In California, you can be charged with a DUI even if your BAC was below a .08 per VC 23152(a). It is possible to get a DUI even with no alcohol in your system, based on drugs or even prescribed medication.
That being said, there is no bad driving observed, which is good. Did the officer have you perform Field sobriety tests other than attempting the preliminary alcohol screening test?
If you are over 21, not on probation, had no drugs in your system, and your BAC is extremely low (ie. .02 or .03...), then probably unlikely that charges will be pressed, particularly where there was no driving observed by anyone. That being said, I would recommend that you contact a DUI attorney or two about your case to discuss further.
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You need to hire an experienced DUI attorney. That person may be able to get your case dismissed or get you acquitted at trial. He will obtain the offense report, blood labs, videos, and any other evidence in your case. He will then review them with you and discuss the strengths and weaknesses of your case as well as possible outcomes.
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Generally, in cases where the BAC is less than .08, the District Attorney will consider the totality of all the circumstances when deciding to file DUI charges. Such circumstances considered are the nature of observed driving, performance on field sobriety tests, and overall appearance of sobriety. VC Section 23152(a) does not require a BAC over .08. That said, cases where the BAC is lower than .08 are considered weak cases for the District Attorney. Please call me at (415) 293-8454 to discuss your case.
Your question is kind of all over the place. Its not clear what your BAC was (you said it will come back several weeks later). There is no actual evidence of driving so that is good. The only possibility is that the officer smelled alcohol on your breath but again, we don't know anything from the arrest report. All in all, this seems like a weak case but you need to hire a DUI attorney to evaluate everything with you.
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