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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

Posted

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?

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2 comments

Asker

Posted

well, i have a "stay/hold" right now and it is up to november 4. So i'm using a temporary license right now until then. My court date is in September.

Jon William Woolsey

Jon William Woolsey

Posted

Your stay of the suspension is good until 11/4 or until there is a conviction in court or a determination at your DMV hearing that you should be suspended. The stay does not mean you can ignore the hearing date that was previously set. Get an attorney now to continue that hearing until they've had a chance to work on a defense.

Posted

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.

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1 comment

Kevin Samuel Sullivan

Kevin Samuel Sullivan

Posted

Impossible to say without an evaluation of the case. it is important to remember that there are usually two charges per se and non per se. You may be trying for a reckless but it is impossible to say without a detailed consultation and review of the evidence. Hire a lawyer. Good luck.

Posted

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!

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3 comments

Asker

Posted

I don't have any drinking history. This was my first violation ever.

Asker

Posted

The DMV has not set aside any suspension. I'm using a temporary license at the moment.

Stephen Troy Allen

Stephen Troy Allen

Posted

Ok.. Sorry I was vague on drinking history. It is relevant to know start/stop times of drinking because that is how we back calculate, and establish possible defenses such as a rising BAC depending on your drinking history the night in question. For example, if you had a shot or two shots just before leaving the bar and being pulled over, you may have a possible defense. These should all be discussed with an attorney in a private, confidential, FREE consultation - This is not the best forum! Contact an attorney and getting this case reduced may happen. You should also consult with an attorney regarding the reason for the stop.. Good luck

Posted

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.

No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia

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3 comments

Asker

Posted

Well, the DMV had already put a stay/hold on my temporary license situation so they extended it to November.

Anthony Michael Solis

Anthony Michael Solis

Posted

Yes but is that pending the hearing? You still need to win that!

Asker

Posted

Well, my lawyer stated that there's a possibility he's going to cancel the DMV hearing because i've been on a temporary license since I got arrested.

Posted

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).

Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.

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6 comments

Asker

Posted

I do have an attorney. He's the one who stated that my BAC level was .08. My DMV hearing had been postponed prior because he hadn't been able to receive the discovery.

Matthew Murillo

Matthew Murillo

Posted

Then this question should be posed to your attorney. It's impossible for us to give you any meaningful advice because we don't know facts on the report or facts a subsequent investigation into calibration logs, certifications, video/audio or any of those types of things that play a big role in the case.

Matthew Murillo

Matthew Murillo

Posted

Reading some of your other comments has me concerned. There is never a reason to cancel a DMV hearing (that an attorney should have). You being in a temporary license doesn't mean you've had it long enough so "that's it". You are entitled to while your case is pending. It seems there may be some miscommunication between you and your attorney. Make sure your attorney doesn't mean that he is going to cancel the DMV hearing. It makes it sounds like he's given up because the results came back at .08 - don't give up.

Asker

Posted

The last thing he stated was that I would be getting a letter to appear in court in September and that he got the discovery.

Asker

Posted

Also, i'm pleading not guilty but that's obvious.

Matthew Murillo

Matthew Murillo

Posted

Ok that's different than "canceling" the DMV hearing. Good luck!

Posted

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.

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4 comments

Asker

Posted

My lawyer had mentioned that he was more than likely going to cancel the DMV hearing. Right now I'm on a temporary license and the "Stay/Hold" is until November.

Matthew Murillo

Matthew Murillo

Posted

If you are .08, DO NOT CANCEL the DMV hearing. That means you will lose and your license will be suspended, even if you get the DUI reduced in court. You must try for the win. The stay is there while the DMV case is pending and is nothing more then a suspension preventer.

Asker

Posted

My lawyer stated that HE would handle the hearing and that I would not need to be present.

Asker

Posted

He also stated that the only thing I needed to be present for was court date that's happening the day after the DMV hearing.

Posted

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!!

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3 comments

Asker

Posted

My lawyer stated that it came back .08. Not .08 or higher. Just .08. My case had been postponed because my lawyer hadn't gotten the discovery until now. My arrest date was june 7. I'm already on a temporary license at the moment.

Margaret Forbes Mendoza

Margaret Forbes Mendoza

Posted

If your breath or alcohol result (not based on a PAS-preliminary alcohol screening) test was a .08, then there would be DMV action. Initial discovery is ready at the arraignment. If there is an administrative per se hearing (DMV hearing) the required discovery(DS-367 and accompanying reports) is forwarded to the attorney to prepare for the hearing. Your temporary license is only valid for 30 days from the date of arrest (or when the temp license is given to you, which is usually when released). So unless you have had a hearing or are waiting for the results, in which case the suspension would be "stayed" your license may already be suspended, and you should not be driving. You may want to clarify with your attorney.

Margaret Forbes Mendoza

Margaret Forbes Mendoza

Posted

my apologies, if your breath of blood...

Posted

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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