If my BAC was above .16, is there ANY CHANCE it could be lowered to a Tier II offense? This is my first DUI offense. I have never been in trouble with the law previously. Would it be helpful to complete the CRN, AAHS, and community service prior to my preliminary hearing? Please advise. I appreciate any and all insights.
There is a chance that your charges can be amended, but without more specific information, it is hard to say.
Because you have not yet had your preliminary hearing, I am puzzled as to why you would assume that you will be required to complete a CRN, AAHS and community service. Generally, those obligations are imposed by the court or the district attorney as a condition of ARD or a plea agreement. Keep in mind that under the United States Constitution, you are innocent until proven guilty; the Commonwealth has the burden of proof and will be required to meet that burden in order to prove their case.
To me, it sounds like you have talked with friends or relatives who have been in trouble or were charged with a DUI in the past. Because every case is different, you owe it to yourself to sit down with an attorney to discuss your interaction with the police and the options you have moving forward. Contact a qualified attorney who, like me, routinely handles DUI matters. They will be in the best position to assess the merits of your case and advise you appropriately.
Thank you for your question and best of luck!
As a first time offender you may be eligible for a program known as ARD. Upon completion of the program the charges are dismissed and you can have the case expunged. It's a rare instance where the District Attorney would agree to change the tier and I don't see that happening here. Review this with an experienced criminal defense attorney and have them advise what is in your best interest .
Blood Alcohol levels are constantly changing. They go up in a non liniar progression and then you get to your plateau which is short lived (usually 5 - 15 minutes) and then they go down in a liniar progression at an average rate of 0.015% per hour. It is generally impossible to plot a BAC to an earlier time from a single chemical test result. The attempt to do so is called "Retrograde Extrapolation" and is "A very dubious practice" according to Dr. Allen W. Jones, one of the leading experts on the topic. Dr. Kurt M. Dubowski agrees with him, and both gentlemen have published this opinion several times in peer reviewed works.
I agree with my colleagues. As an aside, you are hoping that your second test indicates a higher BAC. This would mean that your BAC was rising and you have a stronger argument to assert that your BAC at time of operation was lower than a .17 due to the absorbtion rate of alcohol into the bloodstream.
More info would be needed to address your question fully. However, it SOUNDS like you are asking whether your BAC could fall below .16 from the time of the first test to the second. From your explanation, it appears that you "blew" a PBT test, which is NOT admissible in court, it is only used for purposes of establishing probable cause. If this is the case, the results of your blood test will be determinative of the Tier charged based on BAC results. IF your blood test reveals a BAC in Tier II, then you would be charged accordingly. So, yes, depending on when you consumed alcoho and other factors, your BAC could fall in that intervening hour. However, if your blood test reveals a BAC in Tier III, the DA will not just "lower it" to a Tier II offense. Consult a DUI attorney in your area. If you have further questions, feel fre to contact me at 610-436-5615.
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