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Well my case involves a drinking while intoxicated charge I…

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Well my case involves...

Well my case involves a drinking while intoxicated charge I was issued while stationed in Germany. I had to blow in the breathalyzer probably about 7 or 8 times before I was asked to go to the station to blow another 4 or 5 more times. the report stated that I was pulled over on a routine check but in fact they mistook my vehicle for another vehicle that was involved in a hit and run the exact same night. I did not argue with the polizie because I was told that they would get physical if I said anything. I wasn't sure of anything until I actually received the report and read everything within the report. I was just wondering since I am in America if it would be possible to appeal the gomor being placed in my ompf file

Lawyer's Assistant: Are you overseas or stateside?

I am currently stateside now

Lawyer's Assistant: Have you talked to anyone in the chain of command about this?

No i haven't only because when anyone hears anything related to alcohol they immediately jump to conclusions that your guilty regardless of circumstances

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The time frame of the GOMOR. i think that different circumstances changed the gomor from being filed locally to permanently in my OMPF

Submitted: 7 months ago.Category: Military Law
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Answered in 5 minutes by:
12/14/2017
Military Lawyer: Allen M., Esq., Lawyer replied 7 months ago
Allen M., Esq.
Category: Military Law
Satisfied Customers: 20,570
Experience: Lawyer and current JAG officer.
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

You could file a DD Form 149 with the records corrections board and allege that the placing of this in your OMPF is an injustice, given these facts.

Now, the problem that you have is that there is no science to suggest that blowing multiple times into a breathalyzer will ultimately result in a positive. In fact, the opposite tends to be true. Additionally, mistaking your car for one that was involved in a hit and run is still legally "probable cause" to pull you over, and once pulled over they can act on any reasonable suspicions based on speaking with you (like smelling alcohol emanating from your breath).

When we are in foreign countries, we are under the SOFA and their rules of collecting evidence apply. Once the evidence is collected, the military can use that evidence both there and here when you get back to the states....your coming back here doesn't change that fact.

So, while you certainly have the right to file the DD Form 149, you're going to have to address these issues that I've raised. I'm just giving you the best read I can on how the board reviews these sorts of requests.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 7 months ago
The GOMOR is the Second issue, The big one is the timing of the GOMOR. There is no way for me to prove this but i believe the placement of the GOMOR permanently in my OMPF had to do with an alternate event and had nothing to do with the event itself. So at the time of the placement my name showed up on the blotter for something that i was ultimately cleared of. but the event still came up since i went to the MP station and right after that is when the GOMOR was placed in my OMPF. Everyone recommended Local Filing and then the blotter hit and it was put in my OMPF is that okay
Military Lawyer: Allen M., Esq., Lawyer replied 7 months ago

If there is no way for you to prove that, then it doesn't really matter whether or not it is ok.

You bear the burden of proving any allegation of injustice. That being said, I don't know that even this proved would make it. One of the considerations in deciding how to punish someone is general deterrence. If another event made the decider feel that a stronger message was necessary, then that would be a legal determination.

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