Confusion prior to taking the BAC test

[stkabi]

This incident occurred in Washington state.

Hello,

I took a field sobriety test after getting into an accident (not at fault, no injuries), I took the field sobriety test but not the portable breathalyzer test. I was booked and had all my rights read to me.

While being interrogated I wasn't aware that the officer could call a lawyer for me, although I did consent to taking the breath test fearing 2 year immediate license revocation (need for work), it was .16

On one of the forms, it asks whether you are confused. I checked yes and the officer never attempted to show me a list of available lawyers nor advised me of their availability.In a motion to throw the evidence before trial, the judge estimated that I was "educated" enough and didn't fulfill the confusion state!

The officer recognized that it wasn't him checking the box. I am wondering if that check mark is subjective and the officer had no obligation to provide me with a lawyer at the time of the incident. I honestly did not know how the process was, and given the confused state especially after the accident.

I have a deal for a lower DUI (<.15) but the only difference would be 90 days suspension vs 1 year revocation and 24 vs 48 hours jail. Everything else is pretty much the same.

My lawyer argued that just checking the confused check mark should constitute a red flag that the officer should have provided more information. The judge refused that argument during the motion.

Should I continue arguing this? I feel that I have a case but I am not ultimately sure of a fair assessment from the jury system. Just not sure.

 

[CdwJava]

Does your attorney think there is a chance in Hades of appealing the court's decision? It may well be that you have no option except to move ahead.

 

[quincy]

This incident occurred in Washington state.

... My lawyer argued that just checking the confused check mark should constitute a red flag that the officer should have provided more information ...

If you have a lawyer, all questions you have about your arrest and charges should be directed to him.

Although your lawyer cannot tell you to go to trial (that is a decision you need to make on your own), your lawyer can give you his educated opinion of your chances before a jury. Your attorney can tell you whether he thinks the outcome might be better than what the prosecutor is currently willing to offer.

But trials are always a gamble. You are weighing an unknown (will the jury be harsher?) against the known (reduced penalty).

Good luck with whatever it is you decide to do.

 

[HighwayMan]

The judge denied the motion and you already have a plea deal. So what's the issue?

Again, YOU HAVE AN ATTORNEY! You should be dealing with your attorney on this matter not an Internet forum.

 

[Silverplum]

I think all drunks are "confused." That's not an excuse for DUI.

 

[HighwayMan]

i think all drunks are "confused." that's not an excuse for dui.

bravo


.....

 

[FlyingRon]

Actually, despite all the hysterics above, he's got a point in Washington state. Washington state requires the officer to read an implied consent notice and if the drunk is sufficiently confused, he must give him the opportunity to get legal assistance. It's possible the test results (or the fact that he refused if he had done that) can be supressed. There's clearly not enough information here to determine that. The only true answer is that he should be talking to his lawyer about this.

 

[jdbofky]

A judge has ruled on the confusion issue. As others have pointed out, confusion because of intoxication is not sufficient. A single check box is not enough to suppress the breath evidence. But let's say an appeal could be taken and the breath excluded. The prosecutor still has the results of the field sobriety exercises, which I am confident were not performed to standard by someone who blew .16. If Washington is like most (but not all) jurisdictions, there is likely video of those as well. And officer testimony. So a conviction is still extremely likely, and if you put the state through all of that to get you convicted you can be assured that the stipulation to < .15 will be gone, as will DUI minimum sentencing sanctions. Breath is certainly NOT needed to prove DUI. Most trials from breath refusal cases still end in convictions. Strategizing your way through a legal process like this is something your lawyer is best suited to do for you. Take his/her advice.

 

[quincy]

Actually, despite all the hysterics above, he's got a point in Washington state. Washington state requires the officer to read an implied consent notice and if the drunk is sufficiently confused, he must give him the opportunity to get legal assistance. It's possible the test results (or the fact that he refused if he had done that) can be supressed. There's clearly not enough information here to determine that. The only true answer is that he should be talking to his lawyer about this.

I agree with you, FlyingRon.

There are legitimate defenses available to many charges, including DUI charges. These defenses can result in charges being reduced or dismissed.

Although it is understandable that there is not much sympathy shown a driver who has been charged with driving while impaired or driving under the influence of alcohol or drugs, charges do not equal convictions. It can be important for anyone charged with any serious crime to seek out the help of an experienced defense attorney.

Defense attorneys were invented for good reason.




(bofky - did you provide your credentials to the moderator yet?)

 

[jdbofky]

(bofky - did you provide your credentials to the moderator yet?)

I have not been asked for any, nor do I know who the moderator is. It appears that I have no idea what the rules of participation on this site are, so perhaps I'm not the kind of person who should be commenting here. Or perhaps my comments are just irritating to one person. If there is something I should do, please tell me where I can read about it and do it.

 

[Silverplum]

I have not been asked for any, nor do I know who the moderator is. It appears that I have no idea what the rules of participation on this site are, so perhaps I'm not the kind of person who should be commenting here.

[email protected]

If you claim to be an attorney, you should* provide your bona fides to the site.

(*must? I don't know.)

 

[justalayman]

I have not been asked for any, nor do I know who the moderator is. It appears that I have no idea what the rules of participation on this site are, so perhaps I'm not the kind of person who should be commenting here. Or perhaps my comments are just irritating to one person. If there is something I should do, please tell me where I can read about it and do it.

Nobody's being irritated. As with everything in life, there are rules and just like in our jurisprudence system, they are provided in such a manner nobody understands them without the aid of others.


You're doing fine. Don't run off yet. Administration typically vets those claiming to be attorneys.

 

[quincy]

I have not been asked for any, nor do I know who the moderator is. It appears that I have no idea what the rules of participation on this site are, so perhaps I'm not the kind of person who should be commenting here. Or perhaps my comments are just irritating to one person. If there is something I should do, please tell me where I can read about it and do it.

jdbofky, the moderator contacted you a few days ago through the email address you provided to FreeAdvice. She asked you at that time to verify your credentials. You might want to check your emails.

This forum does not allow posters to claim they are attorneys without submitting proof to the administrators of this site that they are who they say they are. The moderator can provide you with the (very good) reasons for this requirement.

Thank you, justalayman and Silverplum, for explaining the reason behind my question to jdbofky.

 

[Silverplum]

I probably shouldn't do that, MrQ.

Another resolution! It joins The List, which includes:
Learn how to better handle papers in my house and stop them from reproducing

Add a new color to my wardrobe

Cut down a really big tree in our front yard that has grown way too big
(I've been "protecting" it from
Mr Plum.) <<tiny poem

Write more tiny poems.

 

[quincy]

I probably shouldn't do that, MrQ.

Another resolution! It joins The List, which includes:
Learn how to better handle papers in my house and stop them from reproducing

Add a new color to my wardrobe

Cut down a really big tree in our front yard that has grown way too big
(I've been "protecting" it from
Mr Plum.) <<tiny poem

Write more tiny poems.

"Explain what quincy means" should definitely be included on your list of resolutions ... although I hope there will be less time needed for that to allow more time for your tiny poems.