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FILE PHOTO Oakland Mayoral candidate Ignacio DeLaFuente (right) is greeted by a supporter during his election night party in Oakland, Calif. on Tuesday, June 06, 2006. (Dean Coppola/Contra Costa Times)

OAKLAND -- Councilmember Ignacio De La Fuente, who was arrested and detained after failing a field sobriety test last month, will not be charged with driving under the influence, the Alameda County District Attorney's Office said Thursday.

Although De La Fuente failed the field sobriety test and was considered impaired by a California Highway Patrol officer, District Attorney Nancy O'Malley's office decided it did not have enough evidence to charge the 61-year-old with misdemeanor DUI.

"After a review of the evidence, the people in charge of charging have decided that there is not sufficient evidence to proceed," said Teresa Drenick, a spokeswoman for the office. "No charges will be filed."

Drenick said evidence, mainly results of a blood test, could not prove that De La Fuente was over the legal limit when he was driving.

Although the tests showed that De La Fuente had a rising blood alcohol level, those tests could not conclude that he was above the legal limit when he was driving, she said.

"The evidence presented to our office shows that Mr. De La Fuente's blood alcohol level was on the rise between the time he was stopped and given a preliminary test "... and the time he was given a blood test later in the evening," Drenick said. "When we calculate back to determine his blood alcohol level at the time he was stopped, we concluded that we could not prove that he was over the legal limit when he was driving."


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Drenick, citing confidentiality, declined to release De La Fuente's blood alcohol level.

De La Fuente's arrest stemmed from a traffic stop on Interstate 580 about 7:30 p.m. Dec. 23.

A CHP officer clocked the councilman driving his 2006 Buick about 15 mph above the 65 mph speed limit and saw him changing lanes unsafely near the Fruitvale Avenue exit.

After stopping De La Fuente, the officer "noticed impairment" and conducted a field sobriety test, which De La Fuente failed, the CHP said at the time.

De La Fuente was arrested and given a blood test to check the level of alcohol in his blood.

CHP officials said after the incident that preliminary results showed that De La Fuente's blood alcohol level was at least .08 percent.

California law states that any motorist with a blood alcohol level of .08 or more is considered to be driving under the influence.

It remained unclear Thursday who administered the blood test on De La Fuente, when his blood was drawn or where the council member was taken after his arrest.

Alameda County sheriff's spokesman J.D. Nelson said his office has no record of De La Fuente being booked in an Alameda County jail. Nelson said De La Fuente was probably taken to the CHP office in Oakland.

CHP officials did not return phone calls seeking comment Thursday.

De La Fuente also did not return calls seeking comment.

An attorney who specializes in DUI cases said Thursday that there appears to be nothing unusual about the district attorney's decision.

"This is not uncommon," said Bruce Kapsack, a partner in the law firm Kapsack and Bair.

"I've probably had 15 to 20 cases a year in Alameda County alone where the officer pulled someone over, the person did not perform well on the field sobriety tests and the district attorney doesn't file charges."

Kapsack said police officers need little evidence to arrest a driver on suspicion of DUI and in many cases that suspicion is proved wrong by the blood test.

"There is nothing here "... that makes me think this doesn't pass the smell test," Kapsack said.