CA DUI - what are my chances of beating or getting reduced?

[hunterln]

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

Hello, I was pulled over because officer claimed I took a turn too tight and rubbed tire on the curb.

Actually I wasnt pulled over, I was already parked in at an apartment when the officer pulled up.

They performed field sobriety tests on me, which I feel I did ok on bu tthey did not let me know.

They then performed breathalyzer, a total of four times as if they were fishing for the highest result. They did not show me the result, but told me I blew 0.12 after four tries.

I was not arrested, they let a friend park my car and take me home.

I was given the DMV DS 367 form telling me my license is suspended after 30 days, I was also given my Notice to Appear.

I dont feleive I rubbed a curb, and I feel the breathalyzer result was suspicious as it was not shown to me and they took four tries. I also had only had 3 drinks within a four hour period, so it seems rather high.

A lawyer wants to charge me 4k to take the case, which is very expensive especially if I also include whatever fines I may end up with at the end of this all.

What are my chances of beating this on my own or getting reduced the wet and reckless?

 

[CdwJava]

Hello, I was pulled over because officer claimed I took a turn too tight and rubbed tire on the curb.

This is reasonable suspicion for the stop.

Actually I wasnt pulled over, I was already parked in at an apartment when the officer pulled up.

Okay. Apparently he converted this from a contact to a detention, so no difference.

They performed field sobriety tests on me, which I feel I did ok on bu tthey did not let me know.

The person taking the test almost always think they did fine.

They then performed breathalyzer, a total of four times as if they were fishing for the highest result. They did not show me the result, but told me I blew 0.12 after four tries.

It could be the machine had insufficient samples or errors and they couldn't use those. Who knows?

I was not arrested, they let a friend park my car and take me home.

Okay ... that's odd. Usually you are not given a citation and released at the scene for DUI! What section were you cited for? Are you under 21? Do you have a prior DUI offense and are on court probation?

I was given the DMV DS 367 form telling me my license is suspended after 30 days, I was also given my Notice to Appear.

Okay. Don't miss the court date.

I dont feleive I rubbed a curb, and I feel the breathalyzer result was suspicious as it was not shown to me and they took four tries. I also had only had 3 drinks within a four hour period, so it seems rather high.

Then you can ague this at trial if it goes to trial.

What kind of drinks did you have and how big were they?

A lawyer wants to charge me 4k to take the case, which is very expensive especially if I also include whatever fines I may end up with at the end of this all.

That is rather high. But, for an experienced or knowledgeable DUI attorney you're likely to pay $3,500 on the low side. In the end, you will most likely get a plea deal that will save you a little money and possibly a conviction for "wet reckless" per CVC 23103.5) ... assuming you have been charged with DUI pursuant to CVC 23152(a) or (b) in the first place.


- Carl

 

[hunterln]

Thanks for replying Carl, your feedback is greatly appreciated.

I keep hearing that it is odd that I wasnt arrested, I guess I was fortunate.
The Notice to Appear lists 23152(a) and 23152(b), I am 29, I have never been in trouble with the law - no prior dui's or probation.

I had 3 cranberry and vodka's, I wanna say that the drinks were in 8oz glasses but they were actually pretty small glasses so maybe 6oz?
Im 5'8" 125lbs, but still 0.12 doesnt sound likely.

I was told that 0.12 is too high to try for a wet and reckless, is this true?
If I take this on myself and don't get an attorney, am I able to request the breathalyzer calibration info and logs etc?

Say I end up with a conviction, is there anyway to get the restricted license that allows me to drive to work and DUI classes without having to wait 30days?

 

[CdwJava]

I keep hearing that it is odd that I wasnt arrested, I guess I was fortunate.
The Notice to Appear lists 23152(a) and 23152(b), I am 29, I have never been in trouble with the law - no prior dui's or probation.

Then you were very lucky.

I'm curious that they did not take you in for a breath or blood test. When they asked you which test you preferred, did you say breath? Could that have been the second set of two blows you made?

If they used Draeger EPAS, then that is also the official testing device, and it would make sense that they could do the test in the field.

I had 3 cranberry and vodka's, I wanna say that the drinks were in 8oz glasses but they were actually pretty small glasses so maybe 6oz?
Im 5'8" 125lbs, but still 0.12 doesnt sound likely.

If they were heavy on the alcohol, and you were operating on a largely empty stomach, I can see this being good. Unfortunately for you, if they were using the EPAS, and you did not opt to take a blood test that could be used by you later on, your forced into a position where you would have to show that either (a) there was no reasonable suspicion for the detention, (b) there was no probable cause for the arrested, and/or, (c) that the device was defective or improperly operated.

You were contacted while parked but after you had been driving. The officer believed that you cut the corner tight and rubbed the curb. Ergo, the stop is good.

There's not enough info here to determine whether or not the officer had enough probable cause to make the arrest, so I can't guess. Same with the breath.

I was told that 0.12 is too high to try for a wet and reckless, is this true?

Usually. It's rare to get a wet reckless at such a high reading, but I can conceive of some situations where the DA might just go for it.

If I take this on myself and don't get an attorney, am I able to request the breathalyzer calibration info and logs etc?

If you try and represent yourself you will be held to the same level of knowledge as an attorney. Yes, you can get those things, but you will need to make all the proper discovery requests ... properly formatted and presented to the appropriate agency or the court - do you know how to do this?

Say I end up with a conviction, is there anyway to get the restricted license that allows me to drive to work and DUI classes without having to wait 30days?

That, I honestly can't say. I'm inclined to say, "No", but I have found that there is always an exception to the rule, and the codes covering these matters are quite expansive. Since I deal with enforcement and not the sentencing end, my knowledge of all the exceptions is limited.

- Carl

 

[hunterln]

I did opt for the breath test.

This is tricky because if SRPD did not use the machine you mention (Draeger EPAS) for my test, then I would probably want to plead not guilty based on the results not being admissable.
However I will not know what machine was used until I get a copy of the police report, which I dont think is available to me until my 1st court date - which is also when they want my plea.

So I would have to plead not guilty just to get the police report in order to find out if they used the EPAS? Then if they did use the EPAS I would be stuck in a case on my own which I cannot win partly due to my lack of knowledge. argh.

Any other way to find out what machine they used prior to my court date?
If I do take the case on myself, isnt a public defender suppossed to assist?

Thanks again for all your info...

 

[CdwJava]

I did opt for the breath test.

That might explain the field release ... provided they used the aforementioned EPAS (which is deployed state wide by the CA DOJ).

This is tricky because if SRPD did not use the machine you mention (Draeger EPAS) for my test, then I would probably want to plead not guilty based on the results not being admissable.

Unless the SRPD (which is who? Santa Rosa?) used a similarly acceptable device ... I don't know of any off hand, but they could have one. DOJ has deployed a new model that will replace the EPAS in a couple of years, so they might have one of those.

It is also possible that a couple of procedural issues were not documented properly ... such as the requirement to advise you that the preliminary test is only one of the FSTs and you are not required to take it. The other is that they have to observe you for 15 minutes to make sure you did not ingest anything or burp, vomit, etc. Chances are they did these, but they are areas of vulnerability if not properly documented.

However I will not know what machine was used until I get a copy of the police report, which I dont think is available to me until my 1st court date - which is also when they want my plea.

Generally the earliest you will be permitted discovery will be the arraignment. Often they will wait until you have an attorney and provide it to him or her.

So I would have to plead not guilty just to get the police report in order to find out if they used the EPAS?

Unless the DA or the SRPD are willing to provide you with that info or a copy of the report, but i wouldn't count on that.

Then if they did use the EPAS I would be stuck in a case on my own which I cannot win partly due to my lack of knowledge. argh.

Well, I didn't say you could not win, only that it will be very difficult.

Any other way to find out what machine they used prior to my court date?
If I do take the case on myself, isnt a public defender suppossed to assist?

You can ask about the machine used, but you may not get that info. You should be able to make a public records request for the type of handheld devices used by the agency, but you might get a half dozen different devices if they deploy preliminary devices in addition to the EPAS. My agency is small and we use three different devices (two in addition to the EPAS).

As for a public defender to assist, that's not a right. The court MIGHT provide an attorney to assist, but not likely. And, if you have enough money to pay for a private attorney, then I doubt they will.


- Carl