Interlock failure after pizza - probation was almost over!

[therealex123]

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

This is for my brother. He got arrested for DWI in December 2011, and was convicted June 2012. He blew 0.015, first time offender, and got the "book" thrown at him.

At any rate, he's had the Interlock in his car since then, even when he couldn't drive (they took his license, he got it back last June). He went out with my Mom, myself, and my daughter in Brooklyn and had pizza and soda. We dropped him back at Mom's house, he got in the car, and failed the interlock. He freaked out, came back out 20 minutes later and passed. He didn't associate the pizza with it, and figured it was just another Interlock screw up.

A week later, he had a slice of pizza, got in the car and again, failed. Three minutes later, he passed. He called the PO and explained what had happened, and she said they had only gotten notification of the one time and to come in at the end of the month, and they might even consider removing the interlock. Great news.

Four days later, he gets a call from the PO saying he failed twice and this was a serious problem. He said to her "I told you about that. It was the same circumstance, I had pizza." She said she didn't remember, and it didn't matter, he was in big trouble. He has to go for yet another chronic drunk driving course, but worse than that, he's been assigned to the hard core PO for people "with a problem".

His health is shot from the last three years of dealing with this. He lost his work, the doctor just diagnosed him as severely stressed, he's talking about suicide. This last thing has just completely derailed him.

His original lawyer, who is a well respected criminal attorney, screwed up in so many ways it's incredible. He basically did nothing, my brother would have been better off with a public defender. So he can't use him. Is there any lawyer who can help him get this sorted out? He's literally falling apart in front of me.

 

[Silverplum]

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

This is for my brother. He got arrested for DWI in December 2011, and was convicted June 2012. He blew 0.015, first time offender, and got the "book" thrown at him.

At any rate, he's had the Interlock in his car since then, even when he couldn't drive (they took his license, he got it back last June). He went out with my Mom, myself, and my daughter in Brooklyn and had pizza and soda. We dropped him back at Mom's house, he got in the car, and failed the interlock. He freaked out, came back out 20 minutes later and passed. He didn't associate the pizza with it, and figured it was just another Interlock screw up.

A week later, he had a slice of pizza, got in the car and again, failed. Three minutes later, he passed. He called the PO and explained what had happened, and she said they had only gotten notification of the one time and to come in at the end of the month, and they might even consider removing the interlock. Great news.

Four days later, he gets a call from the PO saying he failed twice and this was a serious problem. He said to her "I told you about that. It was the same circumstance, I had pizza." She said she didn't remember, and it didn't matter, he was in big trouble. He has to go for yet another chronic drunk driving course, but worse than that, he's been assigned to the hard core PO for people "with a problem".

His health is shot from the last three years of dealing with this. He lost his work, the doctor just diagnosed him as severely stressed, he's talking about suicide. This last thing has just completely derailed him.

His original lawyer, who is a well respected criminal attorney, screwed up in so many ways it's incredible. He basically did nothing, my brother would have been better off with a public defender. So he can't use him. Is there any lawyer who can help him get this sorted out? He's literally falling apart in front of me.

We can't give referrals. You can use this site to help find attorneys, but not on the forums.

The "pizza thing" is an old story or problem, depending upon point of view. From 2010 in TX: https://forum.freeadvice.com/drunk-driving-dui-dwi-27/interlock-violation-after-spicy-pizza-mouthwash-544968.html

 

[commentator]

Your brother is not falling apart because he got a DUI and had to have an interlock device in his car. There's no attorney anywhere who can undo what has happened, take him miraculously out of the higher category PO he has been assigned, and force the original PO to believe his explanation of the two glitches as pizza consumption both times. They certainly cannot go back and undo that he "got the book thrown at him" when his case came up. He had an attorney, yet he still got the book thrown at him. I'm not sure "mistakes" made by his attorney was the cause of this having happened, and it certainly cannot be changed at this point.

He needs to get into some kind of therapy for his stress issues. If he's got insurance to go to the doctor, does it have a counseling provider? He might really benefit from taking advantage of this. it would be a good use of his money, instead of trying to hire an attorney to sue the state for treating him unfairly or something. Particularly if he's talking about suicide, you should strongly encourage him to talk to a mental health professional.

No matter how stressed and overstrained they are, probation officers usually do try to look at the bigger picture. Is it possible they've had other reports or problems or issues with your brother besides pizza eating setting off his interlock device?

Did your brother's having "lost his work" have anything to do with his own performance or behaviors? Okay, he's severely stressed, but can that totally be attributed to the fact that he got a DUI three years ago and has had a year without a driver's license and then an interlock in his car? If there's a lot going on in this person's life, he's lost his job, he's very stressed out, it very well may be that the P.O. has decided he needs very close monitoring to try to make sure that he does not attempt to self medicate with alcohol and put innocent people in danger.

You and your brother seem to be buying into the idea that if the DUI just hadn't happened, if he had not been caught drinking and driving, then all these terrible things would not be happening to him, and his life would be good right now.

Yes, pizza and soda, medicine, mouthwash, or cough syrup or just plain old dry mouth can possibly set off the breathing machine. It was a mistake for him not to proactively deal with it by calling in each time. And even though he did call in once, the probation officer could very well decide to change their mind and not believe his story, or go ahead and put him in the more restrictive category. What do you think a lawyer could do about this?

 

[therealex123]

Thank you for your reply. My response is below:

Your brother is not falling apart because he got a DUI and had to have an interlock device in his car. There's no attorney anywhere who can undo what has happened, take him miraculously out of the higher category PO he has been assigned, and force the original PO to believe his explanation of the two glitches as pizza consumption both times. They certainly cannot go back and undo that he "got the book thrown at him" when his case came up. He had an attorney, yet he still got the book thrown at him. I'm not sure "mistakes" made by his attorney was the cause of this having happened, and it certainly cannot be changed at this point.

I never expected an attorney to undo anything. I was hoping to find out if there was anything a legal professional could do to stop this from getting out of hand. Apparently not. And yes, the lawyer did make mistakes. Mainly because he didn't care, he was very busy shaking hands with the judge, the other lawyers, but he didn't actually do a defense (or mention my brother was a martial arts artist, had never been in trouble before, did charitable work - nothing) He also neglected to tell him to get a DNA test, to show up for his PO meeting the next day (he told him it would be a couple of weeks), and gave him someone else's papers to send in, so some of his never got sent - which he got screwed for later.


He needs to get into some kind of therapy for his stress issues. If he's got insurance to go to the doctor, does it have a counseling provider? He might really benefit from taking advantage of this. it would be a good use of his money, instead of trying to hire an attorney to sue the state for treating him unfairly or something. Particularly if he's talking about suicide, you should strongly encourage him to talk to a mental health professional.

He did see one, who have him various pills over various months. That was a psychiatrist. I would love for him to see a psychotherapist, but I don't think he'll go.

No matter how stressed and overstrained they are, probation officers usually do try to look at the bigger picture. Is it possible they've had other reports or problems or issues with your brother besides pizza eating setting off his interlock device?

He has not had ANY problems or issues, at all. he's done every single thing they've asked, taken all of the courses, completed all of the forms and requirements.

Did your brother's having "lost his work" have anything to do with his own performance or behaviors? Okay, he's severely stressed, but can that totally be attributed to the fact that he got a DUI three years ago and has had a year without a driver's license and then an interlock in his car? If there's a lot going on in this person's life, he's lost his job, he's very stressed out, it very well may be that the P.O. has decided he needs very close monitoring to try to make sure that he does not attempt to self medicate with alcohol and put innocent people in danger.

He lost his work because he needed a car to do it, and they took his license away for over a year. There were plenty of other things that happened that stressed him out, but they were almost all in relation to this situation - lost paperwork, being told different things by different departments, in general the thing our bureaucracy is famous for, but he's never had to deal with it before. Regarding the PO - she doesn't give a rat's ass about him or innocent people. She's gotten all the hard core cases dumped on her, and is very vocal about her displeasure. In fact, he was assigned to her a year ago and when he showed up, she looked at his file and yelled "Why are you here? You're not a hard case! Don't I have enough to do? Why are you in my office?"

You and your brother seem to be buying into the idea that if the DUI just hadn't happened, if he had not been caught drinking and driving, then all these terrible things would not be happening to him, and his life would be good right now.

Boy, you read between the lines. The trouble is, there isn't anything there. Nobody said that. I guess if Sandy hadn't destroyed people's homes, their lives would be great, too? No, of course not. But this created a situation that made things so much worse. I'm glad he got the DWI. He could have killed someone, instead of just totaling the car that he made the last payment on two weeks before. He'll NEVER drink and drive again, as long as he lives. But this situation is plain out unfair.

Yes, pizza and soda, medicine, mouthwash, or cough syrup or just plain old dry mouth can possibly set off the breathing machine. It was a mistake for him not to proactively deal with it by calling in each time. And even though he did call in once, the probation officer could very well decide to change their mind and not believe his story, or go ahead and put him in the more restrictive category. What do you think a lawyer could do about this?

I don't know what a lawyer can do, that's why I posted this. I was hoping a legal pro could help him navigate through this latest situation. Look, last Friday he went to his monthly interview, signed in, and was told he had to go "upstairs" to see a particular person. Nobody was there, he waited, someone came and he told them who he was there to see, still nothing, finally a supervisor came out and asked who he was there to see. He told her, and she said the lady left 30 minutes before, while he was still waiting. He called that lady on Monday, and she said he missed his appointment, he violated his agreement, he was in trouble. He told her he WAS there, his signature was there, the supervisor talked to him, she said she didn't care. He was in trouble. He doesn't know what to do. He's afraid they're going to put him in jail for missing his appointment, even though he was there! This is getting out of control, and he doesn't know where to turn.

Before I sign off, I'd like to point something out. The responses seem to be "oh, right. Pizza. sure."

I.
Was.
There.

It was pizza. And soda. He didn't drink. The machine said he did. He didn't. He doesn't carry a flask, he didn't sneak a beer, at this point the very though of driving after drinking is incomprehensible to him. The process they've put him through has been very effective. He will never drink and drive again, and at this point he doesn't even drink. Is there no way a legal pro can help him?

 

[Zigner]

He lost his work because he needed a car to do it, and they took his license away for over a year.

To be clear, he lost his job because of the DUI.

 

[therealex123]

To be clear, he lost his job because of the DUI.

He didn't have a job, per se, he was a freelancer who needed to take tools and equipment with him. Without a car, it was impossible. But yes, he lost his "job" because of the DWI. Now, is there any way a lawyer can help in this particular situation?

 

[quincy]

He didn't have a job, per se, he was a freelancer who needed to take tools and equipment with him. Without a car, it was impossible. But yes, he lost his "job" because of the DWI. Now, is there any way a lawyer can help in this particular situation?

It would not hurt for your brother to speak with an attorney in his area.

Whether an attorney can be of any help to your brother is not something anyone here can tell you. It might be possible for an attorney to "run interference" for your brother with the probation officer to ensure your brother is not being treated unfairly. Because your brother has had the interlock device on his car for over two years, it might be possible for the attorney to get that requirement relaxed.

Again, however, there is no way any one here can tell you if an attorney will be able to help your brother in these ways or in any other way. All I can tell you is that it could be worth the expense for your brother to speak with one.

Here is a link to the New York Bar Association website, where your brother can locate an experienced attorney in his area:
http://www.nysba.org/

 

[commentator]

I truly believe the pizza situation is possible.

In fact, the last time I knew anyone who had an interlock machine, which was recently, they were given a list of things that were apt to cause a false positive reading, and they said be careful of red peppers because pizzas with lots of peppers for some reason have given a lot of people a bad reading. I accept that this could have happened to him twice, though I believe it would've been wiser for him to avoid the pizza that second time. That said, I still say the P.O. has the ability to change her mind or to decide not to believe him.

That said, I still hold with what I said. If the law states what the person can be charged with and sentenced with for a first offense DUI, and your brother was charged according to the law, which he was, whether his attorney did a good job or not, whether it got mentioned that he was a wonderful person who does lots of community service or not, that is the way it happened. It does not sound to me as though he was given a worse break than anyone might have expected.

And once he is working with a P.O. it really doesn't matter whether or not they are a good or nice or fair person, or whether or not they believe your brother or treat him nicely or say they shouldn't have gotten him. It is what it is. Have you ever heard of anyone getting an attorney to defend them in a DUI case? Of course. That's the acceptable thing to do.

Have you ever heard of anyone getting an attorney to take his or her probation officer back to court for not believing him, or for violating his probation and having him jailed, or for not giving him more leniency in the carrying out of his sentenced probation? Not often, I suspect.

I agree with quincy, he has absolutely nothing to lose by taking some time to shop for an attorney and see if one thinks they can help him. Having worked within this system, I hope so for your sakes, but do not think there's too great a chance. Strangely enough, everyone in the system thinks they are being treated unfairly. Most of the time, the parole officer is seen as being an agent of the court, and is immune from being sued for doing their job as they see fit to do it. But if any legal shopping is done, he needs to be doing it, not you going to war for him.

Your brother knew he might not have transportation or might have difficulties with his transportation when he didn't have a license for a year and when he had the interlock machine. It is not the court's fault or the law's fault or his probation officer's fault this has happened to him, that his vehicle was lost and that he lost the work he was doing due to this. There are many people who do not have their own vehicle for transportation who have jobs, even if they have to take a job that is not quite what they dream of or find acceptable.

It really does sound as if your brother's life is in a downward spiral, and I know this is a terrible thing. A DUI charge is a frustrating and demoralizing experience for anyone to go through. But what he needs is not so much a lawyer to sue his probation officer or try to get him a more lenient probation. Best case scenario, he gets all charges dropped at this point and his license restored and no interlock devices. Is his life going to miraculously be back to good? He needs a therapist, some help with his emotional issues, and someone to help him get his life back on track with the circumstances as they are in reality right now.

It is good that he is never going to drink and drive again, but still it sounds as though someone is hanging on this issue as the cause of all his troubles and someone is mad at and trying to blame the P.O. and the courts and the law and the bureaucracy for what has happened to him. What you are doing, taking up his grievances against the system and empathizing so strongly with his awful treatment may not be the most helpful thing for him.

 

[therealex123]

I appreciate your response. However, your at-length psycho-analysis, while well intentioned, is a bit off as it's based on the rather limited description of events. I understand your concern, and certainly it's true that even if he gets this whole situation settled, his life will not turn into a bed of roses.

But one crisis at a time.

You're actually wrong when you say he was treated no worse than anyone might have expected. I personally know people who were able to plea down, others who had higher readings yet got their conditional licenses within weeks, and still more who had the interlocks removed after one year. I might note that almost all of these people had attorneys who specialized in DWIs.

Nobody talked about suing anyone, nor would they. If a PO hates their job and takes it out on their charges, there's not much you can do. I responded to Quincy, but for some reason it's not showing here.

I thanked him for his response, and said it was the best one so far. I've contacted a lawyer, and we'll see what happens. As for taking up his grievances, I'm not. He is actually starting to recover a bit today and is fighting back. However, when someone is in the throes of deep depression, and the accompanying feelings of hopelessness and helplessness, the only thing you can do is try to help them find a reason to hang on.

If you've never experienced deep, hopeless depression, I hope you never do. It's like drowning, but that doesn't even cover it. You can try and throw any lifeline possible, until the person is strong enough to start dealing with things. That's not empathizing or enabling, it's just not kicking someone when they're down.

I think this thread has run its course, and I appreciate the comments and feedback. Thank you for allowing me to post here, and for the responses.

I truly believe the pizza situation is possible.

In fact, the last time I knew anyone who had an interlock machine, which was recently, they were given a list of things that were apt to cause a false positive reading, and they said be careful of red peppers because pizzas with lots of peppers for some reason have given a lot of people a bad reading. I accept that this could have happened to him twice, though I believe it would've been wiser for him to avoid the pizza that second time.

That said, I still hold with what I said. If the law states what the person can be charged with and sentenced with for a first offense DUI, and your brother was charged according to the law, which he was, whether his attorney did a good job or not, whether it got mentioned that he was a wonderful person who does lots of community service or not, that is the way it happened. It does not sound to me as though he was given a worse break than anyone might have expected.

And once he is working with a P.O. it really doesn't matter whether or not they are a good or nice or fair person, or whether or not they believe your brother or treat him nicely or say they shouldn't have gotten him. It is what it is. Have you ever heard of anyone getting an attorney to defend them in a DUI case? Of course. That's the acceptable thing to do.

Have you ever heard of anyone getting an attorney to take his or her probation officer back to court for not believing him, or for violating his probation and having him jailed, or for not giving him more leniency in the carrying out of his sentenced probation? I agree with quincy, he has absolutely nothing to lose by taking some time to shop for an attorney and see if one thinks they can help him. Having worked within this system, I hope so for your sakes, but do not think there's too great a chance. Strangely enough, everyone in the system thinks they are being treated unfairly. But he needs to be doing this, not you going to war for him.

Your brother knew he might not have transportation or might have difficulties with his transportation when he didn't have a license for a year and when he had the interlock machine. It is not the court's fault or the law's fault or his probation officer's fault this has happened to him, that his vehicle was lost and that he lost the work he was doing due to this. There are many people who do not have their own vehicle for transportation who have jobs, even if they have to take a job that is not quite what they dream of or find acceptable.

It really does sound as if your brother's life is in a downward spiral, and I know this is a terrible thing. A DUI charge is a terrible and demoralizing experience for anyone to go through. But what he needs is not so much a lawyer to sue his probation officer or try to get him a more lenient probation. Best case scenario, he gets all charges dropped at this point and his license restored and no interlock devices. Is his life going to miraculously be back to good? He needs a therapist, some help with his emotional issues, and someone to help him get his life back on track with the circumstances as they are in reality right now.

It is good that he is never going to drink and drive again, but still it sounds as though he is hanging on this issue as the cause of all his troubles and someone is mad at and trying to blame the P.O. and the courts and the law and the bureaucracy for what has happened to him. What you are doing, taking up his grievances against the system and empathizing so strongly with his awful treatment may not be the most helpful thing for him.

 

[Silverplum]

Assume nothing about the responding advisors. We have an (almost alarmingly) wide array of backgrounds, experiences, educations, and points of view.

 

[TigerD]

Caring is good and honorable.

But it is not your problem. Your brother, who has first hand information of the situation, should speak with an attorney. Please remember that he may not be being completely honest with you.

DC