Alcohol & Drugs: DUI, DWI many,many questions regarding dui and dmv

[uuudianauuu]

Hi,
My son 17, crashed his motorcycle on private property. He was injured, a neighbor heard the crash and ran to him. His wife called 911 and was on hold for 5 minutes, then transfered 3 times because they kept connecting her to wrong station...this took a total of 10 to 15 minutes. Crash was at 11:30 pm, ambulance record shows referral by fire department at 11:55pm. It took approx. 45 minutes for emergency personal to arrive at seen. CHP arrived last. Son was transported and was admitted into hospital at 2:22am. CHP had motorcycled towed at 1:36 am. Officer signed towed vehicle form at this time. Hospital is approx. 35-40 minutes away. Officer came to hospital and gave one breath test sometime before 3:06 am.

Q. Is officer required to observe person, for a period of time prior to bac?

(Officer told me son was twice legal limit over phone. Already givin test prior to 3:06am phone call.)
I have not received dmv discovery, chp report etc. Yes, I requested a Dmv hearing.

Another issue, son was givin dmv form, but no citation that we are aware of. Dmv form states detained. Son never givin miranda warning.
Q. Is this considered arrested?

Son had been cleaning engine part with carborator cleaner in an inclosed area prior to getting on bike.
Also son smokes....I'm not thrilled with this.
Son had severe bruising to lungs along with broken back, adema and various other issues. There is no way he could have breathed into bac properly at time of test. He even developed pnuemonia within 6 days of crash due to fact he could not take or expel deep breaths.

Q. Can any of these above issues give bac improper reading?

Son does admit to drinking vodka between 1pm and 2pm. approx 5-6 shots. This was with friends. And yes I am punishing him for this.

Younger brother 16, says they played video games around 9pm, says he was fine and not drunk at this time. Also at accident seen was alert , and even told neighbors who helped, him home number .
We were out of town for night. My son in the hospital around 2:30 am, was also able to give directions to uncles house,(very complex) without knowing street names, to sheriffs, who were trying to locate them.

Son wasn't arrested unless detained is considered arrested. Officer told me on phone he was releasing him into custody of hospital.

Q. Is dmv only legal issue ,or is something else coming from D.A. ?

It has been just about two months since crash, I have only recieved dmv related forms.


Thank-you in advance!!!!

 

[CdwJava]

Q. Is officer required to observe person, for a period of time prior to bac?

For the required official chemical test, the observation time is 15 minutes. However - guess what? The hospital is almost certain to have blood from when he was admitted, and that blood result will also contain a toxicology and alcohol screen that the state can access.

I have not received dmv discovery, chp report etc. Yes, I requested a Dmv hearing.

Well, it will be your son's hearing - not yours. Keep that in mind.

Another issue, son was givin dmv form, but no citation that we are aware of. Dmv form states detained. Son never givin miranda warning.

Miranda is only required when an arrest or custody equivalent to an arrest has occurred AND the party is being interrogated. Asking questions about a collision and alcohol consumption at the hospital is not usually going to rise to a level requiring Miranda.

Television gives a poor impression of the Miranda requirement as most such shows reflect NYPD policy (the reading of rights upon arrest), this is not the case in most places, and generally not required absent an arrest.

Q. Is this considered arrested?

I wouldn't think so.

If he was not issued a citation, or handcuffed and tossed into a police car, then he was not likely arrested.

Son had been cleaning engine part with carborator cleaner in an inclosed area prior to getting on bike.
Also son smokes....I'm not thrilled with this.

And this has to do with ... ???

Son had severe bruising to lungs along with broken back, adema and various other issues. There is no way he could have breathed into bac properly at time of test.

Depending on the device used, an insufficient sample would likely have resulted in an error. If it was CHP it was probably the Draeger E-PAS and that does not often need a lot of air to function properly.

Q. Can any of these above issues give bac improper reading?

Possible, but not likely.

Again, the hospital will also have the BAC reading from any bloodwork and THIS can be subpoenaed by the state.

An experienced DUI attorney (usually starting at about $2,500 - $5,000) can answer that question specific to your son's situation better than we can.

Younger brother 16, says they played video games around 9pm, says he was fine and not drunk at this time. Also at accident seen was alert , and even told neighbors who helped, him home number .

One does not have to be "drunk" to be impaired. The violation is not for driving "drunk", but for driving under the influence.

Q. Is dmv only legal issue ,or is something else coming from D.A. ?

He may well be charged with DUI. You will know when contacted by the Juvenile Probation office or the court for any future proceeding.

It has been just about two months since crash, I have only recieved dmv related forms.

Then he may be very lucky.



- Carl

 

[uuudianauuu]

Thanks for reply,
Q. What about private property and location was not county maintained? One lot before crash, sign says This is a not a county maintained road Drive at safe speeds.

I have read even under National Highway Safety Board, Journal Of American Science etc., that bac can be inaccurate due to chemical exposures, reading following increases as time passes after exposure. As for smoking this also can have effect on bac. It is more likely it was from carb cleaner than smoking in my mind. I will have forencic specialist at dmv hearing.

Blood was taken at hospital at 2:35 am. Ethanol was 137 mg/dl , only one ethanol reading taken. This was three hours after crash.

Q. Doesn't lab have to be within three hours? How accurate can results be three hours later? What is the time frame for testing?

Q. Does dmv actually request this? Or do they just go by officers report? Hospital lab work says cannot be used foe legal purposes.

Thanks-again

 

[CdwJava]

Q. What about private property and location was not county maintained? One lot before crash, sign says This is a not a county maintained road Drive at safe speeds.

In CA a person is DUI if they drive impaired on ANY surface - private property or public road, it does n ot matter.

I have read even under National Highway Safety Board, Journal Of American Science etc., that bac can be inaccurate due to chemical exposures, reading following increases as time passes after exposure. As for smoking this also can have effect on bac. It is more likely it was from carb cleaner than smoking in my mind. I will have forencic specialist at dmv hearing.

Smoking a cigarette is no going to effect the test results, neither is the exposure to carboretor fumes. You can have whomever you want at the DMV hearing, but that is not the venue to evaluate the evidence - that will be done in court.

When in court, you are free to pay any expert you ant to try and come up with an explanation for the high ETOH level at the hospital or from any mandated chemical tests done by the officers.

Blood was taken at hospital at 2:35 am. Ethanol was 137 mg/dl , only one ethanol reading taken. This was three hours after crash.

Okay.

Q. Doesn't lab have to be within three hours? How accurate can results be three hours later? What is the time frame for testing?

The presumptive validity is 2 hours, but three hours is not going to be a problem. The state can argue that his BAC was rising ... and if at .137, they can argue that it rose by almost HALF in that third hour (unlikely) and still be over the limit. Of course, one can be charged and convicted of DUI at below the legal limit, too.

Q. Does dmv actually request this? Or do they just go by officers report? Hospital lab work says cannot be used foe legal purposes.

The DMV will use the mandated chemical test. if there is no such test, then the DMV MIGHT use the hospital lab results. Or, they might wait until after any trial.

Hospital labs use a different method to test for alcohol than the breathalyzer or a blood test at a crime lab. The hospital results tend to be slightly higher, but this is not universally true.

- Carl