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What Determines Whether Prosecutors Will File a DUI?

  • By: Ron Hedding
  • Published: December 19, 2019

This is a big question on a lot of people’s minds and when they call me or come in and meet with me regarding a DUI arrest, they’re usually talking about that they have a good driving record, a good job, a family and they can’t have this conviction on their record.

Blood Alcohol Level & Field Sobriety Tests

Really, those aren’t the factors prosecutors are looking at when deciding whether or not to file a DUI against somebody.  They’re going to be looking at hard factors like what was your blood alcohol level?  How was your driving?  How did you perform on the field sobriety tests?  Those are the main things that they’re looking at.

So, if your blood alcohol level was well-over a .08 and you’ve got some lawyer or office manager of a DUI law firm telling you they’re going to get your case dismissed, that’s probably not going to happen and they’re not being truthful with you because they haven’t looked at all the evidence in the case.

So, don’t be fooled by people telling you stuff that doesn’t make sense.  Criminal defense — DUI cases in particular — are really dealt with in a common sense way.

That said, having a DUI lawyer puts you at an advantage because the lawyer that you hire is going to be specifically honed-in on all the things that are helpful to you.  In my opinion, public defenders are good in many cases, but the one huge advantage that private lawyers have is that they have sat down with you prior to the case being filed usually.

They have the time to get all of the good information that can be used to help you and they’re going to be focused in on what is the best possible result they can get.  What information can they gather to present to the prosecutor and the judge in order to get you a good resolution.

BAC Near .08 Is a Valid Defense Argument

Having a good driving record is important.  Having insurance is obviously important, but they’re really not the driving factors when it comes to a DUI.  If your blood alcohol is at or near the .08, you’ve got a good argument because usually the breath machine that they use to test your blood alcohol level is not 100% accurate. What Determines Whether Prosecutors Will File a California DUI?

That’s not just something defense lawyers are saying.  Even the prosecutors know that and their experts will testify that that machine has an error rate of a .02.  So, if you blew a .08 you might have been a .06.  If you’re a .06, you’re not under the legal limit.

So, since they know that if you blew a .08 especially in Los Angeles county for a DUI, you have a real good chance of getting something less than a DUI.

That doesn’t necessarily mean that they’re going to dismiss the case because a .08 is the legal limit.  If they can prove you’re a .08 and they can prove that there were some factors that show that you can’t safely operate a motor vehicle, they might be able to win.  So, in that case they may take the risk and take the case to trial versus dismissing it.

How Were You Driving Vehicle?

Another factor they’re going to look at is how you were driving.  In other words, if you’re driving erratically, swerving around or get in an accident even if you were a .08, they have an argument that you’re not driving safely because you’re under the influence of alcohol which is what the whole DUI law was meant to guard against.

There’s a whole host of factors that go into how the prosecutors are going to decide whether to dismiss a DUI case, whether to give you a lesser offense, or whether to be more harsh than they usually are with a DUI.

There are other bad factors that they can look at.  For example, if you were going very fast; if you got in an accident; if you hurt somebody.  The more dangerous that they perceive you, the more likely they are to punish you and force a DUI down your throat.

The more your defense attorney can show that you weren’t dangerous — that you were fine; you passed a lot of their tests — the more likely it is to get something other than a DUI.

Bet your bottom dollar on those field sobriety tests, a high percentage of my clients come in an say that they feel they passed those tests.  The bottom line is you didn’t pass them according to the police otherwise they couldn’t have arrested you.

They can’t say you passed all of the tests and then arrest you.  That would be an unlawful arrest.  In order to arrest they’re going to have to say in their opinion you were unsafe to drive and you failed the test.

Sometimes they’ll give you some passes or close to passes on some of the tests, and obviously that is very helpful to you and very helpful to me as a DUI defense attorney to be able to say to the prosecutor, as you know, they say the person failed all the tests almost every single time.

Ability to Safely Operate a Motor Vehicle

Look here, they’ve got him passing a couple of the tests.  That gives the defense attorney a strong argument that you were safe.  Those tests were designed to evaluate whether or not you can safely operate a motor vehicle.  They’re very subjective tests.  It’s up the police to make the decision.

They’re not always the best decision-makers because they’re usually honed-in on trying to catch people for DUI’s.  They’ve been trained to do it.  They get awards to do it.  So, I don’t have much confidence that they’re going to be perfectly accurate in everything they say and do related to the DUI arrest.

What I am confident in is just because you’re a nice person, they’re not going to dismiss your DUI case.  You’re going to need a tough, hard-hitting, smart DUI defense attorney by your side if you want to get the best result.

Ron Hedding

About the Author Named Top Los Angeles DUI Defence Attorney by LA Times and named one of the Top 100 DUI Defence attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.