a few questions regarding arrest and apeals

[Undertow]

My friend has surrendered himself to the Sherif's Department in Northern California, so I am writting on his behalf.

He was site for a DUI under the following Cicumstances:

He was at a bar. When he left, he got in his truck and drove starting towards home. After getting on the highway, and hearing something hitting/rubbing his of his tire, he pulled onto the shoulder of the highway to inspect his truck.

It apeared as though there was exntensive damage to the passenger side rear fender. He is assuming someone at the bar hit his truck before while he was inside the bar and simply drove off. The truck had no body damage when he arrived at the bar.

Anyway, while he was UNDERNEITH his truck trying to pry back the fender tub so it wouldn't rub on his tire, a police officer pulled up and parked behind his truck. He got out from under the truck to speak with the officer. In explaining the situation to the officer, he was asked to take a breathylyzer test and he failed.

His trial ending in giving him the option to serve 30 days in jail or 30 day of S.W.A.P (Sherif Work Assist Program or something like that). He chose SWAP. He failed to appear for swap 2 times (Missed the 1st week, showed up for the 2nd one, missed the 3rd one), was removed from the program and was asked to surrender himself 3 weeks later (a letter was sent form the Sherrif's Dept.). He did. With time servered (1 day of SWAP) he is currently on day 9 of 29.

QUESTION:
1) Can he apeal his case because the officer never saw him driving?

2) Can he ask for a sentince reduction?
3) Can he expunge this from his record?

thanks for any help.

 

[FKNA]

1) One can always appeal. But since he has already accepted a sentence, he has pretty much plead guilty. So doubtful he would have a successful appeal.

2) He's SOL on the sentence reduction now.

3) Since he took the breathalyzer and failed, that's evidence that he was actually drunk. It's next to impossible to get dwi's expunged unless one is found not guilty.

In reference to #1, since the officer did not see him driving the vehicle and since he was out of the vehicle when the officer came upon him, with a good lawyer (get ready to spend thousands) a successful appeal can probably get filed and he may be found not guilty.

 

[racer72]

An officer does not have to observe an individual driving to cite them for DUI. All that is required is evidence that the person had operated a vehicle or was intending to operate a vehicle. In some states, all that is required is to have the key in the ignition switch to be cited. I would have to assume that when explaining the rubbing tire problem, the officer figured that he was driving the vehicle. Why else would the officer ask him to blow a breathylizer test?