Orange County DUI Lawyer Blog
What is the per se blood alcohol content (BAC) in California? Most people know it is, with certain exceptions, 0.08%. Above that limit and a driver is considered per se under the influence of alcohol.
Which number is greater: 0.08% (0.0008) or 0.013% (0.00013)? If you answered 0.0008, congratulations, you remember your eighth-grade math. Perhaps the Redlands Police Department and the San Bernardino County District Attorney’s office need to have a math refresher course.
In late 2022, a retired airline pilot was driving home after a restaurant dinner where he had one glass of wine. He found himself in a DUI checkpoint. That is where his nightmare began. While it is unclear from reports what prompted an officer manning the checkpoint to have the retired pilot step out of his vehicle and perform preliminary screening tests and then blow into the preliminary alcohol screening (PAS) device, after doing so, the officer informed the pilot that he blew almost double over the legal limit of 0.08%. The pilot was arrested, booked, and spent the night in jail. While at the police station a blood draw was also conducted.
The PAS reading that prompted the arrest was 0.013%. That is almost seven times less than 0.08%! Do the math. The blood toxicology came in at 0.016%, five times under the legal limit. So, you might be thinking this was a careless mistake by an incompetent police officer. Think again. Did the Redlands Police Department release the pilot say, oops, we made a mistake. (Which would be bad enough.) No, they did not.
Incompetence and arguably outright malevolence. The evidence showed that another officer on the scene understood that the PAS result was far below the legal limit, but the officer allowed the arrest to proceed, rather than discreetly informing the arresting officer he made a mistake on the reading.
It gets worse. Six months later, the San Bernardino County District Attorney’s Office filed DUI charges against this unfortunate victim of incompetence. (Often it takes several months—prosecutors have up to a year—before charges are filed in a misdemeanor DUI.) To make matters worse, the charges were enhanced, meaning he faced a more severe sentence, for driving with a BAC over 0.15%. Can the district attorney’s office tell the difference between 0.016% and 0.15%? Apparently not. It took the pilot’s DUI defense attorney months to convince the prosecutors that they made a mistake. In the meantime, the pilot spent thousands of dollars in his defense, not to mention the anxiety this caused the 72-year-old retired pilot.
Here’s the final kicker: After the San Bernardino County District Attorney’s Office realized their mistake, they tried to get the pilot to plea to a “dry reckless” driving charge even though there was no evidence that pilot was driving recklessly. I would speculate that the district attorney’s office took this approach to save its skin and to avoid the lawsuit that might be forthcoming.
The pilot refused to plead to anything and one year after his arrest, his case was dismissed. His attorney sent a demand letter to the Redlands City Council threatening to sue in federal court on the grounds that his client’s Fourth Amendment right “to be free from unlawful arrest without probably cause” had been violated. The city council decided to settle and awarded the pilot $150,000 in settlement.
You might think this case was a comedy of errors. It was not comedy for this victim of the incompetence and arguably malevolence on the part of law enforcement and the prosecutors.
This case demonstrates how important it is to hire a competent and skilled DUI defense attorney who will advocate for you. While most DUI cases are not as egregious as this one, many cases do involve a violation of the driver’s Constitutional rights. DUI defense attorney William Weinberg is available for a free consultation to review your DUI matter for violations of Constitutional rights and other potential defenses. You may contact him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.