Legal Question in DUI Law in California
Reliability of BAC by blood draw 3 hrs after arrest
My husband was arrested for DUI. No probable cause to approach our vehicle. Not given field sobriety tests, nor Miranda. Took blood test apprx 3 hrs after arrest, result of .13%. Leaving an event where everyone, except myself, was drinking. Stopped at the only exit from the event for a vehicle accident. The officer made a beeline for our vehicle. In the 1.5 hours I was waiting there, not one other car was pulled over, just waived by. My husband was not swirving, driving erractically, and the officer could not see his eyes as he had on sunglasses. Was there probable cause to approach our vehicle? What is the accuracy of a blood draw 3 hrs after arrest? What about Miranda or the fact that the officer did not administer tests? No slurred speech, no unsteady gait, nothing to indicate that huband was drinking except the smell of alcohol, which the officer would not have smelled had he not told my huband to roll down the window.
Also, can the police impound a vehicle when there is a licensed driver, who had not been drinking and was a co-owner of the vehicle [me]?
4 Answers from Attorneys
Re: Reliability of BAC by blood draw 3 hrs after arrest
In a DUI matter, Miranda rights to not apply. Being that the blood was not taken until 3 hours later, that could be an issue. The officer also needs to have probable cause as to why he pulled him over. There seems to be a lot of discrepancy to discredit the officer with. We can order the blood sample and send it to our independent lab and have our alcohol expert review the documents. The car can be impounded but we can also try to have it released to you since you are co-owner. The police report will have a more accurate detail as to what happened and if there are many contradicting issues, that those can be used to discredit the officer and used as grounds for dismissal. Have you contacted the DMV? When is your court date? Which court? Please contact my office at 310/277-1707 so that we can fully assess your matter and discuss your legal options.
Sincerely,
Lawrence Wolf, Esq.
Re: Reliability of BAC by blood draw 3 hrs after arrest
These factors may provide you a defense at trial, or result in a 'deal' with the DA to reduce or drop the charges. If you want to discuss having counsel represent you, call. 714-960-7584
Re: Reliability of BAC by blood draw 3 hrs after arrest
Thanks for your posting. Your posting shows sophistication in defenses, but as previously mentioned, Miranda doesn't apply in scientific evidence cases, such as a DUI, and also the field sobriety tests are optional, not mandatory.
Police will normally establish probable cause in the police report written... what does it say there?
The further away from the time of driving, the less accurate the test. Anything over three hours may be presumed invalid under the testing guidelines of the Administrative Code Title.
The police can impound a vehicle based upon other factors, such as whether or not your husband had a license.
You may want to hire an attorney, or at least sit down with one and go over your options. Please feel free to email me back with further questions, more information, or call my office, toll free, at 1-877-568-2977. Best of luck to the both of you.
Re: Reliability of BAC by blood draw 3 hrs after arrest
Wow. A DUI defense lawyer's dream case. I have to say, in reading the question I felt as if I were being tested. Is this really just a QC check of what lawyers on this site know? Where did you obtain your knowledge in the DUI area? ("Unsteady gait," for example, is a term of art not used outside the DUI world.)
In any event, I first want to tell you that from the date of the arrest, your husband has 10 DAYS in which to contact the DMV Driver's Safety office and request a hearing. This is of monumental significance to him, so make sure that deadline does not pass. At the hearing, he can contest the stop and the DUI, and can subpoena the officer to answer questions on the record without the DA present. The officer's testimony is often extremely useful in the court case. You cannot be hurt by the hearing-- it can only help you. And often it makes the the difference between conviction and no conviction, in addition to the consequences vis a vis the CDL.
As for the remaining issues, there are simply too many to sufficiently address here. (The Miranda issue alone would take 3 paragraphs to address-- Miranda has very limited use in a DUI case, but it does apply.) Suffice it to say that it sounds as if your husband has a very defensible case, as you probably know. It sounds very likely that, assuming he has competent counsel, your husband may not end up with a DUI conviction out of this. Of course, this is no promise, just an educated prediction.
If you would like more specific information concerning the issues your case presents and how to best present the defense, feel free to contact me at [email protected] or (800)515-0233. (A complete, in-depth consultation will likely require an hour and half or more.)
Kindest regards,
JACQUELINE GOODMAN RUBIO
Attorney at Law
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