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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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My wife was pulled over for an illegal turn and was charged

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My wife was pulled over for an illegal turn and was charged with a DUI. She just moved here from abroad and does not yet have a US DL. She told the officers that she did not understand their instructions and I tried to explain to them that english is not her 1st language. One officer gave her the field tests 3-4 times and then shoved the breathalyzer in her face. She blew 2 times and it registered "no go." He then asked her if she was "trying to start something with him" and "do you want me to send you to jail now?" Several times. She blew a 3rd time and he cuffed her and took her to jail. The entire time I overheard her asking the officer to speak slowly as she did not understand what he was doing or asking her to do. She repeatedly tried to explain that she was new to the states and her english is not good. His partner said "c'mon, let her go." Once in jail they made her give blood, bruising her badly. Any chance we can overturn this? Any reccomended attorneys in Sacramento, CA?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 5 years ago.
Actually, if she was not under the influence of alcohol, it was good that they took blood, even if she was bruised in the process. The blood test will show her alcohol level ... or lack thereof. If it comes back below .08, the DA may not even file charges and that will be the end of the criminal case.

Do you know what the result was of her 3rd try at the preliminary breath test? Did the officer have her perform a field sobriety test?

Unless your wife was drinking and it turns out that her blood alcohol level was above .08, this would not be a very good case for the DA, so even if charges are filed, it is a reasonably defensible case.

You can arrange a $30, thirty minute initial consultation with a Sacremento criminal defense lawyer by contacting the Sacramento County Bar Association Lawyer Referral Service through this website:

http://www.sacbarlawyer.org/

Once you have completed this consultation, you can choose to retain this attorney or seek another.
Customer: replied 5 years ago.

Hi Jim, thanks for getting back to us. She had two drinks last night so it will come down to what the blood test shows. 1) How soon can we get those results? The officers did not tell her what the result of the third preliminary breath test was, although she stated others in jail were told their results beforer being arrested. I am hopeful that it comes back .08 or less. 2) I guess I was also wondering if, given the facts that I submitted earlier, it sounds like there was any violation of her rights or if it sounds like she was given due process as she did not understand their requests or questiond or even the paperwork she was asked to complete at the jail. If you have any insight on questions one and two above it would be greatly appreciated and thanks for the direction on finding an attorney. Take care.

 

George & Pearl

Expert:  Jim Reilly replied 5 years ago.
Depending on several factors, two drinks might or might not be enough to result in a blood test of .08 or more. What kind/size of drinks, how much your wife weighs and how long passed between the drinking and the blood test. Generally, however, if she really only had two normal sized drinks, she is average sized and a half hour or more passed (which seems likely), the test result would normally be less than .08.

In fact, at maximum absorption in a 150 pound person, two drinks would normally produce a blood test result of no more than .05 and probably less.

It is unusual for the officer not to at least tell her the result of the PBT, but there is no legal requirement that he do so. If he did not administer a field sobriety test (balance, walking, nystagmus gaze, nose touch, etc.), there won't be much evidence upon which to convict her.

The language difficulty could (and should) have been handled more professionally, but what you have described would not amount to a due process violation that would have any bearing on the prosecution of the case if the BA turns out to be .08 or more. Most likely, the paperwork at the jail was administrative in nature, rather than evidentiary, so that will also have no bearing on the prosecution.

Whether or not she ultimately gets charged here will almost certainly be determined by the blood test result. That result will take at least a few days, perhaps even until the date she was given to appear to arraignment. It depends on the crime lab's work load.
Customer: replied 5 years ago.

Thanks, XXXXX XXXXX your answer. One last question if you don't mind. As I understand it a DUI in CA triggers two cases. One being a dmv case and the other the case that the DA may prosecute depending on BAC. Since she just came to the states 4 months ago and does not have a CA drivers license, what will the DMV do and how will the DMV "track" her so that they have a record of the case when she does apply for a drivers license? ...by the time she applies for a CA DL her last name will have changed to mine. OK that is more than one last question. :) Thanks and take care.

 

George & Pearl

Expert:  Jim Reilly replied 5 years ago.
It is true that a DUI arrest triggers both a criminal prosecution and a DMV proceeding. The fact that she has no CDL will make it a little more difficult for DMV, but they can track her using her SSN (if she has one of those) or her maiden name, which will be in court records and which will still show up even after she marries (though it is possible that if she waits until after you marry and submits an application for a CDL in her married name, they may not catch it).

Keep in mind that in California, it is the driving privilege which is addressed by administrative proceedings, not the driver's license alone. So, even if you don't have a license, the driving privilege can still be suspended.

Because she submitted to a chemical test, there is no action against her license if it turns out that the BA was below .08, so it will not be a problem in that event. If it is .08 or above, of course, her driving privileges will be treated exactly the same as if she had a license ... and any administrative action taken will apply when she actually tries to get a license.

In fact, she should have already been notified that her driving privilege was suspended under the administrative per se rules, based on taking the blood test. That suspension does not, however, take place for 30 days, giving time for the blood results to come back.

See this DMV webpage on administrative per se suspensions for details of this procedure:

http://www.dmv.ca.gov/about/profile/rd/aps99.htm


She also has the right to challenge the administrative per se suspension at DMV, but her request to do this must be filed with the DMV Driver Safety Office within 10 calendar days. See this DMV webpage for a list of DSO's:

http://www.dmv.ca.gov/fo/dsolistings.htm


Just to be safe, she should probably do this.

By the way, I appreciate your attempt to accept, but it apparently didn't take, as it is not showing as an accept. You may have to try again by clicking on the green "accept" button.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
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