Impaired driving

Asked 11 months ago - Downey, CA

How does the prosecutor prove "impaired driving" for DUI (a) count, if one is stopped at a checkpoint, questioned, asked to perform FST's and subsequently arrested with a PAS of 0.08. Also, there is no accident/calamity involved to prove "impairment or bad driving."

Additional information

DUI (a) count, in my understanding, is driving under the influence of alcohol/drugs to the point that your driving abilities are impaired when compared to a sober person.

Attorney answers (10)

  1. Anthony Janji

    Contributor Level 10

    9

    Lawyers agree

    Answered . You are better off discussing your case with a criminal defense attorney. Many lawyers offer free consultation for an hour. That will provide the best approach in your case.

  2. Andrew Stephen Roberts

    Pro

    Contributor Level 20

    8

    Lawyers agree

    Answered . That is why you retain an attorney .

    Andrew Roberts (818) 597-0633/ (805) 496-7777
  3. Margaret Forbes Mendoza

    Pro

    Contributor Level 9

    8

    Lawyers agree

    Answered . Checkpoint cases are challenging for the prosecution because there is no actual driving observed "consistent" with impairment. They will focus on all of the field sobriety tests, the results of which will be attacked by defense expert. Is this a case where you refused to provide a blood/breath test after arrest? If a blood test was taken and it is .08 or above, then the prosecutor will add that charge to the complaint. You should speak to an attorney as there are several ways to attack this charge.

  4. Michael Kevin Cernyar

    Pro

    Contributor Level 20

    7

    Lawyers agree

    Answered . The PAS will unlikely be used, however, the other breath/blood test will be used. The .08 is rebuttable, but the burden is on you and your defense team. There's many ways to approach this so I recommend that you consult with an attorney. Good luck.

    The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice... more
  5. Alexi Ozols

    Pro

    Contributor Level 8

    7

    Lawyers agree

    Answered . I agree with the lawyers above a free consultation can explain this. The prosecutor will use your driving before the stop (none because of the checkpoint) your field sobriety tests against you and any statements you made.

    Good Luck.

  6. Neil James Fraser

    Contributor Level 15

    7

    Lawyers agree

    Answered . 0.08% BAC is the reading at which you are presumed to be DUI. If the blood or breath test came back at that BAC and all procedures were correctly followed, the prosecution does not have to present evidence of impaired driving - you are presumed to be impaired at .08% or above.

    The results need to be looked and carefully to verify their accuracy. But evidence of impaired driving is really only necessary where the prosecution files DUI charges against you with a BAC between (usually) .05% and .07% BAC.

  7. Christopher Irvin Simser

    Contributor Level 19

    7

    Lawyers agree

    Answered . As my colleague suggests, and experienced DUI attorney can review the facts of your case with you. He or she can then explain the appropriate legal standards and apply them to those facts.

    Many qualified CA DUI attorneys post here. You can also make use of the "Find a Lawyer" function here on Avvo to assist you in your search.

  8. Dan Eugene Chambers

    Contributor Level 19

    5

    Lawyers agree

    Answered . Many of us on Avvo provide a free consultation--contact some attorneys who can provide you with specific insight on the case.

  9. Daniel M. Fox

    Contributor Level 12

    4

    Lawyers agree

    Answered . DDAs prove it by using the SFST/FST performance along with any BAC evidence they may have. (At 0.08 there's a legal inference/presumption that the driver is impaired. CVC23610) The lack of "bad driving" is to your benefit.
    Retaining a qualified attorney would almost definitely be in your best interest. Checkpoint stops add a whole new facet to the defense of any DUI, and with yours having a "borderline" BAC and no driving to speak of....you owe it to yourself to at least talk to and interview many of the qualified DUI attorneys who offer free consultations. Ask yourself this: "How much is a wet worth to you when compared to a DUI? Now, what about a dry or two movers? Or, a dismissal?" How much effort are you willing to make to at least begin to investigate these possibilities with a qualified attorney?
    Get an attorney. I doubt you'll regret it.

  10. Michael Jon Fremont

    Pro

    Contributor Level 17

    3

    Lawyers agree

    Answered . The prosecution will generally rely on the observations of the officer and
    your performance on the field sobriety test this is ripe for
    cross-examination as most of observations don't mean much and most field
    sobriety tests are meaningless or performed poorly by the arresting officer
    with that low number on the pas you should get an attorney

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