In California, at the most basic level, the prosecution is looking for a BAC level that’s a 0.08 or greater, which is the legal limit.
There are actually two DUI charges available in California; one is Vehicle Code section 23152(a), which says it’s unlawful to drive while impaired or under the influence of an alcoholic beverage. That section doesn’t require a specific BAC level, so even if you test below 0.08, if the prosecutor can prove your driving was impaired and that it was alcohol-related, they may have enough to convict on that section.
The other DUI section, Vehicle Code section 23152(b), is the one that specifically requires the BAC level be at least 0.08, so that is all they need to convict. That section does not necessarily require that they show impairment because the law presumes that you are impaired if you are at or above that limit, so the easiest case to prosecute isone in which the defendant is a 0.08 or greater and that’s what they look for.
If you’re at a 0.08 or below, they will use field sobriety tests or the reason you were pulled over, such as becauseyou were weaving, straddling lanes, reckless driving, and so on; anything to support their contention that you were under the influence. They already have evidence of alcohol in your system; they will look for any additional facts to suggest that you were under the influence to add to the presence of alcohol.
How Can Blood Draw Cases be Beaten?
The first thing to look at is the analysis; one of the things my office does to prepare for a case is to request copies of all of the blood analysis records, in order to discover whether or not there were any signs of fermentation of the blood sample, how it was handled and the chain of custody.
Additionally, blood results are usually reported to two decimal places, so if you were at exactly 0.08, that could mean 0.081 or 0.89. There is usually a margin of uncertainty of about +0.004, soif that third digit on your blood result is an 0.089, your true BAC range is probably somewhere in the 0.085 to 0.093 range, while a true result of either a 0.080 or a 0.081 could take you below 0.08, and most lab technicians won’t be able to testify with any kind of certainty as to your absolute true BAC.
Blood samplesare placed into a vial as soon as it’s drawn, and the vial should contain a preservative and anti-coagulant, which needs to be mixed with the blood in a certain manner, and the blood needs to be preserved in a certain manner before it is tested. If none of those things happen properly or the preservative level is not sufficient or the sample isn’t properly stored, the sample will start fermenting.
If the blood starts fermenting, it will create additional alcohol within that vial, which could produce an artificially high BAC result. So there are a number of things to look at when looking at the blood cases that may help in defending someone.
Do Blood Draw Cases Usually take Longer Since they Are More Complicated?
I wouldn’t say they are more complicated; breath cases have their own unique issues to deal with. They sometimes do take longer, but that’s more an issue with how long it takes to test the sample than with investigating the case itself.
With a breath test, you get the number right away, but you can’t save the sample for reanalysis. With a blood test, it takes most labs two to six weeks to analyze that sample, but they do hold onto the sample, so retesting is possible. When it comes to complexity, neither one is more complex than the other. A blood case is different than a breath test.
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