DUI fightback

What is the name of your state?state: Virginia

Hello, I got a Dui 6 months ago under the following circumstances:

1) stopped for speeding ~90mph on a highway
2) went above the legal limit on a PBA (portable breath
analyzer)
3) were charged with: 1) reckless driving, 2) DUI

4) wasn't aggressive at all, very cooperative, talked to the
cop during the whole time about everything, he didn't even
put in back seat.

5) He "promised":
1) he won't call in to automatically suspend my
license for 7 days
2) won't press DUI, just reckless
6)blew 0.07 at the downtown( "legal" limit is 0.08)

7) didn't even put into a cell, took back home
**************

8) court appointed lawyer, said i will probably get reckless

9)went to court, and i saw my lawyer talking to the Cop, and
lawyer, right before we entered the courtroom , my lawyer
said : "THERE IS A change of PLAN HE (COP) will press DUI.

10)After all this when the DA was cross examining the Cop, COP
was saying Thai i was leaning on the door went i was getting
out the car, and failed on almost all 10 foot-to-toe test.


11) Judge found it's still dangerous traveling at 90mph, and
gave DUI!!!, reckless was dismissed.


***********************
My question is:
1) Should I try to reopen the case, somehow write a letter to
the judge, or try to get the cop on my side, telling them
that my LAWYER said there is a change of plans right before
the trial and make it a mistrial?

2) could the evidence of the other crime (reckless driving) be
used to find guilty of the other crime (DUI).

Thanks so much.

[ptlmejo]

1) Should I try to reopen the case, somehow write a letter to
the judge, or try to get the cop on my side, telling them
that my LAWYER said there is a change of plans right before
the trial and make it a mistrial?

How? What mistrial? Because the officer made some promise to you that he shouldn't have made in the first place because it's morally wrong? I hope his supervisor reprimanded him for telling you that he was letting you off on the OWI, if in fact, he really did say that.

2) could the evidence of the other crime (reckless driving) be
used to find guilty of the other crime (DUI).

Citing VA's OWI statue...

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii) or (iv).

You bet it could. Read (iii)...I think that fits you nicely.

Virginia

Thanks for the reply, I understand there is a little
chance, or whatsoever of a mistrial. I wouldn't be so upset, if the COP
haven't had said or "promised" not to press DUI, how he could
be so "kind" at the moment, and then at the court brag about
being me drunk?

1)technically, I think there is chance of proving that I
was misled and was lied to, i could have used that against him in the court, if i could prove so.

2) Mistrial, b/c self respectful lawyer doesn't tell his
client : "There is a change of plans" 5 minutes before the
trial, and still go to trial, w/o thinking of new ways.

************************

But the main thing that i want to get an advice on, is there
a way, or Should I TRY to contact, or write a letter to the
judge, explaining my situation:

A) that my speeding wasn't affected by the alcohol, since i
had speeding tickets previously, and no DUI before

B) lawyer didn't explain me very well my situation, my rights,

C) the COP could prove that i was cooperative, and I can
bring some witnesses, stating that when i am drunk i say and
act stupid, act aggressively, or inadequate, but i
wasn't acting or saying anything stupid or being aggressive
during the arrest, therefore i wasn't drunk.

D) I drove (on restricted license) 7 months thereafter, and
no tickets, and now i DO understand that i was RECKLESS, and
seriously think that shouldn't drink AT ALL before driving,
in spite of some "LEGAL" limit of being intoxicated.

Thanks again

[ptlmejo]

A) that my speeding wasn't affected by the alcohol, since i
had speeding tickets previously, and no DUI before

That won't change the fact that the officer felt you were operating in a reckless manner. You can't seriously try and tell me that you feel operating at 90 MPH is safe.

B) lawyer didn't explain me very well my situation, my rights,

How did he/she not do this?

C) the COP could prove that i was cooperative, and I can
bring some witnesses, stating that when i am drunk i say and
act stupid, act aggressively, or inadequate, but i
wasn't acting or saying anything stupid or being aggressive
during the arrest, therefore i wasn't drunk.

So, you never act stupid sober? You never act aggressively when you're sober? By that account, you're telling me that driving 90 MPH isn't stupid or aggressive?

D) I drove (on restricted license) 7 months thereafter, and
no tickets, and now i DO understand that i was RECKLESS, and
seriously think that shouldn't drink AT ALL before driving,
in spite of some "LEGAL" limit of being intoxicated.

That's the first thing you've said that made any sense...

Well, thanks for replying again.

A) Anyone who drives at 90MPH is presumably drunk? and my
point was that I do not question my recklessness under this
law, I have HAD Speeding tickets before, but no alcohol
related problems, this might suggest that i do speed b/c i
speed, not b/c of alcohol. If there are no cars on a highway
90MPH is not really different from 70MPH.
70MPH is it safe? There is always a risk just driving your car
at any speed, it's all relative.

B) well, about the lawyer. Is it OK to go trial, not to
postpone it and think a little more, since there more facts,
ask me what i want to do further on, since DA is being a
little bit tough.

C) certainly not, if i drink, I act inadequate. 90MPH is
aggressive to some people, in Germany there is no speed limit
on autobahns, and they are not stupid either.(just an example,
Not suggesting anything)Well, aggressive is maybe when you see
a COP slipping through a red light w/o siren or anything.



I am sorry, if I felt you like I am trying to argue with you,
not at all, on opposite it is very helpful to hear the
reaction from independent person and what to expect in "real"
life.

*********************
But there was another question should TRY to contact the Court
or forget it? should do it myself or with a lawyer?
*********************

thanks so much

PS Just don't feel right, when the COP has been so nice,
then he flips the other away around, not too honorable i
guess, and being punished to the same extent as the other guys
who couldn't STAND on their feet, and had their BAC's well
over 0.08. Why is there a "legal" BAC limit at all, so "some"
can get off, and some won't?

[CdwJava]

90MPH is aggressive to some people, in Germany there is no speed limit on autobahns, and they are not stupid either.

Maybe. But an acquaintance of mine who works the autobahn in Germany once said he coud scarcely recall the last non-fatal collision there.

Speed kills.

Why is there a "legal" BAC limit at all, so "some"
can get off, and some won't?

No. Because people CAN be DUI under the legal limit. Also, because research has shown that .08 BAC is the level where impairment can be shown to definitely be present. Beneath that, there IS impairment, it is just no as pronounced and is often harder to detect or prove.

Carl

[Shay-Pari'e]

I personally have survived the autobon, but the point is, this is not Germany, so your argument is moot.

[ptlmejo]

A) Anyone who drives at 90MPH is presumably drunk? and my
point was that I do not question my recklessness under this
law, I have HAD Speeding tickets before, but no alcohol
related problems, this might suggest that i do speed b/c i
speed, not b/c of alcohol. If there are no cars on a highway
90MPH is not really different from 70MPH.
70MPH is it safe? There is always a risk just driving your car
at any speed, it's all relative.

Here's your physics lesson for the day...it's from Austrailia, but science is universal. [URL=http://www.science.org.au/nova/058/058key.htm]http://www.science.org.au/nova/058/058key.htm[/URL]

They key in that whole story as it relates to this is the formula: E = m/2 * v^2. If you're traveling 55 MPH in a 1500 lb car and hit a brick wall, the energy that needs to be dissipated is 212,500 newtons as compared to the same car now traveling 90 MPH, the energy to dissipate would be 544,000 newtons.

B) well, about the lawyer. Is it OK to go trial, not to
postpone it and think a little more, since there more facts,
ask me what i want to do further on, since DA is being a
little bit tough.

If you don't agree with your lawyer, find another.

C) certainly not, if i drink, I act inadequate. 90MPH is
aggressive to some people, in Germany there is no speed limit
on autobahns, and they are not stupid either.(just an example,
Not suggesting anything)Well, aggressive is maybe when you see
a COP slipping through a red light w/o siren or anything.

Another point about the autobahn...

Germany's traffic laws are far more strict than they are in the US. Half the crap that people pull here would land you a heavy fine if not jail there.

Especially drunk driving.

But there was another question should TRY to contact the Court
or forget it? should do it myself or with a lawyer?

If you're trying to fight this and win, I would suggest getting a lawyer. They going to know more than you or I ever will.

[

QUOTE=ptlmejo]
*******
They key in that whole story as it relates to this is the formula: E = m/2 * v^2. .
*******

Indeed true, kinetic energy rises as the square of the velocity, i.e. if velocity increased twice, energy rises 4 times. Ptlmejo, but does this really provide proof that 70MPH is safe, and 90MPH isn't. The word "safe" that you used is subjective, and can't be proofed with certainty, thus the example with autobahns. In other words as I understood, that you could prove that crashing at 70MPH one would survive, and at 90MPH wouldn't? I think the result is common=death. That's what i meant that 70MPH isn't really different from 90MPH. Anyway, not every COP or DA knows about kinetic energy,
but if they did? This means that Large trucks shouldn't be traveling at the same speed as other vehicles, but they do, in fact the go even faster on the LEFT lane. From this one may conclude nobody took into account the energy of the traveling motor vehicles. Anyway we are deviating from the subject, speeding isn't necessary b/c of effects of alcohol.


Quote: ptlmejo
******
If you don't agree with your lawyer, find another.
******

B) You are right on the money: "Don't like your lawyer, get a new one", but you should have said that earlier, and you still didn't give your opinion on what the lawyer said to me 5 min before the trial, is it OK or not?


Quote=ptlmejo
*****
Another point about the autobahn...

Germany's traffic laws are far more strict than they are in the US. Half the crap that people pull here would land you a heavy fine if not jail there.

Especially drunk driving.
******

C) It's funny nobody commented or called me a LIAR about the cop slipping through the red light, they should be an example for us to follow, aren't they?
True, Germany's traffic laws are more strict, especially about drinking and driving.


Quote: =CdwJava
****
No. Because people CAN be DUI under the legal limit. Also, because research has shown that .08 BAC is the level where impairment can be shown to definitely be present. Beneath that, there IS impairment, it is just no as pronounced and is often harder to detect or prove.
****

D) CDWJAVA, of course, the key word is "CAN", but who decides you will, or won't get DUI, GOD? No, My guess is COP, DA, etc... So a question rises, is the "DUI LAW" crystal clear as we would like it to be?

MY suggestion would either of the following first two:

1) Drink and Drive, you lose, any evidence of alcohol is prohibited, no "Legal Limits of BAC,(where "B" stands for BLOOD, not BREATHE) no loopholes for guys with connections and money.

OR

2) Strict Legal limit of BAC, if below-not guilty under ANY circumstances, if above or equal=guilty under any circumstances

OR

3)LEAVE IT AS IT IS right NOW

How does it sound? Any opinions, or what would be your choice. HONESTLY, I would have chosen the first one, since the second one is still shady, different measurements-different results, different interpretations, crap about rising BAC, and of course, the "MOOD" of the people the courtroom.


E) Paradise, why is it moot? It was just an example of subjectiveness of word "safe",

F) CDWJAVA, your argument lacks a proof, it's just words of your acquaintance.


G) Anyway, for example if go and read about fuel economy. You will see that 55MPH is the optimal speed for fuel consumption. You burn 0.767987... cents more on every mile if you travel at 70MPH. IT should be true, i wouldn't disagree, but it looks just like a propaganda, w/o a word mentioned about manual vs. automatic transmission, diesel vs. gas. why is it?

H) HUGE trucks or SUV's, especially those fancy ones, never saw the LOADED, they just burn even more gas. And if you ask them: "Why do you need such a Gigantic "car?" They will answer: - Because i know i won't be killed in this "car" in any situation". Is that safe? Doesn't it suggest that they will be driving intentionally unsafe? (observations tell me that in general they do indedd). Should they be allowed to travel at the same speed, higher kinetic energy, right?

To prove my point I'll bring an example of seat belts, when they were first introduced, and were made mandatory, people in general began to drive less safe, knowing that seat belts will save them!

Thanks

PS. how do you include quotes, press "quote and reply", and then write your text inbetween? This way iI think you can't use quotes from different members.

[CdwJava]

D) CDWJAVA, of course, the key word is "CAN", but who decides you will, or won't get DUI, GOD? No, My guess is COP, DA, etc... So a question rises, is the "DUI LAW" crystal clear as we would like it to be?

Through the use of objective tests based upon research and compiled by the NHTSA. This battery of tests, when taken together, can reasonably show that a person is too impaired to drive. These are the foundations for the stardaized Field Sobriety Tests as used in CA and throughout most the 50 states - and, as part of the Drug Recognition Expert program.

Like many laws, there IS asubjective element to it. Many laws are like that - particularly traffic. That's why we have judges and juries.

1) Drink and Drive, you lose, any evidence of alcohol is prohibited, no "Legal Limits of BAC,(where "B" stands for BLOOD, not BREATHE) no loopholes for guys with connections and money.

In theory that's the way it is now. But, as we all know, money buys expert testimony and impressive attorneys. Even a zero tolerance policy won't prevent that.

2) Strict Legal limit of BAC, if below-not guilty under ANY circumstances, if above or equal=guilty under any circumstances

Ah, good ... being tanked at .06 and you could be on your way. What a grand thought!

3)LEAVE IT AS IT IS right NOW

Personally I'd be for making it stricter. The USA has among the weakest DUI laws in the world.

F) CDWJAVA, your argument lacks a proof, it's just words of your acquaintance.

Yeah - the guy who has to scrape the remains up with a spatula. He has survivors on the other highways ... just many fewer on the autobahn.

And since I was not trying to "prove" anything, I didn't feel it necesary. I sort of assumed that logic would prevail with speed and fatalities. If you don't believe it, look it up - there is plenty of research out there equating the two.

And if you don't believe that speed kills, then run full tilt into a wall some time and then realize that the impact you experienced was about HALF the speed limit of a vehicle on a residential street.


Carl

Well, i agree speed kills, there is always an element of risk present, i was just arguing about how the word "safe" should be interpreted.

I am happy that you at least partially agree with me, that there is a subjectiveness present in the current "DUI law", but i don't understand why you don't agree with getting away with 0.06 BAC, if the law states 0.08, I think that's the biggest problem with the law now. You might be correct that with zero tolerance law some might still get away with DUI, but there will much less room for speculations.


Is it foolish to write to th judge asking to give my license back, of course i wouldn't be arguing about safe speed, rising BAC, honesty of the COP, lawyer, etc, just try to state that DO realize what i did and better, and I do really regret abut that one "bad trip" of mine.


In your personal opinion, do you think I received a fair
trial and punishment from what I said?


PS. Still no comments about huge tracror trailers, SUV, trucks

[CdwJava]

Originally Posted by TY-VA

I am happy that you at least partially agree with me, that there is a subjectiveness present in the current "DUI law",

Some ... but at least out here, the subjectiveness is based on objective symptoms of impairment as presented in the standardized FSTs. So the subjective nature is greatly reduced or eliminated. Its the quality of the instruction and the tests as given by the officer that is more the subject of challenge rather than the scietific validation of the tests themselves.

but i don't understand why you don't agree with getting away with 0.06 BAC, if the law states 0.08,

Our laws in CA (and most states) defines BAC 08 and above as a section or violation seperate from general DUI (below .08). One can be impaired at much lower than .08.

I again ask, should it then be lawful for me to let some drunken sot get in his car and drive simply because he blows .07? Would you want a guy who is stumbling around driving on the road with YOUR family? I wouldn't.

Hence the fact that both sections exist. One is prima facie guilt (.08+) and the other requires some evidence of impairment - and this is not the same as poor driving.

Is it foolish to write to th judge asking to give my license back, of course i wouldn't be arguing about safe speed, rising BAC, honesty of the COP, lawyer, etc, just try to state that DO realize what i did and better, and I do really regret abut that one "bad trip" of mine.

Not knowing the nature of the law in VA, I couldn't say. It might not hurt, but consulting an attorney first might be a good idea.

In your personal opinion, do you think I received a fair
trial and punishment from what I said?

It sounds odd to me ... but different states have different procedures than CA does.

Carl

Thanks, really quick response.

I think we are even getting closer to each other in our opinions. Eliminating Legal BAC would be the best, this would take care of all the problems, how the FST, BAC test were conducted, So if one stumbles even with 0.07 or less he goes to jail, no prima facie guilt (.08+), and the other section, just ONE section.

But why give people such a false impression in the first place, the "confusion" about having one, two or three beers and driving is ok...


Well, in my case I think it was DA who pushed all this. Consulting attorney will defiantly be more professional, but this might give an impression that I am trying to buy my way out of this, I just wanna write a letter in plain "civilian"
language to the judge. My hopes are slim, courts are so packed, i am afraid nobody is even gonna read that

Expunging the record, is it really "Expunging"? For example, will this be seen on the record during a background check, or will it be "seen" in some other court of different stateor county? In other words is it taken out of the system, and just a hard copy is saved at achieves of that Court.

By the way radars are illegal in VA, why shouldn't we have rights of knowing that beams of lasers or radio waves are flashed at you

DO they help? I think you might get away with it if there few cars present on the highway, not at 3:00AM of course


Thank you again...

[ptlmejo]

You know, this post was somewhat interesting to begin with, and now it's just becoming a debate over principles.

We answered your question, TY-VA, to the best of our abilites. We are not legislators who can change the law, nor was I the one who stopped you, so anything beyond simple questions about fact, IMHO, is just argumentative.

[CdwJava]

Originally Posted by TY-VA

I think we are even getting closer to each other in our opinions. Eliminating Legal BAC would be the best,

I disagree. There is ample evidence to show that a BAC of .08 is sufficient to guarantee impairment even if none is immediately obvious. So it should remain.

But why give people such a false impression in the first place, the "confusion" about having one, two or three beers and driving is ok...

That's not the fault of the police. We simply say "Don't drink and drive." Everyone knows that alcohol gets them whacked ... we knew it in high school ... heck, we knew it in grade school!

Expunging the record, is it really "Expunging"? For example, will this be seen on the record during a background check, or will it be "seen" in some other court of different stateor county? In other words is it taken out of the system, and just a hard copy is saved at achieves of that Court.

It depends on what happens to an expunged case in VA. And it also depends on the quality of a background check. There is no cookie-cutter background check so knowing if it would show up or not is impossible to answer.

I always advise people that they should always assume something in their past will pop up and act accordingly. And if there is a real question as to how to answer a question about an arrest or a conviction, they need to speak with an attorney who specializes in this area of law.


[QUOTES]By the way radars are illegal in VA, why shouldn't we have rights of knowing that beams of lasers or radio waves are flashed at you [/QUOTES]

They are legal here. But so many people put so much stock in those things. To the point that they will argue with you to death if they get hit by a radar or laser and their expensive little toy never went off! They will argue to death that you are lying. It gets pathetic sometimes.

Carl