California Dui bac below .07 First Offence

[cocofan888]

What is the name of your state (only U.S. law)? California, Alameda County

So I was driving home and I was pulled over literately in front of my house the other night. Cop saids I rolled a stop sign and was speeding.

He ask if I have been drinking and stupid me I said Yes.

I did refuse all FSTs except for him checking my eyes (stupid me again).

He then arrests me(he did not read me my mirandarights or informed me that I was being arrested) and takes me to the station for the breathe test.

I was then taken to the police station to the breathe test and I blew 3 times: 1) .07 2)misread 3).07 (i did not realize this until later)

Arresting officer wasnt saying much to me while writing his report before he takes me to the drunk tank, but he showed his colleague my results and he was shocked and asked if I knew the results because I refused the fsts

officer sites me for 23152A

My questions is What are my chances of beating this?

 

[CdwJava]

I did refuse all FSTs except for him checking my eyes (stupid me again).

It wouldn't have been easy to refuse such a test without arguably resisting, obstructing or delaying the officer.

He then arrests me(he did not read me my mirandarights or informed me that I was being arrested) and takes me to the station for the breathe test.

Most arrests never require Miranda rights to be read. Miranda is required when both custody and interrogation exist, and if he did not intend to ask you about the offense, then he need not Mirandize you after the arrest.

If he arrested you he formed the opinion that there was probable cause to believe that you were operating a motor vehicle while under the influence of drugs or alcohol.

I was then taken to the police station to the breathe test and I blew 3 times: 1) .07 2)misread 3).07 (i did not realize this until later)

Okay. But, VC 23152(a) does not require a specific BAC only that you are impaired. Whether the officer will be able to show this impairment by his observations and your actions, no one here can say. You may be lucky as many DA's offices are too short-staffed to pursue alcohol DUI arrests that are below the per se level of .08.

My questions is What are my chances of beating this?

That depends on the officer's observations and the filing practices of the local DA. If the DA does not pursue non drug DUIs that are below .08 you might walk.

What you might want to ask yourself is whether or not you are going to change anything about your own actions as a result? If not filed, you got darn lucky. Next time, you might hurt or kill yourself or someone else. Or, you might simply be arrested. Whatever led to your decision to drive impaired is a thought process you need to revisit and reconsider so that it does not happen again.

 

[betachains]

It wouldn't have been easy to refuse such a test without arguably resisting, obstructing or delaying the officer.

Refusing FST's is perfectly within the OP's rights. It is disturbing that any cop would use that as a pretext for invoking obstruction.

To the OP: Oakland just ran thru 3 chiefs of police in 72 hours. I doubt that Alameda County will prosecute for a 0.07 and speeding. Go to the arraignment, and if actually charged, plead not guilty and then get a lawyer. You chances of avoiding a DUI are very good.

 

[CdwJava]

Refusing FST's is perfectly within the OP's rights. It is disturbing that any cop would use that as a pretext for invoking obstruction.

Refusing the tests, yes, but to deny the officer the ability to look into your eyes would require some affirmative act and not simply refusing to perform the tests.
He wouldn't have to cooperate with the HGN (as in follow the stimulus with his eyes), but closing his eyes or turning away might be another matter entirely. Whether it would constitute 148, I can't say ... never had anyone close their eyes, run, or fight me on it. I just start moving the stimulus and they follow it.

Go to the arraignment, and if actually charged, plead not guilty and then get a lawyer. You chances of avoiding a DUI are very good.

I don't know how you can say this with any certainty as you do not know his DA or the charging policy, nor do you know what the officer observed. If the observations were marginal, then you may be right. But, if there were good obs on poor driving, stumbling, staggering, etc., then you would be wrong. We don't know.

I'd say his chances of there being no charges filed are decent given the current status of most DA workloads, but would hesitate to hypothesize one way or the other given the lack of specificity.

 

[cocofan888]

Thanks Guys For your replies

 

[cocofan888]

I am having trouble replying to the posts so sorry if I am doing this multiple times (user error)

Miranda Rights: I understand what CDW is saying but the Arresting officer did ask me questions while writing his report after I was arrested. Not sure if that changes anyting.

Impairment: Forgot to mention in my orginal post

While the Arresting Officer was writing his report with me in the back of his vehicle (before taking me to the drunk tank and before I realize the results of the BAC) another officer approaches his vehicle to chat not realizing I was in the back of the vehicle. When the officer finally realizes I was in the back he says hello. Arresting officer tells him I refused FSTs and shows him my results. Other officer was kinda shocked and said "Wooow, Does He know?" Arresting officer later tells me that my BAC was .07 and that He probably would have let me go if I were to have taken the FSTs because I was in front of my house. Not sure if he was just yanking my chain or not, but does his statement help me if the DA does file charges.

Also correction as to the eyes, I did do the HGN (thats what i meant by the eye test)

I am just making notes of my incident to prepare for my arraignment and consultation with lawyers.

CDW: Yes. I am no longer going to drink and drive. This is definitely an eye opening situation for me. I am thinking about quitting drinking altogether, and maybe start attending some AA meetings. Not sure if that will help in influencing the DA or not.

Any other suggestions out there to help me prepare would be greatly appreciated.

 

[CdwJava]

I am having trouble replying to the posts so sorry if I am doing this multiple times (user error)

Miranda Rights: I understand what CDW is saying but the Arresting officer did ask me questions while writing his report after I was arrested. Not sure if that changes anyting.

If those statements lead to some evidence that is used against you, then those statements can be suppressed. Booking questions are largely exempt, and chances are they had all that they need while at the scene during the detention.

Impairment: Forgot to mention in my orginal post

While the Arresting Officer was writing his report with me in the back of his vehicle (before taking me to the drunk tank and before I realize the results of the BAC) another officer approaches his vehicle to chat not realizing I was in the back of the vehicle. When the officer finally realizes I was in the back he says hello. Arresting officer tells him I refused FSTs and shows him my results. Other officer was kinda shocked and said "Wooow, Does He know?" Arresting officer later tells me that my BAC was .07 and that He probably would have let me go if I were to have taken the FSTs because I was in front of my house. Not sure if he was just yanking my chain or not, but does his statement help me if the DA does file charges.

What another officer might do is irrelevant. If the officer who made the arrest had sufficient probable cause for the arrest to compel you to test, then he arguably had sufficient cause to cite or book for VC 23152(a).

Any officer who would let go a person he believed to be impaired simply because he was lucky enough to make it home deserves to be re-trained at best, let go at worst.

Also correction as to the eyes, I did do the HGN (thats what i meant by the eye test)

I figured.

CDW: Yes. I am no longer going to drink and drive. This is definitely an eye opening situation for me. I am thinking about quitting drinking altogether, and maybe start attending some AA meetings. Not sure if that will help in influencing the DA or not.

It may. But, doing it for the DA is the wrong reason. If you do not think you have a problem, then any classes or counseling will not be worth the time and effort. I';m not saying you DO have a problem, but it may be time to examine your actions and ask yourself if this is something you have done on more than one occasion. If so, then ask, "What can I do about it?" If you're lucky, you can simply say no more drinking and driving. If you haven't got that kind of self control, that's when you get help. And it should not be an embarrassment if you need help.

 

[Zigner]

Any officer who would let go a person he believed to be impaired simply because he was lucky enough to make it home deserves to be re-trained at best, let go at worst.

From the perspective of the folks on the road that are put in to danger by drunk/impaired drivers, I would say that you have your best/worst reversed.

 

[betachains]

"I don't know how you can say this with any certainty as you do not know his DA or the charging policy, nor do you know what the officer observed. If the observations were marginal, then you may be right. But, if there were good obs on poor driving, stumbling, staggering, etc., then you would be wrong. We don't know."


I would guess in almost all DUI arrests, the police will report one or all of the above. It is the cop's word against the driver's, and with a BAC below 0.08, most DA's (particularly in Alameda) have better things to do.

 

[betachains]

If the cop is to believed, he arrested you just because you refused the FST's : i.e., just to show who is boss.

Did you blow 0.07 at the scene (prior to arrest) or at the station (after arrest)? Makes a big difference.

 

[CdwJava]

I would guess in almost all DUI arrests, the police will report one or all of the above. It is the cop's word against the driver's, and with a BAC below 0.08, most DA's (particularly in Alameda) have better things to do.

Considering that ALL drug DUIs have a BAC below .08, do not be so certain.

I don't know the charging practices of the DA in Alamada County, do you?

If the cop is to believed, he arrested you just because you refused the FST's : i.e., just to show who is boss.

Did you blow 0.07 at the scene (prior to arrest) or at the station (after arrest)? Makes a big difference.

Or, the officer arrested him with probable cause because he exhibited the objective signs of impairment.

And from what he wrote, the .07 was at the station AFTER the arrest. Any test taken in the field as part of the FSTs cannot be used to determine the actual BAC for purposes of the official determination of BAC. However, if he is using the EPAS issued by DOJ then it's readings would be considered valid should it come to that. Typically, however, the PBT devices used int he field are considered to merely be one more FST and used to determine the presence of alcohol and not the actual BAC. The exception would be if the driver was under 21 or on probation for a prior DUI.

 

[betachains]

Considering that ALL drug DUIs have a BAC below .08, do not be so certain.

I don't know the charging practices of the DA in Alamada County, do you?


Or, the officer arrested him with probable cause because he exhibited the objective signs of impairment.

And from what he wrote, the .07 was at the station AFTER the arrest. Any test taken in the field as part of the FSTs cannot be used to determine the actual BAC for purposes of the official determination of BAC. However, if he is using the EPAS issued by DOJ then it's readings would be considered valid should it come to that. Typically, however, the PBT devices used int he field are considered to merely be one more FST and used to determine the presence of alcohol and not the actual BAC. The exception would be if the driver was under 21 or on probation for a prior DUI.

It sounds like the OP also got a preliminary breath analyzer test at the scene, but I will leave it to him to clarify. There is no hint of other drugs involved.

The point remains: after a DUI arrest, I strongly suspect that the police report will mention "staggering", "signs of impairment", "impaired driving", etc.

I don't think its far-fetched to think the OP got nabbed in part because he did not cooperate fully with the FST,s , though he did the nystagmus bit. What I get so far is that it is never in your legal interest to agree to FST's, but not doing so pisses off cops and they will make your life very hard on you.

 

[CdwJava]

It sounds like the OP also got a preliminary breath analyzer test at the scene, but I will leave it to him to clarify.

The OP wrote that he was arrested and then transported to the station for a breath test. Hence the reason I presume that it is the required test.

There is no hint of other drugs involved.

But, it is always a possibility. And I brought it up only to point out that not all DUIs will have BACs at or greater than .08, and drug DUIs do not have a BAC at all (unless in conjunction with alcohol - which is relatively common).

The point remains: after a DUI arrest, I strongly suspect that the police report will mention "staggering", "signs of impairment", "impaired driving", etc.

One would presume that the objective signs of impairment were present prior to the arrest since that would justify the arrest. If there was no probable cause for the arrest, the OP may well have a nice cash settlement pending.

I don't think its far-fetched to think the OP got nabbed in part because he did not cooperate fully with the FST,s , though he did the nystagmus bit. What I get so far is that it is never in your legal interest to agree to FST's, but not doing so pisses off cops and they will make your life very hard on you.

If you have not been drinking or drank a little a long time ago, then submitting to the FSTs is probably the best way to clear yourself and get out of there. If you have been drinking, then refusing the FSTs might be the best bet ... though refusing the mandated chemical test can be a bad idea.

 

[betachains]

"One would presume that the objective signs of impairment were present prior to the arrest since that would justify the arrest. If there was no probable cause for the arrest, the OP may well have a nice cash settlement pending.
"


That won't happen. All police reports will state probable cause: staggering, weaving in traffic, whatever. Has there ever been any police report that exonerates the perp?

The OP was stopped for speeding. He did the nystagmus test and refuse other FST's. He blew 0.07 (not clear whether both preliminary at the scene and later). I bet the police report will also mention impaired driving and staggering and blood-shot eyes and other things. These are purely the cop's impressions, not "objective" in any meaningful way.

 

[CdwJava]

That won't happen. All police reports will state probable cause: staggering, weaving in traffic, whatever. Has there ever been any police report that exonerates the perp?

Actually, yes. But, these are few and far between.

If the objective symptoms of impairment were not present, there would not have been an arrest and thus no report. So, it is hardly surprising that an arrest report would also contain the elements that constituted probable cause for the arrest.

The OP was stopped for speeding. He did the nystagmus test and refuse other FST's. He blew 0.07 (not clear whether both preliminary at the scene and later). I bet the police report will also mention impaired driving and staggering and blood-shot eyes and other things. These are purely the cop's impressions, not "objective" in any meaningful way.

All of those observations are objective symptoms of impairment that the officer can use to form the opinion that he is operating a motor vehicle while impaired. When taken alone, you're right - they might not mean anything. When taken together, you bet they do! And, of course, "probable cause" for an arrest does NOT require absolute certainty.

And, based on what the OP said, the .07 was obtained on the breath test at the station. Even if it had been .07 in the field, that would simply strengthen probable cause for an arrest, not diminish it.