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Impaired driving

Downey, CA |

How does the prosecutor prove "impaired driving" for DUI (a) count, if one is stopped at a checkpoint, questioned, asked to perform FST's and subsequently arrested with a PAS of 0.08. Also, there is no accident/calamity involved to prove "impairment or bad driving."

DUI (a) count, in my understanding, is driving under the influence of alcohol/drugs to the point that your driving abilities are impaired when compared to a sober person.

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Attorney answers 10

Posted

That is why you retain an attorney .

Andrew Roberts (818) 597-0633/ (805) 496-7777

Posted

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.

Posted

You are better off discussing your case with a criminal defense attorney. Many lawyers offer free consultation for an hour. That will provide the best approach in your case.

Posted

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.

Posted

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.

Good Luck.

Posted

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.

Asker

Posted

My BAC at the station was .07. I did not know at the time that I could refuse to answer, perform FST's and also reject taking PAS.

Margaret Forbes Mendoza

Margaret Forbes Mendoza

Posted

You did not have to perform the FST's. The officer should have advised you that you did not have to submit to the PAS (assuming you are over 21 years of age)

Asker

Posted

I am over 21. I had asked the officer if I needed to take the PAS and he mentioned - I could choose not to take it but that would lead to a forced blood test and a failure in the blood test would lead to a 6 month license suspension.

Margaret Forbes Mendoza

Margaret Forbes Mendoza

Posted

Not correct as far as a PAS is concerned. What exactly was said and when, is very important in a DUI case. As I and other attorneys here have stated...you should consult with an attorney.

Posted

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.

Asker

Posted

My BAC at the station was .07. I did not know at the time that I could refuse to answer, perform FST's and also reject taking PAS

Neil James Fraser

Neil James Fraser

Posted

That being the case, the prosecution may well have a hard time proving a case. The FSTs prove nothing - I've had an arresting officer miss his nose while demonstrating the finger to nose test in court, presumably stone cold sober! - and there may be no observations they can rely on since you were stopped at a checkpoint and not because of something erratic in your driving. Based on what you blew at the station, I think you have a defensible case. Did you request a DMV hearing within 10 days of the stop to preserve your license?

Asker

Posted

Yes...I did. Hearing is next month.

Posted

Many of us on Avvo provide a free consultation--contact some attorneys who can provide you with specific insight on the case.

Posted

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.

Posted

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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