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TJ, Esq.
TJ, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 10038
Experience:  JD, MBA
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I have recently been hired for a time sensitive job in peru.

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I have recently been hired for a time sensitive job in peru. Last night I was pulled over and arrested for driving on suspended and DUI. The officer stated that I was notified of suspension on the 17 July. I checked paper and I was notified that day that I was out of suspension supervised driving. On the DUI/DWI the machine on the road was .04, the machined at the jail failed function first time and the second time they had me blow. I have the machine paper work that showed machine failure and five mins later the test me and it has .09. Does this sound like a case that can be thrown out of court for defective equipment on the DUI and simply a renewed suspension since I was not notified?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  TJ, Esq. replied 1 year ago.
Hello and thank you for allowing me the opportunity to assist you.

Did the police officer give you a roadside test (i.e., ask you to walk in a straight line, etc.)? If so, how did you do at that test?
Customer: replied 1 year ago.


The officer did do a road side test. I blew a .04. He then had me do the finger test thumb to pinky and all other fingers counting 1 to 4 4 to one. He told the magistrate that I did make mistakes but nothing to say I was drunk. He then had me to the heal to toe 9 steps turn around. He stated I did not hit heal to to at all. I did tell office that I am a vet with a injured left knee and a trapped nerve in my right hip that Im on nerve blockers for. He had me lift one foot and hold it. I could not do it due to injuries. He also asked if I every had to do these test and I told him yes and I never pass them due to injuries


 

Expert:  TJ, Esq. replied 1 year ago.
Hi again. Thank you for the additional information.

The reason I asked about the roadside test is because even though the .04 is below the legal limit, that does not mean that you were legally considered sober. If you were .08 or above, then it would have meant that you were legally considered drunk regardless of the roadside test. But even if you blow below .08, you can still be convicted of DUI if the officer has proof that you were impaired. The way to prove impairment is with the roadside test.

In your case, it sounds like you have a reasonable chance of winning, but I strongly suggest that you retain an attorney. If you handle this yourself, you will likely lose. With an attorney, you could win because (1) you blew .04 at the scene, (2) any failure of the roadside test can be attributed to your injuries (though you'll need expert medical evidence about your injuries), and (3) the machine at the jail can be argued to be malfunctioning. Moreover, a person's blood alcohol level at the jail is not accurate of a person's level while they were driving because if the person had been drinking just prior to driving, then the level will increase with time, before going down. For example, a person could quickly drink 3 shots of whiskey and immediately begin driving. The moment he begins driving he wouldn't be drunk. 15 minutes after driving, he'd likely be drunk. So the level does increase. But if you were to stop driving after just 5 minutes, then you would have possibly stopped before you were legally too drunk to drive. I hope that makes sense. But in your case, it probably makes more sense to simply argue that the machine was malfunctioning since it was having problems.

All of those issues should be enough to raise doubt. And remember that a DUI is like any other crime in that the prosecutor must prove that you were drunk beyond a reasonable doubt. It sounds like you can raise doubts. But I cannot stress this enough: You need an attorney to make these arguments. As an aside, it's also possible that the attorney could get the case dismissed before it even goes to trial if he can explain to the prosecutor the weakness of the case.

Does that answer your question? Please let me know if you need clarification, as I am happy to continue helping you until you are satisfied. Also, your positive feedback is much appreciated. Thank you for using our service!

If you would like to direct additional legal questions to me in the future, then please type "To VAMD" in the subject line of your question.
TJ, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 10038
Experience: JD, MBA
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