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  1. #1
    Join Date
    May 2011
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    13

    Default How to Get a Dismissal of a DUI

    My question involves criminal law for the state of: California

    I am thinking of going to trial. Should I go or not. The DA is only charging me for DUI and not refusal.

    1- Police report says I failed some field sobriety tests.
    2- I refused to blow into the hand held device
    3- The Breath machine at the sheriff station , according to the record, was calibrated and was working fine.
    4- I performed the test twice ( two three minutes) I really tried blowing and the machine print out was " insufficient sampling." These machines are hooked up to a central station and the reading indicates that my BAC for the first attempt was .037 and it was .044 on the second attempt. there are only one sample available on every attempt.
    (the officer had me to blow , print out was insufficient, he then entered my first and last name again and asked me to blow again."
    5- They took me to hospital and asked me to sign a paper saying the following" I consent that I do not have any heart condition and I am not taking anticoagulant."
    Since both were true , I refused to sign prior to talking to a doctor.
    6- once the doctor came, I asked the officer to take my blood and he said too late when it was within the three hours limit. I then asked the hospital to take my blood and that blood alcohol level was .014
    7 - They took my blood later on and after 4 hours that blood alcohol level was .01

    Please help me. Should I need to go to trial or not.
    I do know that I need an experienced attorney. So Please try answering rather than advertising that you are an experienced attorney.

  2. #2
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Possibility of Dimissal Help

    What are you charged with? CVC 23152(a)? If so, they might articulate impairment by alcohol and/or drugs. Did you have any prescription medication or illicit substances in your system?

    A refusal would not be a crime anyway, so the DA could not charge it. Though the DMV may consider your incomplete sample a refusal and you might lose your license that way.

    It would be best to consult an attorney.

  3. #3
    Join Date
    May 2011
    Posts
    13

    Default Re: Possibility of Dimissal Help

    I am not sure the code section that I am being charged for. I have already lost my license for one year and It is the jury trial time. I want to know based on the evidence , what are my chances of being convicted.
    Since there is refusal allegation, if I am convicted, there is a mandatory jail time that I am really scared of.

  4. #4
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: Possibility of Dimissal Help

    Without knowing the code section, there is no way to know what the state must prove.

    Also, I ask again, had you consumed any illicit drugs or medications? If you have been charged with 23152(a) they can make a case for impairment no matter your BAC.

  5. #5
    Join Date
    May 2011
    Posts
    13

    Default Re: Possibility of Dimissal Help

    I just looked for the code. it is 23152(a)

    I had not taken any types of drugs or medicine.

    I was driving perfectly and there was no sudden lane change or anything of that sort, except that I was going 75 miles on a freeway with 65 miles limit. ( This is what the officer is saying and they did not even use Radar for speed)

  6. #6
    Join Date
    Sep 2005
    Location
    California
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    20,594

    Default Re: Possibility of Dimissal Help

    You may have a decent shot at prevailing. But, if the DA is still pursuing the matter even with the low BAC, it makes me wonder whether or not the officer has some pretty good observations of your impairment.

    If you cannot afford a private attorney, the court will appoint one on your behalf. You should definitely speak to one.

  7. #7
    Join Date
    May 2011
    Posts
    13

    Default Re: Possibility of Dimissal Help

    Thanks for your replies. I do really appreciate it. DA states that since the machine print out was "insufficient sampling" , the BAC readings are not accurate. I have already talked to an expert witness who is testifying otherwise.
    DA also is questioning the chain of custody of the blood that was taken at the hospital claiming that the blood was not taken in accordance with title 17 requirements. He is saying that he is going to try to exclude the blood evidence. I spoke with an attorney and he is saying that he is going to subpena the hospital staff. The attorney argument is going to be that if hospital does not have a good internal control of their samples, they can easily remove people organ's by mistake.

  8. #8
    Join Date
    Sep 2005
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    98,846

    Default Re: Possibility of Dimissal Help

    So, basically, the prosecutor is proceeding based upon your visible intoxication and driving conduct, and you're hoping to get the blood alcohol measurements admitted to support an argument that you were well below the legal limit?

    What driving conduct did the officers observe before pulling you over? You were pulled over for what traffic offense? What roadside sobriety tests were administered, and how did you perform?

  9. #9
    Join Date
    May 2011
    Posts
    13

    Default Re: How to Get a Dismissal of a DUI

    I have both blood evidence and breath evidence as I explained above.

    I was speeding 75 mph as stated above. No other driving conduct.

    Nystagmus: it says lack of smooth pursuit in both eyes, lack of convergence. Distinct nystagmus at 45 degrees. Swayed from circular motion approx 3 inches.

    Romberg: swayed 2 to 3 inches from center. He estimate 20 sec to be 30 sec. Began test prior for me to complete the instruction.

    Walk and turn: failed to walk in a heel to toe fashion as instructed. Stepped offline , did not execute the turn as instructed.

    Finger count: performed 5 times when instructed to do 3 times.

    One leg stand: raises his right foot , uses fences to brace himself from falling

  10. #10
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,594

    Default Re: How to Get a Dismissal of a DUI

    Those results would be sufficient to indicate impairment.

    I agree with Mr. Knowitall - it seems the state is going to proceed based upon observations and not relying on any chemical test.

    The strongest evidence you might have in your favor is the hospital blood test being .014. But, of course, it doesn't prevent them from claiming you were impaired on drugs/medication.

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