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Can my DUI case be dismissed if I am charged with the wrong CAB ?

San Diego, CA |

Hello , I recently got pulled over for a DUI and went to my arraignment today . My blood alcohol level was reported at a . 08 and all my paperwork that I received says . 08 . The charges on my paperwork today are 23152 ( a ) and 23152 ( b ) . So here is the issue I was not pulled over I was approached by police outside a 7 - 11 who believed me to be driving under the influence . It gets better ! The paperwork i received today at my arraignment says my CAB was a . 12 which is incorrect and the charges read to me by the Judge had me at a . 12 . A friend of mine told me that since I am being charged incorrectly the case has to be dismissed and that they would not be able to charge me with the same case after that . Is any of this correct ? Any help would be greatly appreciated ! This case is in California .

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Attorney answers 8


Assuming you mean your BAC was .08 and you were told it was .12 there is a serious credibility issue with the test. Dismissing is one possibility, however I'd need to see the complaint and all the evidence before I could make a completely accurate call on this one.

I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California matter. Please call my office at 619-238-1905 or visit my website at


No. They could amend the charge. You need to hire a good DUI defense attorney. They will know how to the handle the case. A lay person seeking to try and win a case with such intricacies as DUI case law and statute almost never works. Hire a professional. Good luck.

The responses of Attorney Chris Beck to any questions posed on Avvo do NOT establish an Attorney-client relationship. Attorney Beck is available for private hire and consultation for a fee. Only after Attorney Beck is retained as counsel, or agrees to discuss this matter with you privately, shall he be legally deemed to be your Attorney. His responses herein are an attempt to assist persons temporarily based upon the very extremely limited amount of information provided by the questioner

David Saul Martinez

David Saul Martinez


I agree with my colleague above. The 0.08 the police noted is no doubt a reference to VC 23152(b), which he is alleging you violated. This is the only BAC statute you can violate other than one linked to DUI with injury (VC 23153(b)). So, the prosecution team will use the 0.12 to convict you of both counts as there is a legal inference that if your BAC is measured at 0.08 or greater within 3 hours of driving you are under the influence. The truth is that you may have actually been under a 0.08 even if your BAC was measured at 0.12. An experience DUI attorney will analyze the allegations surrounding your case, discover further evidence, and based on the analysis may be able to convince a jury there is reasonable doubt you were a 0.08 or greater. The circumstances of your stop are also at issue. You should seek to suppress all the evidence based on an violation of your 4th amendment rights against unreasonable search and seizure.


Your friend isn't qualified to give legal advice. The .08 is part of the 23152(b) title - usually abbreviated by police to just ".08+" or ".08%

Any information provided through in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.


Your friend is incorrect. You'd be better off receiving legal advice from an actual defense attorney. An error in the complaint can be amended. You should obtain a free consultation from a defense attorney to learn what can be done to ensure the best possible result in your case.

Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381


If only it were that easy...

If your friend is a CA attorney, then they should resign as an attorney immediately. If they are not a licensed, locally experienced criminal defense attorney, then you should hire someone who is.

Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555


Unfortunately your friend has not idea what they are talking about. In many areas of criminal law, the rules and procedures can be very complicated, especially for something like a DUI. The law on DUI had become more and more punitive over the years, such as a DUI remaining on your criminal and driving record for 10 years instead of 7 years and the lowering of the minimum BAC from .10 to .08, You do not want to take chances or listen to uninformed friends. Consult with an experienced DUI attorney so you have the greatest chance of achieving the best results. Many offer free or low cost consultations.


You need to call one of the excellent attorneys that have given adivce to you on these issues.

Best of luck.


In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.


I hope your friend is a better friend than he is legal analyst, or else he is the Brutus of friends. If you are in DUI land, at either .08 or .12, you need counsel. Those low numbers are very fightable [and don't fall for any "wet recklass" crap, because unless you ran over the cop's foot or threw up on his badge and spit-shined jack-boots, a wet should never be advised or taken at such low numbers]. There are several very competent DUI lawyers in San Diego and you should seek one out.

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