Will my DUI case be dismissed if I blow below the legal limit? 16 Answers as of August 04, 2011

I was driving on the freeway, following my GPS, was about to veer right for wrong freeway so I went left, but I wasn't speeding and I didn't cut anyone off. I put my signal on. The cop was already following me though because I have a loud car. I was pulled over, blew 0.07, arrested and cops also said I was doing weed and depressants, which is a complete LIE! My passenger blew a 0.05 but they let her drive my car to follow them to their station, after they had me do more tests, they drove by her to tell her I was going to jail. This made no sense because why would they let her drive with a 0.05 but not me? My blood test will show I don't do drugs and was under 0.07. Will my case be dismissed?

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Lowenstein Law Office
Lowenstein Law Office | Anthony Lowenstein
It depends on several factors.
Answer Applies to: California
Replied: 8/4/2011
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
Not necessarily. The DA can still prosecute you for being under the influence ( subd. (a) of section 23152) depending on your driving and your symptoms.
Answer Applies to: California
Replied: 7/31/2011
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
There are two sections in the vehicle code under which you can be charged with a DUI. One is driving with a blood alcohol level of 0.08 or higher. The other does not depend on a blood alcohol level. It is driving under the influence. This could mean alcohol or drugs. If your blood test come back negative then they only have the observations of the officer to go on and the DA may not file the case or will move for a dismissal at arrangement or try to get you to plea to a reckless driving (dry reckless). Make sure you call the DMV within the ten days to set up a DMV hearing so that they do not suspend your license. An attorney would help to make sure you get all your rights protected.
Answer Applies to: California
Replied: 7/28/2011
Law Office of Jeff Yeh
Law Office of Jeff Yeh | Jeff Yeh
Possibly, but not automatically. You could still be charged with VC 23152(a), which is not BAC-specific. Also, the DMV may take action against you, and you may lose by default if you don't request a hearing within 10 days. Contact a DUI specialist to help you.
Answer Applies to: California
Replied: 7/28/2011
Law Office of Maureen Furlong Baldwin
Law Office of Maureen Furlong Baldwin | Maureen Furlong Baldwin
If they cannot prove you were driving under the influence of a drug, then the issue would be whether they wanted to charge driving under the influence of alcohol, knowing it is less than .08. Some people ARE under the influence at lower numbers. However, it is hard to prove and the DA is not likely to file your case if you were .07 on the test at the police station unless the driving is horrible and they believe they can prove beyond a reasonable doubt that you were under the influence.
Answer Applies to: California
Replied: 7/28/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    It is impossible to answer that question. If your blood test comes back with drugs in your system then the DA will likely prosecute you and claim you were under the "combined" influence of alcohol and drugs. Since you blew below a .08 you will not be charged with 23152b but only 23152a. In a case like this you need to write out your complete statement of what happened from minute you got up to minute you were released from custody and send it to us for our review and you will need statements from your passenger and other witnesses to help you win your case.
    Answer Applies to: California
    Replied: 7/28/2011
    Law Offices of Elliott Zarabi
    Law Offices of Elliott Zarabi | Elliott Zarabi
    It may or they may reduce the charge to a reckless, wet or dry.
    Answer Applies to: California
    Replied: 7/28/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    It may be dismissed depending on the result of the blood test and also the other factors such as the driving observations, the results of the field sobriety tests and what you told the police
    Answer Applies to: California
    Replied: 7/28/2011
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    This is totally up to the DA. You cannot be charged with "B count" which is driving with a .08 or more. But you can still be charged with the "A count" which is driving under the unfluence of alcohol. Juries have found people guilty of that even if they were below .08, based on the driving, the balance tests, slurred speech, etc. If the DA files the case, get a knowledgeable attorney in your area to either get the charge reduced substantially or take it to trial.
    Answer Applies to: California
    Replied: 7/27/2011
    Alanna D. Coopersmith, Attorney at Law
    Alanna D. Coopersmith, Attorney at Law | Alanna D. Coopersmith
    If it's not, you should fight it.
    Answer Applies to: California
    Replied: 7/27/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    No. You can be convicted of Driving under the influence regardless of BA level, through testimony and observation of the arresting officer. Of course you can fight the charges. 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. There is no magic wand to wave and make it all disappear. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.
    Answer Applies to: California
    Replied: 7/27/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    There are two different DUI laws - 23512(a) of the Vehicle Code and 23152(b). The (nb) subsection deals with driving with 0.08% or above. With results of 0.07%, they can't and won't file this section against you. The (a) subsection is for driving under the influence of alcohol, drugs or a combination of both. There is no alcohol level required for this section. If they think they can prove that your "bad" driving was the result of alcohol, even if under 0.08%, then they can go after you for that section. The two sections are independent of each other. You could be driving down the street perfectly and be pulled over for expired plates. If they determine you were 0.08% or over, they can charge you with the 23152(b) section, even without "bad" driving. On the other hand, if you're all over the road and a 0.06%, you can still face the 23152(a) section, even though you weren't over 0.08% Both count as a DUI, so you're going to need an attorney to help you with this for the best possible outcome.
    Answer Applies to: California
    Replied: 7/27/2011
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    I'm assuming you're over 21 if not, the DUI statute for under 21 is .02 or above and you will be charged. It is not likely to be dismissed unless you hire an attorney to fight the case for you. First, there are two statutes that a DUI suspect is normally charged with 21352(a) driving while ability impaired by alcohol and/or drugs and 21352(b) driving with .08 or above BAC. Even if you blew .07, you can still be charged with the (a) count based on the driving the police observed. Also, if the blood test comes back showing .08 or above, they will charge you with the (b) count as well. I'm not saying you can't fight and win the case, you can. But if you don't fight the prosecution isn't going to do you any favors.
    Answer Applies to: California
    Replied: 7/27/2011
    Law Office of Rodney Nosratabadi
    Law Office of Rodney Nosratabadi | Rodney Nosratabadi
    The District Attorney's Office still has the discretion to file charges against you even if your blood alcohol concentration is less than .08%.
    Answer Applies to: California
    Replied: 7/27/2011
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    Hire an attorney! Don't try to handle this yourself. If your blood test comes back below a .07, your case will not automatically be dismissed.You could still be found in violation of vehicle code section 23152(a) - driving under the influence of alcohol or drugs, or both. This section does not require a minimum BAC. However, you also need to consider that you only have 10 days to request a DMV hearing. If you do not, the DMV will suspend your license. You should start looking for an attorney because you will have two separate cases pending against you. The DMV case has nothing to do with th DMV. And if you attempt to speak to the district attorney in hopes of getting the case dismissed, you may end up getting yourself in more trouble.
    Answer Applies to: California
    Replied: 7/27/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    An individual can still be convicted of DUI with a BAC of 0.07 or even without a chemical test altogether. In CA 0.08 gives a presumption the individual was under the influence. Below 0.08 and there is no presumption, however a defendant can still be convicted if the other facts convince a jury the defendant was under the influence. A case like this will be determined by the other facts such as performance on the Field Sobriety Tests. Good luck.
    Answer Applies to: California
    Replied: 7/28/2011
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