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Do The Penalties Go Up If The Reading Was Higher By A Double Or Triple?


Yes, the penalties could and in fact would go up. A lot of counties would require longer DUI schools, and they would require more jail or Sheriff’s work program time if the person was convicted. The fines would typically be the same no matter what the person’s blood alcohol level was, but the penalty would be worse for a higher number, especially when other allegations got added in like high speed, accidents, injuries or things like that, because in that case there would definitely be stricter and tougher penalties.

Do A Lot Of Clients Have A High Blood Alcohol Level, Or Are They Closer To The Legal Limit Of .08?

I have seen people at all levels, and in fact some people even get arrested while under the legal level. I am currently handling cases where one of the blows into the machine for my client was .07. I have had clients who were arrested for DUIs while being less than that, although they would usually not be charged with being at or over .08, but they could still be charged with driving under the influence.

They would basically need to see whether the person was driving with the care and caution of a sober person or whether their driving was impaired. Forensic toxicologist expert witnesses for the prosecution would come into court and testify almost every time that most people who were at a .05 would be impaired at that level and then they would say that everyone would be impaired at a .08, although I disagree with that.

They need to see the person’s tolerance, because I have seen many people through personal experience and through clients, who are perfectly fine to drive at that level, and are still able to handle a car better than a lot of other people. According to the law, the line in the sand has been drawn at .08. It used to be .15 and then it went down to .10 and now it is .08. The reason this has changed is because more pressure is being put on the legislature to make DUI laws tougher.

When it used to be a .15, people did not believe that someone should be arrested or convicted for a DUI at a .08, because that was almost twice as high. A lot of people would say that someone could be impaired at a .08 whereas other people would disagree with that, so it would be important to look at more than just the number in this case.

They would also need to look at when the number occurred, because very often, the number would be gotten an hour or more after the actual driving. Some of the machines they use are also not necessarily accurate and there can be margins of error. Having a definite line, a per se charge would be the way to go in this law but I am not the one who makes the laws, I am the one who defends people who have been arrested for these offenses.

I deal with a lot of drivers who have very high blood alcohol levels and if the machines or the blood results are accurate, then they would typically be found to be two or three times the limit. They would definitely be impaired, but there would always be a way to win those cases whether it was at the DMV or at court.

Are The Tests Before The Arrest, Admissible In Court?

Yes. The preliminary alcohol screening test, the breath test, would often be done after the field sobriety tests like the balancing tests, and it would be admissible in court if the judge allowed it in a trial situation.

Certain elements need to be met to show that the officer was properly trained, that they properly administered the test, and the device was in proper working order. They would also have to show that it was properly calibrated within a certain timeframe, meaning that it was being regularly calibrated. There would be a lot of different things we could challenge to try to keep those machines and their results out of evidence.

They are usually allowed to bring those in to show the presence of an alcoholic beverage, but I would still not advise the person to take the test because it would not help their case if they blew into it. It would just give them more numbers, especially if the person told them their last drink was an hour or two ago.

If the person blew into one of those machines and ended up with a .09 or a .10 and then did a blood test or another breath test at the station after they had been arrested and it showed an .08, then the police would have the evidence the person was coming down, meaning they were possibly higher at the time of driving.

Most people have not talked to a DUI lawyer about what they should do, but that would be the best place they could get information regarding a DUI.

For more information on DUI Penalties, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (415) 523-7878 today.

Aaron Bortel

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