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First offense DUI discovery BAC level was .08. what are the chances of dismissal?

San Bernardino, CA |

There was a mistake in the court with my name. I finally received a court date and I'm wondering what are the chances with a case of .08 BAC getting dismissed? I also don't need to attend the DMV hearing that is a day before my court date.

Attorney Answers 8


  1. DA's don't usually dismiss DUI cases just because they are borderline Breath or Blood results. But, I'm curious why you don't have to attend to the DMV hearing ? Did the DMV notify you of a set aside of your case?


  2. Whether a case can be dismissed depends on a lot of factors, such as whether evidence was illegally obtained, whether probable cause existed for your detention and a host of other things. Given your BAC, you have an excellent chance to negotiate for a much better overall result. But you need an attorney to guide you. Many of us on Avvo provide a free consultation. Not quite sure I understand your comment about not attending the DMV hearing.


  3. Has the DMV set aside any suspension? As far as getting it dismissed, we would need to know more facts about drinking history, breath or blood and other relevant factors. San Bernardino is a good court for negotiating cases and whether it can be dismissed, or reduced depends on a lot of factors. I would get an attorney who is familiar with the court and DUI defense and go from there. It is hard to give you your "chances" on a dismissal without knowing all relevant facts. Start with a free consultation and go from there. Good luck!


  4. Unless the DMV already set aside the APS action, you should not fail to appear on that and you should have an attorney defend you in that, it sounds defensible. Also, there are many defenses to DUI cases but they need to be worked up, they don't just go away because you think the evidence is a close call. You have to fight them. Even at .08, that's borderline, but they'll still file it and you'll still have to deal with it. Good luck, but you'd need less luck if you have an attorney with you.

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  5. No, the DUI won't be dismissed because of an .08 BAC. I practice in San Bernardino alot. That doesn't happen. It is likely to be reduced, but not outright dismissed.

    Second, whatever info you are getting regarding DMV, its wrong. If you were .08, unless you have an attorney, you ABSOLUTELY HAVE TO ATTEND THE DMV HEARING! Getting it reduced I court does nothing for DMV. The fact that you have a stay only means no suspension is in effect. It doesn't mean no suspension will be made. At .08, DMV may have enough to suspend if you don't fight it.

    You need to start discussing the case with an attorney to start an investigation under way. Don't get into DMV or court expecting a dismissal/reduction because you are borderline. That only deals with the 23152(b) charge, not the 23152(a).

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  6. If you don't need to attend the DMV hearing is it because it was canceled? If so, why? If you got a set aside it definitely increases the chances you can beat your DUI. It is extremely unusual for the DMV to dismiss a case unless the blood alcohol concentration was below the legal limit. If you go to court and charges have been filed, I recommend you contact a DUI defense attorney, send like you have a good chance of avoiding a DUI conviction.


  7. Do you know for a fact that your result was a .08 or are you assuming that this was a result because the charge is referred to as ...driving with a .08 or higher? The DA will still pursue, either a DUI or alternative charge, based on the driving and the tests performed. The DMV will not pursue if it is under a .08. Why do you assume there is no DMV action against your license? Did you receive a temporary license when you were arrested and how long ago did the incident occur? You should speak to an attorney about the specific of your case...good luck!!


  8. It's unlikely to be dismissed. Depending on where it occurred, you may likely be offered a "wet reckless," which is a lesser offense. This would depend on a number of fact specific issues, as well as, like I said the stance of the DA.

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