Usually, a person whose blood alcohol level chemical test results are below .08% alcohol by weight will not be prosecuted for a DUI in Los Angeles. This is different in Orange County, where many drivers are prosecuted for a DUI even if their results are below .08% BAC. It is of course, more likely that the under .08% BAC cases will be prosecuted as a DUI in Los Angeles when law enforcement has evidence of bad driving, accident, or impairment regardless of BAC results. For example, the prosecution for a VC 23152(a), a generic DUI, does not require any specific level of alcohol and can be used for prosecution of refusal DUI cases in Los Angles, low BAC DUI cases in Los Angles, or drug DUI cases in Los Angeles.
Our Los Angeles drunk driving attorney can convince Los Angeles DUI prosecutors not to file DUI charges or to file lesser charges. If the police show no evidence of other substances in the blood and there is no bad driving, many Los Angeles DUI cases with a below .08% BAC results will get a “no filing” or a reject with the Los Angeles DUI prosecutors. Sometimes, the results of a chemical test of blood for the presence of alcohol after an arrest are not done in time or lost and all the police have are the PAS chemical tests (preliminary alcohol screening) prior to the arrest. Because PAS results are less reliable and generally not compliant with the law (Title 17 of CCR), the prosecutor of Los Angeles DUI and the DMV can often dismiss the criminal case and/or give a set aside at the Administrative Per Se hearing. However, if the PAS results are over the limit and the prosecutor wants a DUI conviction in Los Angeles or if the DMV decides to try to suspend the driver’s license, the DMV or the prosecution will try to introduce PAS results through a case of People v. Adams 59 Cal App 3d 559 (1976). There, the Court of Appeals held that non-compliance with Title 17 does not make test results inadmissible, just makes them less reliable. This is especially true in DUI prosecutions in Orange County where.07 DUI are prosecuted regularly especially if the PAS results are above .08% BAC.
There are multiple other title 17 requirements: for example, prior to test, a person cannot have anything in their mouth and if he does – the tests results are invalid. So if you have a gum that you are asked to spit out and the officer adminsters the test 10 minutes later – regardless of the result of that test, it is inadmissible because of a Title 17 violation.
Pursuant to the Adams case, the DMV or Los Angeles DUI prosecutor can proceed with a prosecution based on PAS results alone as long as they can “lay the foundation” for the introduction of the PAS test. Laying the foundation is a legal term for providing basic requirements. Per Adams, there are 3 prerequisites to introducing the PAS BAC test:
- The machine used was in proper working condition;
- The test used was properly administered; and
- The operator was competent and qualified.
If the prosecution or the DMV tries to rely on Adams to introduce PAS in place of the actual results, you need a good Los Angeles DUI Attorney. During testimony, a DUI Attorney in Los Angeles would cross-examine the officer/criminalist to undermine these foundational requirements. If one of three requirements cannot be established, then our Los Angeles DUI attorney would move to exclude the results so that it cannot be relied on. This can be done during testimony at the DMV or prior to trial during pretrial evidentiary hearings (commonly known as the 402s) or during the argument part of the DMV hearing.