I blew over the limit (.122) on the PAS and .10 at the station an hour later. My lawyer wasn't allowed to say I had GERD, and I think that was a crucial thing to exclude from trial (I had proof of diagnosis, which was about 10 months before the events of that nightmarish incident). I had just eaten VERY spicy food not even 10 minutes before being pulled over, and I had 4 1/2 beers one hour prior to being pulled over. Hung jury on count A, the judge declared a mistrial on it. I'm not a criminal, and we even disproved the police report (using the CHP video) of no slurred speech, no watery eyes, and good mental awareness and alertness. The officer himself even testified it was "remarkable" how alert and aware I was. Even went on to say I was the most polite person he's ever arrested. HELP!
Just because you were polite, doesn't mean it's a freebie. Look, you went to trial and lost. It happens. Sounds like the evidence was fairly compelling that you were .08% or higher when you were driving. Speak to your lawyer about filing a notice of appeal, but I wouldn't put much hope into it. Driving with a BAC of .08% or higher is a criminal offense, so, in that sense you are now a criminal. It's ok, thousands of people are convicted of DUI in CA daily.
SAN DIEGO CRIMINAL DEFENSE ATTORNEY--20 years experience
A "hung jury" means the prosecutor has the option of retrying you on that count if he chooses. On the count you lost on, you can appeal if you wish, but an appeal because you don't agree with the resolution of the disputed facts isn't very promising.
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You can ask your attorney about filing an appeal but if any attorney was being honest and absent any significant problems with the maintenance records... you were likely above a .11% at the time of driving.
Awareness / lack of objective signs of intoxication are irrelevant to the B count - .08% or above.
You can ask your attorney about an appeal that will likely cost a fortune and not be very fruitful, or you can learn from this : how you feel is irrelevant, blood alcohol is a mathematical calculation of how much you drank and time frame / body weight.
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Sorry to hear about your loss in trial. If your attorney laid the proper foundation for admitting the GERD evidence and the Judge still kept it out, you may have an appealable issue. There has to be a foundation laid as to the medical findings as well as the affect GERD has on breath tests. The prosecutor also has the option of retrying you on the Driving Under the Influence count depending upon how it was hung (11-1 for guilty can be retried whereas 11-1 for not guilty would not be retried.). The punishment is the same for both, so it doesn't matter if you are found guilty of either of the counts. For the count where you were convicted, you could be sitting at a red light and get rear-ended by someone and get arrested if your BAC is over .08% as no "bad driving" is required for that count.
Your attorney is the one who can best advise you whether to appeal the conviction. There must be ERROR by the Judge or prosecutor to file an appeal, not just your belief that you were not guilty.
Did your attorney attempt to get the GERD testimony in through an expert? Or, did he try to examine the prosecution's expert on that point, hoping that would fly? Assuming he did it correctly, my colleagues are right saying you may have an appealable issue.
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