Son (21) just got a DUI (.088) breath test and blood test done (no result yet). He spent 4 hours at the station and then the PD drove him back to his car and he drove home. Gave him a temp license. Advice? Public Defender? PD said he was very coop...
Depending on the other facts of the case (statements to investigating, driving pattern, field sobriety tests, etc.), this may be a very defensible case. I would also want to know if he submitted a breath sample at the scene (he was not required to do so), or if he waited to comply with a breath or blood test until he was arrested and taken back to the station. While the breath test has a much higher margin of error, there can also be problems with the blood test, such as incompliance with California's Title 17 protocol.
As a former DUI prosecutor, I can tell you that another common defense on relativley low BAC cases is knows at the "rising curve defense." This defense scrutinizes the rate at which alcohol saturates into the blood stream. This is very significant because often times defendants were over the .08 limit at the time the breath or blood sample is obtained, but not at the time they were driving. This defense is often applicable to scenarios where the accused has consumed alcohol shortly before driving a motor vehicle. Your son may have been above .08 at the time of the test, but not at the time of driving.See question
I was leaving a house with 3 people I just met. Two police officers pull me aside and start asking me how much I have had to drink. I told them that I had not been drinking. They said I had been drinking and that I will get arrested if I do not ad...
Miranda rights are not dispositive here. Instead, you should focus on the substantive charges, which are levied by the District Attorney's Office, not by the police officer. Police simply gather evidence, create reports and forward along all information to the DA's office for review. The DA assigned to your file will then either file charges against you (which may or may not be the same charges reccomended by the arresting officer), attempt to obtain more information about the incident, or simply decide not to file charges at all.
As a former Deputy District Attorney, I became accustomed to speaking with defense counsel before I made my decision in regarding to filing charges. One of the major advantges to retaining private counsel shortly after the night in question is that you have the benefit of having your attorney attempt to dissuade the DA's office from filing charges against you in the first place. As you can imagine, often times prosecutors are more flexible and reasonable prior to filing formal charges and creating an office-wide paper trail, which of course, also becomes public record.
Given your facts, it sounds like you may be able to obtain a positive outcome.See question