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  1. #1
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    Default DUI, Tested at the Legal Limit - How to Suppress Test Results

    My question involves criminal law for the state of: California.

    I recently was arrested for DUI, in the field I blew a .08, 2 and a half hours after my last drink. I was stopped by CHP because the passenger in my car threw a cigarette butt out of the window, which caught the attention of CHP. When I was stopped, the officer saw the other passenger passed out in the back seat and asked if he was alright, before I could say anything, my other passenger said he was trashed. The officer then asked her if she had dranken, then asked me, I said I had had a few beers, and that my last drink was more than two hours prior to me operating the vehicle, which I was always taught was acceptable. I am a large gentleman, I have bad knees, a medical infection causing back pain, I am out of shape, I have horrible balance, and my hand-eye coordination is not much better (except for some reason behind the wheel, I have excellent skills in operating motor vehicles) I was not ridiculously intoxicated, and I was not expecting to blow the .08, the officer was expecting much higher, and because he 'misjudged me' he chose to be nice and not tow my car. I was given the field sobriety tests, ending with the breath test. So far what I've come across online is it is a requirement that officers wait 3 minutes in between breath tests (this officer waited 2 minutes). I was then placed under arrest. I was not read my rights. I was not told I had the right to refuse the preliminary breath test, the officers also chose to not follow procedure in multiple different ways, from the breath tests, to the other sobriety tests, to the interrogation process, lying to me about multiple laws, and giving me an eye test while I was still in my car, with me bending over and kinking my neck up to be able to see the officers hand- due to how high up in the car I sit and how low to the ground the car is. I did not smell of any "Alcoholic beverage" (they don't smell alcohol, they smell the mix that alcohol is usually added too- Odoul's beer and budweiser have an almost identical smell) I was not swerving or speeding, the only reason I was stopped is because my passenger was stupid and flicked her cigarette at the cop car. The officers transfered me and my passenger (she was arrested for her own problems) to another unit transporting another DUI suspect to lock up- they crammed all of us into one unit, which was very difficult and uncomfortable, they denied me access to me medical perscription, which I need every 4 hours to keep the infection from causing excruciating pain, I warned the officers 4 times before leaving my car, and he promised he'd grab it so it was made available to me at the jail, which was 45 minutes from where my car was left, and I was held for 12 hours from time of arrest to time released from lock up. I made the officers aware of all my medical conditions, and the inability to keep my balance or exert myself for their tests.

    In addition to this, I was sleep deprived. I work nights 4 days a week, and then saturday mornings. Saturday I had received 2 hours sleep total from friday at 2 pm on until my arrest. My sleep schedule is awkward, and it results in me being exhausted at random times, and rightfully so. I had not eatin anything but a hamburger at around 9-9:30 pm saturday night. I had a total of 5 beers and 3 shots of whiskey between 9:30 pm and 1:30 am, and didnt drive until 3:15 am, breath tested at 3:45, blood tested at 4:40 am. Fatique DOES come into play, as I was a witness in a trial for a friend who blew a .10 and blood tests came back .12, but do to his own level of fatique, the original breath and sobriety tests AND blood tests were thrown out of court. After three months and 4500 dollars spent on an attorney (who btw wanted him to settle, HE did the research for her, he told her to take it to trial, and told her what to present as a defense, she said it was pointless, but in turn it won him the case) the D.A. dropped all charges and he was free to go.

    What I'm looking for here is anyone who might be able to provide me with some DUI court decisions (A vs. B.) that might help me, as I cannot afford an attorney, let alone any special witnesses (such as toxicologists), I can barely afford the gas money I'm going to spend during my one month suspension to hitch rides to and from work. I have requested my DMV hearing, and I have a meeting with the public defenders office next week. I am more than positive I will have to do my defenders job for them, in terms of research and supporting evidence to suppression motions. I do plan on requesting the discovery package, and filing a motion for a speedy trial on my court date. I'm also planning on filing to have the charges dismissed due to double jepordy, as I'm charged for the DUI twice (driving under the influence, and the charge specifically for the BAC of .08 or higher). I'm just having trouble finding case study court decisions on the subject, or I find decisions that do not apply to me. If anyone could help me out, I would greatly appreciate it!

    And to think I was a half mile from home. Thanks guys!

  2. #2
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    The best advice I can give is this:

    1 Don't waive your right to a speedy trail EVER.

    2 Don' plead guilty ! Enter a MUTE Plea, meaning you stand mute. The Judge MUST then enter a
    NOT GUILTY Plea for you. If you think you already entered a Plea try to change it.
    The basic effect of a Mute Plea is that the DA's office will have to prove the the instant you were pulled over everything was Constitutional and correctly done; which is seldom the case.

    Recently a DA, Public Defender, and a Court Commissioner with a total of about 50 years experience tried to say "Mute Plea's don't exists in California. They forced the Defendants 2 kids 19 and 21 to plead not guilty or be held in contempt after they repeatedly had said the magic words "We stand Mute Your Honor" at least 4x each.

    The next day the DA and the Public defender were handed letters with a copy of the law regarding Mute Pleas and advising them they had a DUTY to Report the Judge to the state and county commission as being ignorant of the law and abusing his power. They also had a Duty to report each other to the state bar and also their own bosses. The very serious Felony and 2 serious Misdemeanor charges were all dropped for 3 infractions and a fine!

    3 Don't accept a Court Commissioner (an Attorney acting as a Judge ) unless you sit in court and see how he reacts to people in similar cases. For that matter the same goes for a judge. Some are good some are bad. Some are so bias it s ridiculous. Sit through some cases it will help you learn the system and be calm and act correctly. You have a right to challenge a judge assigned to you case if you have seen him in court always siding with the DA (note the dates case names and numbers) Your attorney will resist this be ready. Judges are human and humans are bias.

    4 Don't believe the Breath test was accurate. Make them prove it was calibrated as per the manufacturer specs and get the service records. I was involved in a case where 10 people in a row, same night, same breath unit and All in 4 hour sequence and ALL BLEW A 1.0...mathematically IMPOSSIBLE They didn't reset the machine. This was an old cop trick in the beginning days of Radar.

    5 You are right ! This is your case and you will have to do ALL the Work ! The Public Defender may not always have your interests at heart because they have a massive case load; so your just another number in the system. Get ready to spend some time in the law library. Check Nolo Press for DUI defense books but don't represent yourself

    5 EVERY time you go to court or meet your attorney wear a suit, white shirt, and a nice business tie. Go to the thrift store if you don't have money BUT WEARING A SUIT AND TIE IMPACTS THE JUDGE JURY AND ATTORNEYS. Also Cut your hair short and neat. No shaved head no pony tail no beard. (Your hair will grow back !) No tattoos or scars showing.....Use makeup or a bandage. Cases can be and have been won or lost based on who looks the most conservative. Wear an American flag button in your suit lapel!

    6 In court and outside of be OVERLY Courteous to EVERYONE! Open doors let Little Old Ladies go in front of you on the elevator. A juror maybe standing behind you

    7 NEVER say anything to your Attorney when someone is around even in the court bathroom or at lunch at a restaurant. I have seen 2 attorney discussing a large case involving millions and 12 attorneys screw up their case because they didn't know who I was and I was in the stall next to them.

    8 Besides your legal research check the salary rates for DA's , Public Defenders and their Investigators and their yearly budget in your county. It will be on your counties website you may find the DA's team is paid 2x what the Public Defender gets. Is that Justice? Ask your Public Defender to make it an Issue

    9 ALWAYS SEND letters to your Public Defender Certified. Also confirm your conversations with a follow up Certified letter. In a Certified letter ask that a Public Defender be appointed PRIOR to an Arraignment. Those RICH Folk can have their attorney file motions prior to arraignment..so you should be able to also.

    10 Read the US and California Constitution. Look at your case in the terms of the rights listed therein.
    If something comes up go back to the constitution ....it is OVER ALL COURT CASES AND LAWS.
    Express your constitution rights to your attorney in writing (yes here we go again) with a Certified letter.

    11.Always request a JURY TRIAL

    12 Remember If you case goes bad you may still have a viable appeal if the Constitutional issues were raised and violated or your Public defender screwed up.

    THIS CAN BE A GREAT LEARNING EXPERIENCE FOR YOU! You may even want to go law school.

    Best of luck
    Roger Wolf

  3. #3
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    Quote Quoting SKnuJr
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    I recently was arrested for DUI, in the field I blew a .08, 2 and a half hours after my last drink. I was stopped by CHP because the passenger in my car threw a cigarette butt out of the window, which caught the attention of CHP.
    Okay, so the stop was valid. This certainly indicates that the detention was valid (for the cig out the window) which is where most DUI offenses are beaten ... when they can be beaten.

    The field PBT result of .08 indicates a positive hit for alcohol, but cannot generally be used as proof of BAC (with some exceptions).

    When I was stopped, the officer saw the other passenger passed out in the back seat and asked if he was alright, before I could say anything, my other passenger said he was trashed. The officer then asked her if she had dranken, then asked me, I said I had had a few beers, and that my last drink was more than two hours prior to me operating the vehicle, which I was always taught was acceptable.
    You were taught wrong. Two hours is not generally sufficient to purge more than 1 1/2 drinks no matter your size.

    I was given the field sobriety tests, ending with the breath test. So far what I've come across online is it is a requirement that officers wait 3 minutes in between breath tests (this officer waited 2 minutes).
    The PBT in the field is simply one of the Field Sobriety Tests and is not subject to all the same rules as the mandated tests (and it is not 3 minutes, it can be two minutes). Some devices purge and test a blank in 2 minutes.

    I was then placed under arrest. I was not read my rights.
    90% of arrests do not require Miranda. Miranda is generally required only when both custody AND interrogation exist.

    I was not told I had the right to refuse the preliminary breath test,
    Then your attorney can probably get THAT test suppressed. However, the other tests will still be in.

    Your attorney can certainly bring up the officer's conduct of the SFSTs. Depending on his or her experience with DUI defense they might prevail. But, a lot depends on te officer's experience and training as well. What you see as inconsistencies or problems may not be as pronounced as you might hope. Not knowing what was done or how, I am in no position to evaluate the officer's performance on them.

    I did not smell of any "Alcoholic beverage" (they don't smell alcohol, they smell the mix that alcohol is usually added too- Odoul's beer and budweiser have an almost identical smell)
    Actually, you can. The combination of the blending of the alcohol with the other substances can cause a unique odor as it is purged from your system via breath or, more often, via the pores of your body where about 20% of the alcohol is purged. It is unique and identifiable and the phrasing is how the officers are trained and the testimony accepted nationwide for articulating that distinctive aroma.

    It is when the officer states that they smelled the odor of ALCOHOL that they can sometimes get jammed up (usually corrected easily on re-direct by the prosecutor).

    I was not swerving or speeding, the only reason I was stopped is because my passenger was stupid and flicked her cigarette at the cop car.
    That is all that is required to allow for a detention.

    I had a total of 5 beers and 3 shots of whiskey between 9:30 pm and 1:30 am, and didnt drive until 3:15 am, breath tested at 3:45, blood tested at 4:40 am.
    Then I would assume (if you were average) that your BAC would be between .05 and .09 or thereabouts. And fatigue would not increase the BAC. Fatigue might be a factor in the evaluation of the FSTs if the court finds there to be insufficient probable cause to support the arrest. If the DA dropped the case, it was likely because of some flaw with the case or poorly articulated probable cause, or poor FSTs such that fatigue could not be ruled out as a factor in the FSTs. But, fatigue did not inflate the BACs.

    What I'm looking for here is anyone who might be able to provide me with some DUI court decisions (A vs. B.) that might help me, as I cannot afford an attorney, let alone any special witnesses (such as toxicologists), I can barely afford the gas money I'm going to spend during my one month suspension to hitch rides to and from work.
    If you cannot afford an attorney, the court will appoint you counsel.

    I have requested my DMV hearing,
    What was the BAC result of your blood test? Do you know? Or do they just suspect that it will come back at .08 or greater?

    I'm also planning on filing to have the charges dismissed due to double jepordy, as I'm charged for the DUI twice (driving under the influence, and the charge specifically for the BAC of .08 or higher).
    No, you won't be. It is common practice to be arrested on both charges. You can only be convicted of one, however. It ain't "double jeopardy."

    Oh, and as for Roger Wolf's rant, you will not be appearing before a "commissioner" it will be a superior court judge.

    Oh, and Roger, the kids in your story would never have appeared before a commissioner on a felony beef. This makes me wonder where you are repeating this tall tale from.

  4. #4
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    Thanks for your replies guys.

    Roger, Im fully expecting to have to locate all information on my own. Public defenders are not reliable, but like I said, I can barely afford gas to work, let alone pay 2500 dollars for a low-rate attorney.

    cd, thank you for your bluntness and honesty. Its looking like my case will rely on discrediting the tests themselves. My blood tests results have not yet come back, so I still don't know what the exact BAC is, according to the county crime lab. I've been attempting to locate some published literature on breath tests sobriety tests and blood tests. I've found plenty of blogs on the subject, but i need a published article for it to make an impact. I know they're out there but google is giving me NOTHING, very irritating. I'm trying case study as well, as examples from other court cases will no doubt help me a little more than a report published in a medical journal, IMHO.

    I am DEFINITELY not planning on representing myself, by any means. But I know public defenders aren't gonna bend over backwards to locate this information when they can just have me plea to a lesser charge. I mean honestly, I'm still hoping my blood tests come back at .07 or lower and the DA wont even bother filing. But I'm told that almost NEVER happens in my county. Still waiting.

  5. #5
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    Quote Quoting SKnuJr
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    cd, thank you for your bluntness and honesty. Its looking like my case will rely on discrediting the tests themselves.
    That has been tried, and it rarely succeeds. Unless the officer conducting the tests really screwed them up and conducted them contrary to his training, this avenue of attack rarely prevails. If the detention cannot be suppressed (and from what you write, the odds of that are slim) then chances are your attorney will recommend a plea deal which will likely include a plea to a wet reckless per CVC 23103.5.

    My blood tests results have not yet come back, so I still don't know what the exact BAC is, according to the county crime lab. I've been attempting to locate some published literature on breath tests sobriety tests and blood tests. I've found plenty of blogs on the subject, but i need a published article for it to make an impact. I know they're out there but google is giving me NOTHING, very irritating. I'm trying case study as well, as examples from other court cases will no doubt help me a little more than a report published in a medical journal, IMHO.
    That depends on what you are trying to prove. But, understand that you are not breaking new ground, and challenging the chemical tests and the SFSTs rarely works even when done by experienced and trained DUI defense attorneys. Most DUI cases are pled out, and I suspect your may be as well.

    But, allow your attorney to look over the case to see if there are any glaring errors that can be capitalized on. Sometimes there are. Most often there are not. But, an inexperienced or poorly trained officer CAN make mistakes that could tend to jeopardize a case. You just have to know what to look for.

    I am DEFINITELY not planning on representing myself, by any means. But I know public defenders aren't gonna bend over backwards to locate this information when they can just have me plea to a lesser charge. I mean honestly, I'm still hoping my blood tests come back at .07 or lower and the DA wont even bother filing. But I'm told that almost NEVER happens in my county. Still waiting.
    Well, at .07 you can still be prosecuted. Understand that .08 is merely the per se limit. That is, it is the BAC level at which there is a legal presumption of impairment. If the results are below .08 then the state has to show impairment. If below .05 then the burden is even greater because the legal presumption is that you are unimpaired (though that is not physiologically true, it tends to be legally so).

    With luck, you will have learned not to drink and drive in the future so that you can avoid this sort of thing in the future.

  6. #6
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    I did learn, but like I said, I wasn't impaired. Impairment means not thinking straight, and in the 2 hours prior to my being stopped, I prevented a sexual assault, I talked my passenger out of committing assault, I separated her from another gentleman and I was able to talk since and maintain control over them. I also maintained control of my passenger during the entire traffic stop. Had I not, I believe she might have gone as far as to assault the officer placing her under arrest. I had full control and was completely in touch with reality. I was operating the vehicle safely, and I informed the officers of my medical conditions MULTIPLE times, which they chose to ignore. I had to demand my medication from the hospital during the blood draw, as the police simply did not care about my medical condition they asked about. I don't know if any of you know what a Pilodonal cyst is, but it DEFINITELY has an effect on your balance and endurance for physical movement, yes INCLUDING said sobriety tests. The only thing I don't have explained is the eyes, but having bloodshot watery eyes relates directly with exhaustion, no sleep, and fatigue. EVERYTHING comes into play. It has nothing to do with if the Judge believes it, just the Jury. You can't fight evidence and undeniable published proof. I'm just having trouble finding formal published proof. Having a BAC of .08 is the accepted level of legal intoxication, but can they prove my BAC at the exact time I was operating it was that high? No. Especially not if the Blood test comes back higher than .08. If it comes back lower, then that's a whole nothing thing to look into. some friends and lawyers i know swear to me that a blood test result of .07 will in fact be dismissed, or not even filed, though others tell me any DUI case the DA is handed in my county will definitely be filed with out a shred of doubt. So I have to plan on fighting this head on. One of my friends is giving me the reports he used to have his case dismissed. He blew a .09 and blood test was .12, he used a published report about breath testers having inaccuracies and a margin of error, calibration procedures, apparently the solution? can only be used twice, and if it was maintained by a certified technician for these machines. There is also a report he has about blood tests, about natural sugar alcohol, the reaction of the preservatives, temperature, etc etc, he did a budget battle as well, and he fought his public defender the whole way down, and the case was dismissed on the 3rd court date. His case was a LOT more open and shut than mine is, so its gotta be done, ill at least try. I am in the process of reading up on every aspect of the California laws, printing preparing and highlighting important passages from such law and case law, and I think the way it stands now, its 50/50. I'll know more when I get the blood test results. Do you have any other advice you may be able to offer me to help get this at LEAST dropped down to a wet and reckless? Thanks!

  7. #7
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    Default Re: First Time California Dui, Tested at the Legal Limit, Question About Suppression

    Quote Quoting SKnuJr
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    I did learn, but like I said, I wasn't impaired. Impairment means not thinking straight,
    Actually, no, that's not what it means.

    It means that a person is unable to safely operate a motor vehicle as a result of impairment by drugs or alcohol. I have the exact definition in my instructional materials at the office, but it does not include "not thinking straight."

    and in the 2 hours prior to my being stopped, I prevented a sexual assault, I talked my passenger out of committing assault, I separated her from another gentleman and I was able to talk since and maintain control over them.
    That's fine and dandy. No one said that a person whose motor skills and judgement are impaired is a critical thinking cripple, only that the physiological responses are dulled, slowed, or not functioning as fast as they need to be for the dangerous divided-attention task of safely operating a motor vehicle.

    I had to demand my medication from the hospital during the blood draw, as the police simply did not care about my medical condition they asked about.
    The police are not going to permit you to ingest anything while in their care unless it is at the specific direction of a physician, and certainly not before they obtain their chemical test. Most medications are not so critical that they cannot be done without for a couple of hours. If the jail withheld your medications when you were booked, and you were in need of medical aid and they refused to provide it, if you suffered any harm you might have a claim against the jail. Did you suffer any harm as a result of not taking your meds for a few hours?

    I don't know if any of you know what a Pilodonal cyst is, but it DEFINITELY has an effect on your balance and endurance for physical movement, yes INCLUDING said sobriety tests.
    If so, you can certainly bring that up. However, that still would not likely change anything. If the officer conducted the evaluation as he was trained, and came to a reasonable conclusion of your impairment based upon those observations, then the arrest will likely stand up as valid. Then it will come down to the chemical test. If near .08 (.06 to .10) then a plea to a wet reckless (23103.5 CVC) may be offered. If .15 or greater, no. If between .10 and .15 then you will likely have to go to trial or plea to 23152(b) CVC and maybe some lesser form of sentencing.

    The only thing I don't have explained is the eyes, but having bloodshot watery eyes relates directly with exhaustion, no sleep, and fatigue.
    Bloodshot and watery eyes are also an objective sign of alcohol impairment. By itself, it is hardly conclusive. Taken in conjunction with other observations and odors, then it can be an important component in articulating probable cause to make the arrest.

    EVERYTHING comes into play. It has nothing to do with if the Judge believes it, just the Jury. You can't fight evidence and undeniable published proof. I'm just having trouble finding formal published proof.
    Prof of what?

    An arrest requires only probable cause. That is a relatively low burden of proof, and is not something the jury decides upon. The jury will decide based upon the evidence presented as to whether or not a person was impaired. If the chemical test comes back with a BAC of .08 or greater, then by law you were impaired whether you believe you were or not.

    Having a BAC of .08 is the accepted level of legal intoxication, but can they prove my BAC at the exact time I was operating it was that high? No.
    You might argue a rising BAC ... though the state might just as easily a lowering BAC depending on statements made at the time and any subsequent investigation. It is a rebuttable presumption that you had the same blood alcohol level at the time you drove as later when you were given a chemical test, as long as the test was conducted within three hours after driving.

    So I have to plan on fighting this head on. One of my friends is giving me the reports he used to have his case dismissed. He blew a .09 and blood test was .12, he used a published report about breath testers having inaccuracies and a margin of error, calibration procedures, apparently the solution? can only be used twice, and if it was maintained by a certified technician for these machines.
    He was apparently using a challenge to the old PBT devices, not the machines currently used by every agency in CA.

    Yes, there is generally a margin of error of +/- .02 with breath machines. But, your mandated chemical test was blood, so the issue of the PBT is moot unless the officer admits that the ONLY reason that you were arrested was because of the PBT result. I doubt that will be contained in the report or presented in any future testimony.

    There is also a report he has about blood tests, about natural sugar alcohol, the reaction of the preservatives, temperature, etc etc, he did a budget battle as well, and he fought his public defender the whole way down, and the case was dismissed on the 3rd court date.
    Since I know nothing of his case, I cannot comment. There could be a host of reasons why his case was dismissed, and it may have had nothing to do with the quality of his defense. In my many years at this job and many DUI cases, I have yet to see a challenge as you describe succeed. I have seen a few try, but even the attorneys admitted they were last ditch efforts when there was nothing else to do. A battle of the experts can be quite expensive. Simply holding up a web page printout ain't gonna cut it unless the DA stipulates to the veracity and authenticity of the study or paper. The state can almost certainly present a battery of evidence to refute what you can bring forth. But, hey, f you have the time, energy and funds to mount such a Quixotic defense, knock yourself out.

    and I think the way it stands now, its 50/50. I'll know more when I get the blood test results. Do you have any other advice you may be able to offer me to help get this at LEAST dropped down to a wet and reckless? Thanks!
    If the blood test results are .10 or greater, then it's likely time to plead. If they are close to .08, a plea may also be in your best interest. If below .08, then the DA may not pursue it. But, it all depends on the county and the articulation of impairment as observed and set pen to paper will tell the tale. If the DA knows the officer to be experienced and articulate, then an aggressive DA will likely still pursue a DUI case per 23152(a) CVC believing that a jury will be convinced by the evidence that you were impaired. if the tests were marginal, and show that you might only have been a little impaired (enough to justify the arrest, but maybe not enough to show impairment) then a BAC below .08 may compel the DA not to pursue the matter.

    Understand that even skilled DUI defense attorneys most often plead their cases out. They often spend thousands of dollars mounting a defense and filing motions, and unless they can somehow get the reasonable suspicion for the detention tossed, or the probable cause for the arrest, it is usually all over. Making a fight against the chemical tests is expensive and would require experts that would cost you hundreds of dollars per hour. before you embark upon such a herculean effort, you might want to learn more about real DUI defense - not just what the blogs say, or what the DUI defense lawyers advertise on their web sites. What they advertise and highlight are things that THEY might be able to capitalize on, but most laypersons could not. Remember, they are marketing themselves and advertising that they plead out most their cases does not make as flashy a headline as offering possible defenses to your DUI case and remarking that DUIs can be easily challenged, and then listing a host of possible grounds.

  8. #8
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    Default Re: DUI, Tested at the Legal Limit - How to Suppress Test Results

    Thanks for some more of your insight, I appreciate it very much.

    One more question.

    Say, an arrestee of a DUI was on a perscribed medication, an antibiotic, and the FDA warnings say do not operate a motor vehicle until your sure how you will react to this drug, and that also the medication may alter how alcohol is NORMALLY absorbed into/cycled through/left the blood stream, alter lab results, and various other side effects, but when the medication was perscribed to you, the doctor, nor the pharmacist, read you these warnings. Further more, the bottle says nothing about this, on the label either. Would that be a valid defense point to add on to the weapons of a defense case? And say the side effects of the medication explain every bit of the behavior casuing someone to fail Sobriety testing. Then the only thing standing would be the .08 breath test, and whatever the blood tests are, higher or lower. The general realization would be the .08 breath test has a margin of error of +/- .02 percent. So the blood test, if lower, would stem to reason, under the legal limit, and not too intoxicated to drive, unless the medication was at fault, not to say the medication would come into play for the actual operation of the vehicle, if the vehicle was not drivin recklessly, or in any form that would lead an officer of the law to believe the driver was intoxicated, before walking up to the drivers window. If the doctor perscribed the medication, the pharmacist NOR the actual bottle of the medication, did not notify the patient of said warnings and possible negative reactions in turn of operating a vehicle/machinery, or the side effects, wouldn't it stand to reason, that the operator of the vehicle would not be at fault, because he/she was doing as told by his or her doctor and pharmacist? Those kind of warnings should be contained on the bottle. The print out of the said warnings is from the health care provider, and was not included with the original pick up of the perscription? The driver cannot be held at fault if the driver was told there was no warnings besides the one read to him, which have nothing to do with vehicles, alcohol, or side effects? The perscribed medication was said to be safe for every day use by a health care provider AND pharmacist, so how can the driver/patient be held responsible for anything that might result from said medication? Its the drivers responsibility not to take any medications of such results, hence why DUI is under the influence of alcohol OR drugs, but if you're told by your health care provider and pharmacist, that the drug is safe, and are provided with NO warnings of this when the medication is first provided to you, how could it be considered to be your responsibility if your doctor tells you its safe. With out a do not operate vehicle/machinery, do not take with alcohol, or other such labels on the bottle, the driver must not be held responsible, am I reading this instance correctly? Ignorance of the law is no excuse. But not being provided with the proper information for such a medication by the people who perscribe and supply it to you, that seems a little more substantial towards a DUI defense, such as being slipped a drug and not told about it (a friend's DUI case was dismised for this reason in court, once the evidence was brought into court.)

    Please, someone chime in and give me your opinions of this topic, because THIS is where the fun part of the defense begins for me (Roger haha.) Learning something I'm not sure of, for future knowledge.

    Thanks guys!

  9. #9
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    Default Re: DUI, Tested at the Legal Limit - How to Suppress Test Results

    Quote Quoting SKnuJr
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    Would that be a valid defense point to add on to the weapons of a defense case?
    Maybe. But, that would require quite the battery of medical experts to come in and testify.

    What's your budget for this defense?

    Were you taking such a medication? Or is this merely an exercise in speculative hypothetical theory?

    Ignorance of the law is no excuse. But not being provided with the proper information for such a medication by the people who perscribe and supply it to you, that seems a little more substantial towards a DUI defense, such as being slipped a drug and not told about it (a friend's DUI case was dismised for this reason in court, once the evidence was brought into court.)
    Such a defendant might still be found guilty, but might have a cause of action to sue the doctor, pharmacy or pharmaceutical company.

    DUI does not require that you have warning that the substance could impair you or not. The state does not have to prove this. The defense has the burden of proving that the defendant could not have known the substance would impair him. But, having a high BAC would be tough to beat. if the DUI were solely for a drug impairment case, then such a defense might find more fertile ground. Maybe.

  10. #10
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    Default Re: DUI, Tested at the Legal Limit - How to Suppress Test Results

    To find relevant California cases on any subject go to the law library and look for West's California Digest. This Key Number Digest contains all headnotes, classified according to West's Key Number System, for California state and federal court decisions reported from 1950 to date. The topics are listed in alphabetical order. The Key Numbers within those topics are listed in numerical order. Each topic begins with scope notes about subjects included and subjects excluded and covered by other topics. Also there is an outline of the topic, which includes a list of all Key Numbers in that topic. Each volume is supplemented by a pocket part and the full set is also supplemented by interim pamphlets.

    Another good source to find relevant cases is West's or Deering's California Codes Annotated. This title is a comprehensive library of California Codes and the California Constitution, fully annotated with Notes of Decisions. It features collateral references to the extensive line of West California products, cross-references within the California Codes, Legislative Committee Reports, Law Revision Commission Comments, and other crucial material to clarify legislative intent and place the statutory language in context. Repealed sections included in text and table of contents provide legislative history and assist in avoiding out-of-date law. Cumulative pocket part inserts and supplementary pamphlets keep the volumes up to date until they are recompiled. Simply look up the charging statute(s). There will be cases collected there.

    If you're serious about preparing a defense, it would be a good idea to read California DUI Defense Publications, such as California Drunk Driving Law, by Paul Burglin, Barry Simons, and Ed Kuwatch.

    http://www.jamespublishing.com/books/cddl.htm

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