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LegalGround >> DUI case


2/12/09 4:05 PM
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goku
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so i got called for jury service for a dui case...the case has not begun yet, but the judge told us some preliminary facts about the case, including the fact that the D was arrested and refused a breathalyzer..

can you use the fact that he refused a breathalyzer as evidence to prosecute? it seems pretty damning to me...

if so, what are the common defenses to this?

and if there is no breathalyzer, is it safe to assume the whole case will be contingent upon the believability of the arresting officers' testimony (assuming the D does not take the stand)?
2/12/09 5:24 PM
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TheKidAintMine
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You're allowed to serve on a jury if you're a lawyer?
2/12/09 5:37 PM
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goku
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i have not been officially picked....weve gone through 1 round of jury selection...i am hoping i dont get picked...when they asked if anyone would have a problem with impartiality, i raised my hand and tried to say that i am friends with prosecutors and defense attorneys which gives me a strong preconceived notion about the guilt of people that are arrested...but the judge did not accept that as sufficient reason to be excused
2/12/09 6:46 PM
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Bunkou
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Edited: 02/12/09 6:47 PM
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WTF? That's a mistrial in my jurisdiction. It's this thing called the 5th Amendment...(and 4th)...
2/12/09 10:47 PM
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bflex
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You probably shouldn't even be talking about this. However, there are lots of reasons an innocent person would not take the breath test. They don't trust the machine, they have heard 1000 you shouldn't blow. THe bottom line is that even with a breath test, the officer's observations of impairment need to be cooberated. The only thing that an individual should look to the breath test for is cooberation.
2/14/09 11:26 AM
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goku
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"They don't trust the machine, they have heard 1000 you shouldn't blow."

this sounds like bs to me

a cop pulls you over, presumably for something + you dont take the breathalyzer...guilty as sin imo
2/14/09 11:37 AM
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goku
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and i didnt get picked for the jury, but learned some underhanded things defense attorneys do do

1) during the jury selection process, instead of asking relevant questions, frame your case, make your arguments and tell the jury what you are going to and why

2) tell the defendant to show up early and wait with the jurors before the case to make him look more "human"
2/14/09 10:19 PM
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Shaz
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First of all, if you wanted to get off the case just tell the judge that you discussed the facts on an internet message board and asked for input from other attorneys :)

As for the refusal to submit to a breath test, in some jurisdictions (including NY), if someone refuses to submit to a chemical test of their breath, blood, urine, etc., that creates a rebuttable presumption (also referred to as a "refusal inference") that the reason for the refusal was because the defendant was afraid that taking the test would prove that he was intoxicated.

Contrary to what the defense attorneys would have you believe, there is really no legitimate reason to refuse the test, and I've never heard a good excuse yet. In New York (and probably elsewhere), refusing to submit to a chemical test results in the immediate suspension and subsequent revocation of your driver's license. That face alone looks terrible for the defendant at trial. You're saying you're not drunk, you're given an opportunity to demonstrate that by taking a simple breath test, you're told that you will lose your license if you don't, and you refuse? You're given the opportunity to keep your driver's license and you say "No that's OK, take away my license and use this against me in court."

-Shaz!
2/15/09 4:56 PM
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Bunkou
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That's exactly what the 5th is designed to prevent: forcing the defendant to prove his innocence. But I know a lot of jurisdictions don't really give much credence to that.

And Shaz, there is a very, very, very good reason not to take the breath test (aside from the violation of you 4th and 5th amendment rights): it'll prove you were over the legal limit (which is not the same as intoxicated) and then you'll be slammed on the per se statute.
2/16/09 12:32 AM
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Shaz
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Edited: 02/16/09 1:11 AM
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The statute has been upheld and is clearly not in violation of the 5th amendment. The defendant is permitted to refuse to take the test, but his refusal can be used against him. The jury can disregard the refusal, but they are still permitted to infer that he refused because it would hurt him at trial.And of course the good reason not to take the test is because you're intoxicated (and in my jurisdiction, over the legal limit IS intoxicated per se), but if you are not then there's no legitimate reason not to take it, and the juries know it.

-Shaz!
2/16/09 12:24 PM
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Bunkou
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That a statute has been upheld is proof of nothing, you know that. Every state has upheld DUI checkpoints even though every single one of them also admitted it was a clear violation of the 4th Amendment. They just did some social commentary and policy wrangling and placed limits to say it was okay.

And you are correct of course, over the limit is per se intoxicated. I should have said it's legally intoxicated as opposed to physiologically intoxicated (to the extent that it's unsafe blah blah blah).
2/16/09 1:17 PM
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bflex
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Shaz - "And of course the good reason not to take the test is because you're intoxicated (and in my jurisdiction, over the legal limit IS intoxicated per se), but if you are not then there's no legitimate reason not to take it, and the juries know it."

I win refusals all the time. Going to win one this afternoon. I guess juries don't know it that well.

Also, there are two types of dui statutes. Per se which is .08 or higher or appriciably impaired which doesn't require any reading.
2/16/09 5:55 PM
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Shaz
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Bunkou - That a statute has been upheld is proof of nothing, you know that. Every state has upheld DUI checkpoints even though every single one of them also admitted it was a clear violation of the 4th Amendment. They just did some social commentary and policy wrangling and placed limits to say it was okay.

And you are correct of course, over the limit is per se intoxicated. I should have said it's legally intoxicated as opposed to physiologically intoxicated (to the extent that it's unsafe blah blah blah).


Actually the fact that it's been upheld is proof that the courts of this state have no problem with it, and that's good enough for me. Too many of these cases go the other way, I'm not going to cry for the poor defendants who try to game the system.

-Shaz!
2/16/09 11:56 PM
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Bunkou
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Spoken like a true prosecutor. Good on, ya, Shaz. You know we love you, even if you have no morals. ;-)
2/17/09 11:16 AM
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goku
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ok...but all the technical what ifs aside...if you refuse the breathalyzer in real life, there is 99.9% chance you are drunk right?
2/17/09 11:16 AM
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goku
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and are you sure about checkpoints being in violationof the constitution? i seem to recall discussing this in law school....
2/17/09 12:34 PM
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BarkLikeADog
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Edited: 02/17/09 12:53 PM
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"...if you refuse the breathalyzer in real life, there is 99.9% chance you are drunk right?"

Nope. Miniscule odds the defendant is a technophobe, civil rights hardcase, or paranoid; reasonable odds the defendant has been *drinking* but no way to know for sure if he would have blown over. He's taking a gamble they can't prove he was impaired which shouldn't be difficult if he was; forget the machine, let him play that card & see what happens.
2/17/09 9:36 PM
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bflex
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Goku - Basically the US Supreme Court bullshitted around the issue to make warrantless seizures with no pc or reasonable suspicion legal in the case of checkpoints. That was in the Mich. Dept. of State Police v. Sitz. The US Supreme Court was such blatent bullshit that when the case was remanded to Michigan, the Michigan Supreme Court called bullshit and said that checkpoints were illegal under the Michigan Constitution. Michigan v. Sitz is one of the worst Supreme Court decisions ever. Complete bullshit.
2/18/09 1:12 PM
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goku
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so i take you think its bullshit?

what constitutes a seizure? is a traffic light a seizure?
2/18/09 9:43 PM
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bflex
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Goku - A seizure of a person, is the restraint of freedom of movement of an individual by force, authority or show of force or authority for the purpose of investigation.

As such, no a traffic light is not a seizure.
2/19/09 1:18 PM
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goku
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so what about airports, courthouses etc?
2/19/09 2:55 PM
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goku
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Edited: 02/19/09 2:56 PM
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also, isnt the prohibition against "unreasonable" search and seizures, implying certain search and seizures are ok? just from my personal perspective i would think a dui checkpoint with certain limitations would not be unreasonable because typically they are not extremely evasive or time-consuming and the level of restraint is minimal relatively speaking
2/19/09 3:42 PM
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Bunkou
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The concept of reasonable itself says there needs to be a reason for it. In other words, reasonable suspicion, which is already a terribly low standard.

There's no reasonable suspicion at a checkpoint, it's literally a fishing expedition.
2/19/09 4:14 PM
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goku
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i dont think "reasonable" means "reason" for it...
4/14/09 8:51 PM
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GladiatorGannon
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Bunkou - The concept of reasonable itself says there needs to be a reason for it.


and in this case, the SC decided that Pubilc Policy/Public Safety was a good enough reason. they can stop and search people at airports without "reasonable suspicion", so i think you're making a bit of a reach here.

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