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Any wiggle room (car stopped on side of freeway)

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NORCALXXX

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What is the name of your state? California

Charged w/ DUI, b.a.c of 0.13
My car broke down of freeway - I safely pulled to side of road, - car not running (wouldn't start) - keys in ignition, I was in driver seat, report said my car was in low gear (automatic transmission)

I was on cell phone arranging a tow when polcie arrived on scene, checked to see if I was OK, and then started in on FST, PAS, etc and arrested

My police report shows that my vehicle was stopped, but that I admitted driving - I only recall saying in response to the question "Where are you coming from" that I said the name of the origin of the city - though I did say my car broke down (engine still smoking)

any reason to go in with a Not Guilty at first court appearance ?
I contacted a lawyer, but they haven't got back with me, and I really can't afford both a lawyer and the fines - especially when a lawyer won't help get my sentence reduce

first offense, I am already registered for DUI classes in Northern Cal

I am worried that I will plead not guilty, and things may get worse for me if I then subsequently change plea to guilty

any advice (other than NOT to drink and drive which has been hammered home to me the hard way - I rarely drink - terrible lapse in judgement)
 
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first offense, I am already registered for DUI classes in Northern Cal

Why are you already registered for DUI classes? You haven't been charged by the courts to so yet. If you plead not guilty but attend DUI classes, it's going to make you look guilty.

People plead not guilty because they're NOT guilty. Now I'm not suggesting you plead guilty, but you need to make up your mind before you make a plea. You're not going to get off any easier by pleading guilty - no bonus points for admitting the officer was right to arrest you.

If you really can not afford (not that you don't want to waste the money) an attorney, you should be able to get a PD.

Face it, you've been charged with DUI. If convicted of even a lesser charge, you are going to pay fines. What you may want to focus on is were the BAC result and FTS results accurate -- and if you were actually to impaired to drive.

Not getting the best possible legal representation is more important than saving money. If you decide to hire a lawyer, get one that specializes in DUI laws. If it were me in your situation, I wouldn't accept anyone who hasn't attended classes at the National College for DUI Defense. (NCDD.com)

Good luck
 

CdwJava

Senior Member
Of course, with a BAC of .13, it limits the fight to the issue of probable cause or a lengthy and expensive fight over the breath device used and it's maintenance. It limits the angles and maximizes the expenditure.

Since he is over the per se limit of .08, actual impairment does NOT have to be demonstrated. Only the P.C. for the contact and the test ... both which seem reasonable from the post.

But, it's his right to fight it. Though I doubt a P.D. will have the resources or experience to handle the matter effectively. And most DUIs go to the prosecution anyway.

- Carl
 
Of course, with a BAC of .13, it limits the fight to the issue of probable cause or a lengthy and expensive fight over the breath device used and it's maintenance. It limits the angles and maximizes the expenditure.

Really? You don't think there's many reasons other than consuming a large amount of alcohol that could put someone at .13?

Since he is over the per se limit of .08, actual impairment does NOT have to be demonstrated. Only the P.C. for the contact and the test ... both which seem reasonable from the post

Not sure how it can appear "reasonable". The poster never stated how much alcohol was consumed and over what period of time. If you believe the testing method can never be wrong, I guess you could find this situation "reasonable", but if you don't have all the facts and realize that there is huge room for both human and machine error, it would be impossible to assume reasonable from any story.

But, it's his right to fight it. Though I doubt a P.D. will have the resources or experience to handle the matter effectively.

I agree, most PDs aren't properly trained to effectively defend DUIs.
 

CdwJava

Senior Member
fagettaboutit said:
Really? You don't think there's many reasons other than consuming a large amount of alcohol that could put someone at .13?
Other than a few urban myths, I don't know of any ... provided the machine was functioning properly.


Not sure how it can appear "reasonable". The poster never stated how much alcohol was consumed and over what period of time.
I said the probable cause for the stop and the detention were reasonable, and, provided there was sufficient cause to suspect DUI, the arrest for DUI is also reasonable.


If you believe the testing method can never be wrong, I guess you could find this situation "reasonable"
I mever said that. But, the chances are slim that the machine was poorly maintained or not functioning. And challenging the veracity of a properly functioning machine is an expensive 'Hail Mary'.


but if you don't have all the facts and realize that there is huge room for both human and machine error, it would be impossible to assume reasonable from any story.
I can assume reasonableness from what the poster wrote. I cannot be sure of all the details, but I see nothing that says that the contact and the detention might be bad, and nothing that says the FSTs were in error and this failed to provide cause for an arrest.

Having never lost a DUI case, and having seen many defenses, I can say with experience that most the time these cases cost a lot of money for the defendant without a great chance of success - at least out here. Where they tend to succeed is when the officer is either poorly trained or fails to properly document everything. Failing that, the chances of beating the rap with a BAC greater than .10 is are very slim since the machine has to be challenged and actual impairment need not be demonstrated - only the cause for the detention and the arrest resulting in the chemical test.


I agree, most PDs aren't properly trained to effectively defend DUIs.
Certainly not. And most also aren't willing to expend the time to defend against such a thing as it takes an experienced DUI attorney - and a lot of money, for the most part - to successfully beat the rap.

- Carl
 
Other than a few urban myths, I don't know of any ... provided the machine was functioning properly.

I would provide you with proof, but I doubt you'd be interested in learning anything besides what your department wants you to know.

I mever said that. But, the chances are slim that the machine was poorly maintained or not functioning. And challenging the veracity of a properly functioning machine is an expensive 'Hail Mary'.

I can't imagine why a man who took an oath to serve and protect would give a hail mary to someone's inability to afford proper representation. If there's nothing wrong with the machine, then challenging should be gladly welcomed and encouraged. As much as you want to believe your machine is in top form and maintained to perfect specs, you're not the only sheriff in the country. Besides, the manufacture of your breathalyzer won't even guarantee it's results. If the company that manufactures a machine won't guarentee its' results, how can you guarantee that every reading is accurate?

Like I said, you're not the only cop in town. Ask KYsassy if she believes that being arrested for a crime that didn't happen by a cop who thinks he's so-call expert on DUI isn't possible. That cop made a colossal mistake. Care to claim him as one of your own?

You may be the best self-proclaimed DUI officer in the country, but for every one of you, there's one that's not. And the same goes for a reliable breathalyzer.

So before you say Hail Mary, think about the guy who isn't driving impaired but can't afford to prove. ;)
 

CdwJava

Senior Member
fagettaboutit said:
I would provide you with proof, but I doubt you'd be interested in learning anything besides what your department wants you to know.
Ah ... hmm ... "besides what [my] department wants [me] to know" ... hmm ... last time I checked, my training and education in this area was not provided by my agency - current or former. It was provided by doing the job and by DOJ. And if you have some references of things that can occasionalyl actually happen to bump up the BAC, I would love to hear them - well, read about them. And not the cavity and mouthwash tales, either.


I can't imagine why a man who took an oath to serve and protect would give a hail mary to someone's inability to afford proper representation.
I'm not saying he shouldn't. I'm just saying that I see a lot of attorneys hold out false hopes while they soak money from their clients. Some are real good and actually do beat the rap. But the fault is generally NOT with the machine, but with the P.C. for the stop and the cause for the test (i.e. the PC for the arrest). I have yet to see a successful assault on the machine in any case I have been privy to. Does it happen? Sure ... somewhere. I just have never heard of it first or second hand.


If there's nothing wrong with the machine, then challenging should be gladly welcomed and encouraged.
Sure! You got the money for the experts, knock yourself out.


As much as you want to believe your machine is in top form and maintained to perfect specs, you're not the only sheriff in the country.
I'm not a sheriff. I'm not even a deputy. And the CA Department of Justice issues and maintains my agency's device weekly - along with the one at the county jail.


Besides, the manufacture of your breathalyzer won't even guarantee it's results.
Ah ... and what manufacturer do we use in my part of CA?


If the company that manufactures a machine won't guarentee its' results, how can you guarantee that every reading is accurate?
That's smart business. How can they guarantee anything if they are not responsible for maintenance and use of the device? So of course they won't guarantee it.


Like I said, you're not the only cop in town. Ask KYsassy if she believes that being arrested for a crime that didn't happen by a cop who thinks he's so-call expert on DUI isn't possible. That cop made a colossal mistake. Care to claim him as one of your own?
I've spoken to KYSassy off-list a few times. What happened to her was wrong. But that is not the case here. Apples and oranges, my friend.


You may be the best self-proclaimed DUI officer in the country, but for every one of you, there's one that's not. And the same goes for a reliable breathalyzer.
I am far from the best DUI officer in the country, the state, or even my county. And, as I have said, the weak spot tends to be with the officer ... NOT with the machine. And a defendant has every right to challenge what they can. But, what I disagree with is that any DUI case can be beaten, and that many of the DUI attorneys out there talk up a real good game and then leave their clients holding the conviction and a huge bill for their services.

DUI defense is best done by a knowledgeable DUI defense attorney. And many of them tend to pick and choose the cases they will fight and to what degree, because even they look at the report and that parties involved to see if there are obvious errors, omissions, or problems with the report or the investigation. They attack those errors or omissions. The last line of attack is usually the machine - and it tends to be the most expensive as it can become a battle of experts.

WHile you think I am saying he should not defend himself, that is not it at all. I am saying only that as with all things, there is a cost-benefit analysis that must be done. What is the cost for an all-out defense? What is the realistic chance of prevailing? And, how much can I afford to lose (in cash)?

So before you say Hail Mary, think about the guy who isn't driving impaired but can't afford to prove. ;)
Well, with something over .08, driving "impaired" doesn't have to be proven ... at least in CA - and in most other states. That's why it's a per se statute. And it's those close .08s that DO get attacked becasue the machines DO tend to have a .02 wiggle room.

- Carl
 
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Ah ... hmm ... "besides what [my] department wants [me] to know" ... hmm ... last time I checked, my training and education in this area was not provided by my agency - current or former. It was provided by doing the job and by DOJ. And if you have some references of things that can occasionalyl actually happen to bump up the BAC, I would love to hear them - well, read about them. And not the cavity and mouthwash tales, either.

Yes, the DOJ. Oh course! As for the mouthwash "tale", funny you turn your nose up at that. Not surprising though. But why share the others, it wouldn't help in your supposed "making the roadways safe" mission ;)

I do agree with your comments on the lawyers. They're the necessary evil in this game. I've seen lawyers who aren't qualified to play the game take a lot of money to do so. They end up robbing their "client". Those are the worst. That's why I would never recommend paying a lawyer that's not qualified to play the game. The lawyers are getting rich from the DUI MADDness and will continue to do so until people start to realize how out of control DUI laws are getting.

The ignorant keep the MADDness going while the rich keep the lawyers going....and the DOJ keeps the cops continuing the circle.

Look, drunk drivers are a danger to our roadways. But are they the biggest danger? No. Not even by a long shot. But while the MADDness is going, only the lawyers get fat and happy while we're missing opportunities to do what needs to be done, keeping the roadways safe -- beyond the bewitching hours of 10 pm - 3 am.
 

CdwJava

Senior Member
fagettaboutit said:
Yes, the DOJ. Oh course! As for the mouthwash "tale", funny you turn your nose up at that. Not surprising though. But why share the others, it wouldn't help in your supposed "making the roadways safe" mission ;)
Okay ... if you think that mouthwash somehow gets into the deep lung air, I'll let you think that.

And, if you think that DUI drivers are safe on the roadway, well, I can only say I'm thankful that I - and the law - say you are wrong.

The ignorant keep the MADDness going while the rich keep the lawyers going....and the DOJ keeps the cops continuing the circle.
Why is it that everyone who opposes our supposedly tough DUI laws blames everything on MADD? Certainly, they advocated for tougher laws, but so did a lot of us. They didn't do it in a vacuum.

Others are free to form their own advocacy groups to change DUI laws. But, I just don't see that as being a very politically viable position for an aspiring politician to take - being even easier on DUI. Hmmm ... just not a palatable position as I see it.


Look, drunk drivers are a danger to our roadways. But are they the biggest danger? No. Not even by a long shot. But while the MADDness is going, only the lawyers get fat and happy while we're missing opportunities to do what needs to be done, keeping the roadways safe -- beyond the bewitching hours of 10 pm - 3 am.
DUI is just one facet of safety. Realistically, it takes a lot of time to deal with one DUI but it only represents a small percentage of overall traffic enforcement. However, removing impaired drivers from the road improves the chances of all of us to get home safely, so it is time well spent.

And just what opportunities are being missed by ignoring DUI drivers? Is citing someone for a license plate out more important than removing the DUI driver? Am I missing some more heinous threat to public safety than the impaired driver hurtling down the road at 25+ MPH in one ton or more of steel?

Personally, I think that DUI enforcement is important and critical - and it shall likely remain so until people grow up and learn that driving impaired is stupid and dangerous.

I also believe DUI punishments are far too lenient. Since we arrest the same people over, and over, and over again, it is obvious that the "pain" inflicted by a DUI conviction is not painful enough to discourage future behavior.

- Carl
 

Shay-Pari'e

Senior Member
NORCALXXX said:
What is the name of your state? California

Charged w/ DUI, b.a.c of 0.13
My car broke down of freeway - I safely pulled to side of road, - car not running (wouldn't start) - keys in ignition, I was in driver seat, report said my car was in low gear (automatic transmission)

I was on cell phone arranging a tow when polcie arrived on scene, checked to see if I was OK, and then started in on FST, PAS, etc and arrested

My police report shows that my vehicle was stopped, but that I admitted driving - I only recall saying in response to the question "Where are you coming from" that I said the name of the origin of the city - though I did say my car broke down (engine still smoking)

any reason to go in with a Not Guilty at first court appearance ?

Taking the course without being ordered say's a lot to me. Please forget about "Fagett" poster(?). I have seen a trend on this forum lately with idiots like him/her, attempting to fight for the rights of drunk drivers, and they do not see how stupid they come across. It is a public forum, and they will come and go. You drove drunk, your doing the right thing. Please continue to learn from it.
 
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NORCALXXX said:
first offense, I am already registered for DUI classes in Northern Cal. I rarely drink - terrible lapse in judgement

PARIDISE said:
Taking the course without being ordered say's a lot to me.

Besides being so called "paradise", what exactly does YOUR opinion mean --within the course of the law?

Ridiculous.

Oh NORCALLXXX be sure to tell the judge that "paradise" said you're doing the right thing. I'm sure it'll help your situation along quite nicely. :rolleyes:
 
CdwJava said:
Okay ... if you think that mouthwash somehow gets into the deep lung air, I'll let you think that.

I don't need to think about that. Go back and learn about breathalyzers and what they pick up. Some of the top DUI lawyers might teach you a thing or two.

And, if you think that DUI drivers are safe on the roadway, well, I can only say I'm thankful that I - and the law - say you are wrong.

The law allows for officers to arrest a 180 lb man who had two beers, waited an hour and drove home. Do I think they are less safe to drive than a person who can't help but speed? I don't. You see, you're missing the point on the DUI MADDness. People are getting arrested not because they are DRUNK or unsafe drivers, but because some officer THINKS they're unsafe. Throw in a faulty machine and it's all over but the crying. Driving like an idiot happens all the time. But if there's any bit of alcohol involved, suddenly it becomes an issue. Drunk driving is the problem. Grouping everyone in one category because some can handle two beers and some can't is wrong. If someone is driving unsafe, lock em up. But don't do it JUST because there's alcohol involved.

Why is it that everyone who opposes our supposedly tough DUI laws blames everything on MADD? Certainly, they advocated for tougher laws, but so did a lot of us. They didn't do it in a vacuum.

Because the media, judges, politicians and everyone else in the decision making crowd appeases MADD. Whatever outrage claim comes from MADD everyone buys it. They've even become bold enough to state "we" as ownership when referring to new laws being made.

I hope while you were advocating you included many other aspects of unsafe driving besides alcohol and drugs. How else have you missed all the deaths that didn't included those vices?

Others are free to form their own advocacy groups to change DUI laws. But, I just don't see that as being a very politically viable position for an aspiring politician to take - being even easier on DUI. Hmmm ... just not a palatable position as I see it.

Exactly, easier is a great way to put it. It's much easier to go with the DUI laws because people have been told numbers that are false so they THINK it's a bigger problem than what it really is. If the general public knew that the "alcohol-related" term includes SOBER driver with drunk passengers, they'd feel much different. In 2001 2,900 innocent victims were killed by a drunk driver. Far different number than the 17,000 that's touted everywhere.


DUI is just one facet of safety. Realistically, it takes a lot of time to deal with one DUI but it only represents a small percentage of overall traffic enforcement. However, removing impaired drivers from the road improves the chances of all of us to get home safely, so it is time well spent.

If that's the case, why are drivers being killed by sober drivers at the rate of 4 to 1? You can spend all day picking up DUIs, but that doesn't make our roadways safer. How many accidents include alcohol? 6% How many accidents include distracted driving? 20% Hey it doesn't take more than a 5th grade education to understand 20 percent is higher than 6 percent. So how exactly is time being well spent when more people are being killed while you're dealing with one DUI?

And just what opportunities are being missed by ignoring DUI drivers? Is citing someone for a license plate out more important than removing the DUI driver? Am I missing some more heinous threat to public safety than the impaired driver hurtling down the road at 25+ MPH in one ton or more of steel?

How about a sober hurtling down the road at 25+ MPH? Does the impact or tragedy change because there's alcohol involved? Have you ever had to tell a family their loved one died by a sober driver and they were relieved because it wasn't a drinking driver? Can you honestly tell me that a sober driver that kills is better than a drinking driver that kills?

Personally, I think that DUI enforcement is important and critical - and it shall likely remain so until people grow up and learn that driving impaired is stupid and dangerous.

I agree it's important. But it needs to stop being a notch in the belt effort. If a driver is too impaired to driver, fine. But making an arrest because it's the popular thing to do or because there's a nice reward is wrong. I just read a story were cops staged a DUI rain. They decided it would be most effective if they started pulling over cars that were missing headlights. They figured the more they pulled over - and the later in the evening - the better their "luck". WTF? This setting out to get a drunk driver mentality only leads to making officers try too hard to please a quota. Outside my local police station there's a billboard displaying the number of DUI arrests. Yet this same police force can't get the gang robbery in my area under control. In my state there were less than 100 innocent victims killed by a drunk driver. There were over 50 deaths in my county alone that had nothing to do with drunk drivers. So what's more important, catching drivers that have been drinking or protecting people from non-driving violence? Yes, DUI enforcement is important, but there are more people ending up in the hospital over non-driving crimes. Let's just realistic here.

As for people not drinking and driving. It's never going to happen. DANGEROUS driving is the problem. People who have a drink or two and drive aren't the problem, yet the DUI laws convict them as if they are. People who drive like idiots are the real problem. I've driven with people who never drink and they scare me more than the person who had two cocktails with dinner.

I also believe DUI punishments are far too lenient. Since we arrest the same people over, and over, and over again, it is obvious that the "pain" inflicted by a DUI conviction is not painful enough to discourage future behavior.

Bingo! The people that continue to drive drunk over and over need to be dealt with. But our laws don't deal with DUI punishment based on over and over. DUI laws punish people for a drink or two while trying to set an example on those who really need the punished. Example: lowering the BAC. How does a lower BAC deal with the people who continue to drive drunk? You could give those people a -0.00 BAC limit and they'll still continue to drive drunk.

If the same passion for DUI laws was put into all unsafe driving, our roadways would truly be MUCH, much safer. But it won't happen until people realize that drunk driving isn't the biggest threat to our roadways. Everyone has bought into the MADDness.
 

TYRIS

Member
fagettaboutit said:
I don't need to think about that. Go back and learn about breathalyzers and what they pick up. Some of the top DUI lawyers might teach you a thing or two.

-This is why we observe the drive for fifiteen minutes prior to having the driver blow into a PAS device. Any mouthwash, breath mints, etc will be out of the mouth and not apply. If the driver is chewing gum or anything else, they will be told to spit it out.

The law allows for officers to arrest a 180 lb man who had two beers, waited an hour and drove home. Do I think they are less safe to drive than a person who can't help but speed? I don't. You see, you're missing the point on the DUI MADDness. People are getting arrested not because they are DRUNK or unsafe drivers, but because some officer THINKS they're unsafe. Throw in a faulty machine and it's all over but the crying.

The road side PAS Device is only one test. The totality of the tests determine wheter a driver is impaired or not. Under 23152 CVC is two sections: 23152(a) CVC which states that it is unlawful for a subject to drive while impaired by alcohol or drugs and 23152(b) CVC which stated that it is unlawful for a subject to drive with an alcohol content over .08 BAC. Under 23152(b) CVC you do not need to show impairment.

-For most agencies, the PAS Devices are calibrated every few weeks and these records can be submitted to the court. The driver never specified if they submitted to a breath test or a blood test.

-California no longer uses the old Intoxilizer 5000 Devices. They now use the EPAS Device (don't ask me what the accronym means because I forgot). The EPAS Device is a portable machine that can be carried in the car and utilized on the roadway. The records are then downloaded to DMV. The EPAS Device must be calibrated every few weeks or the software within the system shuts down and the EPAS Device no longer works. These records can also be submitted to court.


Drunk driving is the problem. Grouping everyone in one category because some can handle two beers and some can't is wrong. If someone is driving unsafe, lock em up. But don't do it JUST because there's alcohol involved.

-Regardless of the fact that you can drink two beers or twenty, impairment can be individual and therefore, a subject who is a "light drinker" can be impaired (and just as dangerous) at two beers and be arrested for DUI.


But it won't happen until people realize that drunk driving isn't the biggest threat to our roadways.

-Obviously you've never had to pronounce death on a 3 year old child after a DUI crash while your partner is attempting CPR on him and the mother is standing next to you crying for you to help her son. Maybe you should try it sometime, I already have. Maybe it will change your opinion.

I'm not saying it is any easier on a non-DUI related crash, I've done that to. But Law Enforcement can only work with the laws they are given. Someone driving with alcohol in his system will be be impaired, however slight, and their reaction times will be slower than the average driver regardless if they can "hold their liquor" as the saying goes.

Tyris
 
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Shay-Pari'e

Senior Member
fagettaboutit said:
Besides being so called "paradise", what exactly does YOUR opinion mean --within the course of the law?

Ridiculous.

Oh NORCALLXXX be sure to tell the judge that "paradise" said you're doing the right thing. I'm sure it'll help your situation along quite nicely. :rolleyes:

It is "--PARIDISE--", I know the correct spelling is paradise.........

I do believe that him taking the course on his own, will help him out in court. I truly hope I have answered all of your *IMPORTANT* question's. :rolleyes:
 
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