What happens if I get in a car accident after drinking but below .08? 12 Answers as of July 19, 2011

I was rear ended a few days ago. Even though it wasn't my fault, after the cops came he asked me why I smelled like alcohol. I told him I had had 1 drink and he conducted a field test and then a breathalyzer. I passed the breathlyzer but failed the field test because I was so nervous and shaken up from the accident. I was charged with a DUI even though I was below the legal limit of .08. Will I also be liable for the accident because of the DUI?

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Law Offices of Jacek W. Lentz
Law Offices of Jacek W. Lentz | Jacek W. Lentz
The prosecution can charge you with impaired driving even if your level was below 0.08. Your lawyer's task will be to show that there was no relationship between your drinking and the incident and therefore there was no impairment. Get a good lawyer as you might have a fairly defensible case. On the civic side, the fact that you used alcohol will be used against you for sure. Again, your argument will be that alcohol was irrelevant to incident. The rearending would have happened with or without your having some alcohol in your system.
Answer Applies to: California
Replied: 7/19/2011
The Chastaine Law Office
The Chastaine Law Office | Michael Chastaine
You can be charged with driving under the influence even when under an .08 if you are impaired. It sounds like a case worth fighting, depending on how far below .08 you were. If your not at fault for the accident you should not be required to pay restitution for it.
Answer Applies to: California
Replied: 7/18/2011
Nelson & Lawless
Nelson & Lawless | Terry Nelson
Whether you are liable in a civil suit for the accident and damages is a separate issue, to be determined in a civil court trial. If you didnt cause the accident, and if alcohol wasnt a contributing factor in your involvement, then no, you wouldnt be found liable. If sued, turn it over to your insurance carrier to handle, or hire an attorney if you had no insurance. If the investigating officers believe your are under the influence, you can be arrested and charged with DUI, regardless of tested BA level. You would likely also be charged with causing an accident. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence, facts and sympathies are available for legal arguments, for evidence suppression or other motions, or at trial. You can hire an attorney, unless you know how to effectively represent yourself in court against a professional prosecutor intending to convict. He will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate. If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me. Ill be happy to help use whatever defenses there may be.
Answer Applies to: California
Replied: 7/18/2011
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
You can be convicted of a DUI even if you are below 0.08. However, this is a good case to have an attorney on as he should get you off without the DUI. If you had no responsibility for the accident then you should not be libel for the damages. Y
Answer Applies to: California
Replied: 7/18/2011
Law Office of Barry Melton
Law Office of Barry Melton | Barry Melton
Based upon the facts as you present them, you can be charged with a DUI; but as a general matter, it's unlikely you will be held liable for the automobile collision. In California, having a blood alcohol content in excess of .08 is not the exclusive means by which a DUI can be charged; there is another more general statute that prohibits driving under the influence of alcohol, drugs, or both, irrespective of a breath or blood test. The more general statute permits charging a DUI if your ability to drive was impaired by the ingestion of alcohol to the degree that a driver is not able to safely operate a motor vehicle, even if the driver's blood alcohol was below .08. As for the automobile collision, ordinarily it's presumed that a "rear-ender" is the fault of the person who drove into the rear end of another vehicle; however, there are extraordinary circumstances where the driver of the rear-ended car could be at fault (e.g., brake lights were not working, a sudden and expected stop on the freeway, etc.).
Answer Applies to: California
Replied: 7/18/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    You are not responsible for the accident, but should report it to your insurance co. right away. they will defend the case. As to the DUI charge, the D.A. will look to other factors to determine whether to charge you. If there is no evidence of " inability to drive safely " the charge can be defended.
    Answer Applies to: California
    Replied: 7/16/2011
    A.L.A. Law Group, LLP
    A.L.A. Law Group, LLP | Lauren M. Mayfield
    It is extremely important that you receive a consultation from criminal defense attorneys right away on your DUI case. You only have 10 days to contact the DMV to schedule an administrative hearing and request discovery and put a stay on your license. The administrative hearing is a very important opportunity for your attorney to cross examine the officer and get valuable information for the defense of your criminal case in court. It will be very important for your potential civil liability to be successful in defending your criminal case. It is very important that you hire a criminal defense attorney to represent you in court on your DUI. Your attorney should get all video, audio, photos and calibration records from the breathalyzer machine. If the machine hasn't been properly calibrated your DUI could get reduced to a lesser charge like a wet or dry reckless or dismissed altogether. Further, video of the field sobriety tests are extremely important. You should not enter any plea in your case until all discovery has been received and you have gone over the discovery with your attorney. You should not give the insurance company any form of recorded statement without speaking to an attorney first. You should also contact an insurance agent that is a specialist in DUIs, separate from your current carrier prior to the DMV hearing to prevent the DUI from affecting your insurance rates and to save you money on the SR-22.
    Answer Applies to: California
    Replied: 7/16/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    You could be. In California, there are two charges that may come with a DUI: the 23152(a) count and the 23152(b) count. The B count alleges that you were driving above a .08% BAC. The A count alleges that your driving was affected by your consumption of alcohol regardless of what your BAC was.
    Answer Applies to: California
    Replied: 7/16/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Generally when rear-ended, the person who hit you would be liable for the accident. Depending on the circumstances, it is possible that they would try to bring a DUI conviction into consideration in order to try to shift some or all of the liability, but that depends on some other variables. I recommend hiring a DUI attorney to handle your case to try to avoid the DUI conviction if possible. I would be happy to speak to you about your case in more detail, and can be reached at 818-336-1384 or 1duilawyer.com. Whatever you decide, good luck with your case.
    Answer Applies to: California
    Replied: 7/16/2011
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    Possibly. The da may attempt to argue that you had a falling blood alcohol level. They might attempt to say that your bac was above a .08 at the time of accident but it fell due to the amount of time it took for the police to arrive.
    Answer Applies to: California
    Replied: 7/16/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Possibly. Cops have a tendency to treat whoever was DUI to be the one at fault, so you may end up being ordered to pay restitution. That is unless you get a DUI specialist to help you get the charges dropped. Cases near 0.08 are very defensible by a skilled DUI lawyer and, depending on the particular court, a dismissal is very possible, especially if you were under.
    Answer Applies to: California
    Replied: 7/16/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    When you use the word "liable" that means you are legally talking about whether you will have to pay damages for the accident. The answer to that is you were not legally responsible for the accident then the fact that you had been drinking will not change that fact. As to being charged with a DUI, the DA can prosecute you for CVC23152a, being under the influence of alcohol and if the DA can prove you were under the influence based upon all of the factors of your case then you could be found guilty, even with a blood alcohol level of below .08. You should immediately contact an experienced DUI law firm.
    Answer Applies to: California
    Replied: 7/16/2011
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