Am I guilty of a DUI if the results of a breath test prior to arrest were above .08% but results after the arrest were below .08%?
As many DUI lawyers in Los Angeles believe, generally speaking, a person whose blood alcohol level chemical test shows below .08% alcohol by weight will not be prosecuted for a DUI. Off course, erratic driving, accident, and presence of other substances in blood that can cause impairment, will cause the police agency/prosecuting agency to file VC 23152(a), generic DUI count.
A knowledgeable Los Angeles drunk driving attorney will be able to convince the prosecutor to file reduced charges or no charges at all. Assuming that the police did not find evidence of other substances in blood of the defendant and there was no erratic driving, a result of below .08% BAC during evidentiary test will get a no filing with the Los Angeles DUI prosecutors. Sometimes, the results of a chemical test of blood for presence of alcohol after an arrest are not done in time or lost and all the police has are the PAS chemical tests prior to the arrest. Because those tests are less reliable and and generally not compliant with the law (Title 17 of CCR), the prosecutor of Los Angeles DUI and the DMV will likely give up and dismiss the criminal case and/or give a set aside at the Administrative Per Se hearing. However, if the prosecutor is aggressive and if the hearing officer with the DMV for one reason or another decides to go after the driver, they will try to lay foundation and introduce PAS results through People v. Adams 59 Cal App 3d 559 (1976). In that case, the Court of Appeals held that non compliance with Title 17 does not make tests results inadmissible, just makes it less reliable.
After Adams, the DMV or the prosecutor can proceed with a DUI prosecution based on PAS as long as they prove that PAS device was properly calibrated. There are now 3 prerequisites to introduce any test (1) the machine used was in proper working condition; (2) the test used was properly administered; and (3) 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 skilled Los Angeles DUI Attorney. Such DUI Attorney in Los Angeles would cross-examine the officer/criminalist to undermine one of 3 foundational requirements. Then, Los Angeles DUI lawyers would try to exclude such results prior to trial during pretrial evidentiary hearings (402s) or at argument with the DMV hearing officer.