DUI First Offense

[jasmine27]

My question involves criminal law for the state of: California

I was charged with a 23152(A)VC two nights ago, and would like some guidance. This was my first time being arrested, so this is all new to me.

I was driving four other friends on Santa Monica and got pulled over on Santa Monica and Sycamore. The officer said I was traveling 55mph at a 30mph zone (even though there were plenty other cars going the same or faster speed). I passed all the field tests, so the officer subsequently conducted a breathalyzer test on me. Her verbally told me I blew a 0.10 after I asked.

I was then arrested and taken to the Hollywood station, where I was processed and detained for the night. I blew a 0.08 and 0.09 (averaging a 0.085).

Do I have any chance from avoiding a DUI conviction? Happy to clarify and go into more detail on anything and answer any follow up questions. How should the attorney I hire go about defending this case?

Thanks so much.

[flyingron]

You attorney will know how to proceed. Nothing you said indicates nothing but a proper and effective stop and investigation resulting in more than enough evidence to convicted you of drunk driving. The fact that others were speeding does't negate your GUILT in speeding nor invalidate the probable cause for the stop. You were above the per se limit, they do not need to show more.

You can expect that CallDot will suspend your license. You can request a hearing, but you don't appear to have anything that will counter that determination.
A lawyer may be able to plea down the charge to a "wet reckless".

[PTPD22]

You can read some of the other posts here to see how common the claim of "I passed all the field tests" is. While I am sure you felt you performed the tests flawlessly, I am equally sure that the officer is able to articulate numerous indicators of impairment you showed while performing the test. But, it doesn't really matter as you were over the presumptive limit both in the field and for both of your breath samples back at the station. So, the prosecution does not have to prove impairment. With anything over a 0.08, you are legally presumed to have been impaired.

Do I have any chance from avoiding a DUI conviction?

Any chance? Sure. Guilty DUI offenders avoid conviction sometimes. A GOOD chance? No, I don't think so. If the officer followed his training and did not make procedural errors, this seems to be a pretty solid case against you.

How should the attorney I hire go about defending this case?

Well, I'll admit to being pretty arrogant. But, I'm not arrogant enough to advise a DUI defense attorney how to do his/her job. But, in a general, the attorney will normally look for: any challenge for the probable cause for the initial traffic stop (Don't hold your breath for that one as you were doing 25 over the speed limit); any argument of coercion to perform the field test or provide breath sample in the field (you don't state anything to that effect); any challenge for the probable cause for arrest for DUI (again, don't hold your breath as your voluntary breath sample in the field of 0.1 provides all the PC they need); any procedural errors in the DUI processing after the arrest or in obtaining your two breath samples at the station; any question of improper equipment maintenance or inaccuracy in assessing your BAC from breath samples; or overcoming the presumptive impairment by presenting evidence that you were, in fact, not impaired despite your BAC (I have NEVER heard of this argument succeeding - but, I have heard of it being tried).

More realistically, you should expect your attorney to try to work a plea deal for a conviction of a lesser charge or a deferment program with probation.

[flyingron]

It will not work. The prima facie limits are illegal whether you are impaired or not.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

It doesn't matter if you have the reaction time of a fighter pilot (like Johnny Fever demonstrated) at .08 you are breaking the law.

[PTPD22]

It doesn't matter if you have the reaction time of a fighter pilot (like Johnny Fever demonstrated) at .08 you are breaking the law.

LOL…that was a great episode. But, I think that I’m showing my age that I even recognize the reference. I’m betting that nobody under 40 will.

And, no, it doesn’t work as a defense…but, I have heard of it being tried.

[cdwjava]

I was driving four other friends on Santa Monica and got pulled over on Santa Monica and Sycamore. The officer said I was traveling 55mph at a 30mph zone (even though there were plenty other cars going the same or faster speed).

So, the stop was for a valid reason. It matters not that others might have been going faster, it only matters that YOU were.

I passed all the field tests, so the officer subsequently conducted a breathalyzer test on me. Her verbally told me I blew a 0.10 after I asked.

You did not "pass." Had you "passed" you would not have been arrested.

It is a peculiar thing that so many people believe they passed. If you base this upon the officer's comments, understand that he is not going to tell you that you appear tanked or tipsy, he is likely to say you did "fine," or language similar to that.

And since the PBT BAC level cannot be used at trial as it is officially only one more test in the FSTs, clearly the officer felt that you were impaired based upon his observations. At least that is how his report is likely to read. If he made the arrest SOLELY on the PBT, then your attorney can probably get the matter dismissed. Don;t count on that.

I was then arrested and taken to the Hollywood station, where I was processed and detained for the night. I blew a 0.08 and 0.09 (averaging a 0.085).

You were arrested. Unless you were issued a PC 849(b) form, you were arrested not simply detained.

Do I have any chance from avoiding a DUI conviction? Happy to clarify and go into more detail on anything and answer any follow up questions. How should the attorney I hire go about defending this case?

There is always a chance. With a BAC of .08 and .09 you stand a decent chance of being offered a plea to "wet reckless" per VC 23103.5. Priorable as a DUI for future offenses, but lacks the stigma of a DUI.