Last month, I had a car accident and I tested just below the level of legal alcohol limit in CA. Alcohol had nothing to do with my accident I was avoiding an on coming car and crashed into a parked car. I am currently on probation. The police took me in to the station to take the DUI test because they felt I wasnt being cooperative at the scene because I had a concussion. I am STILL currently being treated by doctors. I was released within 1 hr. because my tests cleared, i was sent to a hospital and my wife picked me up. I was never booked and I never got a citation. As of 2 weeks ago I saw my probation officer and it didnt come up in his records nor did we ever see it online nor at the DMV. Yesterday, i got a letter to appear for arraignment for DUI in 2 weeks. I am totally confused
Being released from custody doenst mean you were cleared. It just means you were released. Its standard procedure for misdemeanor cases.
As for the DUI, just because you feel alcohol was not a contributing factor to the accident, doesnt mean the District Attorney will too. They will try to use the accident to show impairment. And yes, they can shoot for a DUI conviction, even if you were below the legal limit of .08% by alleging violation of VC 23152(a). That sections looks to punish for impairment due to alcohol or drugs, regardless of BAC level. VC 23152(b) - the .08% or greater section - simply establishes a rebutable presumption that you were impaired if your BAC was .08% or more.
Unfortunatley, things don't always happen quickly, so the fact that you and your PO never saw it online doesnt mean it wasnt there. It takes time for the officer to write up the report and forward it to the DA. After the DA reviews, they decide whether to gile anything. Officer rarely ever directly file a case.
Meet with a couple of local DUI attorneys and discuss the details of the accident and arrest. Better to start preparing yourself now.
The police send the report to the prosecuting office and the prosecuting office decides whether or not to file. They probably feel (even though I am sure you had nothing to do with the accident) that they can prove you were unable to drive based on the fact that you got into an accident. Also, if you submitted to a blood test it may have come up higher than the breath sample. This sometimes happens because the preservative in the blood vile is not working correctly. In other words, there are a ton of reasons this could happen, the above are just a few.
The arresting agency would have turned their report over to the District Attorney's office. The District Attorney's office probably felt they had enough evidence to go forward with at least the "a" count, which is driving while under the influence of alcohol (does not matter that your BAC was below .08%). Therefore, they "charged" your case. You should consult with a local DUI attorney before your court date. Also, if your BAC was below .08%, you will not have any DMV consequences (at this point - court conviction of DUI is different); however, you should make certain nonetheless. Again, consult with an experienced attorney....
I have two suggestions for you. Contact a DUI attorney in the area where the incident took place. California DUI Lawyers Association or AVVO have attorneys listed by county and by practice area on the internet. If the attorney offers to contact the local DMV Driver's Safety Office, that would be helpful as well. DMV may have suspended your license 30 days after the accident without you even being aware of it. If you wanted to call DMV yourself, try the Mandatory Actions Unit at (916) 657-6525. They can tell you the status of your license.
The police have the option of submitting a report to the prosecuting authorities for their consideration and, in any traffic accident involving injuries and damage with a hint of alcohol, they customarily do so. Just because you were not booked and cited at the time does not mean a DUI filing is improper.
Bear in mind 0.08% BAC is merely the presumptive limit at or over which you are presumed to be DUI. You can be charged with a DUI with a BAC between .05% and .08% if it is proven your driving was alcohol-impaired.
You might also incur a probation violation with this new filing. What are you on probation for?
It is important to watch for any DMV notification that your license is to be suspended. Usually you must file for a hearing re license suspension within 10 days of the issuance of the citation or you lose your right to contest the DMV hearing. You might want to check on your license status, although you should be notified by mail if any DMV action is to be taken.
All in all, you need representation. Call me at 213-324-4206 if you would like to further discuss your matter and for a fee quote.
There are far more investigations and arrests for DUIs across the state than can be timely dealt with, so it is very often the case for non-custody DUI matters to proceed slowly, with arraignments set by letter when the DA gets around to the filing. Not uncommon at all, and increasingly typical. They have one year to file from the incident for misdemenors and three for felonies. www.kennedyforlaw.com
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