Any good legal advice for this interesting DUI? I assure you if you read it you'll have fun with the defense

Asked almost 2 years ago - San Francisco, CA

driving in the city with a friend, got into a car accident. I saw a yellow light, other party said it was a red ( lost for insurance already), my airbag deployed and hit my face hard, glasses were knocked off in the vehicle the police arrived and I was being very nice with them answering the questions volunteer ( no idea i could say no) but was polite and thorough. Before i was administered FST's, i asked for my glasses two times ( legally i can't see without them, wearing for 23 years, for driving or work) the officer ignored both times. I was dizzy but still did the tests. failed of course. Arrested within 3 mins. then magically he found my glasses! WOW!!! Can I fight it because i couldn't see? ( only reason i was arrested) no breath test, just blood 3 hours later

Attorney answers (6)

  1. Greg Thomas Hill

    Contributor Level 20

    4

    Lawyers agree

    5

    Answered . You certainly can contest the arrest as being based upon field sobriety tests that were "garbage in, garbage out" because you could not see. I would first read the police report, however, before starting such a fight. You would want to retain a vision expert who could testify about the effects on even a sober person of having to perform such tests without glasses. That same expert would certainly want to know the specifics of your eyeglasses prescription.

    It also naturally matters on what field sobriety tests you performed. Some may be more dependent on good eyesight and thus susceptible to poor performance without glasses. On other tests, it might be a stretch to attribute a failure to lack of glasses.

    A larger issue that you seemingly gloss over is the time of the blood test. If the test was over three hours after the accident, Vehicle Code section 23152(b) will not be used against you and you cannot be charged with violating it. The BAC must be from a breath or blood test administered within three hours for the prosecution to avail itself of the 23152(b) presumption that you had such a BAC while driving.

    Reverse extrapolating the BAC (based on an assumed rate of metabolizing ethanol) is widely criticized, even by some of the experts that prosecutors regularly rely upon.

    To get an accurate time for the crash, you might want to go back to the intersection in the city and see if there are any store security cameras nearby. You lawyer can write a demand to preserve evidence to each store owner, asking for a copy of the video tape. Such a tape may also contain valuable evidence as to liability for the crash.

    Best of luck. I would certainly retain an experienced DUI attorney to defend you.

  2. Matthew Murillo

    Pro

    Contributor Level 19

    6

    Lawyers agree

    Answered . This isn't that uncommon. You can fight it, but its going to be a defense you bring up at trial as the DA is unlikely to give it any weight in negotiations. Feel free to call if you want to discuss further.

    Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation... more
  3. Eric Paul Ganci

    Pro

    Contributor Level 12

    5

    Lawyers agree

    Answered . Those facts would definitely cut against the officer's credibility. And trials can be "bad cop, bad case" for sure. For DUIs, the big issue is what the blood estimates come back as, how they tested your blood, how they retained your blood before testing, are you on medication...all the science involved. DAs love that BAC number, so it's a balance of matching the poor police work with poor science work.

    Disclaimer: This was not legal advice, and in no way formed an attorney-client relationship.
  4. David Alexander Blair

    Contributor Level 8

    4

    Lawyers agree

    Answered . The issue of the officer conducting the FSTs without allowing you to wear your glasses will be relevant as pointed out by the previous answers, but there are of course many other important factors such as your blood test results and details surrounding your drinking pattern, any factors related to the accident that may contribute to poor FST performance, who did and how the blood test was performed, observations and statements made by your friend, witnesses the other driver,etcetera. If you do not yet have an attorney you should consult with one to discuss your options and see what can be done.

  5. Darryl Wayne Genis

    Contributor Level 7

    2

    Lawyers agree

    Answered . The glasses are the least of it. You need to find a good DUI lawyer in the Bay Area and consult with that lawyer. I can think of at least 10 in that area that you would be well represented by. They are all listed on AVVO. The facts you related on this board will serve you well in fighting this case. I could win it for you, but would have to charge you more than the lawyers who are already in the area where you go to court.

  6. Michael James Kennedy

    Pro

    Contributor Level 12

    2

    Lawyers agree

    Answered . You have to have a lawyer for this; it is fightable – don’t try to do it yourself, anymore than you would attempt brain surgery on yourself with an electric drill!!!!!!!!!!

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.

 

Ask now

23,524 answers this week

2,901 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

23,524 answers this week

2,901 attorneys answering