Blew .081 in California

[bathedinshadow]

My question involves criminal law for the state of: California

Hello...

I was hoping to get some help here. A few nights ago I got pulled over for not using my blinker. I had had 2 drinks over a course of 4 or 5 hours and was on my way home. The officer proceeded to do all of the field sobriety tests, all of which I passed. He then did a breathalyzer and I blew .08. So he did another one and I blew .081. He then told me that he had to take me to jail. He had me get into my car and pull it into a proper spot and then went with him to the jail. Once I was there he told me that he was probably only going to keep me there for 4 hours or so and then let me go. He also gave me an option of having another breathalyzer or having my blood drawn once at the station. I chose blood. This took them about an hour to finally do. Then I was informed that my bail was being posted, which confused me because he told me that he was going to let me go. I don't know what my blood results were and I'm also feeling like I know nothing about what is happening.

I've never been in this situation before and I don't know exactly what I can do. I feel like if the breathalyzer was different from one minute to the next, then what if he had taken it a third time? Can I fight this? More importantly, would I win?

Any advice or information would be greatly appreciated.

Thanks!!

[tc498]

Hire a lawyer,they might be able to find some way to get the case dismissed or maybe reduce the charge b.c your bal was just over the limit/close to .08.

[bathedinshadow]

Just out of curiosity, does anybody know how much I'd have to come up with for a lawyer for a case like this? Any experience?

[Ash1]

It cost me mid 2000. i had a pretty similar case.

[chuckycheese]

The California Supreme Court recently decided that it is valid to challenge the accuracy of a breathalyzer. If what you've reported is strictly true, it's difficult to imagine how the 2 drinks could have been anything other than quite large ones. I'd suggest you talk with an attorney since a DUI conviction is a 'major biggie'.

[cdwjava]

You have always been allowed to challenge the accuracy of the breathalyzer. I'm not familiar with any recent court decision that refines this. These challenges just tend to be a very expensive proposition to do so because it requires a battle of the experts and it rarely wins.

In this case, the breath device the officer used was the field PBT which can NOT generally be used as evidence of a specific BAC. The blood test the OP took later would be the evidence presented at trial as proof of the driver's BAC, not the PBT used as part fo the FSTs.

- Carl

[aaron]

When drivers are asked the amount they've had to drink, the most common answer by far is "two drinks". Even if it's true, the protest, "I can't have a BAC above the legal limit, because I only had two drinks" is one that's not of itself likely to be convincing.

Is there an incident report, prepared by the officer, stating that you passed all of the roadside sobriety tests? Or is that your personal recollection and interpretation? Note, the officer's statement during the course of testing, "You're doing fine," doesn't necessarily mean you passed - that can be a statement meant to reassure you and help maintain your compliance with the testing process.

If there was a problem with the PBT, you should see a lower result from the blood test.

[cdwjava]

When drivers are asked the amount they've had to drink, the most common answer by far is "two drinks". Even if it's true, the protest, "I can't have a BAC above the legal limit, because I only had two drinks" is one that's not of itself likely to be convincing.

So true. if you were to ask any peace officer or EMS / ER worker in the nation the most common response to the question of how much a person has had to drink, the answer is "two".

Note, the officer's statement during the course of testing, "You're doing fine," doesn't necessarily mean you passed - that can be a statement meant to reassure you and help maintain your compliance with the testing process.

Exactly. It doesn't do well to maintain control - or to continue the FSTs - if you tell the person, "Oh man, you're tanking!"

If there was a problem with the PBT, you should see a lower result from the blood test.

Exactly.

- Carl

[chuckycheese]

You have always been allowed to challenge the accuracy of the breathalyzer. I'm not familiar with any recent court decision that refines this. These challenges just tend to be a very expensive proposition to do so because it requires a battle of the experts and it rarely wins.


- Carl

"Breathalyzer tests can fail to produce accurate results, so accused drunk drivers have the right to challenge the results of such tests in court, the California Supreme Court has ruled.

The Los Angeles Times reported July 9 that the court ruled unanimously that defendants can introduce evidence in court to challenge sobriety tests conducted by police. The court noted that results from breath tests can vary widely, with blood-alcohol content readings affected by factors like body temperature, medical conditions, and the calibration of the testing device.

"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing," the court ruled.

In California, suspected drunk drivers have the choice of taking a blood test or breath test to determine their blood-alcohol content."


The article quoted above is just one of many of the stories reporting the recent ruling I referred to. If you "Google" it, you can get 'up to speed'.

[aaron]

From the quote, you're referencing People v McNeal, decided by the California Supreme Court on July 9, available here in Word format. That case does not discuss PBT results, but instead discusses the mathematical presumption that a breathalyzer's reading necessarily correlates to actual BAC - the defendant argued that he should be able to submit evidence that it does not. The Supreme Court said that you can present the argument in impaired driving cases (generic DUI), where you are being prosecuted on the basis that your consumption of alcohol has impaired your ability to drive, but not in "per se" cases where the prosecution is based upon the legislature's definitions ("evidence about partition ratio variability is irrelevant in those cases because the Legislature incorporated a 2,100-to-1 partition ratio within its definition of the offense").

I expect that this ruling will have minimal practical effect. If you're above the legal limit as defined by the legislature you can be convicted of the per se violation. If you're not the use of evidence of "partition ratio" is not going to be particularly useful as the prosecution already has to produce evidence of impairment other than your BAC to achieve conviction. Thus, your ability to present evidence to rebut the presumption of intoxication arising from your BAC in a generic DUI case seems unlikely to affect whether or not you're convicted. It seems most likely to be useful in cases like the one under appeal - where the defendant's BAC was measured as being right at the legal limit and he was charged with both the per se and "generic" offenses. He was able to attack the breathalyzer result, and was acquitted of the per se charge; but following this ruling would have also been able to attack the partition ratio to fight the presumption that came into effect with his .08 BAC result.

Lawrence Taylor, who knows his stuff in regard to DUI defense, is similarly skeptical of the impact of this case.