As my colleague suggests, and experienced DUI attorney can review the facts of your case with you. He or she can then explain the appropriate legal standards and apply them to those facts.
Many qualified CA DUI attorneys post here. You can also make use of the "Find a Lawyer" function here on Avvo to assist you in your search.
The PAS will unlikely be used, however, the other breath/blood test will be used. The .08 is rebuttable, but the burden is on you and your defense team. There's many ways to approach this so I recommend that you consult with an attorney. Good luck.
The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.
I agree with the lawyers above a free consultation can explain this. The prosecutor will use your driving before the stop (none because of the checkpoint) your field sobriety tests against you and any statements you made.
Checkpoint cases are challenging for the prosecution because there is no actual driving observed "consistent" with impairment. They will focus on all of the field sobriety tests, the results of which will be attacked by defense expert. Is this a case where you refused to provide a blood/breath test after arrest? If a blood test was taken and it is .08 or above, then the prosecutor will add that charge to the complaint. You should speak to an attorney as there are several ways to attack this charge.
0.08% BAC is the reading at which you are presumed to be DUI. If the blood or breath test came back at that BAC and all procedures were correctly followed, the prosecution does not have to present evidence of impaired driving - you are presumed to be impaired at .08% or above.
The results need to be looked and carefully to verify their accuracy. But evidence of impaired driving is really only necessary where the prosecution files DUI charges against you with a BAC between (usually) .05% and .07% BAC.
DDAs prove it by using the SFST/FST performance along with any BAC evidence they may have. (At 0.08 there's a legal inference/presumption that the driver is impaired. CVC23610) The lack of "bad driving" is to your benefit.
Retaining a qualified attorney would almost definitely be in your best interest. Checkpoint stops add a whole new facet to the defense of any DUI, and with yours having a "borderline" BAC and no driving to speak of....you owe it to yourself to at least talk to and interview many of the qualified DUI attorneys who offer free consultations. Ask yourself this: "How much is a wet worth to you when compared to a DUI? Now, what about a dry or two movers? Or, a dismissal?" How much effort are you willing to make to at least begin to investigate these possibilities with a qualified attorney?
Get an attorney. I doubt you'll regret it.
The prosecution will generally rely on the observations of the officer and
your performance on the field sobriety test this is ripe for
cross-examination as most of observations don't mean much and most field
sobriety tests are meaningless or performed poorly by the arresting officer
with that low number on the pas you should get an attorney
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