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Can I be arrested for DUI in my own home 45 minutes after driving, when I had been drinking at home when the police arrived?
Anonymous2 views4 answers
A neighbor I do not know said I threw empty beer cans out the window of my vehicle and he reported it. It was dark out. He confronted me in my driveway. I asked him to step off my property. He was not close to me.
Forty minutes later the local cops showed up saying they wanted to question me about the "littering." I can't prove that the beer cans (9) were not from that day. Instead I was questioned about how much I had to drink that day. I already had three drinks at home when they arrived. Nobody saw me driving drunk.
They did an FST in my house and then arrested me. I took a breath test approximately 20 minutes later at the station and tested .20. I told the officer in the squad car on the way to the police department that I had drinks at home. He said it didn't matter because they had probable cause.
Can you be arrested? You're living proof that you can. Was it valid? Maybe/maybe not.
You're in a unique situation where the officer technically didn't witness any bad driving and can't prove how you were driving, when you were driving, and what your blood alcohol level was at the time of the driving.
The law says that an alcohol test within 3 hours of the driving is presumed to be valid and reflect your alcohol level at the time of the driving, but you've got other issues with the drinking between driving and the test.
You're going to need to find a good DUI criminal defense attorney in your area and work with them on this case. Keep the 10 day window to fight against the license suspension in mind - don't let that slip by.
Find yourself a top Concord California DUI criminal defense attorney because you may have a winner.
Drinking AFTER driving can be a defense if you have:
1) Proof of drinking after driving;
2) Credibility of witnesses who can attest to enough drinking after driving to get you from .07 or lower to whatever BAC they claim you were at the time of the test;
3) A toxicologist who can take your drinking pattern and show you were .07 or less at time of driving;
and
4) A good attorney to present it. Try www.dui-help.com.
You absolutely have a defense, assuming your attorney can prove the facts you have related and establish through expert testimony that you were below the legal limit at the time you were driving. Good luck.
1. Yes, you can be arrested.
2. The first question you should ask is whether you be prosecuted.
3. The first level of discretion was when the investigating officer decided to arrest you after he came to your home. More information about your interaction with the officer should shed light on his determination to arrest you.
4. The next determination in this case will be at the district attorney level. The DA may determine that there is not enough evidence that you were in violation of VC 23152 (DUI) which requires your operation of a motor vehicle while you were either impaired by drugs or alcohol, or while your blood alcohol level was at or in excess of .08.
5. If the district attorney determines that there is little evidence of your operation of a motor vehicle while impaired, and that you were drinking while at home after your neighbor complained, then they might determine not to actually file the charges for the DUI.
6. If they never file the charges, even though you were arrested, then you will not have to defend the case, and you will not require private counsel.
7. Go to the first appearance date. If the DA has determined to file the charges, and they are ready to proceed, do not enter a plea, and ask the court for time to retain private counsel. The court will either provide you with a continued date to return to court with your private counsel, or refer you to the public defender.
8. In either case, you will still have the opportunity to retain counsel, either privately or through the public defender.
