DUI Checkpoint - .07 BAC

[CdwJava]

What if OP had refused the FST then all DA would have is .07 to prosecute with. How often have you seen DA take on a case w/o traffic violation and no FST with BAC less than .08. what do you call .08 if not legal limit?

I call it the "per se" limit as that is what it is.

What the .08 BAC does is codify a BAC level at which impairment is considered a given. Since the state must show impairment to have a DUI, they have deemed that a BAC of .08 means that one is legally too impaired to operate a motor vehicle.

Without FSTs or any other observations a prosecution would be difficult ... however, without FSTs or any other observations giving rise to the probable cause necessary for an arrest for DUI, an arrest would not have happened which would have resulted in a BAC test of .07.

Keep in mind that someone high on, say, Vicodin, is going to have a BAC of .00. So, to say that .08 is a legal limit is misleading since one does not have to possess a BAC at all to be arrested and even convicted for driving impaired.

Also, If there were no BAC limits how do you explain National Highway Traffic Safety Administration (NHTSA) slogan. Titled ‘Drunk Driving: Over the Limit. Under Arrest.’?

Perhaps they mean to refer to being over the "per se" limit.

I instruct a class on drugs and alcohol every month at our social services agency. One of the questions I ask is how many people in the room believe they can be arrested if they are UNDER .08. I'd say about half of the people know they can, but they aren't really sure ... the others either believe they are safe under .08 or lack the confidence to enter into the discussion. After discussion most are pretty sure that it's illegal to drive impaired under .08 but they are not too sure, largely because of all the discussion about "the legal limit" being at .08. For those agencies - yes, even government and law enforcement agencies - that have used that term, I say shame on them. It sends the wrong message, in my opinion.

 

[Master Moron]

Where did I say that? I just don't think a person has a right to drink and drive while impaired. If you want to get sloshed at home, or get tipsy with a designated driver, go right ahead. I enjoy watching drunks embarrass themselves as much as the next guy.

We're not talking about people driving while impaired. We're talking about people having two beers. Most people are not impaired after two beers, yet you want to make it illegal. And I find it frustrating that you continue to believe that the only people who drink are those who party and get hammered. You just can't accept that people drink for other purposes, such as for work or family functions.

Actually, I am for arresting drivers who are impaired and for keeping impaired people off of our roads. Perhaps by lowering the per se level, and getting away from this misleading term "legal limit" more people would become cognizant of the facts and think a little more about it.

I don't think it will make people aware of anything because I don't think most people follow the law that closely. Most people have no idea how many drinks it takes to get a .08. Even if the legal limit is lowered, people will continue to believe that it's okay to drive home as long as they're not impaired.

But, never fear Master Moron, it is highly unlikely that we will ever see a .05 per se level in this country in my lifetime.

That depends on how much money is in it. If the government sees green, they'll go for it, no matter how many innocent people are punished.

Then if things are so lax there, maybe you should agitate for greater supervision and training. But, it is not uncommon to see some of the same symptoms in an alcohol DUI. After all, it is generally the odor of alcohol that attracts an officer's attention. And when you have impairment from alcohol you often DO have red and watery eyes, slurred speech, and an unsteady gait. The fact that these are prevalent with alcohol DUIs simply reinforces these as objective symptoms, it does not detract from them.

It does when the chemical tests demonstrate that they are not impaired.

I don't have a problem with DUI checkpoints. Although you might consider your car a private place the fact is it operates in a public arena where others safety in in jeopardy. So your car really isn't private looking at it from this perspective.

I wouldn't take kindly to an officer randomly stopping me while walking on a public sidewalk either. DUI checkpoints are terrible law. The Supreme Court had previously found that police checkpoints were unconstitutional, yet they made an exception for DUI cases because they claimed that the small infringement on a person's constitutional rights was over-weighed by the public interest in preventing drunk driving. It's nonsense.

 

[CdwJava]

We're not talking about people driving while impaired. We're talking about people having two beers.

Maybe you are, but I'm not.

Most people are not impaired after two beers, yet you want to make it illegal.

Never said that. Two beers are not likely to get anyone at .05 or greater. Yes, they could be impaired, but those would be a minority of the population and would also require they complete them both within the same 30 to 60 minute period just to come close to being even .04.

And I find it frustrating that you continue to believe that the only people who drink are those who party and get hammered. You just can't accept that people drink for other purposes, such as for work or family functions.

Again, I never said that people only drink to get hammered. But NO ONE should drink to the point of being too impaired to drive - no matter the reason for having the drinks.

I don't think it will make people aware of anything because I don't think most people follow the law that closely. Most people have no idea how many drinks it takes to get a .08. Even if the legal limit is lowered, people will continue to believe that it's okay to drive home as long as they're not impaired.

The education that has been provided to this point, coupled with increased enforcement, has managed to keep DUI arrests, fatalities, and injuries at nearly the same level they were nearly 20 years ago. This is quite remarkable when you consider that miles driven have gone up[ tremendously in the same amount of time.

If the per se limit were reduced, and more people were getting arrested (assuming they were being detected), then people would get the idea. Behavior does change with enforcement.

But, never fear, you shall never see a .05 BAC. So, rather emulating the BAC levels in many other nations we shall remain at .08 likely for the duration of both our lifetimes.

It does when the chemical tests demonstrate that they are not impaired.

It is arguable whether a chemical test can show this or not. The test can show a concentration of alcohol or drugs in the system, but by itself, it cannot measure impairment. Some people are notably impaired at a much lower level than .08 and a trained observer can begin to observe articulable, objective signs of impairment at as low as even .02 though usually .03 is where the first observations can be determined.

I wouldn't take kindly to an officer randomly stopping me while walking on a public sidewalk either. DUI checkpoints are terrible law. The Supreme Court had previously found that police checkpoints were unconstitutional, yet they made an exception for DUI cases because they claimed that the small infringement on a person's constitutional rights was over-weighed by the public interest in preventing drunk driving. It's nonsense.

You may believe it is nonsense, but they are legal and permitted in most every state. If a local community opposes them, the local law enforcement agencies will not utilize them. Most communities support these checkpoints so they continue. In my county only a small and vocal minority oppose them - the vast majority support them. I can guarantee that if my community opposed them, they would not happen here even if they were legal.

 

[Master Moron]

Maybe you are, but I'm not.


Never said that. Two beers are not likely to get anyone at .05 or greater. Yes, they could be impaired, but those would be a minority of the population and would also require they complete them both within the same 30 to 60 minute period just to come close to being even .04.

It depends on a variety of different factors. Big guys probably won't go over .05 after two beers, but most women will. And most people don't wait 60 minutes after every beer.

Again, I never said that people only drink to get hammered. But NO ONE should drink to the point of being too impaired to drive - no matter the reason for having the drinks.

Perhaps you meant to say no one should drink to the point of being too impaired to drive and then drive, as there shouldn't be any problem with someone drinking to the point of being too impaired to drive as long as they don't drive.

The education that has been provided to this point, coupled with increased enforcement, has managed to keep DUI arrests, fatalities, and injuries at nearly the same level they were nearly 20 years ago. This is quite remarkable when you consider that miles driven have gone up[ tremendously in the same amount of time.

Hmmm...I seem to recall just reading something recently about the number of miles driven going down drastically in the last year due to the economy, yet the number of dui fatalities only decreasing a small amount. I'll have to look that up.

It is arguable whether a chemical test can show this or not. The test can show a concentration of alcohol or drugs in the system, but by itself, it cannot measure impairment. Some people are notably impaired at a much lower level than .08 and a trained observer can begin to observe articulable, objective signs of impairment at as low as even .02 though usually .03 is where the first observations can be determined.

Okay, but what if they blow a 0.000 and there are no drugs in their system? I simply don't believe that an officer can observe signs of impairment at such low levels. It's very easy for an officer to believe he sees signs of impairment when those signs are caused by other factors, such as a psychological or physical condition, or their state of mind.

You may believe it is nonsense, but they are legal and permitted in most every state. If a local community opposes them, the local law enforcement agencies will not utilize them. Most communities support these checkpoints so they continue. In my county only a small and vocal minority oppose them - the vast majority support them. I can guarantee that if my community opposed them, they would not happen here even if they were legal.

It is nonsense. The fact that you're citing completely irrelevant things indicates to me that you haven't actually read Michigan v. Sitz. I wouldn't really expect police officers to read Supreme Court decisions. But, don't defend a bad decision if you haven't read it.

 

[larboard]

Hmmm...I seem to recall just reading something recently about the number of miles driven going down drastically in the last year due to the economy, yet the number of dui fatalities only decreasing a small amount. I'll have to look that up..

I posted the following like earlier in the thread regarding DUI fatalities:
http://www.alcoholalert.com/drunk-driving-statistics.html]Drunk driving statistics

Regarding miles driven found this but it seems to only go to 2008 or so:
Figure 1 - April 2008 - TVT - Travel Monitoring - Policy Information - FHWA

Would be interested in more current or better links (and it still drives me crazy you can't make your links look good )

 

[Zigner]

(and it still drives me crazy you can't make your links look good )

www.google.com
www.yahoo.com

It's easy

(Just uncheck the "Automatically parse links in text" box below your entry box)

 

[larboard]

(Just uncheck the "Automatically parse links in text" box below your entry box)

Thanks. I'll experiment here:

On my home forum we can make it part of the sentence so for example Orange County Sheriff's Department Online BAC Results the part I bolded would be the link.

Lot cooler than here's a link to the Orange County Sheriff's Department Online BAC Results:
www.occl.ocgov.com/BAC/CaseStatus.aspx

The part I bolded would be the link so essentially it takes the form of a nice description of the link which could be inside the sentence.

For some sort of security reason my home forum did disable use of tinyurl (which you used to have to use for very long links). Problem is my archived posts contain so many tinyurl links that a lot of my old classics have been partially crippled.

Still wonder if there's something on the User Control Panel I can set up so the link shows up in (usually) blue and a reader can directly click on the short description of the link as I describe above. My guess it must be for security; e.g. an upset poster could send someone of to a virus laden porn site/whatever.

I'm convinced if I made it really super easy CdwJava (i.e., he didn't have to cut and paste the link into another browser window) would actually check out the clip I posted to the "The Wire". OTOH, if he liked it and started Netflixing the five seasons of "The Wire" he wouldn't have time to post here for a month or so

 

[CdwJava]

Perhaps you meant to say no one should drink to the point of being too impaired to drive and then drive, as there shouldn't be any problem with someone drinking to the point of being too impaired to drive as long as they don't drive.

[
Correct. If they want to get blotto at home,or tipsy in public,they can go ahead and do so as long as they are not driving.

Hmmm...I seem to recall just reading something recently about the number of miles driven going down drastically in the last year due to the economy, yet the number of dui fatalities only decreasing a small amount. I'll have to look that up.

I'm talking about a 10 to 15 year period, not a single year ... I have my Powerpoint presentation with those figures at the office somewhere.

Okay, but what if they blow a 0.000 and there are no drugs in their system?

I've never experienced an arrest with no drugs or alcohol present. I suppose it happens, but I have never personally had knowledge of such an arrest. Some officers are poorly trained and may, indeed, misinterpret the signs.

I simply don't believe that an officer can observe signs of impairment at such low levels.

Okay. Ride with me and others who are trained as I am (as a DRE), and we can probably make you a believer.

It is nonsense. The fact that you're citing completely irrelevant things indicates to me that you haven't actually read Michigan v. Sitz. I wouldn't really expect police officers to read Supreme Court decisions. But, don't defend a bad decision if you haven't read it.

Of course I have read it. In essence it says that DUI checkpoints are legal. But, it does not say that agencies MUST use them. The state police are a different animal from local agencies. Local agencies are subject to the whims and desires of local citizens and local politicians - a local chief is not long for a job if he thumbs his nose at either the will of the public or the will of the council that employs him or her. I know of a few jurisdictions here that will not run DUI checkpoints because of local concerns. My county was that way until about three years ago ... a rash of DUI fatalities changed the minds of city and county officials. Prior to 2006, we couldn't get to square one with the concept.

And, no, I have not had a chance to check the video of The Wire, yet, Larboard. Too little time to watch at the moment ... maybe Thursday night - I'm at a Business Manager's Alliance meeting in Sacramento for a couple of nights so I'll get righteously bored in the hotel Wednesday and Thursday nights. Maybe then ...

 

[Master Moron]

Okay. Ride with me and others who are trained as I am (as a DRE), and we can probably make you a believer.

I'm sure they're right most of the time. My concern isn't with the times that they are right, but the times that they are wrong. You know, I just watched an episode of COPS last night where they arrested someone and he blew a 0.00. Not that anyone should base their opinion off of COPS or anything, but I'm just saying, it happens.

Of course I have read it. In essence it says that DUI checkpoints are legal. But, it does not say that agencies MUST use them. The state police are a different animal from local agencies. Local agencies are subject to the whims and desires of local citizens and local politicians - a local chief is not long for a job if he thumbs his nose at either the will of the public or the will of the council that employs him or her. I know of a few jurisdictions here that will not run DUI checkpoints because of local concerns. My county was that way until about three years ago ... a rash of DUI fatalities changed the minds of city and county officials. Prior to 2006, we couldn't get to square one with the concept.

I'm not sure what any of that has to do with whether the case was a good decision or not. The decision was bad because it ignored precedent and allowed an infringement on Constitutional rights based on a whim. I have yet to hear a valid defense of the decision.

 

[CdwJava]

I'm not sure what any of that has to do with whether the case was a good decision or not. The decision was bad because it ignored precedent and allowed an infringement on Constitutional rights based on a whim. I have yet to hear a valid defense of the decision.

The USSC wrote about their decision. Since they are the arbiter of the Constitution in this country it is the law of the land.

Many people do not agree with certain USSC decisions and no amount of arguments will tend to change their opinions. I suspect that no one could come up with a better argument than the USSC, and even if they did, I suspect you would not find it compelling. It is human nature. Heck, I'm still waiting for a rational explanation of Roe v. Wade that I can buy ... so far, nope. It could be that I'm simply biased against it.

 

[BOR]

I'm not sure what any of that has to do with whether the case was a good decision or not. The decision was bad because it ignored precedent and allowed an infringement on Constitutional rights based on a whim. I have yet to hear a valid defense of the decision.

If Sitz was a bad decision in your view you'll hate this one.

http://www.law.cornell.edu/supct/html/02-1060.ZS.html

 

[Zigner]

You know, I just watched an episode of COPS last night where they arrested someone and he blew a 0.00.

Not only a moron, but an idiot too...

One doesn't have to have ANY alcohol in their system to be DUI.

 

[larboard]

I'm the OP and am back with an update and questions. Thanks to all for the advice so far.

First the update:

My arraignment is in a two weeks or so. A short time ago I went to the county courthouse for a "trial run", hoping to witness routine DUI court proceedings for the first time. I couldn't find a courtroom that focused on DUI's and learned that my case is not yet on the docket, but a few days before I can check the courts website (either way I show up of course). I learned where to check in and find the proper courtroom and got some tips on how to dress so the morning wasn't a total loss.

Now some (too many? ) questions:

1) Per the advice so far at the arraignment I will plead "not guilty" and ask for a Public Defender (PD). I'm almost certain I qualify for the PD. My understanding is I fill out some sort of financial form truthfully but don't need to bring my pitiful bank, credit statements at this time. Is this essentially correct?

2) Assuming I get a PD will I typically meet him or her that day or some later date? If at a later date about how much later will it be on average?

3) For a case like mine about how long will I usually have to wait for my next appearance before a judge?

4) From reading the forums and asking around it's clear both the PD and court won't have time or patience with the level of detail I write in this thread. I want to know what to emphasize with either the PD or judge/court to save time and not offend/anger/annoy the people who will determine my fate in court. For example my driving record is extremely good. I'm in late middle age and driven in California and a state back east about equally. Over those 40 plus years my "accident" record is:

- getting hit from behind while lawfully stopped in line at a stoplight in California.

- in my home state post college I made an evasive maneuver to avoid a drunk who was asleep at the wheel and coming head on into my lane on a narrow country road without a shoulder (it narrowed to go over an ancient stone bridge). I was hit in my van's back right corner slightly but two cars behind me were totaled by the sleeping drunk. I stopped, checked to see if the other drivers were hurt, gave a statement to the police and was excused. It never showed up on my insurance or record AFAIK.

- have had about one minor speeding ticket every six or seven years on average. Not a "little old lady" but close.

Obviously my insurance company loves me and right now I pay very low premiums. My question is does the court ever take a very good driving record into consideration or would they rather not even hear about it?

5) My credit record is of the sort that is currently good but not where I could get more credit if I applied for a credit card or loan (due to lack of income). Assuming I get a "wet reckless" at best will the various fines and "drunk school" costs possibly be arranged in payments over time?

6) Assume my license is restricted to go to "drunk school" and work. I do my "income" work (pathetic as it is) at home on the computer so I don't need to drive to "work". More importantly I have also been providing help (mostly shopping and heavy chores) to someone "connected" but not living with me who is sick/disabled/in pain/impoverished for many, many years. I can prove it via years of saved emailed shopping lists and/or that person's sworn statement. Instead of driving to work will the court allow me to continue to drive to help this needy person? Note I do it one afternoon week or so on average and there is nobody else who will replace me.

7) For personal, financial, and family reasons I was planning to move back East and now have to wait until this is over. The focus of my life during the few weeks before the incident was to write a sufficiently passionate and convincing letter to re-unite the person in 6) above with an estranged relative who is financially capable of helping him or her out. Obviously from my posting I rarely suffer writer's block but did for that letter. The reason I went out the night of the incident was to think about what to say over a few drinks in a decent bar where I could be left alone in public. Due to the incident the letter was delayed two weeks but was ultimately successful. The "estranged relative" now wants to reach out and will likely provide shelter in a state that adjoins California (i.e, obviously Nevada or Arizona). That person will need a lot of help packing etc. and I would normally be involved with the move (perhaps driving a U-Haul). Will a judge typically allow this?

This is a long thread and perhaps the longest post. For many it will be "TL;DR" and that's understandable. To those who have read and helped so far and might again you have my gratitude.

- larboard

 

[JIMinCA]

I think you need to make a decision right now on what your defense strategy will be. If you get a PD, you can bet he is going to want to plead you to a wet reckless charge and be done. You need to decide if that is reasonable to you or if you want to hold out for a dismissal. Lots of interesting discussion, but the point to focus on here is that since you were below the .08 line, it will be the burden of the prosecution to PROVE you were illegally impaired. If you were over .08, it would be your burden to prove you were not. This is a heavy burden for the prosecution. He doesn't have a great case. You could very well beat this deal. You just need to decide your acceptable level of risk.

 

[larboard]

I think you need to make a decision right now on what your defense strategy will be. If you get a PD, you can bet he is going to want to plead you to a wet reckless charge and be done. You need to decide if that is reasonable to you or if you want to hold out for a dismissal. Lots of interesting discussion, but the point to focus on here is that since you were below the .08 line, it will be the burden of the prosecution to PROVE you were illegally impaired. If you were over .08, it would be your burden to prove you were not. This is a heavy burden for the prosecution. He doesn't have a great case. You could very well beat this deal. You just need to decide your acceptable level of risk.

Thanks for responding. I’ve just read the several of the top links after entering “wet reckless vs dui” into Google. My understanding of the Wet Reckless is the following:

I have to go to a DMV hearing and prevail. I haven’t had a DMV hearing so far since the normal hearing and license suspension was set aside since I was under the “per se” limit. Thinking optimistically (perhaps a mistake) I should do well at the DMV hearing; I was stopped at a checkpoint rather than due to an accident/weaving/etc. and my driving record (especially if they can also access my 20 plus year record back East) is about as good as it gets. I would think this is taken into account (but wonder if I’m wrong).

If I prevail at the DMV hearing:

- The incident won’t show up as a DUI on a job application (this is important). Note that I realize if I get another DUI within 10 years the Wet Reckless counts as a previous DUI; this is no problem for me as I expect to never drink and drive again; these forums have scared me (and many of my friends) to death.

- Won’t have to file an SR-22. Would still get two points on my record and face higher insurance rates.

- Won’t have to take DUI related classes or get a shortened schedule of classes (this is where the links contradict). This is very important to me; I’ve made the final decision to leave California and return back East to the home I grew up in and care for an elderly parent. I could leave within six weeks or so without this legal problem. As an aside I hope to drive cross-country with a friend/relative who will fly out to visit then help and keep me company on the drive (but I could easily do this alone absent legal problems).

- Get a shorter informal probation in some counties; BTW, I’m in Orange County so I’m not sure this applies. Quick question: What is “informal probation”?

- Fines are lower.

- Won’t get a license suspension or a restricted license (have no problem with a zero tolerance license of the sort given to teenagers); since I hope to drive back East I need a license that allows this.

Does anyone think I have a reasonable chance at having a favorable outcome of a DMV hearing if I plead Wet Reckless?

If I plea Wet Reckless and somehow fail the DMV hearing am I worse off than if I simply took the case to court and lost as a regular DUI ?

- larboard

PS To keep topics separate and shorter I’ll reply in a separate post regarding whether I should ask for “my day in court”.