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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26811
Experience:  Began practicing law in 1992
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Hi, I was arrested for suspicion of DUI on April 21, 2013 at

Customer Question

Hi, I was arrested for suspicion of DUI on April 21, 2013 at 12:20 am. I was taken to the police station, my blood was drawn at 4:03 am. The result came back showing a BAC of .08%! I TRULY believe this result to be inaccurate, as it had been several hours at that time since my last drink. I did some research and found that the result of the BAC could possibly be discredited under relevant law, California Vehicle code section 23152(b) (the .08% per se law) which states that it is a rebuttable presumption that the BAC shown by chemical tests within 3 hours was the BAC at the time of driving. I also read that the BAC can continue to rise for as many as 3 hours after drinking.

I have a telephone hearing scheduled for July 5, 2013 at 1:15pm. It is wise for me to try to have my BAC deemed inadmissable by virtue of the ".08% per se" law?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

BAC level works on a bell curve (there is an article on this issue at http://www.dwimistake.com/blood-alcohol-content-b-a-c-the-legal-limit-for-dwi-and-the-bell-curve

JD 1992 :

While it is a viable defense to assert the BAC level when tested was inaccurate and not relevant to the BAC level at the time you were driving it generally requires expert testimony to discuss this and an accomplished lawyer to do it effectively.

JD 1992 :

Also, don't forget that the bell curve has two sides. They can also allege that your BAC was on the way down and you actually were higher than that at the time you were stopped.

Customer :

What about the "per se law" which states that blood sample must be taken within 3 hours of being pulled over. In this case, it was nearly 4 hours. I am told this is reason to make the BAC results inadmissable.

JD 1992 :

The length of time between an arrest and the taking of the test doesn't make the results automatically inadmissible, just challengable.

Customer :

OK. Thank you. Also, I require my car for work (I am a real estate agent). Will I be able to petition to retain driving privileges? This is a first offense.

JD 1992 :

Also, have you actually read the statute Vehicle Code 23152(b) yet or just the cases that discuss it?

Customer :

This is what I read:

Customer :

Under relevant law, the samples taken for the post-arrest chemical test – blood, breath or urine – should have been taken no more than three hours after the traffic stop. Otherwise, there is no presumption that the results of the test accurately portray your BAC at the time that you were driving. This is because Vehicle Code section 23152(b) (the .08% per se law) states that it is a rebuttable presumption that the BAC show by chemical tests within three hours of driving was the BAC at the time of driving. A test taken outside of the
three-hour presumption period can be considered by the court; however, it must do so with testimony from a forensic toxicologist applying retrograde analysis establishing that the BAC was over 0.08% at the time of driving. Accordingly, your attorney will carefully examine the police report and other records showing when the stop took place and when the chemical test was administered. If, for any reason, there was a delay of more than three hours, your attorney will bring a motion to suppress the evidence collected, which, if successful, may dispose of the case.

JD 1992 :

Yes, you can ask the court to retain driving privileges and you can also obtain an "occupational license". However, you should seriously consider hiring an attorney to assist you in this. With the additional cost of insurance after a DWI, the background checks that are being done, etc. it is no longer wise to not fight it tooth and nail and a four hour wait before testing is pretty good material to use when arguing against the validity of the test, if done correctly.

JD 1992 :

That is from a lawyer's website, not a case, correct?

JD 1992 :

By the way, you can read the statute at http://www.dmv.ca.gov/pubs/vctop/d11/vc23152.htm

Customer :

OK, I will and I will retain a lawyer. Thank you for your help!

JD 1992 :

Best wishes to you on this. I think you have a good shot at it.

JD 1992 :

And you're very welcome.

JD 1992 :

Please ask any follow up questions in this thread. When all of your questions have been answered, then I would ask that you give a Positive Rating (of course I'd suggest Excellent) since that is the only way I get credit for my work and also please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information. Also, issuing a positive rating keeps the question from “timing out” so you can return in the future if you think of a follow up.

However, please do not issue a rating of any kind until all of your questions have been answered and please use the Reply button to ask additional questions or to provide answers to my questions.

Customer :

I have one more question. I live in Los Angeles county. I was arrested in San Bernardino County. (About 2 hours away.) Is it better to retain a lawyer close to me, whose office I can easily travel to, or a lawyer in San Bernardino county, where the arrest took place? Or does it really matter?

JD 1992 :

It will be less expensive to hire one closer to the court you will be going to and, in addition, they would usually be more familiar with those judges. It isn't a huge difference but you will probably want to lean toward one where you were arrested. There won't be a lot of office meetings required.

Customer :

OK, thank you.

Customer :

Oh, 1 more

JD 1992 :

You're welcome.

Customer :

I requested a phone hearing. Should I change that to a court hearing?

JD 1992 :

Sure.

JD 1992 :

Yes, likely so but you probably want to talk to the lawyer first just to be sure.

Customer :

OK. I'll do that. You've been very helpful!

JD 1992 :

Thanks and god luck with it.

JD 1992 :

good luck

Customer :

Thank you!

JD 1992 :

You're welcome.

JD 1992 :

Please don't forget to leave a Positive Rating so I get credit for my work.

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