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LegalGround >> Getting/Defending a DUI?


1/27/09 3:41 PM
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HaMMerHouseFAN
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As a lawyer, what would you tell a client to do if they are stopped while under the influence? Should they decline and say they want to speak with their attorney before the submit to answering any questions or a sobriety test? Many states say if you must submit to some form of sobriety test or they will take your license away anyways. What is the best way to handle this with the least amount of trouble for your client (minus telling him not to drink and drive)?
1/27/09 8:04 PM
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goku
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try to run away
1/28/09 7:38 PM
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Bunkou
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It's going to depend so much on the jurisdiction. Here in Hawaii, penalties for a first DUI are so neglibile, you might as well take the blow and keep your license (except for the mandatory 1 month all out suspension and 2 month work-only "suspension").

On the other hand a habitual DUI is a felony and they're going to revoke your license for life anyway, so tell them to shove off, you're not taking the blow, or doing their made-up FSTs.

(Although FSTs are great for jury trials, because we all know no one can do them even sober.)
1/28/09 11:02 PM
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bflex
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It really depends. If the criminal conviction matters to you, then refuse everything. If you are a plumber and nobody gives a shit about a DUI, then take the tests, get convicted and keep your license.
1/29/09 5:54 PM
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Fake Pie
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Edited: 01/29/09 5:53 PM
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Bflex, what happens if you tell them you just had a beer 5 minutes ago? Do they make you wait like 20 minutes so the breathalyzer is effective?

I'd refuse it and let them take my license. Of course, I walk to work anyhow. Plus, count the number of times you have been pulled over. That is the likelihood of you getting busted with a suspended license. Add in that you will obviously be much more careful knowing you can't get pulled over.
1/29/09 7:07 PM
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Bunkou
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It's usually at least an hour (more often closer to three) before you get around to having a breathalyzer, but the "I just drank 5 minutes ago" is a valid defense (scientifically) as your BAC will still be rising. It calls into question the whole issue of what was the BrAC/BAC at the actual time he was driving. I've won a few cases on that and similar defenses (but you've really got to have some nice extra fact to go with it).
1/30/09 11:20 PM
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bflex
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what happens if you tell them you just had a beer 5 minutes ago? Do they make you wait like 20 minutes so the breathalyzer is effective?

There is usually a 15 - 30 minute statutory or administrative observation period at the station prior to them giving you the test. Failure to do that can result in the exclusion of the breath test. The funny thing is that the state fights the "mouth alcohol" defense saying that there are mouth alcohol sensors in the intoxilyzers and then admits that it is a good defense by requiring a waiting period to eliminate mouth alcohol. The bottom line is that the slope sensors don't work at all and the machines are garbage.

Bunkou - You are correct, I've seen between 1 and 3 hours a lot. I've seen them go past that to. Longest ever I think was 11 hours and the guy still blew a .11! Some states, such as NC have tried to statutorily eliminate the retrograde extrapolation defense.
2/3/09 8:54 AM
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Trust
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 I had a very reputable crim attorney tell me that you tell the cops that you are not refusing to cooperate or take the test, but you want to talk to your attorney first and you will do whatever your attorney advises you to do.  His theory was that the compulsion to take the tast can't trump right to counsel. 

Thoughts? 
2/3/09 12:56 PM
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Bunkou
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Caselaw in many jurisdictions says the cops have to provide "reasonable" time to allow for advice from counsel if requested. Sadly, reasonable time is rarely enough to get your BrAC under .08.
2/3/09 10:53 PM
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bflex
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Trust - there is case law on that and he is, at least by case law standards, wrong. However, he is right. Just don't expect the courts to rule in your favor.

Bunkou - 30 minutes in NC to call attorney or witness. Nevertheless, that is a double edged sword as your BAC could still be rising.
2/8/09 12:48 PM
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Fake Pie
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I've always wanted to fuck with cops at a DUI checkpoint or otherwise (as long as I am stone cold sober). I just want to stare and them and refuse to answer any questions other than giving them my license and other docs (if I am driving) or saying my name if I am not (Hibel).

Who doesn't think I would get arrested?
2/8/09 5:59 PM
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sux@bjj
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the benefit of refusing the test is that when you go to court, the DUI is easier to defend (lack of evidence). the negative is that in many states...you automatically lose your license for one year.

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