DUI question

[203Cree]

Quick one for a buddy of mine. Just happened last night.

PC is questionable, 2 other guys in the car back up the fact that the driver signaled, so I think he may fight it on that alone.

Anyway, cop saw him leave the bar so he made him do a field test. Passed field test with no problem, said the cop got pissed and made him blow. He blew a .103

10 min ride to the station and he blew a .078 on the machine.

I'm thinking he could get it dismissed and probably should, but I'm looking for another more qualified opinion.

And before anyone says any negative stuff, he's a good dude who tried to do the right thing, he quit drinking about 1.5 hrs before he left. It wasn't the smartest thing to do, but we've all made a bad call in life at some point in time.

 

[silver03svt]

I'm going to give you an honest LEO opinion and tell you that there is not enough in your story to give you any insight or advice. First, I am not sure how your friend knows he passed the sobriety test, as I don't know of any LEO that will tell a suspect whether or not they passed them. Second, a 10 minute ride is not going to yield a drop from a .103 on a roadside PBT to a .078 on an evidentiary breathalyzer. Lastly, if the state has a presumptive level law like VA, a BAC of .050 up to a .079 can be convicted of DUI.

 

[Lt. ZO6]

Quick one for a buddy of mine. Just happened last night.

PC is questionable, 2 other guys in the car back up the fact that the driver signaled, so I think he may fight it on that alone.

Anyway, cop saw him leave the bar so he made him do a field test. Passed field test with no problem, said the cop got pissed and made him blow. He blew a .103

10 min ride to the station and he blew a .078 on the machine.

I'm thinking he could get it dismissed and probably should, but I'm looking for another more qualified opinion.

And before anyone says any negative stuff, he's a good dude who tried to do the right thing, he quit drinking about 1.5 hrs before he left. It wasn't the smartest thing to do, but we've all made a bad call in life at some point in time.

You only tell one side of a story, which was told to you. You have no idea what really happened.

If you want to be a good friend, tell him to hire an attorney that has experience with DUI cases.

 

[SNK-BITE]

OP random of the subject question but do you work with usarec? I see your from olathe and I know some folks over there.

 

[203Cree]

OP random of the subject question but do you work with usarec? I see your from olathe and I know some folks over there.

Sure do.

Wish I could give you guys better info. I don't know what I'm looking at. He has a print out with time stamps that lists BAC at 0150 to be .136 (my initial post was before I saw this print out btw), then another at 0151 at .078. I can only assume that one was the field test and the other was the machine. I know where he got stopped, and I know where they took him for booking and blow and I know it takes 20 min max if you hit all the stop lights.

We also know it was the deputies first night, and I'm wondering if that may have played anything into it. I'm not saying the guy hadn't been drinking, I know that he was and he'll freely admit it. It's just looking at all his paperwork stuff isn't adding up. He's getting a DUI lawyer today.

 

[Outlaw99]

best thing he can do Rob, is get a lawyer and let him argue the specifics. if hes been charged, it will have to run its course. there are atty's that specialize in dui's.

 

[Silverboost]

He needs a good DUI attorney who preferably in the past worked in that county as a DUI prosecuter. The attorney to local judicial system relationship is very important. If this is his first offense I would say that they will reduce it to a wreckless driving and make him complete the drug and alcohol school and meet with a drug/alcohol counselor for an evaulation.

 

[SNK-BITE]

Sure do.

Thought so, I was just talking to your CC(SFC Cerny) on the phone the other day. Im the ACC down in Cape, Mo.

Sorry to hijack your thread.

Also he got a road side @ 0150 and an inhouse @ 0151 and it a 20 minute drive? Cop must drive one hell of a cruiser.

 

[Devil_Z]

A .1 is pretty high. Anyway, it can be considered a "DUI less safe" also which really isn't that different from a regular DUI.

On a side note, I have yet to see a good excuse for people drinking and driving. Since I've been working in the same place 6 years now I've seen a lot of guys I know come and go because of it.

 

[SinisterLS2]

Sure do.

Wish I could give you guys better info. I don't know what I'm looking at. He has a print out with time stamps that lists BAC at 0150 to be .136 (my initial post was before I saw this print out btw), then another at 0151 at .078. .

What this is is a reference. The intoxilyzer is NOT testing subject breath at that 0151 time. It is IMPOSSIBLE to obtain an evidentiary breath test on an Intoxilyzer 5000 of EITHER type that quickly. The machine must purge, and there is a sixty second waiting period (timed) along with these purges (before and after lasting about 30 seconds each as well).

There is a container on the machine designed to meet the criteria of DUI for that state. This state in question is MOST likely using a .08 reference sample. The machine takes the subject breath, purges, then tests a pre-mixed reference solution to show on the print out it is calibrated and able to detect alcohol. This solution is usually an alcohol and water mixed in proportion to .08 under a certain heat. The sample has a thermostat to keep the temperature correct, and keep the pre-mixed sample at .08 + or - .01. The + or - is acceptable on the solution since alcohol fluctuates with air temperature/pressure/and even density. That is why you see the differing tests results so close together (1 minute apart) and a reference sample of .078. Subject blows, then purge, then a test of the reference solution, then purge, then waiting period of 60 seconds. Then another purge and the machine is ready for the second subject test. Most subjects see this printed as "reference sample" on the printout in the middle and think they passed. It is not their breath. Just a preset sample on the side of the machine for calibration.

The first and third numbers should be the subject's breath on a 5000 or 5000EN. The best case against a DUI is probable cause for the stop, since there are so many evidentiary things to go over in court. Fail to signal a turn is an easy one since the dash cam either caught it, or didn't. That is where the defense attorney comes into play. He will watch the video to see if the client signalled (long before court). If not, then he will try to attack the actual evidence in the case (less likely to work) and he will hopefully tell his client to try to plea the case out if the deck gets too stacked.

 

[SNK-BITE]

What this is is a reference. The intoxilyzer is NOT testing subject breath at that 0151 time. It is IMPOSSIBLE to obtain an evidentiary breath test on an Intoxilyzer 5000 of EITHER type that quickly. The machine must purge, and there is a sixty second waiting period (timed) along with these purges (before and after lasting about 30 seconds each as well).

There is a container on the machine designed to meet the criteria of DUI for that state. This state in question is MOST likely using a .08 reference sample. The machine takes the subject breath, purges, then tests a pre-mixed reference solution to show on the print out it is calibrated and able to detect alcohol. This solution is usually an alcohol and water mixed in proportion to .08 under a certain heat. The sample has a thermostat to keep the temperature correct, and keep the pre-mixed sample at .08 + or - .01. The + or - is acceptable on the solution since alcohol fluctuates with air temperature/pressure/and even density. That is why you see the differing tests results so close together (1 minute apart) and a reference sample of .078. Subject blows, then purge, then a test of the reference solution, then purge, then waiting period of 60 seconds. Then another purge and the machine is ready for the second subject test. Most subjects see this printed as "reference sample" on the printout in the middle and think they passed. It is not their breath. Just a preset sample on the side of the machine for calibration.

The first and third numbers should be the subject's breath on a 5000 or 5000EN. The best case against a DUI is probable cause for the stop, since there are so many evidentiary things to go over in court. Fail to signal a turn is an easy one since the dash cam either caught it, or didn't. That is where the defense attorney comes into play. He will watch the video to see if the client signalled (long before court). If not, then he will try to attack the actual evidence in the case (less likely to work) and he will hopefully tell his client to try to plea the case out if the deck gets too stacked.

Wow...lots of good info there!

 

[CSD]

PC is questionable, 2 other guys in the car back up the fact that the driver signaled, so I think he may fight it on that alone.

Worth a shot. But 9 times out of 10, there is a good probability that passengers have been drinking as well. Bringing a passenger in as a witness could have limited potential benefit and make things worse for your buddy. Besides, every DUI case has at least one credible witness, the arresting officer.. No amount of good lawyering from a defense attorney will be able to save your friend from a guilty verdict if your friends were drinking as well. Some food for thought.

Like the other poster mentioned, if the dash cam was recording before the officer activated his lights, it will show whether or not PC existed.

Anyway, cop saw him leave the bar so he made him do a field test. Passed field test with no problem, said the cop got pissed and made him blow. He blew a .103

10 min ride to the station and he blew a .078 on the machine.

I'm thinking he could get it dismissed and probably should, but I'm looking for another more qualified opinion.

Those numbers don't add up and lead me to believe the testing equipment has not been properly calibrated. The results of a PBT are generally not admissible in court, but are used to help the PO determine whether or not PC exists.

My question is, how many times did he blow at HQ? I request two blows minimum to ensure the most reliable and accurate result. After all, results are admissible in court.

 

[badws6ta]

Worth a shot. But 9 times out of 10, there is a good probability that passengers have been drinking as well. Bringing a passenger in as a witness could have limited potential benefit and make things worse for your buddy. Besides, every DUI case has at least one credible witness, the arresting officer.. No amount of good lawyering from a defense attorney will be able to save your friend from a guilty verdict if your friends were drinking as well. Some food for thought.

Like the other poster mentioned, if the dash cam was recording before the officer activated his lights, it will show whether or not PC existed.





Those numbers don't add up and lead me to believe the testing equipment has not been properly calibrated. The results of a PBT are generally not admissible in court, but are used to help the PO determine whether or not PC exists.

My question is, how many times did he blow at HQ? I request two blows minimum to ensure the most reliable and accurate result. After all, results are admissible in court.

We always do 2 samples here as well. PBTs aren't admissable in FL; That being said

OP I have seen someone get arrested, then later on at the jail blow less than .08, yet that person was definitely intoxicated and should not have been driving. Your buddy hopefully learns from this, we all make mistakes and at least no one got hurt. He apparently did not pass the FSEs, because that is a lot of the PC for DUI at least here.

 

[SinisterLS2]

Did anyone read my post? Yes. It's calibrated. No, the guy did not do a "forced" breath test. How? Did the officer hold his gun to his head? The guy blew, failed, but thought he passed since he saw something on the printout as .078. Read my post above here people. You're just on repeat like a broken record.

 

[CSD]

Having a bad day?

 

[JBird_Cobra]

The guy blew, failed, but thought he passed since he saw something on the printout as .078.

Is this the only reason he thinks he was below 0.08?.. because he thought he saw something on a printout during the whole ordeal?

Not bashing; just trying to figure it out.

 

[203Cree]

No, we're not sure if he failed or not. As I stated, none of us really knew what we were looking at. However, that's good to know about the machine and the reference. He has an attorney now, so I'm just going to stand back and wait to see what happens.

Shame, he really is a good dude. Should've had one less and waited a little while longer and it wouldn't have been an issue. It's going to cost him a job either way.

 

[silver03svt]

Did anyone read my post? Yes. It's calibrated. No, the guy did not do a "forced" breath test. How? Did the officer hold his gun to his head? The guy blew, failed, but thought he passed since he saw something on the printout as .078. Read my post above here people. You're just on repeat like a broken record.

Simma down! Sim-ma Dow-n!

 

[Lt. ZO6]

Shame, he really is a good dude. Should've had one less and waited a little while longer and it wouldn't have been an issue. It's going to cost him a job either way.

Only one less?

 

[203Cree]

Only one less?

Well I dunno how many he had. He was at Twin Peaks though, so I"m assuming they were larger drinks, in which case one may have made a difference along with a little more time to simmer.

The smart thing would've been no more than two without a DD. But hindsight yada yada.