Thank you for the expression of confidence, but it is unfortunately not practical for me to represent Cole in this case.
It sounds as if the .13 was on the field breathalyzer (sometimes called a PBAT), which is only a preliminary test. The ticket probably indicates .08 only because the law prohibits driving with a blood alcohol level .08 or above. The PBAT is generally not admissible in court and Cole should have been asked to submit to a regular breath, blood or urine test after he arrived at the police station. The result of that test would be the one that is used in court, if the case were to go to trial
. Do you know if such a test was administered and if so what the result was?
As I mentioned, the law does prohibit driving with a blood alcohol level .08 or above (in California, it is actually a separate offense from driving under the influence). So, Cole could be convicted of either or both of DUI and driving with a .08 or above. Since he did well on the field sobriety test, the likelihood of an acquittal depends primarily on the officer's observations of his driving and the results of the full BA test. If it is .09 or above, a complete acquittal is more difficult, since he could conceivably be acquitted of the DUI charge, but convicted on the.08 or above violation.
As for the reading of his rights, you share a common misconception ... unless the cops intend to question a suspect and want to use any statements against him in court, there is actually no requirement that they read him his rights. The rights advisement is a prerequisite to the use of a suspect's statements against him, but actually is not otherwise required.
Merely drinking is not enough for a conviction, but if the test result is .08 or above, a complete acquittal is difficult, though not impossible. At the very least, it is worth discussing this with an attorney who can review the entire case file and advise him regarding the possibility of being completely acquitted.
You're welcome for the JAG answer. Philip is a good guy and an excellent attorney. His advice about the military consequences of this situation suggests that fighting the charge has potential benefits within the Marine Corps which may justify doing so even if there is no certainty of an acquittal.
Good luck to you both on this and to Cole in his Marine career.