Is this odd for a DUI???

Question

Is this odd for a DUI, last night,myson was charged for speeding and a DUI. When we went and bailed him out he still had his drivers license and Keys to his car. They never took them away. When the did the breath test it was higher at the scene it was higher when they hauled him in. When he was there is was .01 under the limit. He also had to take a blood test. The first test had to be tossed because they put it in the wrong tube. The second time they used the same arm and couldn't get any more so they poked him for the 3rd time is this also legal?

Answer 1

Do us all a favor. QUIT worrying about what's legal and what isn't unless you worry about EVERYthing being legal or illegal.
Speeding and DUI is illegal. Obviously something he didn';t give a flyin' f### about.
Tell you son to stay home and read a book. I never heard of anybody being busted for that!

Answer 2

I can only speak about California, where the legal limit is .08. What does the legal limit mean? It only means that if the DA proves that you are .08 or higher, the district attorney need prove nothing else. If you are under .08, the DA has to prove actual impairment. To do that, the DA has to prove bad driving such as weaving, etc, or that you failed the field sobriety tests. I suppose it differs per state. Note that there is no BAL for drugs in many states like California. So if you are high, but not drunk, the DA always has to show actual driving impairment.

I wasn't completely sure, but did you say that the BAC was higher than when he got the blood test, but not as high when he got stopped. That may be evidence of rising BAL. In other words, maybe he was below the limit when he got stopped, so the DA has to show impairment. In other words, it shows that the alcohol was getting stronger and stronger in his system as he was driving. But the cop stopped him before he was no longer legal. It's a defense anyway. Showing impairment is much more difficult for the DA, so a rising BAL defense throws the DA a curve. He has to be legally impaired while driving. He isn't illegal if the cop stopped him before he became illegal. So if you drink a six pack and start driving immediately, you won't be illegal for a few minutes. If the cop stops you before the few minutes is up, you didn't commit a DUI. Thank the cop for that. It's good in these borderline situations when the BAL is .08 or .09 and the next one they do it a little higher. The jury can say that it wasn't over the legal limit when he was actually driving and require actual impairment be shown.

As for the bit about the driver's license and keys, it does seem unusual. Maybe there is some procedure that wasn't followed. Maybe it wasn't unusual at all. It might be something to look into, but this point is probably a red hearing. The jury will be interested more in the BAL and any impairment.

What about the blood test? Sounds like the plebotimist (person who takes blood) isn't great at drawing blood. Some are better than others. But what of it? It means nothing. Is it legal? Depends on the state. In California, you get a choice of blood or breath for the official test at the jail (not the roadside test). (You also get urine if drugs are suspected.) Not doing it is not a choice and some jurisdictions will force you to give blood or urine or breath. If you aren't given a choice, what is the remedy? It is probably a law suit for money, but the blood won't thrown out of the DUI case.

Answer 3

It is "odd" in that is not the norm but I dont see anything about it that is illegal.

First as far as him still having his driver's license and keys that isn't all that odd in fact it is the norm, at least here in my state. We do not take the license of someone arrested for DUI immediately (unless that license was already suspended) and we do not take the keys either, sometimes the tow service will take the keys though. They go to jail get booked in and are allowed to make a "sober" bail at which time they are released with there license and keys in hand.

Generally any breath test done in the field is just a preliminary test and another official one is done at the station, jail, or hospital (breath or blood). The results of two test taken at different times can vary in either direction, if the subject had been recently drinking the rate is likely to go up but if it had been a while since the last drink then it is likely to go down. Also a diffrence of .01 could simply be a difference in the accuracy of the two devices, often the "field tests" are not as accurate as the official intoxilizer test, and neither are as accurate as a blood test. A blood test will always result in the most accurate results, meaning the true blood alcohol level.

As far as being .01 UNDER the limit at the scene that really does not matter. In my state and many others I believe the .08 level is only a presumptive level. The laws say that .08 is a level at which a subject is presumed to be impaired however you can be charged with DUI if you are below this level and your actions (field sobriety) show that you are impaired. Basically there are two parts to the law the .08 part and the part that simply deals with impairment regarless of the alcohol level.

As far as having to try three times to get the blood that isn't abnormal, illegal, or excessive. It is unclear to me from your post if he took two test (a field test then a blood test) or three (a field test, a breathilizer at the station, and then a blood test). There could be an issue if he was made to take three but not if just the two, at least in my state that would be an issue, but only if he did not consent to the third test.

Ultimately if you think there is a problem here you should talk to a lawyer but it isn't sounding that way to me. More importantly your son needs to put more effort into not being a drunk driver and less into trying to beat the system after being caught.

Answer 4

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Answer 5

It's not that unusual.

A test at the scene can be higher. Alcohol eliminates at a rate of roughly .018 per hour. Also the certified breath test at the jail will always round down. Say, if you're .0799 it will read as .07. Also with a blood test, multiple vials may be drawn depending on the skill level of the EMT or nurse drawing the blood. It takes some skill. Get an attorney for further advice. Try to learn from your mistakes!

Answer 6

The initial test is a baseline assessment. As the alcohol breaks down into the system, the rate will rise. That's why they do two tests. If he failed the second test, he was legally impaired. Talk to a lawyer about the mishandling, but once the demand is given and he submits, it isn't their fault they couldn't find a vein. Put it this way, if it was a Doctor trying to put in an IV at the Emergency Department so that they could try to save his life, would it matter how many times they poked him? Three tries at getting a vein is not 'excessive force,' in my opinion...but check with a lawyer.
(here the limit is .08. If you are .06 you are impaired enough to not be allowed to drive but only get a suspension. At that level, they already know he is impaired so they will do a second test to confirm) Your son was driving drunk. Be thankful he didn't kill anyone.

Answer 7

I suggest you talk to a lawyer. they know the state laws per your state. But something sounds not right. Rookie cop or maybe he was just high on something. For a fact alcohol does take time to absorb in the system. So if he was at .01 and tested higher later his body processed what he drank in the delay time before the second test. People have beat DUI by running into a bar and ordering 4 shots and drinking them all quickly then demanding a blood test instead of a breath test due to accuracy of the blood test. The delay into the Hosp. allows the 4 shots to absorb into the system and they deny drinking before but did so at the bar because they were scared of the cop following them. I know how that sounds but rule #2 states if it's stupid and works it's not stupid

Answer 8

It sounds odd to me because usually they impound the car. As far as the blood test goes, they can go by whatever means they want if they have reason or just cause or if the breathalizer if refused. I would however hire a lawyer or atleast go speak with one that specializes in DUI defense to make sure your states laws.

Answer 9

Yes it's legal for them to test the blood and yes the levels will fluctuate some over time. Your son drove drunk and risked the lives of countless others. You need to face that fact

Answer 10

Yes, I do find it odd that you are trying to defend your son who put himself and others at risk.