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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 32323
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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I was recently charged with an OWI. I was extremely fatigued

Customer Question

I was recently charged with an OWI. I was extremely fatigued and pulled over for inattentive driving. They did a Breathalyzer which read 0 and field sobriety tests. This is my second OWI and I believe they are using what they know about my past arrest against me. It was one of the same officers involved. I of course agreed to a blood test which I know will come up clean because I did not ingest any drugs of any kind (except for my prescribed meds). The officer said I did not pass one type of sobriety test, I'm not sure which one it was. My question is can they charge me for an OWI prior to getting my blood test back? Can they charge me with an OWI because they feel I did not pass a sobriety test? Can they use info from a prior arrest to charge me with an OWI? They kept me incarcerated for 12 hours and treated me as if I was guilty. I know my lack of sleep put me in this position and I should not have attempted to drive home that morning, but I was not under the influence of drugs or alcohol. How long does it take to get the blood test back? I've attempted to get some answers from the DA's office with no avail.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

My question is can they charge me for an OWI prior to getting my blood test back?

Yes, a charge only requires probable cause which is a very minimal standard. It can be based on nothing more than an officer's observation of you and their belief, based on their experience, that you were OWI.

Can they charge me with an OWI because they feel I did not pass a sobriety test?

Absolutely. That is not an uncommon thing to happen.

Can they use info from a prior arrest to charge me with an OWI?

No, the charge can't be based solely on a prior OWI.

How long does it take to get the blood test back?

There is no specific time limit. The time to get tests back varies dramatically depending upon time of year, testing facility to which it was sent, number of stops, etc.

Under no circumstances should you be talking to the DA or the police about the case at all. They are under no obligation to provide you with any information unless you file a formal motion for discovery and get an order from the court on the motion and by talking to them you risk saying something they will interpret as being an admission of guilt and being used against you later, whether what they say is accurate or not.

Expert:  Dwayne B. replied 1 year ago.
I am going to be offline for a little while but back again later tonight.
If your question has been answered completely then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.
Of course, please feel free to ask any follow up questions in this thread.
Customer: replied 1 year ago.
Can they have a preliminary hearing without the test results? Can the charge be dropped if my test is "clean" showing no intoxicants were in my system?
Expert:  Dwayne B. replied 1 year ago.

Yes to both.

The blood test isn't necessary for a conviction. It can occur based solely on how the vehicle was being operated and the officer's observations. However, realistically the DA is usually not very interested in pursuing a case where the blood test come back clean. However, that's where a lawyer will come in handy because they can go in and convince the DA it is a losing case with a clean test despite the officer's testimony by pointing out other factors such as fatigue, etc.

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