (unless there's drugs or a vehicular manslaughter involved).

Thanks for your reply. Makes me think I can relax a little, haha.

Still haven't received any results yet.....I actually do have a lawyer already. Just waiting for the blood tests to come back - the wait is killing me, though. DMV hearing is scheduled for June 3 (unless it comes back under .08) so I'm assuming I will hear something before the 3rd.

There's NO way I was at .08 or over. Like I said, I even re-created the events from the night and breathalyzed myself. At the time of testing my breathalyzer results showed .01. The breathalyzer I used has great reviews for accuracy and was even neck-in-neck with police breathalyzers, so I'm assuming the .01 can't be TOO far off. Even if it is off, it would still put me way under .08

Exactly how long do blood results take? It's already been almost a month and still no word. My actual court date is June 25th......there would be a chance they wouldn't be ready by June 25th? (This happened April 13th)

 

[CdwJava]

How long the results might take will depend on who they use for the testing. One month is not unusual ... and when I worked in San Diego, it could sometimes take up to two months.

Blood tests that come back with a BAC of UNDER .08 may take longer, because these tend to automatically be forwarded for a drug screen and this can add another month or more to the process.

- Carl

 

[heyitsme]

How long the results might take will depend on who they use for the testing. One month is not unusual ... and when I worked in San Diego, it could sometimes take up to two months.

Blood tests that come back with a BAC of UNDER .08 may take longer, because these tend to automatically be forwarded for a drug screen and this can add another month or more to the process.

- Carl

I'm confused about the whole drug screening thing. I smoke weed every now and then, so if they do a drug test I'm sure it would show some in my system. I didn't smoke anything the day/night I was arrested - in fact, I hadn't smoked for more than 24 hours, so I was not "high" when I was driving, by any means. How do they handle this? Obviously a dui is driving under the influence and I absolutely was not driving under the influence of weed....I'm sure it would be used against me, but how would it relate to a dui if I wasn't under the influence?