She only had a BAC of .054%. Since it was an officer without his lights on that hit her, she is getting the book thrown at her. The only reason I know the BAC is because I overheard it being told to the officer. He later confirmed this to be true. The police were acting literally like animals and not giving us any information. And this is in the Emergency room at the local hospital. My question is, can they legally be holding her right now?
The sad part is yes, they have the power to arrest her as long as they can give probable cause (which for DUI arrests is very, very small). But she should be able to bail put, depending on the circumstances and if the cops are alleging injuries, etc. Sounds like a lot to uncover, and a particular defense to approach. Assuming it's a breath test because you know the BAC, there could be other reasons besides alcohol that the machine read a .05. Plus other variables and ranges of uncertainties. Not to mention if you're below a .05, CA law presumes you to NOT be under the influence for purposes of driving.
The police absolutely have a right to hold your mother under these facts. However, they cannot hold her for an indefinite period of time. She is entitled to bail and should be brought before a Judge (if her medical condition permits) for arraignment within 48 or 72 hours (depending in the day of her arrest). She needs a good lawyer!
Debra S. White, Esq,
Los Angeles Criminal DUI Defense Attorney
My colleagues are correct - the police can hold her for a limited time. If it is Long Beach P.D., their conduct, sadly, is not surprise.
You can be charged with a DUI under 0.08% BAC if the prosecution can prove impaired driving (0.08% is only the presumptive legal limit, e.g. no other proof needed other than a BAC of 0.08% or more).
If your mother has not been released, or has been cited and released, this should be fought 100%.
Call me for a consultation if you wish. There is no fee for that. (213) 324-4206.
Yes she can be held technically for DUI even if she is below a .08. The problem she has, as Mr. Fraser indicates, is that you are dealing with a notoriously bad and corrupt police department. We have had innumerable cases in Long Beach where Police and Prosecutors act together in order to achieve results that are at the least unethical and at the most outright corrupt. In dealing with Long Beach PD, you need to have an aggressive attorney familiar with LBPD's track record. We have excellent results in Long Beach, but it takes sometimes a serious fight to get out a situation in that jurisdiction. If I can answer any further questions for you feel free to ring me anytime.
Good morning, there is a lot to consider here. Based on the information provided, the police may believe that she was driving under the influence. Even though a person's alcohol level is below the legal limit does not mean they are not impaired. Additionally, the police may believe she is driving under the combined influence of alcohol and some other substance (i.e. prescription meds).
Also, it is possible the police believe she was driving recklessly, independent of the alcohol level.
Also, any time a person is thought to be driving recklessly or impaired, while transporting anyone under the age of 14, the accused may be charged with an additional allegation of child endangerment.
My suspicion is that she is at the hospital for a "pre-booking" medical exam. It is likely they will want to take a sample of blood from her for additional testing. So long as the police believe she is a suspect in a crime, they can detain her at the hospital until she is cleared for booking at the County Jail.
Once she is booked (or released to medical staff for treatment of injuries), she will receive a court date.
There are so many variables in a case of this nature that it is critically important that you consult with a qualified DUI attorney as soon as possible.
Your mother can be arrested on these facts. Her BAC is very low and barely above a presumptive limit that she is not impaired to drive. Without bad driving on your mother's part, this would be a tough case to prove. Because the consequences could be severe (losing her license and mandatory jail depending on what is filed), she needs a lawyer right away. If there were other chemical tests done showing a BAC over .08%, she could have DMV problems too and needs to call them within 10 days to request a hearing. Unless she is released on her own recognizance (without having to post bail) or posts bail, they should bring her to court for arraignment within 48 hours. However, if her medical condition prevents that, then it could be longer. Call an attorney right away.
Christopher J. McCann
Long Beach Area Office
5220 E. Clark Ave.
Lakewood, CA 92701
Thanks for your question regarding your mother's case. Reading between the lines, it appears that your mother was in the Emergency Room, and was then arrested and taken to jail for DUI?
I'm sorry to hear about how the police treated you and your family. If she was arrested, the police have to bring her before a judge or commissioner within 48 court hours. She may be released before then and given a future court date. If she sees a judge, they will read her charges, and ask if she wants an attorney, so it may be important to be ready to have an attorney to represent her best interests and professionally handle the case.
The prosecutor may decide to go through with the case, if they believe that, even at a .054%, she was under the influence, or may go ahead for political reasons. For that reason, your mother would be well served with a professional helping defend her in this case.
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