Will my DUI case dismissed- BAC far less than 0.08. Blood test result will come several weeks later.

Asked almost 2 years ago - San Mateo, CA

While driving highway, my car started smoking, I was panicked as at that time my phone was dead. It was night time and I was scared. I was driving the fastest lane, but carefully stopped the car when there was no car by blinking and parked on the side--1/5 of right side of the car was in the lane. I run across the highway when no car, and got out of fence and asked for help on the street. Some kind person let me use his phone and I called AAA. When AAA came, I went back to highway, and there were CHP . I got arrested for DUI as I couldn't blow breath test well, and CHP thought I declined the test, believed I was DUI. However I only had one glass of wine a couple hours before. I got blood test at the station. No one will above the illegal level of BAC 0.08 with just a glass of wine.

Attorney answers (4)

  1. Philip Daniel Hache


    Contributor Level 16


    Lawyers agree

    Answered . In California, you can be charged with a DUI even if your BAC was below a .08 per VC 23152(a). It is possible to get a DUI even with no alcohol in your system, based on drugs or even prescribed medication.

    That being said, there is no bad driving observed, which is good. Did the officer have you perform Field sobriety tests other than attempting the preliminary alcohol screening test?

    If you are over 21, not on probation, had no drugs in your system, and your BAC is extremely low (ie. .02 or .03...), then probably unlikely that charges will be pressed, particularly where there was no driving observed by anyone. That being said, I would recommend that you contact a DUI attorney or two about your case to discuss further.

    Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This... more
  2. Pezhman Pakneshan


    Contributor Level 5


    Lawyers agree

    Answered . Generally, in cases where the BAC is less than .08, the District Attorney will consider the totality of all the circumstances when deciding to file DUI charges. Such circumstances considered are the nature of observed driving, performance on field sobriety tests, and overall appearance of sobriety. VC Section 23152(a) does not require a BAC over .08. That said, cases where the BAC is lower than .08 are considered weak cases for the District Attorney. Please call me at (415) 293-8454 to discuss your case.

  3. Macy Michelle Jaggers


    Contributor Level 20


    Lawyers agree

    Answered . You need to hire an experienced DUI attorney. That person may be able to get your case dismissed or get you acquitted at trial. He will obtain the offense report, blood labs, videos, and any other evidence in your case. He will then review them with you and discuss the strengths and weaknesses of your case as well as possible outcomes.

    Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers... more
  4. Edgar Julio Gutierrez

    Contributor Level 7


    Lawyers agree

    Answered . Your question is kind of all over the place. Its not clear what your BAC was (you said it will come back several weeks later). There is no actual evidence of driving so that is good. The only possibility is that the officer smelled alcohol on your breath but again, we don't know anything from the arrest report. All in all, this seems like a weak case but you need to hire a DUI attorney to evaluate everything with you.

    Because every legal situation is different and depends on many factors, the responses provided at this site are... more

Related Topics


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

Blood test for DUI

A breathalyzer is a type of DUI test that involves blowing into a device to test your blood alcohol content.

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