Criminal Law Questions? Ask a Criminal Lawyer.
Thank you for the opportunity to assist you. I'm a XXXXX XXXXXcensed criminal defense attorney. Whether or not this charge will be reduced depends on a LOT of factors, including the officer but also the prosecutor and the judge. Were there any other facts or circumstances about the DUI other than your BAC of .08?
im not sure I follow? I such as?
Well, I assume you were polite and cooperative with the officer? Did you go through a road block/DUI checkpoint? Were you stopped for speeding, for a brake light out, for swerving? How did you do on the field sobriety tests? What was your BAC at the scene (did you take a PBT or portable breathalyzer test)? The PBT would probably have been located in the trunk of the officer's car.
Yes I very polite and cooperative. I was pulled for speeding doing 66 in a 45mph zone. I did blow an initial 1.24 but at the station I blew a 0.09 at the station. I failed the field sobriety test on the reciting the alphabet d-o, the one leg test but I passed the "follow the finger with your eyes" test.
Gotcha. The BAC of .0124 at the scene cannot be used as evidence unless you challenge the basis for the arrest. It's not uncommon for BAC to change by going higher or lower. In your case, it went down, which meant that your body was pretty quickly metabolizing the alcohol (i.e. sobering up) so that's good. The alphabet test is NOT an approved test by the State Police, I don't know why some officers use that test. The one leg stand is an approved test. The follow the finger test ("horizontal gaze nystagmus test") is not really scientific, but it IS one of the tests approved by the State Police. I routinely practice in front of one judge who completely disregards XXXXX XXXXX HGZ tests, he says it is "junk science" which is correct.
So it now depends on the prosecutor and the judge. The officer's recommendation will have some sway, but he's not ultimately the decision maker. Have you retained an attorney?
No have not. Under these circumstances is that what you would recommend? The bad thing about is I was about 5-7 minutes from my home. Which I know doesn't mean much.
Let me go back, too, to the BAC. The .08 or .09 or .12 etc. is just an evidentiary issue. In other words, if the Commonwealth can prove that a person has a BAC is .08 or higher, that's enough evidence for the judge to presume that the person charged was, in fact, "under the influence" at the time. So, if the person was also operating a vehicle, then that's a DUI conviction. Some people think the .08 business is a magic number, and anything below that means not guilty, and that's not exactly correct. As for an attorney...
I would definitely hire a qualified criminal defense attorney in your area to help negotiate this case. There is probably enough evidence to find you guilty, although there were a few issues with the tests, etc. But overall you need someone to negotiate this down to a "wet reckless" (i.e. a DUI reduced to reckless.) You might have to jump through some hoops, and it won't be pleasant, but you DO NOT want a DUI if you can help it. Besides the license suspension, your insurance rates will go through the roof, there are ASTOUNDING fees, you have to have a breathalyzer machine in any vehicle you drive, etc. It's a real pain.
I understand about the myths of the BAC.
I know. I have a cousin going through all that pain as we speak. Not to mention I work for the Washington Post selling online advertisement to car dealerships so my whole job consist of driving. So I am going to retain an attorney's services to protect myself.
Yes, get an attorney ASAP so he or she can negotiate a deal. At least, that's what I see based on what we've talked about. It sounds like your goal of avoiding the DUI conviction is a top priority, and that's very smart of you to recognize. Just remember, you still have to squeak this all past the prosecutor and the judge.
You make great points. This is really not anything to consider at this point. I have way too much to loose! Thank you for the great advice and wish me luck.
You're very welcome! I do hope it works out. One day at a time. Have I answered all your questions satisfactorily?
thanks again and yes you have answered all my questions to my satisfaction.
Great! I hope you'll consider assigning me a positive rating for my services today, and please ask for me in the future. Best wishes and please keep me updated on how your case goes! Shuband
I will absolutely give you an excellent rating and I will definitely use you in the future. Hopefully, I will never need advice from you again! Joking but serious.
I will keep you posted but how do I reach you again?
I agree, I love helping people out of legal messes but hope to never see them again! LOL. You can usually reply here, in this thread (which will be saved) or you can try my page: http://www.justanswer.com/law/expert-shaun-huband/
Absolutely, you seem like a great but definitely wish it was under different circumstances of course. But that's life and I faith that things will work out fine. Especially now that i know how to properly attack it. Thank you Shaun!
You're welcome! Best wishes!
Thank you again for your advice Mr. Hubard. I did retain an attorney and he filed a motion for my Friday pretrial. He feels optimistic that we can get the charges reduced based off of my prior driving record and clean arrest record. Wish me luck!
Ha ha! Thank you for crossing all of your extremities for me I can definitely use it.
Fortunately, my attorney said that I got stopped in the right county for this type of offense. He says that there 4 judges in this county that preside over these cases. 2 of them we want to avoid and 2 of them are more lenient and one those two.
He is going to try and push my court date out until I can get one of the good judges.
I will do that!
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