You need to locate an attorney well versed with the breath test. There's something fishy here and you are going to have to drill down into the discovery. So my recommendation is to meet with a few attorneys in the morning to determine your next step. Good luck.
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What you call the "1st time" breath test is a preliminary alcohol screening ("PAS") and although it's unofficial, it may possibly weigh in the prosecution decision. Technically, your BAC was recorded at .07 at the station house. Remember that you have to deal with the court system and the DMV separately so go ahead and request your DMV hearing unless you don't mind if your license is automatically suspended 10-days after your arrest.
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Both tests count. By law, officers are required to take two tests, and those two tests must be within 0.02 of each other. Since one of your breath tests came out to .08, they can use that against you to show that you were driving with a .08 percent of alcohol in your breath/blood. Since your tests are at the minimum level required, you should definitely consult with an attorney regarding your case.
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You can still be charged under the 23152 (a) count. You did not indicate the reason why you were stopped. You need an attorney to represent you for this offense. Get one ASAP and make sure you request a DMV hearing within 10 days of your arrest.
ANDREW ROBERTS CRIMINAL AND TRAFFIC TICKET DEFENSE ATTORNEY
Two valid readings are required, so both will be used. You have some good facts with which to work on building a defense. Contact some attorneys--many of us here on Avvo provide a free consultation.
Both tests count. They do it twice generally and it must be within 0.02 of one another so yours is within that range HOWEVER your BAC is very very low, one below the borderline and one just on the border. You have a good case to dispute. Hire an attorney and potentially you can get a wet reckless, consequences of which are so insignificant compared with a DUI conviction. You will be surprised how much money, time, and headache you will save if you get a Wet Reckless, even though you have to hire an attorney for that reason. So worth it.
To get a valid breath test reading, you need two results. A lot of the time the two results are slightly different. As long as the two results are within .02% of each other, which your two results are, that's okay. Results like yours where the results are slightly different is actually very common. Scientifically, you would think that if the results were both the same all the time that there would be a problem. Every time you breathe out there is going to be a slight difference in what comes out of your body.
Can you say beyond a reasonable doubt that you were at or above the .08% BAC at the time of the test? Scientifically, probably not. But there may be other evidence that the DA is able to show that says you were at or above a .08. Here is where a good DUI lawyer comes in. Someone who is able to truly understand the science involved will be able to defend you.
You should also understand that there are two ways to get a DUI. We all know about the law that says if you were above the point 0.08 that you are guilty of a DUI. That is VC 23142(b). What no one ever talks about is the other way to get a DUI. Even if you are below a .08, you may be guilty of the DUI if you are "under the influence " under VC 23152(a). How does the DA argue that you are under the influence even if you are below a .08.? The DA shows some combination of bad driving, bad field sobriety tests, expert opinion, and your BAC level. Put altogether, an expert can say that the person is "under the influence" even at a low BAC. You may have even thought that you did well on your field sobriety tests. However, many people are surprised to learn that the one or two very minor mistakes that you made on a particular field sobriety test will end up making you appear to be under the influence. If you are under the influence, you may get convicted of a DUI and given a similar sentence that a person might get if they were over a .08. All the stuff that the DA argues at jury trial is a dog and pony show. And a good DUI lawyer will be able to see through the dog and pony show and get the jury to see through the dog and pony show. A lot of this is science. But to make any definite opinions about a specific individual at a specific time is pseudoscience. But the pseudoscience is cloaked in real science, because most of the public believes that this is all real science.
Yes, both tests are used. The DMV should set aside the petition to suspend your license because they are concerned only with the 0.08% BAC and not 'impaired' driving since the results themselves show it was equally as likely that you were under the limit as over it. Your case is necessarily arguable in court and should be fought. You could be charged with both VC 23152 (a&b), but the prosecutor has a tough case to argue at trial and you may win your case outright before trial by filing a motion to suppress evidence. It is not necessarily illegal to swerve in California, even on or over a dividing line, especially when the movement was momentary.
A skilled DUI Attorney can argue that you were below the limit. This will only help you on B count. The A count makes it illegal to drive under the influence of drugs or alcohol. If your driving was impaired, the law BAC breath result may not help your case.
I think meeting with some attorneys to go over the specifics of your case would be in your best interest. DUI's are beatable.
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
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