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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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I have a lawyer that I have paid already. I was arrested on

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I have a lawyer that I have paid already. I was arrested on may 25th for a dwi. I had been to a wedding and then out to listen to a friends band play. I had 2 coors lite the entire day. Iam not a drinker anymore.I have children ages 11 and 13 that come first. I was caught 16 years ago and truly learned my lesson. I was not drunk the night I was pulled over. The officer said my eyes were glossy.I have tri-focal implants which could make my eyes glossy.I did the sob tests with no problems. Iam so shocked I blew 2x the limit that I have decided to research this. Iam a health coach. I have discovered that certain foods can make you blow higher. Iam a distributor for youngliving essential oils company. They are the only company in the world that sell 100% pure essential oils. Since I had been to a wedding all day, I decided to put pure spearmint essential oil in my mouth 2x during the night to freshen my breath.The last being just before my girlfriend and I got in my car to leave the bar.I didn't want to have bad breath while chatting with her on our 10 min ride home. I was pulled over less than a mile from the bar.It was 1:13am. He gave me a hand help breathalyzer test.(which I know now I could have refused) I don't recall what the reading was but I remember the officer saying it wasn't that high but he sat me in his car, had my girlfriend find a ride home and took me to the station. All this time iam thinking there has to be a mistake. When we got to the station the officer said I blew 2x the legal limit. At this time, I never mentioned I had used the spearmint essential oil because I had no idea it could/would effect the breath test. Now I know it does. I have researched that 1 piece of spearmint gum could make a sober person blow a .08. I also was recommended my lawyer. I did not know him. He hasn't really helped me. He wants me to plead guilty and get the ignition device on my car. I also just recently found out that he is friends with the arresting officer.I don't think he should have taken my case due to a conflict of interest. I need a second opinion.I don't think my lawyer is on my side at all. I also gave him 5 character letters stating Iam not a drinker. He never read them. He threw them in my file and said I will show them to the DA. Who knows if he really will or not. I gave all my money to this lawyer and cant afford another lawyer.He also told me if I want a trial, I will lose and gets a much worst penalty.what should I do? Thank you in advance, Dona
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.
Hello and thank you for your question.

In order to provide the most useful and relevant answer, please let me know if you also took a breathalyzer test at the police station, or whether the charge is solely based on the portable breathalyzer test at the scene?

Thank you. I look forward to working with you to provide the information you seek.
Customer: replied 1 year ago.

I was given a breathalyzer at the police station.It was much higher than the one on the side of the road. Iam positive it was due to the 100% pure spearmint oil that was making its way into my system. I had 2 beers and had quit drinking 2 hrs before I left the bar. I had only drank water the last few hours.

Expert:  MyraB replied 1 year ago.
Thank you for your response.

The portable breathalyzer tests are usually less reliable than those in the police station and it is more difficult to have the results of the portable breathalyzer test admitted into evidence. However, the breath test given at the station is generally admissible as long as the proper foundation is made which basically consists of records of calibration, proper certification of the breath test operator and that proper procedure was followed.

The breathalyzer test is meant to register deep lung breath, such that the air should not be contaminated by the presence of such things as gum, oil or residue. Unfortunately, resources that state that a person can test over the legal limit with one piece of spearmint gum and the like are not considered generally reliable. Nevertheless, there is a requirement that police observe a suspect for at least 15 minutes prior to a breath test so that there are no foreign substances introduced that could affect the test results.

Because the test results seem to be at odds with your conduct and demeanor at the time you were arrested, you may want to insist that your attorney focus on challenging the breathalyzer results, both from the angle that the machine was not working properly, or the police did not properly observe you for the requisite time and the other angle that the introduction of some substance caused the inaccurate reading. You are entitled in discovery to the records of the machine, the log book, the control reading, the certification of the operator, etc.

However, even with the breathalyzer results excluded whether you have a triable case would also depend on what the police report states and how the police would testify regarding your conduct and actions that night and the conclusions they made.

Please feel free to ask any follow up questions.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 5 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

I was very nice and polite at the police station. I think I was just in shock more than anything. I still cant believe it. Do I just go to the police station to get the paper work on when the breathalyzer machine was last calabrated?

Expert:  MyraB replied 1 year ago.
Thank you for your response.

Your attorney should request these records from the prosecutor through discovery. Also, because you mentioned you were polite and cooperative at the police station, if there is a videotape of the booking, you may want to have him request that also, if he has not already done so.

Let me know if you need any further information.

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