Which breathalyzer result is used in court?

[sstiph]

I live in California and was arrested for a DUI recently. I've read that in many states, the lower of the two breathalyzer results are used against you in court. I blew a .08 and a .09.

Will they both be used against me in court, or just the lower number?

 

[Ohiogal]

I live in California and was arrested for a DUI recently. I've read that in many states, the lower of the two breathalyzer results are used against you in court. I blew a .08 and a .09.

Will they both be used against me in court, or just the lower number?

They will both be used as well as the times you blew each.

 

[CdwJava]

With a .08/.09 if you have no priors, the DA should be willing to accept a plea deal to a wet reckless (VC 23103.5). Most prosecutors in CA deal DUIs down to that offense when the reading is at or below .10 and there are no prior DUI related offenses. It won't save you much in the way of money or other penalties, but, it allows you to honestly report that you have not been convicted of a DUI.

 

[sstiph]

With a .08/.09 if you have no priors, the DA should be willing to accept a plea deal to a wet reckless (VC 23103.5). Most prosecutors in CA deal DUIs down to that offense when the reading is at or below .10 and there are no prior DUI related offenses. It won't save you much in the way of money or other penalties, but, it allows you to honestly report that you have not been convicted of a DUI.

Considering I'll likely be able to use the "rising" defense because an open bottle was in the car, what are my chances of pleading even lower. To Exhibition of Speed or Dry Reckless? BTW I was pulled over for speeding.

 

[CdwJava]

Considering I'll likely be able to use the "rising" defense because an open bottle was in the car, what are my chances of pleading even lower. To Exhibition of Speed or Dry Reckless? BTW I was pulled over for speeding.

Rising is just as viable as diminishing BAC ... and if the test was done within three hours, legally, the result is the BAC when you were driving.

Whether you can plead to something different will depend on the DA's office. Exhibition of speed is almost certainly out the window unless you were lighting up your tires or revving the engine, and a "dry" reckless (VC 23103) is not unheard of, but generally uncommon. The reason DAs like to go with a wet reckless is that it acts a a prior for future DUIs. If you never intend to drive after consuming alcohol again, then that might be the way to go .. .in fact, it might be your only option short of fighting a case where you may very well not win and then face the full cornucopia of penalties.

The DA's flexibility will be based in large part on the officer's observations and the FSTs. If it is pretty clear you were impaired, a deal outside of a "wet" reckless is highly unlikely.

 

[sstiph]

Rising is just as viable as diminishing BAC ... and if the test was done within three hours, legally, the result is the BAC when you were driving.

Whether you can plead to something different will depend on the DA's office. Exhibition of speed is almost certainly out the window unless you were lighting up your tires or revving the engine, and a "dry" reckless (VC 23103) is not unheard of, but generally uncommon. The reason DAs like to go with a wet reckless is that it acts a a prior for future DUIs. If you never intend to drive after consuming alcohol again, then that might be the way to go .. .in fact, it might be your only option short of fighting a case where you may very well not win and then face the full cornucopia of penalties.

The DA's flexibility will be based in large part on the officer's observations and the FSTs. If it is pretty clear you were impaired, a deal outside of a "wet" reckless is highly unlikely.

Thank you for your information, I VERY MUCH appreciate it. I'm not sure what you mean that the "rising" defense is just as viable as the "diminishing." If I drank just before being pulled-over, my BAC would have reflected a "rising" amount. Isn't that defense used often? (Also, I didn't take the FSTs. I know that that's impossible to pass even when sober.)

 

[CdwJava]

Thank you for your information, I VERY MUCH appreciate it. I'm not sure what you mean that the "rising" defense is just as viable as the "diminishing." If I drank just before being pulled-over, my BAC would have reflected a "rising" amount. Isn't that defense used often? (Also, I didn't take the FSTs. I know that that's impossible to pass even when sober.)

Arguing a "rising" BAC is speculative much as a "diminishing" BAC can be. Usually, the prosecution can present as viable a theory of diminishing as you can for rising, so it's a wash. And, unless your attorney wants to put you on the stand to admit you were drinking (and virtually sealing your fate with regards to the DUI to a jury), it's all likely to be a game of "what if ..." with no objective conclusion.

The presence of a bottle in your car does NOT mean you were drinking, nor does it say WHEN you drank it. It could have been in there for a week, or you could have drank it an hour earlier. This is why it is hardly proof of "rising" BAC.

Oh, and one can easily "pass" the FSTs when sober ... I do them a lot because I have to demonstrate them both on the street and in the classroom. Many people "pass" them daily. You may not understand them, but they are not all that hard and when taken as a battery they are quite accurate.

Legally, your BAC is above the per se limit. The state needs only prove that you were driving, there was a lawful detention, and an arrest was made based upon probable cause. Your BAC is proof that you were impaired. And so long as the test was conducted within three hours of the stop, the test is all that is needed.

Now, you are certainly free to spend a few thousand dollars ($8,000-15,000 in my experience) for an attorney and an expert or two to argue a "rising" BAC and hope that a jury buys into it and that the officer's observations of your perceived impairment are marginal, at best. But, if the officer wrote a good report, is articulate on the stand, has good observations of poor driving and your actions before and during his contact - and even post-arrest, your defense is a long shot. But, this is a discussion to have with your attorney.

 

[sstiph]

Arguing a "rising" BAC is speculative much as a "diminishing" BAC can be. Usually, the prosecution can present as viable a theory of diminishing as you can for rising, so it's a wash. And, unless your attorney wants to put you on the stand to admit you were drinking (and virtually sealing your fate with regards to the DUI to a jury), it's all likely to be a game of "what if ..." with no objective conclusion.

The presence of a bottle in your car does NOT mean you were drinking, nor does it say WHEN you drank it. It could have been in there for a week, or you could have drank it an hour earlier. This is why it is hardly proof of "rising" BAC.

Oh, and one can easily "pass" the FSTs when sober ... I do them a lot because I have to demonstrate them both on the street and in the classroom. Many people "pass" them daily. You may not understand them, but they are not all that hard and when taken as a battery they are quite accurate.

Legally, your BAC is above the per se limit. The state needs only prove that you were driving, there was a lawful detention, and an arrest was made based upon probable cause. Your BAC is proof that you were impaired. And so long as the test was conducted within three hours of the stop, the test is all that is needed.

Now, you are certainly free to spend a few thousand dollars ($8,000-15,000 in my experience) for an attorney and an expert or two to argue a "rising" BAC and hope that a jury buys into it and that the officer's observations of your perceived impairment are marginal, at best. But, if the officer wrote a good report, is articulate on the stand, has good observations of poor driving and your actions before and during his contact - and even post-arrest, your defense is a long shot. But, this is a discussion to have with your attorney.

Thanks for the input. In your experience, is a .08 blown at the station looked upon less favorably to a DA than a .08 blown at the time of arrest?

 

[TigerD]

OP: It seems like you are planning to or attempting to defend yourself on this. Don't do that. Go find an attorney with expertise in DUI. You can contract the local bar for a referral, use this site's find a lawyer, or contact the National College for DUI Defense. These issues are very complicated and require the assistance of an trained, experienced attorney.

Oh, and one can easily "pass" the FSTs when sober ... I do them a lot because I have to demonstrate them both on the street and in the classroom. Many people "pass" them daily. You may not understand them, but they are not all that hard and when taken as a battery they are quite accurate.

This is true. Many people pass them every day. They are still arrested. Most police officers do the tests incorrectly and any variation in the test invalidates it. Even when performed perfectly under ideal conditions the tests don't come anywhere near the beyond a reasonable doubt standard.

Finally, OP a rising alcohol defense is highly technical and you will have to have an expert witness. You are going to need an attorney. Don't seek out the cheapest one you can find.

DC

 

[Zigner]

Most police officers do the tests incorrect...

Do you have stats to back up this assertion? Had you said "many" I wouldn't have asked.

 

[TigerD]

Do you have stats to back up this assertion? Had you said "many" I wouldn't have asked.

Experience. Outside of a classroom (and only classrooms with an excellent instructor - as I am sure CDW is) I have never seen a field sobriety test conducted 100 percent correctly. The tests are complicated with a lot of specific parts that have to be performed correctly. This is almost impossible to do on the side of the road especially when the officer may be under considerable stress. No, I don't have statistics back this up. Who would collect them? The police? NHTSA?


DC

 

[FlyingRon]

If by "at the time of arrest" you mean the portable breath test, the latter isn't usable in the per se intoxication (the "so-called" legal limit).
The test at the station even at .08 is more than enough to convict you. As others have pointed out, barring some grave impropriety that hasn't manifested itself in your most, a wet reckless plea is probably your best option.

I'd still recommend an attorney.

 

[Zigner]

Experience. Outside of a classroom (and only classrooms with an excellent instructor - as I am sure CDW is) I have never seen a field sobriety test conducted 100 percent correctly. The tests are complicated with a lot of specific parts that have to be performed correctly. This is almost impossible to do on the side of the road especially when the officer may be under considerable stress. No, I don't have statistics back this up. Who would collect them? The police? NHTSA?


DC

Thank you for clarifying.

 

[FlyingRon]

Experience. Outside of a classroom (and only classrooms with an excellent instructor - as I am sure CDW is) I have never seen a field sobriety test conducted 100 percent correctly. The tests are complicated with a lot of specific parts that have to be performed correctly. This is almost impossible to do on the side of the road especially when the officer may be under considerable stress. No, I don't have statistics back this up. Who would collect them? The police? NHTSA?

Why would an officer be under stress? Anyhow, you'd have a hard time, NHTSA study or not to get them blanket disqualified. You need to attack each one individually as administered. I've sat in a case (albeit in VA) where they were trying to salvage a DUI without a per se intoxication finding. The attorney did a good job of challenging each test administered. The defendant walked (though it wasn't clear to me how the judge was going to rule on that one until he did).

 

[TigerD]

Why would an officer be under stress?

Because every encounter they have with someone on the side of the road has the potential to turn deadly. There are a lot of cops that (rightly) find traffic stops to be very stressful.

Anyhow, you'd have a hard time, NHTSA study or not to get them blanket disqualified. You need to attack each one individually as administered. I've sat in a case (albeit in VA) where they were trying to salvage a DUI without a per se intoxication finding. The attorney did a good job of challenging each test administered. The defendant walked (though it wasn't clear to me how the judge was going to rule on that one until he did).

Blanket disqualified? If I understand your comment, that is never going to happen. However, in the training manual, NHTSA states that any variation in the test invalidates it.

Truthfully, if an officer does all three parts of the SFST perfectly and the type 2 understands and explains the breath test machine well, there is very little an attorney is going to be able to do as long as the initial stop is good. Fortunately for defendants, that is extremely rare.

DC