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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
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.
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.
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.
The length of time between an arrest and the taking of the test doesn't make the results automatically inadmissible, just challengable.
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.
Also, have you actually read the statute Vehicle Code 23152(b) yet or just the cases that discuss it?
This is what I read:
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 thethree-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.
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.
That is from a lawyer's website, not a case, correct?
By the way, you can read the statute at http://www.dmv.ca.gov/pubs/vctop/d11/vc23152.htm
OK, I will and I will retain a lawyer. Thank you for your help!
Best wishes to you on this. I think you have a good shot at it.
And you're very welcome.
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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?
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.
OK, thank you.
Oh, 1 more
I requested a phone hearing. Should I change that to a court hearing?
Yes, likely so but you probably want to talk to the lawyer first just to be sure.
OK. I'll do that. You've been very helpful!
Thanks and god luck with it.
Please don't forget to leave a Positive Rating so I get credit for my work.