[elabayarde]

So, I have a friend who was arrested and held over night, for a DUI. The whole thing seems weird. The cops didnt read there there rights, didnt breathelizer them, do a sobriety test or draw blood. AND they released them the next morning with there car. This was in DC, or near it and they are going to court in the next few days. Dont they need some sort of proof besides a police report saying they smelled like alcohol for a conviction? Im hoping some of the LAwyers or more experienced guys can shed some light on this process. I was also wondering were they treated differently because she is a younger chick, they didnt do anything I thought they normally would.(Tests, protocols ect)

[LowerCaseG]

Given what you've presented, the only evidence of driving while intoxicated is the policeman's testimony. The prospects of going to trial should be favorable to your friend, especially if she has a clean driving record and it's her first offense. The only caveat is in my state, often the license suspensions are more severe should you decide to go to trial, as it will likely take at least 4-6 months, and of course, it will be significantly more expensive than pleading out to a continuance without a finding. The matter will proceed through 2 state departments, one through the courts, and one through the department of motor vehicles, at least in my state.

[Aliblahba]

She could have been so drunk she confessed for the dash cam. Or she offered up some blowjobs if not convicted, so he made a weak case. Either way, the hamster wins.

[Vitriol]

(03-06-2013 06:48 PM)elabayarde Wrote:  

Dont they need some sort of proof besides a police report saying they smelled like alcohol for a conviction?

Most misdemeanor cases don't have much else in the way of "proof" besides an arrest affidavit and the police officer's testimony. The deck is stacked in their favor from the start.

They should contact the prosecutor's office that will be handling the case and see if they are going to formally be filing charges. Sometimes a decent prosecutor can look at a case like this and decide there isn't enough evidence to prove the elements of the crime... although they get pressured into getting convictions so I wouldn't bet on that.

[thegmanifesto]

Get a good lawyer.

G Manifesto Rule #3: Never skimp on your legal team.

[WesternCancer]

Don't you have to be read your rights or the arrest is not valid (could be just movie knowledge ha).

[Vitriol]

(03-06-2013 07:15 PM)WesternCancer Wrote:  

Don't you have to be read your rights or the arrest is not valid (could be just movie knowledge ha).

The most you can do is get any coerced statements and evidence that comes from them excluded. It doesn't "unarrest" you or get the case thrown out entirely if they forget to give Miranda warnings.

[LowerCaseG]

Yes, that's correct, Miranda has nothing to do with arrest, it's to protect you from incriminating yourself. A good lawyer will probably get her off but most people plead no contest because it's cheaper, more convenient, and counts as a conviction for the prosecutor.

[Merenguero]

It is possible for the government to be able to prove an alcohol-related traffic offense with no breath test and no sobriety tests, but it is not likely. If the government decides to go forward, which is a big if, there are other indicators of intoxication and/or impairment which can be produced. Some of these indicators are:
1. strong odor of alcohol
2. bloodshot, watery eyes
3. slurred speech
4. delay in stopping the vehicle
5. delay in producing license and registration (in some states the insurance card also)
6. use of profanity
7. bumps, bruises, or scratches on body
8. unsteadiness on feet
9. vomiting
10. hiccuping
11. using the car for balance after exiting the car
12. alcohol in possession
13. dropping and/or fumbling objects
14. reason for the stop (was there any evidence of bad driving or was it for something like suspended registration or a light which was not functioning properly)

If many or all of these factors are present, I could see the government possibly being able to prove a case such as this. If only a few are present, it will be an uphill battle for the prosecution. I am of the strong belief that even if a person fails sobriety tests, it is difficult to prove a case in the absence of a breath test. I prepare all cases in which there was no breath test for trial unless there are factors such as falling all over the place, vomiting, and/or an admission of having consumed thirty drinks. Many, many lawyers throw their clients under the bus in cases that can be easily won.

Although I am not admitted in D.C. (I qualify to waive into D.C. and could easily do so), it is my understanding that LowerCaseG's statement about having both a trial in Superior Court and a hearing at the DMV is correct. In all likelihood, your friend was offered a breath test and refused it. That may work to her advantage in court, because the government's case will be weaker, but should hurt her at the DMV. Refusals usually result in license suspensions in administrative hearings.

Other posters' statements about the effect of making a statement after not being read your rights are correct. This thing about not being read your rights is up there with "harassment" as far as being a legal term which is constantly misunderstood and misused by lay people. If you don't make a statement, nobody cares if you were read your rights or not. If you do make a statement, which in alcohol-related traffic cases is usually a statement regarding the amount of alcohol consumed and/or the time in which the alcohol was consumed, it may or may not be admissible into evidence. For the police to even be required to read a person his rights, there must be a custodial interrogation. The caselaw defines "custodial" as a reasonable person would not feel free to go. In my experience, judges view it in a somewhat different manner. If the Defendant is on the scene of the traffic stop, has not yet been arrested, and has not yet been transported to the police station, I have never seen a judge suppress a statement on the grounds of Miranda.

As far as the police report goes, it cannot and will not be admitted into evidence. It is generally used by the prosecution to refresh the officer's recollection. The officer can look at it to refresh his memory, but afterward must testify from his memory. The report can be something of a weapon for the defense. If the officer testimony differs from his report, the defense can cross examine him on that discrepency and can try to impeach his credibility due to the prior inconsistent statement.

LowerCaseG:
I can see why you have done well in your first two years. Give me a call when you graduate. I'm not joking.

[LowerCaseG]

Thanks for the compliment, you got it.

[thegmanifesto]

(03-06-2013 08:33 PM)LowerCaseG Wrote:  

Thanks for the compliment, you got it.

[TheBulldozer]

(03-06-2013 08:24 PM)Merenguero Wrote:  

LowerCaseG:
I can see why you have done well in your first two years. Give me a call when you graduate. I'm not joking.

This is everything this forum should strive to be.

[presidentcarter]

The lawyer I recommend to my friends in need was a former prosecutor and knows everyone in the system. More importantly, everyone in the system LIKES him because of his skill and charisma and because he used to be one of them. He's the type that will postpone your court date if he knows the prosecutor and judge working that day won't make a deal with him.

[Merenguero]

(03-06-2013 08:57 PM)presidentcarter Wrote:  

He's the type that will postpone your court date if he knows the prosecutor and judge working that day won't make a deal with him.

I'm not that type. Fuck postponements unless I'm in Miami or in another court. Put the pressure on them.

[el mechanico]

Things just don't work this way. Elabayrde did not get the real story.

[elabayarde]

Thats totally posible. Obviously, I wasn't there. but she has been talking my ear off about it and crying blah blah blah.
None of the less...I still think this is a good point of discussion here since I didn't see anything on it..

[presidentcarter]

(03-06-2013 09:03 PM)Merenguero Wrote:  

(03-06-2013 08:57 PM)presidentcarter Wrote:  

He's the type that will postpone your court date if he knows the prosecutor and judge working that day won't make a deal with him.

I'm not that type. Fuck postponements unless I'm in Miami or in another court. Put the pressure on them.

Why wouldn't you postpone? I know if I was on the chopping block I'd appreciate every advantage I could get. You say unless you're in Miami so maybe it varies by court system?

[Merenguero]

(03-06-2013 10:11 PM)presidentcarter Wrote:  

(03-06-2013 09:03 PM)Merenguero Wrote:  

(03-06-2013 08:57 PM)presidentcarter Wrote:  

He's the type that will postpone your court date if he knows the prosecutor and judge working that day won't make a deal with him.

I'm not that type. Fuck postponements unless I'm in Miami or in another court. Put the pressure on them.

Why wouldn't you postpone? I know if I was on the chopping block I'd appreciate every advantage I could get. You say unless you're in Miami so maybe it varies by court system?

The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to a speedy trial. When a Defendant consents to a state continuance or requests a continuance, he completely screws himself if he wants to in the future claim that he was deprived of his right to a speedy trial. If a Defendant requests some stupid continuance and it takes a year, two years, or five years to get to trial, good luck trying to claim that he was deprived to his right to a speedy trial. The truth is that if a defense attorney is doing everything that he possibly can, most cases will fall apart by themselves, especially if the attorney is not requesting continuances or consenting to state continuances. The idea is to continously be putting pressure on the state and not worry about who the judge is or anything else. Getting in front of the right judge is great for those lawyers who make it their practice to plea bargain and are not interested in trying cases. Plea bargaining is not really part of my daily ritual. In ten years, I don't think I have ever walked out of a courtroom and said, "I really had the wrong judge. I think I would have done much better if I had postponed the case before, waived my client's speedy trial rights, and taken a great deal of pressure off the state." I hope this helps.

[TheBMan]

what county was this in? i got a lawyer who has gotten me out of a few DUI's in the VA suburbs of DC. I'd be happy to pass along a name.

That being said, and having gone through a couple of these myself, there is no fucking way they will get convicted of a DUI w/o a breath or blood test. Maybe something minor like a Public intoxication, but no way a DUI

[Merenguero]

(03-06-2013 11:29 PM)TheBMan Wrote:  

That being said, and having gone through a couple of these myself, there is no fucking way they will get convicted of a DUI w/o a breath or blood test. Maybe something minor like a Public intoxication, but no way a DUI

I wouldn't go that far, but in my opinion it is difficult to prove an alcohol-related traffic offense without a breath or blood test. Many people enter stupid pleas when there is no breath or alcohol test. I believe I have lost one case in my career where there was no breath or blood test and it was in 2004 or 2005. Some states have statutes which contain different alcohol-related traffic offenses for different levels of alcohol. For example, one offense may require that the person, after submitting to either a breath or blood test, had an alcohol level of at least .08. There may be a different section of that same statute which requires that the person be impaired by alcohol, but does not require a specific level of alcohol. In that case, a person could be convicted of the lesser offense, but not the more serious offense.

[defguy]

Tell your friend not to skimp on a good lawyer. And get everything in writing when negotiating with lawyers. I honestly think the cop(s) did your friend a favor, usually they pressure you to take a breathalizer or force a blood withdraw if you refuse breathalizer. The case will probably get thrown out in 2 minutes if the lawyer even implies hes going to put up a fight and take it to trial if he has to; but youll be shocked how few even do this much, so lawyer reputation is everything. Still doesnt take away the fact that your friend has a long road to deal with, no 2nd dui/dwi because even if the first gets dropped he will have 2 on his record if he gets caught again. Also, there will be an arrest on his record for a while until it can be expunged. Getting arrested is no joke, but it could be worse, the cop could have been out to up his quota and ruthlessly got everything he could on your friend.

[lurker]

(03-07-2013 01:07 AM)defguy Wrote:  

And get everything in writing when negotiating with lawyers.

Every state that I'm licensed to practice in (ok, that's one...) requires attorney fee agreements to be written. Otherwise they're voidable. For what it's worth, I don't believe any state allows contingent fee agreements for criminal cases, so you're paying your DUI guy either way. Most of them take flat fees. Merenguero, I take it you're an FL defense attorney with a steady docket of DUI cases?

[porscheguy]

The back of my MD driver's license states "driving in MD implies consent to chemical testing for intoxication as required by law. Longer license suspension may result from refusal to be tested."

Does your friend still have a proper driver's license? If this happened in MD, your friend would have a paper license and the cops would have done a test that provided a BAC.

In MD, a "chemical test" means blood, piss, or breath with a number showing BAC.

You need to lay some alpha style asshole game into this bitch and tell her to stop wasting your time with this bullshit and to start telling you the whole truth about what happened. So far the details don't add up.

[elabayarde]

It was either DC or MD. But they have a florida License. They live in Miami for thelast 10 years. She maintains she never was even asked to blow.(HAHA so to speak)

[Merenguero]

(03-07-2013 03:25 AM)lurker Wrote:  

Merenguero, I take it you're an FL defense attorney with a steady docket of DUI cases?

No. I'm in the D.C. area. Don't remind me. I'm also admitted in my home state.