DUI Checkpoint - .07 BAC

[larboard]

What is the name of your state? California

I’m a middle aged male living in Southern California. Like most I’m concerned about possible DUI’s so the rare times I go out I carefully count drinks and never drink anything but beer unless I only have time for one drink of uncertain strength.

Recently I made one of those rare bar trips. After nursing precisely five 12 ounce beers over a four to five hour period (one at home just after a light supper and four at a bar) I left feeling extremely alert and not the least bit inebriated. About six or seven minutes after leaving I ran into a DUI checkpoint. I admitted to having a few drinks, took the field sobriety test, thought I did well but failed (after reading these forums failing seems to be a near certainty). I voluntarily took the preliminary breath test(s) with the assurance I would also be able to take the more accurate blood test.

The preliminary breath tests seemed to be inconclusive from the officer’s reactions. A technician then took the blood test about fifteen minutes after the initial stop. I was cuffed, booked and spent a night in jail in what appeared to be the normal manner. The ticket/notice to appear in late May says “CVC (23152(a)) Driving Under Inf.”.

I looked up the BAC results online several days ago and it was .07 (meaning I’m still potentially in huge trouble). My only other DUI was over 20 years ago and didn’t involve an accident. Unfortunately I told this to an officer when he asked - not sure I had to since it was more than ten years ago. I’ve never been arrested for anything else and have a very good driving record so I’m not experienced regarding how to answer these questions (i.e., I tell the truth). I’m trying to do as much as possible without an attorney since I’m marginally employed, money is beyond tight, and I sort of have the time.

Yesterday I received the written instructions from the DMV’s Driver Safety Office (the location of the DMV hearing) and was concerned about the 16-day gap between the expiration of the temporary license and the DMV hearing in late April. I called this morning and was told that they haven’t pulled the BAC number yet but since it’s under .08 I’ll get a new set of instructions setting aside the matter (of course I still face the criminal court hearing and they may direct the DMV to penalize me later).

The criminal court hearing is in late May. I’d like to read the police report(s) so last week I phoned the records department of the applicable police department. I told the on duty officer I might be representing myself and he indicated that even lawyers don’t see the police report until the first criminal court hearing. I mentioned it seemed odd that I can’t review the evidence against me. He said this was standard and I could ask for a continuance and get a lawyer/public defender afterwards if I needed one.

Question(s):

1) Did I receive accurate information from the police records department?

2) If the police report contains inaccuracies or unexpected problems that I can’t address at the time of the first hearing is it true I’ll be able to ask for a continuance to assemble the proper proofs? Is it typically granted?

3) If there is a continuance will I be able to keep a copy or look at the police report or am I only allowed to take notes?

4) Assuming I’m broke enough to qualify is it correct that I can request a public defender after the first criminal court hearing. Can I/Should I do it sooner?

Thanks in advance for any help.

 

[CdwJava]

I’m a middle aged male living in Southern California. Like most I’m concerned about possible DUI’s so the rare times I go out I carefully count drinks and never drink anything but beer unless I only have time for one drink of uncertain strength.

One of the nefarious properties of alcohol is that it effects judgment. It also sometimes allows for simple things - like counting drinks - to get away from us.

Recently I made one of those rare bar trips. After nursing precisely five 12 ounce beers over a four to five hour period (one at home just after a light supper and four at a bar) I left feeling extremely alert and not the least bit inebriated.

Assuming an average height and weight, you should have been at about .04 - .05 in that time frame - still sufficient to be impaired and detected in an objective evaluation.

About six or seven minutes after leaving I ran into a DUI checkpoint. I admitted to having a few drinks, took the field sobriety test, thought I did well but failed (after reading these forums failing seems to be a near certainty).

It goes back to the judgment thing. I have had people who are completely toasted tell me that they believe they "passed" the FSTs. Too many people think that by not falling or obviously stumbling they "pass." These are divided attention tests designed to gauge two or more things at one time and involve the observation of two or more clues that do not simply include falling or stumbling (as a note, that would be ONE clue, and to "fail" a test there needs to be the presence of two or more indicators).

I voluntarily took the preliminary breath test(s) with the assurance I would also be able to take the more accurate blood test.

That is because the PBT is part of the FST and not the mandated test.

I looked up the BAC results online several days ago and it was .07 (meaning I’m still potentially in huge trouble).

Yep. That's 23152(a). It is also low enough that if you do not want to fight the whole thing you might also be eligible to plead to a wet reckless per CVC 23103.5.

My only other DUI was over 20 years ago and didn’t involve an accident. Unfortunately I told this to an officer when he asked - not sure I had to since it was more than ten years ago.

Only DUIs within the past ten years count against you for a subsequent DUI.

I called this morning and was told that they haven’t pulled the BAC number yet but since it’s under .08 I’ll get a new set of instructions setting aside the matter (of course I still face the criminal court hearing and they may direct the DMV to penalize me later).

If under .08 then the DMV will wait for any court conviction, they cannot act on their own on the BAC of .07.

The criminal court hearing is in late May. I’d like to read the police report(s) so last week I phoned the records department of the applicable police department. I told the on duty officer I might be representing myself and he indicated that even lawyers don’t see the police report until the first criminal court hearing. I mentioned it seemed odd that I can’t review the evidence against me. He said this was standard and I could ask for a continuance and get a lawyer/public defender afterwards if I needed one.

When you go to arraignment, if you tell the court you wish to act in pro per the court may provide all relevant reports to you at that time pursuant to standard discovery. It is HIGHLY recommended you obtain legal counsel, even if it is appointed counsel because you lack the means to provide for your own attorney. This is NOT a do-it-yourself deal unless you want to go to jail.

1) Did I receive accurate information from the police records department?

Yes. The file can be considered an investigative file by the agency pursuant to Government Code section 6254(f). Any discovery in this matter will have to come from the court or the DA's office. The agency could have given you a copy if they wanted to, but very few agencies will do so ... it sets a bad precedent. Lacking a court order, they will hold onto it and let the DA or the court provide it to you.

2) If the police report contains inaccuracies or unexpected problems that I can’t address at the time of the first hearing is it true I’ll be able to ask for a continuance to assemble the proper proofs? Is it typically granted?

The first hearing will be the arraignment. They will read the charges, ask for a plea, ask about counsel, and set a conference or trial date if you plead "not guilty." They will not be concerned with the report.

Understand that if you act as your own counsel you will be expected to understand and abide by all the court rules and procedures. If you have to ask questions about an arraignment, you really need to reconsider the decision to act as your own counsel.

3) If there is a continuance will I be able to keep a copy or look at the police report or am I only allowed to take notes?

Between the arraignment and the next court date you can make all the notes you want.

4) Assuming I’m broke enough to qualify is it correct that I can request a public defender after the first criminal court hearing. Can I/Should I do it sooner?

Most counties will not permit you to contact the public defender's office (provided your county has such a dedicated PD's office) until after the arraignment.

 

[larboard]

Cdwjava,

Thanks for responding so quickly. I've seen your responses here and on another forum and they are tremendous. All your answers make sense and are helpful although I will try to clarify a few and would like to add one or two more comments.

One of the nefarious properties of alcohol is that it effects judgment. It also sometimes allows for simple things - like counting drinks - to get away from us.

Agree but the count is 100% accurate. Besides counting I always use the technique of knowing how much money is on me before going out (especially when going to a bar). The amount included in the returned possessions check from the PD matched up exactly with the cost of the four beers plus tip.

Assuming an average height and weight, you should have been at about .04 - .05 in that time frame - still sufficient to be impaired and detected in an objective evaluation.

This was a real wakeup call for me. From reading these forums I've already concluded that the current environment means it's completely unwise to ever have ANY alcohol before driving. I can easily live with this but realize I'll probably have to pay the price in time and effort associated with the legal process.

---

I have two further comments unrelated to my OP. I spoke with my best friend (a teetotaler) about this a few hours ago for the first time. A few months ago he caught his college aged son cleaning marijuana paraphernalia while parked in his car (the son's) on the side of their house. Turns out this 19 year old has a Medical Marijuana card! My friend obviously wasn't happy and as a parent (besides punishment) provided advice that it still doesn't make it allowable/legal and so on. After the incident we both agreed that the son (a good kid but typical regarding attitudes on pot) probably wouldn't take this seriously enough. As I read these forums I'm bookmarking all related threads about the consequences of such behavior. When I get the best ones assembled my friend will set me up with his son and we both think he'll get the message.


Around these forums there are also discussions of community service. I can't identify my area of expertise (it would give me away with minor sleuthing). I will say it is something that the youth of today are increasingly in love with but they simply don't understand what they are getting into. I not only know but am familiar with the vast amount of threaded forum commentary (by people well known in the business) pointing out the downsides of such a pursuit. At some point I wonder if I can perform such a service as part of my plea (as an aside it has nothing to do with drugs or alcohol).

Thanks again.

 

[CdwJava]

Agree but the count is 100% accurate. Besides counting I always use the technique of knowing how much money is on me before going out (especially when going to a bar). The amount included in the returned possessions check from the PD matched up exactly with the cost of the four beers plus tip.

Then either most of them were consumed at the tail end of the time period, or they were higher alcohol concentration, or you are smaller than average.

But, .07 is not too far outside the realm of possibility even if your count was accurate and no one gave you another drink.

At some point I wonder if I can perform such a service as part of my plea (as an aside it has nothing to do with drugs or alcohol).

If you have to do community service, you may be restricted as to what counts. I cannot recall how open Orange County was to community service or how many organizations were willing to sign off on it. But, if you have a pet organization, you may be able to work it and get credit for it ... provided you have to do community service.

 

[larboard]

Then either most of them were consumed at the tail end of the time period, or they were higher alcohol concentration, or you are smaller than average.

But, .07 is not too far outside the realm of possibility even if your count was accurate and no one gave you another drink.

I downed the first beer at the bar fairly quickly but nursed the rest to the point I tipped the bartender an extra buck for the seat rental. Even with a lawyer I won't contest the count (although my guess is a .065 gets rounded up).

I've always had an ectomorph body type (was 6' tall and a soft, nonathletic 132 lbs at age 14). I'm still 6' tall but over the years with push-ups and age filled out a bit. Peaked at 205 lbs several years ago but thought I was starting to look a bit flabby in the middle. The last year or so have been on a diet that includes no sweets, few white carbs, fruit, salad and white meat chicken or turkey along with fish. There's always food in my apartment but I keep zero "quick snack" type stuff on hand.

Anyway, I just weighed myself for the first time in a long while. Was shocked to see I'm actually 175 lbs! But with the Five Hour Energy drink I also took that night I must have looked (and sounded) like a "tweaker" during the field test.

 

[CdwJava]

I downed the first beer at the bar fairly quickly but nursed the rest to the point I tipped the bartender an extra buck for the seat rental. Even with a lawyer I won't contest the count (although my guess is a .065 gets rounded up).

The BAC results should come out to three places ... at least ours do.

But with the Five Hour Energy drink I also took that night I must have looked (and sounded) like a "tweaker" during the field test.

That might have caused some inconsistent results on the FST, but unless you were talking rapidly or twitching, it would not likely have been observed by most officer's FSTs.

 

[larboard]

That might have caused some inconsistent results on the FST, but unless you were talking rapidly or twitching, it would not likely have been observed by most officer's FSTs.

It's remarkable you hit this note. I took the energy drink because I planned on writing a very important correspondence later that night that was giving me a rare case of writer's block (as an aside I finished a very good first draft today).

At the bar I didn't engage in any conversation and just people watched. But once I was stopped at the checkpoint I almost exploded with rapid fire responses to every question.

Nervous twitching has been a lifelong plague. I remember the first time my first wife in the middle of a restaurant meal took her hand and slammed down on my ever shaking legs. I also have skin splits on my fingers and feet due to nerves (and a tendency to clean compulsively which doesn't help). I often sleep with medical gloves covering the Bag Balm I apply to cure the skin cracks.

PS Bag Balm is great stuff for dry skin and feet. Tried to insert a direct link inside the post (it's easy to do on the forum in my field I post on). Anyway here's the url: bagbalm.com.

 

[LakersFan]

Personally, I would not take any plea agreement that included an alcohol related violation. DA will have to prove their case based on FST. That's more work for them and depending on the county you were arrested they may not pursue the charges due to lack of moving violation to aid them. After all you were under the limit.

 

[CdwJava]

Personally, I would not take any plea agreement that included an alcohol related violation. DA will have to prove their case based on FST. That's more work for them and depending on the county you were arrested they may not pursue the charges due to lack of moving violation to aid them. After all you were under the limit.

Actually, he was not - strictly speaking - "under the limit" as there is no legal limit. What there IS is a per se limit where there is a legal presumption of impairment. A driver with a BAC of .08 or higher is presumed to be impaired.

It is certainly up to the OP whether he wants to fight the charges or not. However, as with any legal endeavor, an evaluation of costs may be in order. One often needs an attorney that specializes in DUI defense to stand a better chance of prevailing in a DUI trial. These attorneys run about $5,000 at the low end, and if the matter goes to trial $7,500 to $10,000 seems to be a common expenditure in a good fight. A plea to a wet reckless at least keeps the DUI conviction off of one's record and can mean a lesser insurance hit.

Now, if the officer obviously screwed up and conducted poor FSTs, or could not articulate the color of a balloon at toddler's birthday party, then the DA may choose not to pursue the matter so hiring an attorney MIGHT force the DA to withdraw the charges if so. But, even these high priced attorneys tend not to want to go to trial if the case cannot be won on a challenge to the detention or the probable cause for the arrest because unless the officer is a dunderhead or erred badly the state most often prevails.

The OP should weigh his options carefully and consult an attorney or three to see what the options are and decide how much he is willing to spend for a roll of the dice.

 

[larboard]

Actually, he was not - strictly speaking - "under the limit" as there is no legal limit. What there IS is a per se limit where there is a legal presumption of impairment. A driver with a BAC of .08 or higher is presumed to be impaired.

Understood and as mentioned now my closest friends know it.

It is certainly up to the OP whether he wants to fight the charges or not. However, as with any legal endeavor, an evaluation of costs may be in order. One often needs an attorney that specializes in DUI defense to stand a better chance of prevailing in a DUI trial. These attorneys run about $5,000 at the low end, and if the matter goes to trial $7,500 to $10,000 seems to be a common expenditure in a good fight. A plea to a wet reckless at least keeps the DUI conviction off of one's record and can mean a lesser insurance hit.

Because I had to return to the work I do at home and take care of my personal business I took a few days off from obsessing about the incident.

In a week or so I plan to score this and the (I think) one and only other law board you post on for more information. I'll probably take an initial consultation with a lawyer or two without signing on the dotted line for a fee. I do have some moral problems with this, e.g. I think it's morally wrong to go to let's say a camera shop and waste the clerk's time if you know in advance that you plan to order online to save money. Now if you go in to get advice from the camera clerk and are willing to buy there if it's only a little more then the online prict then that's OK since the clerk had a chance of making a sale. So in this spirit I could potential get a consultation or two with a clear conscience and sign if the price/payment plan is right.

Meanwhile I got back the "ORDER OF SET ASIDE OR REINSTATEMENT" from the DMV (realize of course the criminal court can still take away my license later). It said this:

After a review of the information on file, including any evidence you have presented, the action effective XX/XX/XX pursuant to z133532 (where the "z" is some weird character that looks like a "z" I don't know how to duplicate), of the Vehicle Code is set aside.

Then is says:

"You may apply for a no-fee duplicate license at the nearest DMV field office".

Coincidentally I already got a new license from the every four years or so renewal that crossed in the mail about the time of this incident.

There is no mention of SR-22 on the "ORDER OF REINSTATEMENT" but also enclosed was a generic sheet (i.e., not addressed to me or my case) that is titled "PROOF FILING INFORMATION." It mentions SR-22 and SR-1P. I assume this at this time I don't need to file a SR-22 and this was just sort of stuck in the envelop. Is this correct? I already have normal auto insurance of course.

Now, if the officer obviously screwed up and conducted poor FSTs, or could not articulate the color of a balloon at toddler's birthday party, then the DA may choose not to pursue the matter so hiring an attorney MIGHT force the DA to withdraw the charges if so. But, even these high priced attorneys tend not to want to go to trial if the case cannot be won on a challenge to the detention or the probable cause for the arrest because unless the officer is a dunderhead or erred badly the state most often prevails.

The OP should weigh his options carefully and consult an attorney or three to see what the options are and decide how much he is willing to spend for a roll of the dice.

I would challenge most people over forty to walk three lines about eight feet long heal to toe totally sober WITH YOUR PALMS HELD TIGHTLY AGAINST YOUR SIDES IN THE DARK without even the slightest stumble.

Still my guess is the officer screws up if he doesn't take me in. These DUI checkpoints cost a lot of money and the state is broke. For example I heard a second-hand story (realize it could be urban legend) of a guy who used a bank ATM at 3:00 am and took the nearby handicapped parking space. The lot was of course empty. A police officer shows up and gives him a ticket. The guy's fine was in excess of $400. Meanwhile it's no urban legend that "certain people" with no physical impairment get the handicapped parking card with the right connection. Meanwhile I am personally involved with the care of a partially disabled person (15 hip, leg and back operations over 12 years resulting in one leg 1.5 inches shorter than the other and extreme pain) that had quite a bit of trouble getting a renewal. I promise I won't make this point in front of a judge for obvious reasons.

I'll probably see if I can take a trip to court and witness an initial hearing to see how it works. I'm clean cut and can dress better than the typical lawyer (used to have a good job where I wore a suit) and be quiet (i.e., I've already read about how MADD often keeps "spies" in court). I won't take a Five Hour Energy drink beforehand as a precaution.

If it looks like they automatically crucify anyone without a lawyer (even if they are simply wanting a look at the police report and ask for a continuance or a public defender) then I'll find a way to get a lawyer. Too bad I only have one horseshoe shaped kidney.

I'll also be doing a lot of research on these boards and the web in general before I take an initial consultation with a lawyer. For example:

What are the consequences of a "Wet Reckless" plea?

If I roll the dice and lose and get sent to jail what sort of jail do I get sent to and for how long?

By the above question I mean I'm not exactly the toughest guy in a fight on the block. To put it gently the closest to being sodomized I've ever been was during a Colonoscopy. The largest cylindrical shaped item that's ever been in my mouth was a Popsicle. That part of jail would both terrify and scar me for life.

OTOH three meals a day, several good books, and a reading light even in protective isolation would be the closest thing to a vacation I've had in years. Two weeks would be about my limit. Not sure if this would save money in the aftermath though and even with my limited income online time is money.

With the economy (which IMHO will not get better for many years or perhaps never) and at my age I'm close to FUBAR for re-entry into the conventional job market anyway so I'm serious that a safe jail (if one exists) might be an option. Not sure if it saves money though and am unclear on the other consequences.

 

[CdwJava]

I would challenge most people over forty to walk three lines about eight feet long heal to toe totally sober WITH YOUR PALMS HELD TIGHTLY AGAINST YOUR SIDES IN THE DARK without even the slightest stumble.

However, it is not the "slightest stumble" that is a clue in the test. Plus, more than one clue has to be observed before it is considered, for lack of a better word, a "fail" on that particular test. And exhibiting two or more clues on one test does not mean that one is necessarily impaired, it generally takes the entire battery of tests to make a valid determination.

Still my guess is the officer screws up if he doesn't take me in.

Not really. He can get sued for false arrest ... he is not going to get sued for not arresting you (unless you are a stumbling drunk and he lets you go anyway and you kill someone ... there's a couple of cases on that one in CA). There is huge liability for making an arrest absent probable cause, almost none for sending you on your way.

These DUI checkpoints cost a lot of money and the state is broke.

A lot of the money comes from the feds and was budgeted even as long as two and three years ago. Yes, it is all part of our tax dollars, but many DUI checkpoints are funded in part by state OTS grants and federal dollars. Plus, some of the funding comes from assessments against those who have been arrested.

Besides, public safety is not something we really want to put a price tag on, do we?

For example I heard a second-hand story (realize it could be urban legend) of a guy who used a bank ATM at 3:00 am and took the nearby handicapped parking space. The lot was of course empty. A police officer shows up and gives him a ticket. The guy's fine was in excess of $400.

A handicapped parking violation could be that much, yes.

Meanwhile it's no urban legend that "certain people" with no physical impairment get the handicapped parking card with the right connection.

In other words, if two or more people conspire to commit a crime (a felony) they can get such a placard. Sure. People commit crimes all the time. They also get prosecuted and arrested for committing these crimes. A handicapped parking placard requires a driver, a doctor, and the DMV. If the doctor and the driver conspire to make up a qualifying disability, we have a crime. If the driver and the DMV employee conspire to provide a placard without proper documentation, it is a crime - and there are safeguards in place to try and prevent that from happening. Yes, it may well happen, but most DMV employees are probably not willing to go go jail so that a pal can park closer to the front door at Wal-Mart.

Meanwhile I am personally involved with the care of a partially disabled person (15 hip, leg and back operations over 12 years resulting in one leg 1.5 inches shorter than the other and extreme pain) that had quite a bit of trouble getting a renewal. I promise I won't make this point in front of a judge for obvious reasons.

If they already have the placard, it should be pretty easy to get the renewal unless there is no doctor willing to sign off on it.

I'm clean cut and can dress better than the typical lawyer (used to have a good job where I wore a suit) and be quiet (i.e., I've already read about how MADD often keeps "spies" in court). I won't take a Five Hour Energy drink beforehand as a precaution.

There are many myths attributed to MADD that just aren't true. if they have any "spies" in court, I have never seen them. But, ANYONE can be in a courtroom, so they could be ... they just aren't announcing themselves as part of MADD. And, so what if they are? The state's record on DUI prosecutions is public record anyway.

If it looks like they automatically crucify anyone without a lawyer (even if they are simply wanting a look at the police report and ask for a continuance or a public defender) then I'll find a way to get a lawyer. Too bad I only have one horseshoe shaped kidney.

You should NOT do this yourself. If you cannot afford an attorney they will assign you one. Also, the police report is NOT evidence, so they can look at the report but they cannot submit it as evidence. If you go on record as your own attorney you will be expected to live up to the same standards as the guy at the other table who likely has years of experience even AFTER completing law school. I understand the system and the law and even I would NEVER consider doing this sort of thing myself any more than I would remove my own kidney.

What are the consequences of a "Wet Reckless" plea?

Usually fines and probation. The fees and fines are about the same as for a DUI and it would be considered a prior for any future DUI charges in the next 10 years. The advantage to it is that it is not a DUI and you can honestly tell people - including employers and insurance companies - that you do NOT and never have had a conviction for DUI. It can help on insurance and with finding or maintaining employment.

If I roll the dice and lose and get sent to jail what sort of jail do I get sent to and for how long?

It would be county jail, and it would not be for too long.

First California DUI Offense:


California Criminal Status: Non-injury DUIs generally misdemeanors. DUIs that result in bodily injury may be elevated to felony status, depending on the circumstances.

Jail: 48 hours, but not more than 6 months.

California DUI Fines/Costs: $390-$1,000 plus penalty assessments.

California License Suspension: 4 months suspension; restored after 30 days upon showing of hardship. 1 year suspension if under 21.

Ignition Interlock Device: Court may order use of interlock device.

Vehicle Impound: Court may order impoundment.

California DUI School: Mandatory alcohol education if under 21. Possible first offender school for 3-6 months, depending on BAC level.

California Probation: 3 years informal – no probation officer.

Community Service: In some courts, you may work off some of your fees/costs by doing community service.​

By the above question I mean I'm not exactly the toughest guy in a fight on the block. To put it gently the closest to being sodomized I've ever been was during a Colonoscopy. The largest cylindrical shaped item that's ever been in my mouth was a Popsicle. That part of jail would both terrify and scar me for life.

You would not be housed with the roughest guys, and as long as you stayed to yourself you would likely be in and out in 48 hours if you only got the minimum.

 

[larboard]

However, it is not the "slightest stumble" that is a clue in the test. Plus, more than one clue has to be observed before it is considered, for lack of a better word, a "fail" on that particular test. And exhibiting two or more clues on one test does not mean that one is necessarily impaired, it generally takes the entire battery of tests to make a valid determination.

I understand. Still I would think it likely that this part of the test is nearly impossible to pass by the typical person over 40. That said it's difficult to do a fair test (of this portion of the test) given people would tend to bring their biases into such a test and may deliberately try to fail. I suppose a fair "test of the test" would require that you find a random sample of healthy people 40 years and older. They would have to believe they get some prize if they perform well. They couldn't know it was about the fairness of the FST to avoid bias. Since toe to heal is sort of known as a FST other unrelated tests need to be mixed in to disguise what is really being tested. That might be fair and perhaps interesting.

Not really. He can get sued for false arrest ... he is not going to get sued for not arresting you (unless you are a stumbling drunk and he lets you go anyway and you kill someone ... there's a couple of cases on that one in CA). There is huge liability for making an arrest absent probable cause, almost none for sending you on your way.

That's interesting. No need to answer here (since I assume it would take forever) but my buddy and I wonder how these guys with multiple arrests for DUI (usually from bad neighborhoods) are back on the road getting stopped again and even killing people. I'll probably find out when I get the chance to read these forums further.

Besides, public safety is not something we really want to put a price tag on, do we?

I applaud the efforts of MADD to promote tougher DUI enforcement which to the best of my knowledge is in fact working. Here's one link that seems to indicate progress:

Drunk driving statistics

That said there is a price for public safety. Living involves a little bit of danger and few things can be made perfectly safe (e.g., a public playground). Now most of us want safer playgrounds but sometimes it gets to the point where any play equipment simply gets removed for fear of a lawsuit. That's sad.

In my case never ordering a drink when I'm even close to driving an automobile is a small price since I so rarely go out (and don't like wine/whatever with dinner). But for people who like a drink a bit (and all in my circle who do drink do it responsibly) are still in grave jeopardy if they run into a DUI checkpoint or get stopped. Ones I trust will learn of my situation and in all likelihood not order any more drinks with dinner. More restaurants will go under and that's a price.

A handicapped parking violation could be that much, yes.

I'm sure you know that much of the public believes there is such a thing as a "quota" of some sort for speeding tickets and so on (i.e., officers are under some pressure to issue tickets). Whether this is true or not is not the point; however, it's certainly what much of the public believes.

I worked in a field involving enforcement of somewhat complicated rules where rule number one was you can make an exception to a rule if enforcing the rule under unusual circumstances would violate "the spirit of fairness".

I have no problem with $400 tickets for improperly using handicapped spaces under normal circumstances. But do you think the officer who issued a $400+ ticket to a person who, in the middle of the night, perhaps fearing for his own safety, parked in the most nearby handicapped space in an empty lot to use an ATM enforced the law in "the spirit of fairness"? Does "the spirit of fairness" even exist in the law? Was that officer perhaps under pressure to issue tickets? Other than the $400 plus jackpot for the city or state was there perhaps a better use of the officer's time?

The analogy fails in a spot or two but I couldn't help but think of the infamous "paper bag" speech from HBO's "The Wire". I have no idea if most real police liked this show but here's the link (which I hope you will enjoy):

YouTube - The Wire: All Due Respect -- television at its finest

If the link doesn't work simply go to YouTube and enter "The Wire paper bag". It's the top hit.

If they already have the placard, it should be pretty easy to get the renewal unless there is no doctor willing to sign off on it.

The person in question was in between Doctors and insurance plans. There was little question she would get a renewal but it was a big hassle. Perhaps she was upset because she read this story or something similar:

This Isn't Good Sign for Bruins - Los Angeles Times

For me it doesn't matter. I never go near ATM's or convenience stores at night (or even gas my car) and usually deliberately park far away from stores during the day for exercise.

There are many myths attributed to MADD that just aren't true. if they have any "spies" in court, I have never seen them. But, ANYONE can be in a courtroom, so they could be ... they just aren't announcing themselves as part of MADD. And, so what if they are? The state's record on DUI prosecutions is public record anyway.

So I can in fact go to court as a spectator to get some idea of how things work.

You should NOT do this yourself. If you cannot afford an attorney they will assign you one. Also, the police report is NOT evidence, so they can look at the report but they cannot submit it as evidence. If you go on record as your own attorney you will be expected to live up to the same standards as the guy at the other table who likely has years of experience even AFTER completing law school. I understand the system and the law and even I would NEVER consider doing this sort of thing myself any more than I would remove my own kidney.

I promise I won't represent myself.

Until my preliminary hearing I will study up more, learn the DUI law as much as possible, interview but not necessarily retain a lawyer (unless it's cheaper than than what you are estimating and they take payments over time).

If I don't at first retain a lawyer I'll go to the initial hearing on my own and ask for a public defender. I'll ask for a continuance. If I don't qualify for a PD I'll find a way to get a lawyer (however painful).

[regarding "Wet and Reckless"]. Usually fines and probation. The fees and fines are about the same as for a DUI and it would be considered a prior for any future DUI charges in the next 10 years.

This isn't a factor. There won't be any future DUI charges.

The advantage to it is that it is not a DUI and you can honestly tell people - including employers and insurance companies - that you do NOT and never have had a conviction for DUI. It can help on insurance and with finding or maintaining employment.

This sounds better and I'll look into considering this plea if offered.

It would be county jail, and it would not be for too long.

First California DUI Offense:


California Criminal Status: Non-injury DUIs generally misdemeanors. DUIs that result in bodily injury may be elevated to felony status, depending on the circumstances.

Jail: 48 hours, but not more than 6 months.​

That's a big range. Wonder if I get traced back to my $400 ticket question and they decide to make an example of me. Perhaps I've read too many Russian novels.

Vehicle Impound: Court may order impoundment.

This sounds like it would cost more than a car or even lawyers. Couldn't I just sell the car? I could live without a car.

Community Service: In some courts, you may work off some of your fees/costs by doing community service.

This is something I'd like to do if possible.

You would not be housed with the roughest guys, and as long as you stayed to yourself you would likely be in and out in 48 hours if you only got the minimum.

If I did lets say two days in jail does it save me any money? On a later job application is doing jail time any worse than getting a DUI and paying normal penalties (fines, cost of classes, SR-22, increased insurance).

Anyway, thanks for your help. As an aside I do recommend "The Wire" but wonder if people in your profession like it or find it realistic (and if not what police drama do you find best or most realistic?).​

 

[CdwJava]

I understand. Still I would think it likely that this part of the test is nearly impossible to pass by the typical person over 40. That said it's difficult to do a fair test (of this portion of the test) given people would tend to bring their biases into such a test and may deliberately try to fail.

And if they did, they would be giving the officer the probable cause needed to make the arrest.

I'm well over 40 and I can still pass all of the tests. However, I also do not drink alcohol so that tends to help.

I suppose a fair "test of the test" would require that you find a random sample of healthy people 40 years and older. They would have to believe they get some prize if they perform well. They couldn't know it was about the fairness of the FST to avoid bias. Since toe to heal is sort of known as a FST other unrelated tests need to be mixed in to disguise what is really being tested. That might be fair and perhaps interesting.

The Standardized Field Sobriety Tests have research and foundation behind them and are not simply a random collection of tests. There would be no way to effectively disguise a test that is supposed to be given in a specific way in order to validate the results.

That's interesting. No need to answer here (since I assume it would take forever) but my buddy and I wonder how these guys with multiple arrests for DUI (usually from bad neighborhoods) are back on the road getting stopped again and even killing people. I'll probably find out when I get the chance to read these forums further.

Likely because they did not learn their lesson the first time or decided to drive a buddy's car while unlicensed ... this is why we get to impound cars for 30 days from guys driving on a suspended license. It tends to get the attention of the friends that loan cars to these yo-yos.

Ones I trust will learn of my situation and in all likelihood not order any more drinks with dinner. More restaurants will go under and that's a price.

Yes, not ordering alcohol will have a toll on restaurants, but not enough to break them. The restaurant makes a lot of money on alcohol (about 7 times the cost of the base product), but if the restaurant was running that slim a margin for a few people to break them for not ordering booze, then the owner had a problem that was systemic. (Oh, I managed a restaurant and a bar for a few years before I was a cop.)

There is always a tradeoff for protection. Personally, I would rather have my friends drink at home after dinner than risk their death - or mine - on the road because they had one too many beers.

I'm sure you know that much of the public believes there is such a thing as a "quota" of some sort for speeding tickets and so on (i.e., officers are under some pressure to issue tickets). Whether this is true or not is not the point; however, it's certainly what much of the public believes.

Some people also believe that if you ask an undercover cop if he is a cop he has to answer truthfully, or, that we can only respond with equal force when confronted with a threat. A number of people in the general public believe a great many things that are not true and there is not much we can do about that.

And, FYI, quotas are illegal and expressly forbidden int he Vehicle Code. When they have been tried by other means (such as "department goals" or some such language), either the defense bar or the officers' own labor unions get involved to quash it.

I worked in a field involving enforcement of somewhat complicated rules where rule number one was you can make an exception to a rule if enforcing the rule under unusual circumstances would violate "the spirit of fairness".

I fail to see what is unfair about enforcing DUI law. We are not in the business of playing fair, we are in the business of winning.

I have no problem with $400 tickets for improperly using handicapped spaces under normal circumstances. But do you think the officer who issued a $400+ ticket to a person who, in the middle of the night, perhaps fearing for his own safety, parked in the most nearby handicapped space in an empty lot to use an ATM enforced the law in "the spirit of fairness"? Does "the spirit of fairness" even exist in the law?

Let me ask you this - how far do you take this? Do you make exceptions for people in a hurry? Time of day? Gender? Time they intend to be parked there? Where do you decide that it should be enforced?

Making too many exceptions becomes a slippery slope. Plus, the code section involving handicapped parking is quite clear and does not allow for such exceptions. It is also one of those areas that the great majority of the public nearly demands we enforce it strictly. When we do NOT enforce it, we hear about it. The only time I have ever been applauded in my career for a parking ticket was when I gave these out for unlawful handicapped parking.

And, to answer your question, I cite from Penal Code section 4:

4. The rule of the common law, that penal statutes are to be
strictly construed, has no application to this Code. All its
provisions are to be construed according to the fair import of their
terms, with a view to effect its objects and to promote justice.​

Was that officer perhaps under pressure to issue tickets? Other than the $400 plus jackpot for the city or state was there perhaps a better use of the officer's time?

If there was a better use of his time, I suspect he would have been doing that other thing. Yes, parking tickets are a gold mine for a city as almost all of it goes to the city with a minute portion going to the county. Moving violations are a money loser, parking cites are a money maker. But, most police officers do not bother with them.

If the link doesn't work simply go to YouTube and enter "The Wire paper bag". It's the top hit.

Never have seen the show ... sorry.

So I can in fact go to court as a spectator to get some idea of how things work.

Yes.

Until my preliminary hearing I will study up more, learn the DUI law as much as possible, interview but not necessarily retain a lawyer (unless it's cheaper than than what you are estimating and they take payments over time).

You do not get a "preliminary hearing" as these are only for felonies and have to do with the establishment of probable cause. You get an arraignment and then, maybe, a status conference and motion hearings if your attorney tries to suppress stuff.

If I did lets say two days in jail does it save me any money? On a later job application is doing jail time any worse than getting a DUI and paying normal penalties (fines, cost of classes, SR-22, increased insurance).

You'll have to work that math for yourself. The two days of jail time is in addition to any other penalties. You might be able to do jail time in lieu of some part of the fine, but fees and assessments will still be on you, I believe.

Anyway, thanks for your help. As an aside I do recommend "The Wire" but wonder if people in your profession like it or find it realistic (and if not what police drama do you find best or most realistic?).

I am unfamiliar with The Wire, but I really like like Southland. As for realistic, two old shows come to mind for elements of realism: Barney Miller (yes, most of police work is PAPER work), and Hill Street Blues. The others are hit and miss. CSI is WAY, WAY off the track with regards to police work, though I tend to like all three versions for the stories and the characters.

 

[Master Moron]

Still my guess is the officer screws up if he doesn't take me in. These DUI checkpoints cost a lot of money and the state is broke.

DUI checkpoints bring in a lot of money. Why do you think California uses them? Don't believe that public safety nonsense. DUI checkpoints brought in 40 million dollars in revenue to California in 2009: http://www.alternet.org/immigration/145665/california_cops_exploit_dui_checkpoints_to_bring_in_money_for_cities,_police

I understand. Still I would think it likely that this part of the test is nearly impossible to pass by the typical person over 40. That said it's difficult to do a fair test (of this portion of the test) given people would tend to bring their biases into such a test and may deliberately try to fail. I suppose a fair "test of the test" would require that you find a random sample of healthy people 40 years and older. They would have to believe they get some prize if they perform well. They couldn't know it was about the fairness of the FST to avoid bias. Since toe to heal is sort of known as a FST other unrelated tests need to be mixed in to disguise what is really being tested. That might be fair and perhaps interesting.

There was a study in 1992 where police officers were asked to determine whether subjects were asked to perform the field sobriety tests and police officers were asked to determine whether they were intoxicated. The officers determined that 49% of the subjects were too drunk to drive. All of the subjects were completely sober. It's always best to refuse the field sobriety tests even if you think you're not intoxicated. Why give the police probable cause to arrest? You also made the mistake of admitting to the officer that you had a few drinks. As I learned from CdwJawa, saying you had a couple of beers is the most common answer that police officers hear, so when you say that they will think you're lying. It's best to politely refuse to answer any questions.

I applaud the efforts of MADD to promote tougher DUI enforcement which to the best of my knowledge is in fact working. Here's one link that seems to indicate progress:

Drunk driving statistics

That said there is a price for public safety. Living involves a little bit of danger and few things can be made perfectly safe (e.g., a public playground). Now most of us want safer playgrounds but sometimes it gets to the point where any play equipment simply gets removed for fear of a lawsuit. That's sad.

In my case never ordering a drink when I'm even close to driving an automobile is a small price since I so rarely go out (and don't like wine/whatever with dinner). But for people who like a drink a bit (and all in my circle who do drink do it responsibly) are still in grave jeopardy if they run into a DUI checkpoint or get stopped. Ones I trust will learn of my situation and in all likelihood not order any more drinks with dinner. More restaurants will go under and that's a price.

Why on earth do you applaud the efforts of MADD? You need to do more research on MADD before you blindly sing their praises. If MADD had their way the legal limit would be .06 and you would be completely screwed by getting a .07 on the blood test.

Not really. He can get sued for false arrest ... he is not going to get sued for not arresting you (unless you are a stumbling drunk and he lets you go anyway and you kill someone ... there's a couple of cases on that one in CA). There is huge liability for making an arrest absent probable cause, almost none for sending you on your way.

I don't know about California, but in my state the police need a bare minimum of probable cause to arrest for dui. Improper lane usage is about all they need to throw you in jail. As for suing a cop for false arrest, most civil rights lawyers charge contingent fees, so you need to show some measure of damages. A night in jail isn't gonna cut it. You're going to have to prove that the arrest caused you to miss a significant amount of work or cost you in some other way.

 

[CdwJava]

There was a study in 1992 where police officers were asked to determine whether subjects were asked to perform the field sobriety tests and police officers were asked to determine whether they were intoxicated. The officers determined that 49% of the subjects were too drunk to drive. All of the subjects were completely sober. It's always best to refuse the field sobriety tests even if you think you're not intoxicated. Why give the police probable cause to arrest? You also made the mistake of admitting to the officer that you had a few drinks. As I learned from CdwJawa, saying you had a couple of beers is the most common answer that police officers here, so they think that you're lying. It's best to politely refuse to answer any questions.

The "study" had a great many flaws with it and, as I recall, was pretty soundly dismissed.

When taken as a battery - and depending on which validation study used - the accuracy rate of the SFSTs is greater than 90%.

Why on earth do you applaud the efforts of MADD? You need to do more research on MADD before you blindly sing their praises. If MADD had their way the legal limit would be .06 and you would be completely screwed by getting a .07 on the blood test.

I have no connection to MADD whatsoever and I think the per se limit should be at .05.

As a note there is really no "legal limit" - one can be legally and practically impaired even with a BAC of .00 ... ask me how ...

I don't know about California, but in my state the police need a bare minimum of probable cause to arrest for dui.

Probable cause is the standard for an arrest anywhere in the United States - that includes CA.

Improper lane usage is about all they need. As for suing a cop for false arrest, most lawyers charge contingent fees, so you need to show some measure of damages. A night in jail isn't gonna cut it. You're going to have to prove that the arrest cost you to miss a significant amount of work or cost you in some other way.

You would also have to show that the officer knew or reasonably should have known he lacked probable cause to make the arrest ... that's a very high standard since probable cause is a relatively low one to reach. P.C. for an arrest is a greater standard than the reasonable suspicion necessary for a detention (a traffic stop) but significantly less than that needed for a conviction which requires proof beyond a reasonable doubt. Even so, an officer making an arrest without probable cause can get him or her sued ... NOT making an arrest is almost a sure bet to avoid civil or criminal liability at all. So, if in doubt, not making the arrest is the safe bet for an officer even if it might not be the safe bet for the community. Fortunately, few potential DUI contacts walk such a fine razor thin edge.