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  1. #1
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    Sep 2014
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    Default Do the Police Have to Give You a Breath Test Before a DUI Arrest

    My question involves criminal law for the state of:

    So I got pulled over because of speeding, they officers then had to come out of the car to perform general sobriety test apart from the part that they didn't make me take a breathalyzer until they drove me back to their station. It wasn't even until I was told to go back to the station was I told that I was pulled over for an DUI instead of a warrant arrest (I thought I had one).

    So my question is, is it worth fighting the case for because of this? I was told that I can fight it for "Lack of Probable Cause" because it is required for the officer to give me a breathalyzer test become taking me in?

    If no, I am planning to just have a public defender pleading guilty. Is their any chance that I can reduce the penalty, if so, what are the common things I can bring up for it?


    Thank you for reading!

  2. #2
    Join Date
    Sep 2005
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    California
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    No, they are not required to give you a breath test for an arrest. There is NO breath test requirement for probable cause.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  3. #3
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    Sep 2010
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    You need to tell us what state.

    What makes you think there's not enough probable cause? All those FSTs are all he needs to do to establish such cause. Your statement that you've been drinking (ANY AMOUNT) is also PC in many jurisdictions. The portable breath tests aren't reliable evidence anyhow (though they might be suitable for probable cause purposes, they're not as CDW says required). In fact, if you also had an open warrant, that's all they needed to arrest you. Once arrested for anything, in many jurisdictions, they're allowed to ask for a breath test. The fact you were driving gives implicit consent for such.

    You should discuss with your attorney (PD or otherwise) what you should do. Never plead guilty without legal counsel as to the consequences. Public defenders are for the indigent, not just some default for people unwilling to pay for their own attorney.

  4. #4
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    Sep 2014
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    I am from California, and I got the ticket from the San Francisco HP. Since it wasn't a probable cause, I blew a 0.165 (Yeah pretty high) I read that I can also use the "Rising Blood Alcohol Content" as a defense as well since they didn't do a field breath test? The last drink I had was about 2 hours ago and I had a large meal prior to the arrest. didn't think my alcohol was still that high.

    I tried to contact a PD, but apparently I can only speak to him on the day of the court date... I wanted to find my own attorney but I don't know where to start, I heard they may be able to reduce my penalty and fine fees by a big difference so it is technically cheaper to hire an attorney for around 1000-1500 to help reduce the sentences.

  5. #5
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    Jul 2010
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    Quote Quoting strupan
    View Post
    I am from California, and I got the ticket from the San Francisco HP.
    SF PD or CHP? There is no SF HP.

    Quote Quoting strupan
    View Post
    Since it wasn't a probable cause, I blew a 0.165 (Yeah pretty high) I read that I can also use the "Rising Blood Alcohol Content" as a defense as well since they didn't do a field breath test?
    That defense is most successful, if at all, when dealing with a BAC or .08 or slightly higher. You were twice the legal limit, I don't see that flying. Juries can buy it rising a little. In your case, a little would have put you well over .08 at the time of the stop.

    Quote Quoting strupan
    View Post
    The last drink I had was about 2 hours ago and I had a large meal prior to the arrest. didn't think my alcohol was still that high.
    No one ever does.

    Quote Quoting strupan
    View Post
    I tried to contact a PD, but apparently I can only speak to him on the day of the court date... I wanted to find my own attorney but I don't know where to start, I heard they may be able to reduce my penalty and fine fees by a big difference so it is technically cheaper to hire an attorney for around 1000-1500 to help reduce the sentences.
    Google DUI attorney and add your city/county. I'm sure there will be lots of results.

  6. #6
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    Everybody thinks they passed the FSTs,

  7. #7
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    Quote Quoting strupan
    View Post
    I am from California, and I got the ticket from the San Francisco HP. Since it wasn't a probable cause, I blew a 0.165 (Yeah pretty high) I read that I can also use the "Rising Blood Alcohol Content" as a defense as well since they didn't do a field breath test? The last drink I had was about 2 hours ago and I had a large meal prior to the arrest. didn't think my alcohol was still that high.
    Youy can pay an attorney a lot of money to argue anything. But, most DUI attorneys also tend to plead the cases out. They will evaluate the case and look for holes, but, the fact no breath test was done in the field is really moot. Legally, any test done within three hours is considered valid for the time of the stop.

    Food does NOT purge alcohol from the blood faster, it only slows the absorption rate.

    I tried to contact a PD, but apparently I can only speak to him on the day of the court date... I wanted to find my own attorney but I don't know where to start, I heard they may be able to reduce my penalty and fine fees by a big difference so it is technically cheaper to hire an attorney for around 1000-1500 to help reduce the sentences.
    NO attorney will only cost you only $1,500. A private attorney might cost between $3,500 and $5,000 if you do NOT go to trial. An attorney that specializes in DUI will probably start at $10,000 and there will be no guarantees.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  8. #8
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    If you claim the last drink was TWO HOURS prior, you're not going to be able to make the rising BAC argument even if the court is inclined to accept those things. The rising BAC argues that the alcohol in your stomach was still being absorbed and hence you weren't as intoxicated at the time you were driving as you were by the time the chemical test was performed. Even with a heavy meal, two hours will be way more then enough time for the alcohol to have been absorbed. The rising BAC window is typically 30 minutes or less. Further, as stated, .16 is going to be hard to argue.

  9. #9
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    Sep 2005
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    California
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    Default Re: Do the Police Have to Give You a Breath Test Before a DUI Arrest

    And, given the time delay, the state could make a diminishing BAC argument arguing that two hours prior your BAC was at least .30 higher.

    As flyingron says, .16 is a tough nut to crack. Even a high-priced DUI attorney is likely to encourage you to plea unless they can identify some serious holes in the state's case, and even then it is likely that after a couple of expensive motions, a plea (or a trial) will still be in your future.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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