First DUI (CALIFORNIA)

[grungefork]

STATE OF CALIFORNIA

Hey guys well I love the forums here and really like the information, too bad I have to visit you guys because of this. I was driving from my friend's house to my house and I tried to get something to eat when I was stopped by a police officer.

Very abruptly the officer got out of his car and started banging on my window with his flashlight on my face and accused me of drinking or smoking marijuana but then said he (supposedly) smelled alcohol and my eyes were red. He stopped me because I was swerving (my car isn't aligned so It swerves really hard if I don't hold the wheel strongly all the time). I was mad at the officer but didn't want to argue and I just told him that I didn't want to be made to look like an idiot doing the tests outside of a jack in the box so I asked him to have a blood BAC test instead.

The officer agreed and put me in handcuffs and even parked my car in the parking lot. He didn't say I was arrested, just that we were going to go to the nearest hospital to draw blood. While there at the hospital the nurse that drew the blood missed my vein like 3 times and made me bleed internally which wasn't a good feeling. I thought I would receive the results then and there but afterwards he took me to jail and held me there for like 5 hours without my results. I was really mad because I didn't drink and he accused me of it and smoking marijuana on top of it. I was given a paper saying I have 10 days to get a DMV hearing and I have court a month from the date the office stopped me.

This is my first DUI accusation and I really don't want it to turn into a conviction. How can I beat this? Would I face any jail time? I have no money what so ever to buy an attorneys time so I'm looking into every website that I can but I had you guys bookmarked so hopefully I can get some great help.

Thank you!

 

[CdwJava]

You need to speak with an attorney.

You were transported and given a blood test because you were arrested. Whether there was sufficient probable cause to make the arrest will be an issue here. But, if you were weaving, smelled of alcohol, and exhibited the objective signs of alcohol impairment, then the arrest is likely good.

Apparently the officer is presuming your BAC will be at or above .08, hence the reason you got the Admin per Se form (DS 367). You need to call the DMV within 10 days to schedule a hearing or your license will be suspended.

 

[DUIAttyPCho]

You must set a DMV hearing in 10 days regardless of if you are guilty of DUI or not. DMV will suspend your license automatically 30 days after your arrest regardless of if the DA files a case on you or not unless you set a hearing for your license suspension.

I've seen it happen to clients who did a blood BAC test and came up .00 and yet did not contest the APS suspension with DMV. It was a hassle to undo it. By setting hearing date, you are requiring DMV to check on your BAC before they suspend your license. If they find it was less than .08, then they will set aside your hearing. And when the DA turns down your case, magically DMV and the Court will leave you alone! So set the hearing and wait and see!

Good luck!

 

[grungefork]

Okay so i finally called DMV after receiving a phone hearing packet and they said that due to new discovery my BAC level was at 0.07% so they will satisfy my license.

Now in reference to my actual court date, what will happen there? Will the case be dismissed? Do I still need a lawyer?

 

[Zigner]

I was really mad because I didn't drink and he accused me of it...

Okay so i finally called DMV after receiving a phone hearing packet and they said that due to new discovery my BAC level was at 0.07% so they will satisfy my license.

How did you manage to get a .07% when you didn't drink

 

[FlyingRon]

.07 might dodge the adminsitrative suspension but you can still be found guilty of DUI. .08 is only the per se limit where they don't have to prove you were intoxicated, you are presumed to be at that level.

What ever your excuse for swerving was, that is plenty of probable cause for the stop.

 

[slwslw]

California DUI Defense library

Check out the California DUI Defense Attorney library...

<b>DUI California Defense Law Library</b>

 

[I'mTheFather]

How did you manage to get a .07% when you didn't drink

Divine intervention?



Or, the devil made me do it?

 

[grungefork]

I drank some spiked punch thanks to my so called friend because I don't drink and I felt perfectly fine while driving. He confessed that he was giving me spiked punch but I tasted no alcohol. What's done is done I guess now to move forward with this. How can I get accused of DUI if my bac was .02 less than what legally makes you a drunk driver. I was not slurring with my speech and had a couple of good convos with the officer.

Anyone experienced with this can you please guide towards what to do next. I have no money for a lawyer so this is the only way to ask for advice and I have court in less than a month.

Thanks.

 

[HighwayMan]

How can I get accused of DUI if my bac was .02 less than what legally makes you a drunk driver. I was not slurring with my speech and had a couple of good convos with the officer.

You are already accused of DUI. The question is how can you be convicted with less than a .08?

It's easy. The arresting officer observed you and probably took notes and wrote a report. If those observations support the charge that you were intoxicated then you can be convicted.

During my SFST class one of our subject drinkers was a small female who everyone could see was totally intoxicated - she could hardly stand up much less walk, slurred speech, totally uncoordinated, etc. She only blew a .04. I could have easily won a conviction if I had arrested her for DUI.

You cannot judge how you looked to an outside observer - do not assume you weren't slurring your speech or staggering. Your own observations of your behavior is meaningless.

You really do need an attorney.

 

[DUIAttyPCho]

Whether you get charged with a DUI for a .07 in Court really depends on what County and what Court you are heading to. Each prosecuting agency has guidelines on when and if they charge someone with DUI or not. You are borderline, and therefore it is in your best interest to get a DUI attorney.

Anyway, get yourself an attorney. One that is a local to the county you need to go to court to. They will be able to better advise you on what to do next.

Yes, the prosecutor can charge with DUI if he chooses to. I've seen it happen before. Best wishes!

 

[CdwJava]

How can I get accused of DUI if my bac was .02 less than what legally makes you a drunk driver.

This is why I HATE the term "legal limit." It is NOT the "legal limit," it is the "per se" limit (by law). A BAC of .08 is the level that has been set where you are deemed impaired by law. You can still be impaired UNDER .08.

Think of it this way ... if I pop a handful of Vicodin and have to crawl to my car, when I drive it my BAC is .00 yet I am still far too impaired to drive. All the states have laws to cover impaired driving even below .08.

I was not slurring with my speech and had a couple of good convos with the officer.

That does not mean you were NOT impaired.

Anyone experienced with this can you please guide towards what to do next. I have no money for a lawyer so this is the only way to ask for advice and I have court in less than a month.

Thanks.

You should be allowed appointed legal counsel if you cannot afford your own attorney. Your attorney may find some problems with the report, and may be able to leverage a deal or a dismissal under the right circumstances.

 

[DUIAttyPCho]

I know what you mean Carl! A lot of people get confused by the "legal limit" term. It is a per se charge. People often forget that DUI has two charges.
VC 23152(b) and VC 23152(a). B is .08 or above, which is per se. A covers the impaired driving part and does include drugs and prescription drugs as well as alcohol.

Bottom line, a prosecutor can charge someone with VC 23152(a), even if they are .07. Now, if they will actually charge someone with it or not depends on: 1) facts of the case; and 2) policy of the filing agency (i.e. the prosecuting agency).

Now, grungefork, if you can't afford an attorney, a Public Defender will be appointed to you. So go with what the Public Defender advises you. She will be your best bet. If you still feel nervous about it, you can also call up a few attorneys in your local area and get a few free consultations. At a minimum, the attorneys can give you a good idea of what you are facing realistically. Plus, it won't cost you any money!

Good luck!

 

[CdwJava]

Well, if he loses the case, he will have to pay a small fee for the appointed counsel ... but, it'll be a fraction of what it might be had he hired his own attorney. And, in many jurisdictions, the appointed counsel will be one of the general defense attorneys he might have hired anyway for a lot more money!

 

[grungefork]

Alright so last concern. I have court next month, I know this is considered a misdemeanor but is it treated like a regular traffic violation? First we have the arraignment, plead guilty or not guilty? Can I got in without a lawyer at first, plead not guilty and set a court date where I can raise some money for a DUI lawyer? Thank you!