If blood test is suppressed and there is no PAS, what is the likelihood of still going to trial on 23152(a) charges in CA?

Asked about 2 years ago - Encino, CA

Blood suppressed, no PAS.
Do Prosecutors still like to go to trial without chemical tests?

Additional information

NO PAS or FST performed and thinking of getting representation

Attorney answers (5)

  1. Neil James Fraser

    Contributor Level 15

    3

    Lawyers agree

    Answered . I agree with all the answers. Although there is a good chance for a dismissal and certainly there will be no prosecution under 23152(b) VC (over the presumptive legal limit of .08% BAC), the prosecution could still go forward on an (a) count, which focuses more on police observation of impaired driving. However, good representation should secure you a dismissal. Do you have an attorney working for you on this case?

  2. Elliot Rahmim Zarabi

    Pro

    Contributor Level 18

    2

    Lawyers agree

    Answered . If the blood test is suppressed the likelihood of the case being dismissed is very high. The question is do you have grounds for the suppression? Before hiring an attorney speak to one first and see what if anything can be done. Prosecutors do not like going to trial without any evidence of alcohol or drugs in the system.

    Elliot Zarabi
    www.FreeCriminalConsultation.com
    213-612-7720

  3. Daniel C Grupenhagen

    Contributor Level 15

    1

    Lawyer agrees

    Answered . The unusal thing about an (a) charge is that no PAS or Blood is needed. The case can proceed on the testimony/observations of the arresting officer who typically states seeing the "objective" symptoms of alcohol being bloodshot watery eyes, slurred speech, the presence of Horizontal Gaze Nystagmus, and can describe your performance on the the FST's.

    I'm not saying they will automatically get a conviction, but yes the case can proceed to trial. I hope you have an attorney and s/he can discuss the case with you in detail to your satisfaction.

    Contributions on AVVO.com in no way create an attorney-client relationship nor are they intended to be relied upon... more
  4. Mark K Rosenfeld

    Contributor Level 15

    1

    Lawyer agrees

    Answered . 9 out of 10 prosecutors will dismiss a case where there are not FST's and no chemical tests. There is not enough to convict with just driving and odor of alcohol.

    Of course, every DUI case is different and you should consult an experienced DUI defense attorney in your area... more
  5. Amber H Lunsford

    Contributor Level 12

    Answered . As other attorneys here have indicated, the (a) charge is actually tougher to get rid of than the (b) count, which requires a BAC of .08 or above (unless yu are under 21). Basiacally, to prove up a 23152(a) at trial, a DA needs to show that you did not operate your vehicle with the same care and caution as a sober person because you were under the influence of alcohol or some mind altering substances. I have seen them attempt to do this in a number of ways, including such gems as breaks skidding on a newly wet street, being the victim of a hit and run, stopping an inch in front of the limit line of an intersection, or crossing a lane line. They have had mixed success with these, but the important thing to remember is that, in my experience, the DDA's prosecuting DUI's are generally newer attorneys who have things to prove to make it through their probationary period or to move into felony teams. This should not matter to you, but it does. It affects negotiations and the willingness (and ability, remember new DDA's don't have much discretion) to dismiss charges.

    I hope you are working with an attorney who is experienced in DUI law. This person will be best equipped to negotiate on your behalf and argue for dismissal if the blood test is suppressed. If there has already been a suppression motion granted, I can only assume that you are. If there has not, you need to be prepared that it can be difficult to do so with California's implied consent law. There are ways, but most judges don't want to seem easy on DUI's so they need an attorney who can give them a compelling reason to do so and good cover if they do.

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The definition, charges, and penalties for driving under the influence (DUI) vary by state and depend on a number of factors.

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