I was arrested for a DUI and I am in the DMV administrative process. I believe that the MVARS will help show that the officer’s statements might have been his assumptions, not facts. For example, he stated I had slurred speech and walked slowly to prevent myself from falling as I swayed back and forth, and that I had not performed any tests as directed with a .088 and then .075 BAC then a .09 then .08 BAC.
If I could obtain the video it would help prove that the officer might have made a mistake. Also, how does the BAC go from high to low then high again? To my understanding those wouldn't be valid results, but I could be wrong. Thank you so much for your time and knowledge. I am very grateful.
You definitely should get an attorney to handle both the DMV and the criminal prosecution. A DUI incident can be a fairly complicated defense if done correctly. If the plumbing in my house broke, I wouldn't try to fix it myself, I would hire someone. You should get an experienced DUI attorney.
For the DMV hearing, you can subpoena MVARS from the arresting agency, although it can be tricky determining which office you need to subpoena, as some may have a special office and address for subpoena clerks who handle these requests. Additionally, for the criminal case, a discovery request can be made with the court for the MVARS as well as other additional discovery.
It is not uncommon that BAC levels come back fluctuating slightly (within .02), and this is acceptable pursuant to Title 17. Based on your BAC levels though, there are many arguments that can be made in your defense in addition to potential lack of probable cause arguments. I would recommend that you consult with and hire an experienced DUI attorney to handle both your DMV and criminal cases.
BAC goes from high to low and back again within a certain range due to inadequacies with the testing device or because of other events such as burping, vomiting, or anything which will bring alcohol up into your mouth.
To obtain the video, you have to go through the criminal discovery procedures set forth at Penal Code 1054 et. seq. You cannot get it with a subpoena.
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