Can I get a DUI ticket if no field test or toxicology test were given?

Question

I was involved in a single car accident where I lost control and hit a tree. I was knocked out and awoke in an ambulance. Four days later I was released from the hospital and found DUI ticket in my wallet. I obtained an accident report which stated obvious intoxication. No field test was given and no toxicology was requested or given by the hospital. I have all paperwork copies. Empty beer cans were in the car but I was not intoxicated. Will the charge stick just by the police officers assumptions?

Michael Palumbo · Answer

No the charges will not stick.

Daniel J. Pingelton · Answer

It depends. Both sides have facts in their favor.

Gregory Crain · Answer

Yes.

Michael Nichols · Answer

Yes. They can charge it - but can they prove it?

Timothy Klisz · Answer

I'm sure they took your blood to price their case. You certainly have a right to defend it, but one would need to see all the evidence they have to see if a case will stick.

Dennis P. Mikko · Answer

The prosecutor will have to prove the charge beyond a reasonable doubt.  

Whether the officers testimony will be enough for a conviction would ultimately be up to a jury.  

At trial you could testify as to your version of the events and a jury would have to evaluate the evidence.

Larry Dunn · Answer

In Nevada, chemical tests are mandatory if the police officer has   reasonable suspicion that a person is under the influence of alcohol. 

If a  chemical  test was not administered and no field sobriety tests were  administered,  it would be difficult to prove the charge beyond a reasonable  doubt. 

In some  cases a person is so intoxicated that the charge can be proven  without any  tests. If a person was literally 'falling down drunk' a judge or  jury  could conclude that a person was under the influence without any test.

Jared Altman · Answer

Sound like  VERY weak case to me.

Gregory Casale · Answer

You can get a DUI (OUI in MA) no matter what tests, or if NO tests are given. The officer simply needs probable cause to arrest you on OUI charges. The odor of alcohol with erratic driving and staggering is far more difficult evidence to overcome than missing a few steps on the 9 step walk and turn. Yes, you can be charged with OUI without breath or blood tests or even field sobriety tests being given. Get a good lawyer!

Jason Savela · Answer

Yes, you can be charged, but no that does not mean the prosecution will win.  in a situation like this, they will often take a blood sample while you are unconscious - certainly possible - if BAC over .08, you will get a notice in the mail from DMV indicating you will be revoked in 7 days unless you request a hearing  if some of you paperwork says REFUSAL, then no test, but you should immediately go to DMV and request a hearing without the cop -   Get a good DUI attorney ASAP  In response to your DUI Questions:  I am a criminal defense attorney that focuses on DUI cases.  If you would like to discuss your case, please contact me.    Some important information- If you have been served with a Notice of Revocation, then you have 7 days to request a hearing.  Please do that immediately by going to your local DMV office, tell them you got a DUI and you want to request a hearing.  They will give you a form.  DO NOT REQUEST THE OFFICER.  We can do that later if we choose to, but most often it means you will lose.  The receipt DMV gives you allows you to drive until the day of the hearing.    Representation begins when client pays attorney an agreed upon retainer and returns a signed fee agreement.

Kevin O'Grady · Answer

You should immediately hire an aggressive attorney.  The police may rely on their observations, but there is also the possibility that while you were at the hospital your blood was drawn and examined.  An attorney who is trained to argue against the admission of that sort of evidence is your best option in defending.

Mark R. Thiessen · Answer

DUI is only for people under 21.  And yes you can get a ticket for DUI if you just smelled like alcohol.

Mindy Bish · Answer

I would verify whether the hospital took blood tests which revealed alcohol levels in excess of the limit.  If the answer is no then a DUI will be almost impossible to prove.

Terry Nelson · Answer

Yes, and you could be convicted on the officer's testimony.  When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do?  Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial.  If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.    A little free advice:   When arrested for DUI, whether alcohol or drugs, then upon release from jail or booking the defendant is given documents that include a notice that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic suspension of your license imposed by DMV upon your arrest.  That is separate and runs consecutively with any suspension that may be imposed by the DMV, or the court upon conviction. Contact DMV and do so, timely, then appear at your scheduled DMV appeal hearing and present any supporting evidence and testimony.  If you do not win the appeal, you can still apply later for a restricted license for to/from work and school, etc., after serving at least  of the full suspension period.  If you don't know how to do these things effectively, then hire an attorney that does.

Michael Jones · Answer

Obviously the answer is yes! You have it.  The question of conviction depends on the complete case and may require an actual trial to try to get a dismissal.

Steven Alpers · Answer

They will need some sort of evidence of intoxication.

Jenny D. Hubach · Answer

Yes, however, the prosecutor would have a difficult time proving the case is properly challenged.

Jeffrey Pollock · Answer

Unless there were blood tests, then I'd be surprised to see you convicted   of DUI.  Perhaps when you hire an attorney, he/she can/will find out what   evidence is available against you.

Gary Russell · Answer

If you were taken to the hospital as a result of the accident, it is almost certain that blood was drawn and a sample was sent the Michigan State Police lab for testing for alcohol and/or drugs.  If not, then the prosecutor could still proceed with the charge, he/she would just be lacking the concrete evidence of a breath, blood or urine test result.  It make the prosecutor's job harder, but not impossible.  You could be convicted on circumstantial evidence alone.

Michael Lynch · Answer

Yes, you can be both arrested and convicted even if no blood alcohol  test were given, however it can weaken the case.  You also bring up a  separate issue which needs to be discussed with an attorney before you  make any appearances. Find an attorney and discuss the case with them.

Michael Clinton · Answer

Yes.  All that is needed is evidence that you had been drinking and that  your driving was impaired.  Your situation may be hard for the  prosecutor to prove (or not depending on other facts) but in the end, a  jury will decide if you are guilty.

Timothy Byrne · Answer

You can be charges under common law dui. That is propbably what happened here. It will be your word against the officers.

Brian Wanerman · Answer

You can get a ticket any time an officer has probable cause to believe you committed the offense. Also, DUI is a misdemeanor offense. So, when you say you got a DUI "ticket", it probably was a summons to appear in court. If so, be sure to note the appearance date and be sure to show up in court on that date. If you don't, the court could issue a bench warrant for your arrest.  You can't be convicted of DUI unless the prosecution proves each and every element of the charged crime beyond a reasonable doubt. Unfortunately, in California, they don't have to have a toxicology test to prove this. In California there are two types of DUI charges. They are vehicle code 23152(A) (Driving under the influence of alcohol/drugs) and 23152(B) (Driving with a blood alcohol content (BAC) of .08% or higher). ?With both charges, the prosecution must prove (1) that you drove a car and (2) that, at the time you drove the car you were under the influence of alcohol and/or drugs. ?The difference between the (A) and (B) counts is that with (A) the prosecution must also prove that the alcohol and/or drugs impaired your judgment to the point where you could not safely operate a motor vehicle. ?With the (B) count, they only have to prove that your BAC was .08% or higher.  Of course, to prove the (B) count, the prosecution needs the results of some kind of test (usually breath and/or blood, urine if drug intoxication is alleged). If they never did such a test on you, they can't prove the (B) count. But, they can still prove the (A) count if they can convince a jury that you were under the influence of alcohol and that it impaired your judgment. You indicate below that the accident report stated intoxication. The prosecution will likely offer this as evidence you were under the influence. You indicate below that you hit a tree and were knocked unconscious. The prosecution will likely offer this as evidence your judgment was impaired.  You should seek legal counsel immediately to protect your rights. Whether you have retained an attorney or not, be sure to show up on your court date.

John Brennan · Answer

Even without the test you can be found guilty, you need a lawyer to listen to your contentions and defend you.

Michael J. Breczinski · Answer

There was no alcohol test done by the hospital? What is in the medical records? They should have something in order to charge you. Just an accident is not sufficient. You need an attorney.

Harley Gutin · Answer

You can be charged. It would be hard to prove if no blood was taken by the law or by the doctors.

Stephen Freeborn · Answer

I seriously doubt that no toxicology tests were done at the hospital.  When ever someone is injured and taken to the hospital, toxicology tests are always run as the treating doctors need to know what might be in the person's system before they are treated.  You were unconscious when taken to the hospital and were there for 4 days I have no doubt that there are toxicology reports. On a side note, the DUI statute reads "having a blood alcohol of .08 or above, or driving that is affected to an appreciable degree."  This means that they don't even need a breath test, if the facts can support a DUI conviction.  Other factors:  empty beer cans in the car that you were in possession of; the officer and/or paramedics, in their respective reports probably noted  "strong odor of intoxicants coming from person" or something to that effect.   Also, consider, how did the police and/or paramedics come upon you?  Did someone witness the accident and your driving prior to the accident?  All these questions need to be answered.  Lastly, field sobriety tests are always voluntary, so the fact that they don't exist are not critical.  I do not want to be all doom and gloom, as there could be a lot of other factors that might help your cause.  You really need to hire a good DUI attorney on this one.

Troy Gorman · Answer

There are essentially 3 ways to be charged with "DUI". 1. If you are under the age of 21 and driving, any amount of alcohol is illegal; 2. If you are "visibly" impaired in the opinion of the officer (erratic driving, stumbling, slurring); 3. A blood test or breath test show that you are over the limit.  Assuming you were over the age of 21, if the officer smelled alcohol on you and saw the beer cans in your care, it might be reasonable for him to assume that you were drunk at the time of the accident. You might also want to check your medical records to make sure that a blood sample was not taken while you were at the hospital. If they did not have a blood sample or do a breath test, you could have a very good defense to the charge. Having an accident does not mean you were drunk, nor does having an empty beer can in your vehicle. They still have to prove their case, and it appears to me that they are missing the evidence necessary to do so.

Steven Fagan · Answer

You certainly can be charged if the officer believes his investigation has revealed sufficient facts to support probable cause to arrest. Whether the charges hold up to scrutiny by a skilled and experienced DUI lawyer is another matter entirely, and you should seek out the best lawyer you can.

Eric Sterkenburg · Answer

The police report is not evidence that can be used in court; however, a testifying officer may use the report to refresh his memory. If you go to trial the jury will get to hear the testimony of the police officer as to how he formed his conclusion that you were under the influence. There are two penal code sections in California that a person may be found guilty of a DUI. One section requires a chemical test the other does not. So yes you can be found guilty of DUI without a field test or a chemical test. In your case your attorney may have a good chance of getting a reduction of charges to a reckless driving.

Nathaniel Shafer · Answer

You have the opportunity for a court trial where the burden will be on the prosecutor and the police to prove you were intoxicated. If everything occurred as you say, then they likely won't be able to do that and hopefully a jury will agree with you.

Michael Morgan · Answer

The police are normally trained to make a case for DUI assuming certain standard test results will not be admitted into evidence. The officer also may be a DRE which allows some of his opinions about intoxication to be admitted into evidenceso you can get a DUI ticket. Email transmissions to clients of this office presumably contain confidential and privileged material for the sole use of the intended recipient. The use, distribution, transmittal or re-transmittal by any unintended recipient of any communication is prohibited without our express approval in writing or by email.

Gary Moore · Answer

The case can be won with a competent trial attorney because an accident injury could cause the same symptoms as intoxication by taking alcohol or drugs.

Arthur Aiken · Answer

In South Carolina, no field sobriety test is required if the driver is incapacitated. Toxicology is not required in any case. The absence of these two elements sometimes makes a DUI easier to defend.

Russell Pietryga · Answer

Did they draw blood from you? That is the key to your case.  Usually, they will take blood.  If not, the prosecution has a bad case.  Hope this helps.

Gregory Graf · Answer

Being charged with DUI and being convicted are two separate things.  The police can charge you with anything, whether it will stick is a separate matter.  The police may file charges based on there opinion that you were intoxicated.  Don't be surprised if you find out that they had a blood draw performed while you were in the hospital.  If you were in fact sober, the blood test will support your position.  It is up to a jury to decide if the police opinion that you were intoxicated is credible beyond a reasonable doubt.  You need a good attorney to help you with this matter.  Start preparing for an eventual trial.  Were you with people before the accident who can testify that you were sober?  What do your medical records say?  Start preparing your case as soon as possible.

Kevin Ellmann · Answer

A DUI charge CAN be sustained without field tests or toxicology tests.  The prosecution must prove (by circumstantial evidence in your case) that you had consumed alcohol and it affected your ability to safely operate a motor vehicle to a substantial degree.

Bernard Jones · Answer

Since you have already been charged with DUI, clearly the answer to your "can I" question is yes. Whether you may be found guilty is a different question altogether. You need to speak with a lawyer as soon as you can.

Jennifer Leigh Gottschalk · Answer

It's hard to say.  The circumstantial evidence against you might be persuasive enough to convince a judge of your guilt.  You should hire a lawyer experienced in DUI defense to represent you.

Jeff Yeh · Answer

You can, but you have a good case, because FSTs are a big part of the state's case against you. Contact a DUI specialist, and do it soon because it seems like you have less than 6 days remaining to save your license.

Matthew Kober · Answer

In order to prove DUI, the prosecutor must present evidence that you were intoxicated at the time by either 1) officer testimony that you were not physically able to drive (usually field sobriety tests), or 2) chemical tests such as blood or breathalyzer.  They could present evidence such as "i smelled alcohol in the vehicle after the accident" but that wont be enough.  If they don't have either of these, they won't be able to convict you.  My guess is they took a blood draw while you were in the hospital. You should definitely consult an attorney.

Ernest Lee · Answer

Friend:                  Had you had anything to drink? It appears the police reached the conclusion that you were  intoxicated by the smell of your breath, the beer cans, etc. However, you may be able to get the case dismissed, if you haven't waited too  long. If that fails, you may be able to win in court based on the state's lack of evidence since the state does not have hard and fast evidence of your intoxication. They do have the Police's testimony and that may be, (and often is), enough.

Austin Hirschhorn · Answer

You have received a ticket charging you with DUI.  Whether the police officer can prove the charges is an entirely different issue.  If you were unconscious after the accident and awoke in an ambulance it is unlikely that you were given any sobriety tests at the scene but you don't indicate if there was blood drawn at the hospital.  This may have been done and if it was, you should try to find out if there was a blood alcohol analysis made. If there was no blood alcohol analysis and if there were no witnesses who are able to testify as to what caused you to lose control and run into a tree and sustain sufficient injuries to keep you in the hospital for 4 days you may have defenses available to you which should be raised in your defense of the ticket.    You don't indicate whether the empty beer cans were in the car because you had consumed the contents and you don't indicate how many cans there were and whether you consumed any beer before the accident.  You also don't mention anything about your prior driving record and whether you have ever had a prior conviction for a drinking and driving offense.  All of this is relevant for your attorney to know so that he or she can negotiate the most favorable disposition of the DUI ticket possible.  The police officer will be able to what he saw and smelled and this would be part of the evidence as to why he issued a DUI.    You need to retain experienced counsel because the disposition of a DUI charge will not only possibly add points to your driving record but could get the Secretary of State Department of Vehicle and Driver services involved in the disposition of the ticket and affect your driving privilege.   austinh@ix.netcom.com

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