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Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
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violated my probation with an second offence owi withen 5 years....

Customer Question

violated my probation with an second offence owi withen 5 years.... was on probation origanly for owi in 2009, i had 6months supended with a year probation... i payed a lawyer 1500 to represent me.. i go to court on monday....When i was prossesed i think the jail broke a rule while bringing me in for my breath test... I think they are supposed to wait 20 min before adminstering the breath test when i arrived.... and (or) ur not supposed to have anything near your mouth, or ur suposed to have to waite 20 min before the breath test.. i was coufing on perpose to try an get an extra few min to take my test, cause i knew i wld pass... Well they still took me right in and tesed me.. I blew an .08.. can i fight that charge,? and what kinda time am i looking at? PS,,, ive served 3 weekes on my owi, got served my warrent in jail. But they didnt process it, messed up and let me bond out.. So i called my probation and she looked into why they let me out and i ended up having to turn myself back in on the probation warrent a week later. Im currently serving time, and have been in for another 3 weeks.. I am on wrk release, and have court on monday... what do you think will happen? I am an veteren of iraq freedom and also served in operation enduring iraq freedom.. just for your info.. and i only have three charges on my recorde.... in 99 wreckless driving 2009 owi and 2011 owi with a probation violation...was 3weeks from compleating my terms of my probation, when i got this charge...further, What kinda deal do you think my lawyer will b able to wrk out.. And beings i was acepted for wrk release, do you think i will be able to get my time on house arrest?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Joseph replied 3 years ago.

The administrative rules regarding the intoxilyzer device require a twenty minute observation period. This means that the officers must observe you for at least twenty minutes prior to beginning the test. The purpose is to make sure that any mouth alcohol clears up so that the results are not skewed by alcohol actually being in your mouth, creating a higher result.

 

Having said that, they do not need to observe you for twenty minutes from arriving at the testing location, just twenty minutes from the time of the stop. Further, coughing is generally not considered to create a problem. In short, the issues you have raised would not make the results inadmissible in court.

 

The better argument is that the results are just over the limit anyway. As you may know, if you blow quite high, perhaps .15 or higher, then the prosecutor would have a good case and likely not be willing to negotiate. However, with a .08, the prosecutor does not have a compelling case and may very well be willing to reduce the charge or at least provide a reasonable resolution.

 

As to your questions regarding the ultimate result, it would be impossible to state with any certainty how the case will be resolved, there are just too many factors to be considered. But, considering the amount of jail time you have already served, your suggestion of house arrest appears reasonable, especially in light of the low breath test results.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 3 years ago.
I think that the time of my feild test to me going into processing was around 15 min... it was real quick.... does that mean at the time of my pull over? Or my breath test? even before i took my feild test i took a drink of soda pop? and when the officer saw me do that, he said "Oh thats great"....and also when i was taken into processing, i was told not to put my hands near my mouth?.. lol so i started to coughen on perpose. And when i did i had a sherrif lady pull my hand from my mouth. She stated dont do that ..awh youll be ok... cuse i wanted to waite that few extra min. i wld of been able to walk out?... one more thing its a fellony owi that i have got charged with, how can i get that reduced if things dnt go my way?..........
Expert:  Joseph replied 3 years ago.

The observation period is typically from the time of the stop until the time of the breath test. If the officers observed you take anything by mouth, chewing gum or something of that sort, then the 20 minutes should start over. In other words, the officers must observe you for twenty minutes prior to the test and not having anything in your mouth.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

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