dui first offense breathalyzer refusal

[turdferguson]

What is the name of your state (only U.S. law)? Mississippi

Well, on December 4th, i had been out with some friends from about 5:30 til 9:30. Had about 3 or 4 beers. So I'm almost home when an officer is coming toward me. After she saw that my headlight was out, she immediately turned around and pulled me over. After writing a ticket for equipment failure, she noticed that my breath smelled of alcohol and asked me to blow into a pbt. I refused so she made me get out and take a field sobriety test. She said I mainly failed because of my eyes. I did have two different surgeries on my eyes when i was a baby (i am 22 now) but I still have some affects like my left eye tends to wonder. I'm curious as to if this could cause faulty results from a field sobriety test.

I'm also wondering what i may possibly be facing. Every website says that i may face 48 hours jail time, yet most say that jail time can be substituted.

My court date is on the 9th of january 2009. I've been trying to find a lawyer for the past couple weeks but the holidays have made it rather difficult.

and as it says in the title, this is my first offense. I have never had any type of problem or been into any other type of trouble. This was just one of those things that could have been avoided but wasn't due to my own negligence.

 

[Ohiogal]

Say goodbye to your license quite frankly. Also figure on jail time for 48 hours. You have not exactly shown yourself to be willing to follow the law nor have you shown remorse or anything else to make a court apt to work with you.

 

[turdferguson]

sorry but how do you judge my amount of remorse through an internet forum? you don't exactly know me or all of the circumstances involved in my arrest., therefor you should not make such broad accusations. I apologize if my previous post wasn't sympathetic enough for you, but your sympathy is not what I am after. I completely understand what I did was wrong and obviously since this is my first offense, its not something that happens often.

I didn't refuse because I didn't want to follow the law. I refused because I thought it was the best thing to do at that moment. Obviously, a persons judgment can be clouded when under such circumstances. My license has already been suspended for 90 days starting from Jan 24 to April 24.

I'm still trying to figure out where you might gather that I do not want to follow the law? I have the right to refuse a breathalyzer, if its a good decision or not is not the question. I also did not try to break the law by drinking and driving. It was just under my presumption that I was sober enough to drive.

thanks for the reply though more information would be helpful.

 

[Peligroso27]

You may have been too blasted to remember but you were given more than just one test. The horizontal gaze nystagmus test is one of three standardized tests you were given. The horizontal gaze nystagmus test, as well as the other standardized field sobriety tests – the walk-and-turn and one-leg stand – are intended to be used by police officers to determine probable cause that a driver is under the influence of alcohol. After determining per se intoxication – that a driver is probably under the influence as indicated by these test results – the next test should be a breathalyzer, blood, or urine test to determine blood-alcohol content.

Were not given a blood or breath test at the station?

 

[turdferguson]

Blasted? No, actually i was pretty clear headed at the time they pulled me over. You may ask why I refused the breathalyzer then if i felt fairly sober? Well, at the time i was very nervous and thought that the consequences of refusing would be less severe than had I blown and gone even the slightest over the limit. I was pretty intimidated i guess. I mean they let me go from the station on my own recognizance within an hour after my arrest if that helps. I guess the worst decision i made was refusing once again once at the police station. I'm fairly certain that I would have passed once at the station but I still felt I should maintain my stand on refusing.

to be more specific about my field sobriety tests. She gave four, the first being the walk and turn. Not trying to blame anyone here, but the officer wasn't clear on her instructions. The officer with her actually stopped her and decided to explain them to me. On the walk and turn, i lifted my foot off the ground instead of pivoting due to my misunderstanding of the directions. Next, the stand on one leg, the horizontal gaze test, and i was told to count 12345 54321 on each of my hands.

To answer your other question, no i was never given any type of blood test, breathalyzer, or urinalysis at the station.

 

[Peligroso27]

You were given four tests that the officers will testify in court you failed. Refusing twice to take a breath test didn't help you at all. If you could have passed you should have taken the PBT and you could have been on your way. Now you will have a DUI conviction on your criminal record the rest of your life. Like I said earlier, the three tests you were given determined the per se intoxication. The fourth test is not a standardized test but was used to further establish your level of intoxication. This is not looking good for you so far. I am not an expert in DUI stops like the officers that arrested you but I find it hard to believe that the only mistake you made in those four tests was the one you mentioned. You were not given the second test because you refused it.

Mississippi DUI arrests trigger what is known as the "10-day rule" for driver's license issues. In Mississippi, if you either refused to submit to a breath, blood, or urine test, or you gave a test where the results were .08% or higher, the state will attempt to suspend your license or privilege to drive for 90 days to one year. This attempt to take away your right to drive will occur PRIOR to any criminal trial for DUI (in most cases) and will be automatically entered against you unless you file a test refusal petition within 10 calendar days after the mailing of a notice of letter of intent to suspend. Filing a test refusal petition does not postpone the suspension. The license you receive when there has been a refusal to take a state-administered test is valid for only forty-five days from the date of the arrest. This license cannot be renewed or extended for any period of time. The test refusal hearing is an informal hearing. There will not be a jury. The decision will be announced at the administrative hearing to agree with the State to suspend your license or to return it to you. The hearing is needed to determine if you will be able to retain your driving privileges until the end of your DUI case or if you will lose the right to drive in Mississippi prior to your trial. In addition, this hearing offers a great opportunity to cross-examine the officer under oath about the facts of your case.

You may have a defense with your "eye surgery". The bad news is it will be hard and very expensive to prove. You will need to produce the medical records showing that you had whatever disease you are claiming and that you were operated on. You will need to be examined by an Ophthalmologist and to convince the judge you will need experts in the field to testify on your behalf. Your very expensive DUI attorney will spend countless billable hours researching cases of people who have driven drunk and failed the same tests as you as a result of the same procedure.

 

[Alex23]

Didn't they charge you with underage drinking, too?

 

[turdferguson]

why would they arrest me for being underage if i am 22? did you even read my post?

 

[BigMistakeFl]

Eyes

Did the cop ask you if you had any disabilities or injuries prior to administering the FST's? If so, did you respond that you had a wandering eye resulting from two eye surgeries?

The FST's would be good to have refused, instead of the breath test(s).

 

[FlyingRon]

You should have been on the phone to a lawyer December 5th.
You only have 10 days to protest the automatic suspension.
Were you charged with DUI as well?
Lawyers tend to answer their phones and emails quite regularly even through the holidays.
You're procrastinating.
It's rapidly becoming too late.

 

[turdferguson]

Did the cop ask you if you had any disabilities or injuries prior to administering the FST's? If so, did you respond that you had a wandering eye resulting from two eye surgeries?

The FST's would be good to have refused, instead of the breath test(s).

i did tell them that i have had surgery on my eyes and i told her of my condition but she didn't acknowledge me after i told her that.

I guess basically to get back to my main question in my first post, is it very likely to send someone to jail on their first offense with no other prior convictions? I'm a college student with a full time job. I'm ok with having to pay the fines, going to the classes and having my license suspended, but i'm just scared of going to jail even it is for 48 hours. I know most people go to victim impact panels rather than jail, but im just curious how that works with a breathalyzer refusal. The only additional penalty I am aware of is an automatic license suspension of 90 days. So im looking at a 6 month license suspension. I know the refusal looks bad on me though because it looks like im trying to hide how drunk i was.

 

[Peligroso27]

College students charged with or convicted of drunk driving have been suspended from school for at least one semester or quarter. You are going to pay 250 to 1000 dollars in fines plus court costs. You will lose your driver license for 90 days for refusing your FST and chemical test. There will be a separate 90 day suspension if you participate in MASEP but you can lose it for up to 12 months. Jail time is mandatory and 48 hours is the minimum you will receive.

I know the refusal looks bad on me though because it looks like im trying to hide how drunk i was.
That is exactly what you were doing. Re-read your own posts and this may become apparent to you.

 

[JIMinCA]

I know you came to the "Free Advice" forum thinking you were going to get some help. Instead, you were unknowingly redirected to the "Let us all tell you how guilty you are" forum. Don't worry too much about those knuckleheads. They have lost sight of the fact that in this country, the STATE has the burden of prosecution... not the defendant.

First of all, you said you had 3 - 4 beers in a period of 4 hours. If that is true, you likely were not DUI and you should admit NOTHING.

Second, you have the right to refuse a breathalizer test. I'm not sure about Mississippi, but most states can compel a blood test. If Miss. is the same, it is likely that a blood test was not pursued because the cops believed you would pass it.

The female cop had to get help from another cop to conduct the FST. Either she was drunk or it is likely that she was a rookie. Therefore, it is certainly possible that you were simply the victim of some really sloppy police work.

So... are you sure you were even charged with DUI? Did they take your prints and picture? Sounds like they just decided not to pursue the charge.

 

[BigMistakeFl]

Constitution

the STATE has the burden of prosecution... not the defendant.

I know I know.... we all should feel secure knowing that we don't have to prove ourselves innocent, the burden of proof falls on them, not we defendants. But what you need to understand is that "they" HAVE figured this out as well. To resolve this issue, the people who make the laws have patched all the loopholes, have trained everyone involved in the arrest and prosecution process so that they get it airtight from the moment you see the flashing lights.

Either she was drunk or

Now that's sound advice. I hope the OP takes your sage words and uses this as a defense, that the cop was drunk.

Where's IAAL's list of best posts to this forum???

 

[JIMinCA]

BigMistake,

Are you in competition with Zigner for being able to clip a few words from a person's post and distort them out of context in an attempt to start controversy?

Well, at least you are properly named.