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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16821
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was arrested for dui in a really small town and the arresting

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I was arrested for dui in a really small town and the arresting officer. had no reasonable suspicion to make a terry stop. when the terry stop commenced the officer ( who has a history of stopping me for no reason) came to my window took my license and registration and went back to his car without a word else. upon returning he asked me out of my vehicle to perform a breathalyzer, which I refused but I did consent to a field sobriety test because I didn't know better at the time. This in itself is illegal because he had no probable cause to extend the stop to anything more than a terry stop. after one bobble at the begining of the heel to toe test everything else was perfect and the officer then placed me under arrest for dui. Now my question is how can I get this case thrown out of court before trial. Keep in mind I don't have a lawyer because I can't afford one and would like to beat this on my own as well as recoup restitution for a $100 tow bill as well as twenty- four hours in jail and two days research in the AL code of law and past supreme court cases to determine that my rights were infringed upon and I am innocent.
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 2 years ago.
Hello Jacustomer,

I suggest that when you come before the judge you ask the judge to appoint you a public defender. You're entitled to one if you can't afford a lawyer, and you have a better chance of winning this case and then recovering something from the county if you leave the lawyering to a pro.

There is nothing that's going to get this case pitched out any time soon. Constitutional arguments of the sort you believe that you have here do not get cases dismissed from jump street. Even if you were right as to the law, about which you do have some errors, the US Supreme Court says there are no had and fast rules when it comes to Consitutionality. Whether or not police have exceeded their authority must be litigated on a case-by-case basis at special pre-trial hearings designed to explore and challenge Constitutional matters. As a general rule, these are not held until right before jury selection. So this matter may pend a long while.

The standard that the judge must use at a suppression hearing has also been mandated by the Supreme Court. The judge must determine what a reasonable police officer would have done under the circumstances. You can bet that the prosecutor will ask questions that will make the officer's behavior appear reasonable, while you/your lawyer will try on cross examination to make them look unfair and UNreasonable. The judge who is right after both sides have rested.

If it is indeed found that the officer lacked probable cause for your arrest, the case cannot be sustained. But it doesn't take much evidence to have probable cause -- the refusal itself can be used as evidence of guilt -- and it takes even less than that to stop a car. The officer needs only an articulable suspicion, which means something more than a hunch but less than probable cause.

Plead not guilty at your arraignment and then ask the judge for a public defender so that you can safeguard your rights. Title 12-19-52 has absolutely nothing to do with a criminal case. It's a sanction against unlawfully high interest rates by lenders (think Payday loans).
Customer: replied 2 years ago.
Thank you very much Fran, I knew all about reasonable suspicion or articulable suspicion, which the officer had none. I knew he was behind me the whole time. I had nothing to drink by the way I just don't like my rights being blatantly stripped from me. But once he has articulable suspicion that only gives him the right to make a terry stop to gather more evidence which he didn't do. just took my license and registration and came back to say he was giving me a breathalyzer and field sobriety. The law says that he has to have two markers indicating a crime is being commited before extending the stop to anything more. Field sobriety doesnt fall in the realm of a terry stop. when do I ask for the public defender? At my first hearing on Sept. 17 or before? and must they provide me with one on my first offense because I really can't afford it and am unemployed and have been for several months.
Expert:  Zoey_ JD replied 2 years ago.
Hi,

I understand what you are saying. But I'm betting that when you see the court papers, he will allege that he stopped the car because of the way you were driving (if he follows you long enough, he can always find something wrong) and that when he approached the car to ask you for your ID (which he can do under Terry), he noticed that your eyes were bloodshot that your words were a bit slurry and that there was an odor of alcohol coming from the car. And he's going to say that's why he asked you to take a breathalyzer.

While it's tough to win a DUI without a BAC, intoxication is something that requiries no expertise to discern. The officer would be entitled to explain how he knew you were drinking and the above is pretty much what you can expect to hear. The case will come down to your word against his and, unfortunately, by not taking the test, there is a presumption that the reason you didn't was because it would show you to be intoxicated.

That presumption can be disputed at trial and turn out to amount to a whole lot of nothing, but that's going to depend on all of the evidence. A jury would be instructed that they could feel free to use the refusal as an indication of guilt.

Because DUI is a misdemeanor for which you could lose your personal liberty (you won't on a first arrest but for the sake of argument you could) you would have a 6th Amendment right to counsel. So when your charges are read out to you at arraignments and you are first asked how you plead, you answer, "Not guilty." Then you can tell the judge you've been unemployed for a while now and cannot afford to hire a lawyer. Ask him to appoint you a public defender. He may or may not ask you questions to further prove your eligibility, but if you've got no money coming in right now, you should be eligible.

If this police officer has been harassing you -- I got that sense from your question -- and if you feel that the stop was pretextual (no reason. Just looking to get you, for a change), make sure you let the attorney know that and also that you are thinking about suing the county for a wrongful arrest. He will need to know that so that he knows how best to handle your case, because any kind of plea or conviction makes a wrongful arrest "right."
Customer: replied 2 years ago.
thank you very much fran you get an excellent rating. Just a little history on the officer. again he is a municipal officer in the town of henager in the county of dekalb. this town is approximaely 8 miles from the town I live in where he worked for 12 years until he got beat up pretty bad by a father at a local basketball game for trying to use excessive force. he was consequently fired and went to work where he is now and seems to have a grudge against anyone he knows is from the town of ider. He has stopped me three times this year already and when I ask why he refuses to tell me. the stops never lead to anything because I'm not breaking the law anytime he stops me. I have just found out that this in itself is illegal, but I didn't want to make a big deal out of it and make things worse for myself but this time it's went to far and I intend to do what I can to get out of it and get some diciplinary action taken on him. IS there anything else you think I should know in case the public defender isn't truly doing the best they can to help me.
Expert:  Zoey_ JD replied 2 years ago.
aHi Kevin,

Thanks for the additional facts. This guy's record has already been tainted. Make sure that the public defender knows his history and knows he's been rousting you.

You can file a complaint about his with his superiors, file another with Internal Affairs and still another with the State Attorney General's Office, citing a course of police harassment and the false arrest. Before you do that though, you're going to want to show anything you write to your attorney when you get one since anything you say can be used against you. You also want to be guided by him as to the timing of the complaint. Your case is new and it may be unwise to get him angry at this time.

Public defenders come in all kinds. Some are ve,ry fine attorneys. Some are just terrible and most are at least average. Generally, however they have a great deal of criminal experience, and you likely won't have to convince a public defender that a police officer can lie and have vendettas.

In general, if you have a personality clash with your attorney, can't communicate with him or her, don't think he/she is interested in assisting you according to your expectations and isn't motivated to represent your interests, you can tell that to the judge and ask that your lawyer be relieved and that another public defender can be appointed.

Generally, early in the case, a judge is usually willing to make one change of assigned counsel. If you think the situation can be saved, you don't have to go that far. Most public defenders work for a defender organization and they have supervisors they are accountable to. Call the office, talk to his boss, and tell him what your PD is doing wrong. That can help. Save the appeal to the judge for when you're at your wit's end. You're likely only to get one shot at replacement unless you're willing and able to hire a lawyer of your own.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16821
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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