Can I get a DUI even though I passed sobriety tests in California? 14 Answers as of November 01, 2010

I got pulled over because my tail lights went out without me noticing. I had had a few drinks that night, and the cop smelled the alcohol on my breath because he made me do sobriety tests. I passed all of them, but he still breathalyzed me, and it was 0.08. Now I am being charged with a DUI, but I do not feel like I was driving under the influence because I felt ok. Can I beat these charges since I passed the sobriety tests? Was he allowed to breathalyze me in the first place when he pulled me over for something else, and I was not driving erratically?

Ask a Local Attorney. 100% Anonymous. Free Answers.

Free Case Evaluation by a Local Lawyer: Click here
Nelson & Lawless
Nelson & Lawless | Terry Nelson
Can you be charged? Of course. Can the DA win and convict you? That depends, on all the admissible evidence and facts. You will get the answer from either a successful suppression motion, or a plea bargain with the DA and Court, or from a jury verdict. Your .08 BA is presumptive of under the influence under CA law. That you thought you passed the FST is essentially irrelevant. It is what the officer thought and put in his report that will matter in court.

What can you do? Defend the charges. Go to court, enter a not guilty plea, arrange bail reduction or OR, set up and attend the court hearing[s] and trial date[s]. File motions as applicable. Raise all the available defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for motions, plea bargaining, or at trial. Go to trial if it cant be resolved with motions or a plea bargain. There is no magic wand to wave and make it all disappear. If you do not know how to do these things, then hire an attorney that does, who will try to get a decent plea bargain for you. If serious about doing so, feel free to contact me, Ill be happy to help you use whatever defenses you may have.

If you refuse a requested blood test, you automatically lose your license for a year. Your choice.

Keep in mind: When you are arrested for DUI, upon release from jail or booking, you were given documents that included a notice from DMV that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic one-year suspension of your license. Contact DMV and do so, timely, then appear at your scheduled hearing and present your evidence and testimony. If you do not know how to do these things, then hire an attorney that does. Contact me.
Answer Applies to: California
Replied: 11/1/2010
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
You can certainly win a jury trial. But there is no guaranty, and you will incur big expenses doing it ( legal and expert fees are high ). There also will be the opportunity to plea bargain the case and get a reduced charge (wet and reckless).
Answer Applies to: California
Replied: 11/1/2010
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
first the cop did everything right. second you can receive a DUI if your BA is 0.08. get a better a good attorney (like myself) and he will be able to get you a better deal and save you some points and lower your fines.
Answer Applies to: California
Replied: 11/1/2010
The Law Offices of Christopher J. McCann
The Law Offices of Christopher J. McCann | Christopher J. McCann
Yes you can get arrested for DUI even though you passed sobriety tests, though if your blood alcohol level was only .08%, you have a good chance to beat the case. Plus, keep in mind that while you might believe you passed the sobriety tests, the officer decides that and writes the reports and frequently will state otherwise. As to your second question, what you took was not a "breathalyzer", but a "Preliminary Alcohol Screening Device" or "PAS" for short. This is actually a field sobriety test. An officer can ASK you to take.08%, particularly because he had reason to believe you were drinking. Regardless of whether your driving was poor or not. You could have refused that particular test. Unfortunately you did not. Since you blew .08%, he had probable cause to arrest you. You still have a good case, though, and you should contact an attorney who specializes on DUI cases, as this office does. It is absolutely necessary to contact the DMV within 10 days after your arrest.
Answer Applies to: California
Replied: 10/31/2010
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
You can be charged with a DUI either for being under the influence of alcohol or being at or above a .08 percent blood alcohol. You may have defenses for either or both so you should consult an attorney as to this matter.
Answer Applies to: California
Replied: 10/31/2010
    Law Office of Thomas J. Ogas
    Law Office of Thomas J. Ogas | Thomas Ogas
    It is hard to know for sure if you "passed" the sobriety tests, as most people believe they did better than they actually did.

    You can be ARRESTED for a DUI if the police have "probable cause" to believe that you are driving with a blood-alcohol level that is .08 or more.

    You can be CHARGED with a DUI if the District Attorney believes they have enough evidence to prove that your blood-alcohol level is .08 or more.

    But to be convicted of a DUI (and thus "get" a DUI) it has to be proven to a jury.

    Since the results of the breathalyzer test were only .08, and the reason for stopping you wasn't that you were swerving all over the road, the DA is going to have a hard time proving this case. The breathalyzer is not perfect. It's not precise. It has a margin of error and it's a 50/50 chance that your actual blood-alcohol level is below .08.

    Either fight this case or resolve it with a reckless driving. Definitely do not plead guilty.
    Answer Applies to: California
    Replied: 10/30/2010
    The English Law Firm
    The English Law Firm | Robert English
    You can still get a DUI. You need to have an attorney review all of the facts with you. You may have a defensible case. Call my office if you are in Southern California.
    Answer Applies to: California
    Replied: 10/30/2010
    Law Office of William M. Concidine
    Law Office of William M. Concidine | William Concidine
    The fact that your taillights were not functioning is a violation of the vehicle code which justifies the police officer stopping you. Once you are stopped the officer can investigate based his observations smell of alcohol. It does not matter why he stopped you as long as it was a valid violation of the vehicle code. If you took a breath test at the scene the officer was supposed to inform you it was voluntary. You have to take either a blood or breath test at the station, not at the scene...A DUI actually has two charges- one for driving under the influence without any numerical results attached, and one for driving with e blood alcohol concentration of .08 or higher. You can argue that your performance on the field sobriety tests shows you were not “driving under the influence" but you may need to consult a DUI forensic expert to testify you were not driving with a .08 at the time of driving which is the issue the prosecution has to prove this depends on your drinking pattern and how much alcohol was actually in your system at the time of driving. You may want to consult a DUI attorney who can explain this concept further and determine how to fight your charges.
    Answer Applies to: California
    Replied: 10/30/2010
    Wise Law Group
    Wise Law Group | Michael J. Wise, Esq
    Yes, the cops and the DA can charge you, but that doesn't mean they will no be willing to negotiate it down to a wet reckless. Also, based on those facts you may have an excellent case for trial. If you are formally charged by the District Attorney, I recommend you consult with an attorney based on the facts as you have set them forth.
    Answer Applies to: California
    Replied: 10/29/2010
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Unfortunately, there is no such thing as "passing" FSTs, which are designed so you can fail. If you do 19 things right out of 20, guess what will show up in the report? That's right, the "one" thing you did wrong. FSTs are simply a form of evidence-gathering, a way to make it easier to convict you in court. However, since you are right at the borderline, you should consult an attorney who specializes in DUI. These types of borderline cases can often be won by an experienced DUI specialist.
    Answer Applies to: California
    Replied: 10/29/2010
    The Law Offices of Robert L. Driessen
    The Law Offices of Robert L. Driessen | Robert L. Driessen
    Yes you will need to hire an attorney to assist you. Make sure you call the DMV within 10 days to schedule your DMV hearing. No one passes the tests and if it was a PAS test you were not required to submit to that but you are required after they arrest you.
    Answer Applies to: California
    Replied: 10/29/2010
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    I doubt that he will agree you passed all the tests. You can refused a breath test if you have not been arrested. If arrested you must take one or lose your license. Driving with .08 or above is a separated crime from driving impaired, both are referred to as DUI.
    Answer Applies to: California
    Replied: 10/29/2010
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    He can do a test if he smells alcohol on your breath. You might get a .08 reduced to a wet reckless.
    Answer Applies to: California
    Replied: 10/29/2010
    Steven Mandell
    Steven Mandell | Law Offices of Steven Mandell
    My guess is that you didn't "pass" his field sobriety tests. If you did, we wouldn't be having this little chat. And yes, he can pull you over for a broken tail light, smell alcohol on your breath, ask you to do the field sobriety tests, and breathalyze you. That part sounds pretty normal. But there may be other issues which can have a positive impact on the outcome of the case. Having .08 blood alcohol concentration is a very good negotiating tool. I suggest you get a criminal lawyer experienced in DUI and DMV matters. Most criminal lawyers give free consultations. If you'd like to talk to me about this matter, please do not hesitate to call me. Good luck.
    Answer Applies to: California
    Replied: 10/29/2010
Click to View More Answers:
12 3 Free Legal QuestionsConnect with a local attorney