First DWI Offense/Refusal

[bagofjuice]

What is the name of your state? North Carolina

I was pulled over because I was trying to steer with my knee and eating a sandwich (Drove left of center). I blew a .09 unofficially, took a field sobriety test, and blew a .09 unofficially again. Cop took me to the station, where he told me that if I refuse the chemical test, he will have nothing to present in court against me. So, I refused and am facing court soon. Can anyone give me some advice on this? I have never had a DWI before and am not familiar with the laws and penalties regarding such.

 

[VeronicaLodge]

why were your field blows unofficial?

 

[bagofjuice]

According to the cop, the only thing submissable in court is the results of the chemical test. He said the hand held device is only to gauge if a driver needs the chemical test or not.

 

[Ohiogal]

According to the cop, the only thing submissable in court is the results of the chemical test. He said the hand held device is only to gauge if a driver needs the chemical test or not.

You refused huh? Guess what. You have just lost your license. CONGRATS!

 

[FlyingRon]

That's a one year suspension with at least six months before you can qualify for a restricted license.

Refusing will deny them the per se evidence needed for the DUI, but won't necessarily keep them from proceeding with the DUI case based on other evidence.

 

[mike_lee]

Most likely you made the best choice, a DUI is forever, there was a thread the other day about a 21 year old DUI conviction blocking a guy from getting his DL in his new state of residence.

However, refusing to take a test is a serious decision that has consequences, but the consequences are less then a DUI conviction.

Most DUI attorneys can come up with a reason why you refused the test. and busy prosecutors often have nothing to build a case on and don't prosecute or offer you a plea. Don't even think about going through this without a lawyer, especially since you chose a bold but potentially troubling strategy. I do know you only have 10 days to avoid this automatic suspension get a lawyer fast and he could save your driving privileges.

Your post read like the cop was tipping you off to refuse the test is this correct?

 

[bagofjuice]

Yes. Nothing against the officer, he was just doing his job. I think he may have felt bad. After not being able to get anyone to witness the test (it was 1:00 AM by then), he suggested to me that if I refuse, there would be no submissable evidence in court. I had no dealings with DUI/DWIs, nor do I know anyone with such a conviction. So, I took the hint and refused.

 

[seniorjudge]

The officer will testify as an expert and you could get convicted.

But, as others have said, you made it easy and refused the test and you have automatically lost your license.

 

[Ohiogal]

Most likely you made the best choice, a DUI is forever, there was a thread the other day about a 21 year old DUI conviction blocking a guy from getting his DL in his new state of residence.

However, refusing to take a test is a serious decision that has consequences, but the consequences are less then a DUI conviction.

Most DUI attorneys can come up with a reason why you refused the test. and busy prosecutors often have nothing to build a case on and don't prosecute or offer you a plea. Don't even think about going through this without a lawyer, especially since you chose a bold but potentially troubling strategy. I do know you only have 10 days to avoid this automatic suspension get a lawyer fast and he could save your driving privileges.

Your post read like the cop was tipping you off to refuse the test is this correct?

Bull. HIs driving privileges will not be saved. OP refused the test. That is an automatic suspension.

 

[CavemanLawyer]

Ohiogal, DL suspensions for refusals are never automatic. You have a right to an administrative hearing where it must be shown that there was probable cause for the arrest and that the DIC warnings were given correctly. If there are mistakes in procedure than the suspension can be waived.

 

[BigMistakeFl]

BigMistakeFl

And I'd love to know the statistics behind how many times the DUI driver prevails in DMV adminstrative hearings. According to my lawyer, they nearly always find in favor of the arrest and its cause.

 

[Sweetiepi]

Ohiogal, DL suspensions for refusals are never automatic. You have a right to an administrative hearing where it must be shown that there was probable cause for the arrest and that the DIC warnings were given correctly. If there are mistakes in procedure than the suspension can be waived.

Sir Caveman,

You are correct. It appears that more times than not, the license is not suspended. This is of course, if you have proper representation. Also people are not always "arrested" or even "ticketed" until a much, much later date.

 

[Sweetiepi]

And I'd love to know the statistics behind how many times the DUI driver prevails in DMV adminstrative hearings. According to my lawyer, they nearly always find in favor of the arrest and its cause.

Time for a new lawyer.

 

[tbud333]

In California if you refuse the test you lose your license for 1 year. I believe that comes from the DMV , I'm not sure. I do not agree with the statement that the breath test is only a guage to see if the person needs to have a chemical test and that the breath test is not good as evidence. My son was given the breath test 2 times reading a 0.11 he was taken to jail. No chemical test. It is being used against him in court as evidence. The police did not have a reason to pull him over,the lawyer said they really don't need one. They can write down anything they want, who are the judges going to believe.
The police are not your friend.

 

[CavemanLawyer]

BigMistakeFL

I don't know statistics but suspensions get kicked at ALR hearings all the time. You've first got to consider suspensions for those that blow over the limit. If the test isn't performed exactly right the suspension is kicked. Its much more stringent at the ALR than in trial where that same test would be easily admissible. Not much at all gets kicked for lack of probable cause, its because the procedures are not followed, (ex: waiting period, misread DIC, answer some stupid question by the Def. that implies penalty or reward either way, etc..) The truth though is that the best reason to set an ALR hearing is to cross examine the officer for discovery in the later trial.

Tbud333

The preliminary (or portable) breath test is indeed generally not admissible in court because by its very design it can never accurately predict a person's BAC. But what it can accurately predict is the presence of alcohol. Is your son under 21 by any chance? If so then yes it can be used against him in court only to show that he had some measurable amount of alcohol in his system, which is all the State needs to prove. It cannot be used to show his actual BAC.

For regular DWI cases (over 21) the PBT test can only be used to impeach a defendant who actually testifies that they had nothing to drink. Then the officer can testify that the PBT test showed some result. The actual result can never come in unless by agreement. The only BAC tests that are admissible are the ones from the intoxilyzer or the new Alcotest machine.