Need Some Advice

[FireCapt]

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

Hello Everyone,

Here is my situation:

Two nights ago I traveled to San Francisco for a day trip with a female friend. We spent the day doing touristy things, went and had a few drinks, went to dinner and had a few more. Once the evening was completed I decided that I had had too much to drink to safely drive home so we decided to stay in a hotel. We walked to our vehicle which is a very large Dodge 1500 truck with a lift kit on it to get my suitcase. The truck was in a very small parking spot within a multiple story parking structure so it was a tight fit to start with. There was not very much room on either side of the vehicle. So I decided to move the vehicle in to one of the nearby open spots. The only reason I was going to move it was for access into the back seat so we could get our suitcase and so no other vehicle were near it.

As I pulled forward out of the spot I had to make a minor correction (three point turn) to make the turn. As I was backing up a security guard that was walking by yelled STOP you just hit that car. I immediately stopped the vehicle and got out to look. My car was still two feet from the nearest car and I hadn’t hit anything. My truck has a lift on it and makes a popping sound when I turn sharp at slow speeds and I explained that was what she heard. She continued to state I hit the car and I was to stay where I’m at.

Eventually SFPD arrived at scene and interviewed me. I told them the truth, that I was moving the vehicle to gain access to the back seat and that I had no intention of driving anywhere. I stated I had been drinking and that there was no damage to either vehicle because I had not hit it. They agreed that there was no damage but gave me a filed sobriety test which I did not pass. Once detained I was taken to the jail and given a blow test. I’m not sure what I blew but I was booked on DUI.

I have hired a layer and hope for the best. I do not drink and drive; I’m a Fire Captain for a local fire department and see the devastation that Drinking and Driving can produce. I was trying to do the correct thing by leaving the vehicle and staying in a hotel but ended up staying in jail that night.

Question: I believe in the laws of California, but feel I was wrongly booked. What do you think I should do?

[HighwayMan]

I don't think you were wrongly booked. The police went by the letter of the law and that's it.

They got called to a report of a motor vehicle accident, which turned out not to be the case. However, there must have been a reason for them to give you the FST. Probably a strong smell of alcoholic beverage and your admission that you were operating the vehicle.

I probably would have done the same if I was them. You have to understand the stories people make up to avoid getting ticketed or arrested.

While I am unfamiliar with California courts or laws, you were in operation of a motor vehicle and you were intoxicated. No good.

It would be up to you to go to court and convince a judge that your story is true. While technically you were still wrong, this seems to be a very unusual case and I can see you standing a chance of avoiding the problems normally associated with a DWI.

You might want to speak to an attorney about this.

Just my 2 cents.

[CdwJava]

Originally Posted by FireCapt

I have hired a layer and hope for the best. I do not drink and drive;

Actually, it appears you did. DUI is applicable ANYWHERE in the state. You apparently got behind the wheel of a vehicle while you were impaired and were arrested for it.

Question: I believe in the laws of California, but feel I was wrongly booked. What do you think I should do?

It sounds as if they investigated appropriately and determined you were impaired. So, the booking appears to be just fine and dandy.

You have already started doing what you need to do - you have retained legal counsel. Whether you have any good defense, I couldn't say. The most vulnerable points in a DUI case are the reasonable cause for the initial detention (which sounds good here - investigating a possible collision), and then the officer's evaluation of your sobriety. Depending on the training, experience, and articulation of the officer this may be your only chance for an acquittal ... if the officer is inexperienced and/or inarticulate.

Was your license seized? Were you given a form called an Admin Per Se (aka DS 367) which you were told will serve as your license for 30 days? If so, you need to schedule a hearing with the DMV within 10 days of the issuance of that document. That document would also tell you that the officer believed your BAC was .08 or higher or had good reason to believe that a chemical test would result in a BAC of .08 or higher.

- Carl

[FireCapt]

Originally Posted by CdwJava

Actually, it appears you did. DUI is applicable ANYWHERE in the state. You apparently got behind the wheel of a vehicle while you were impaired and were arrested for it.


Was your license seized? Were you given a form called an Admin Per Se (aka DS 367) which you were told will serve as your license for 30 days? If so, you need to schedule a hearing with the DMV within 10 days of the issuance of that document. That document would also tell you that the officer believed your BAC was .08 or higher or had good reason to believe that a chemical test would result in a BAC of .08 or higher.

- Carl

I do believe the officers in question did their job. They were both very polite and understanding.

I did not recieve my license back with my property and did not receive a Per Se (aka DS 367). I not sure if this was a mistake on the officers side or if it just didnt end up in my paperwork.

I also understand that officers have to listen to a lot of faulse truths when dealing with cases like this, but I was 100% truthful about moving the vehicle to get out our stuff and we were going to walk to the hotel and stay there for the evening.

Do you think the DA will take my job in to consideration? I drive fire engines for a living and without a license I could loose my job. I have been a Firefighter 16 years, Im active in the Every 15 minutes program and have never had an incident like this.

[CdwJava]

Unfortunately, your truthfulness only cemented the case because it put you behind the wheel of the vehicle while inebriated (not that this would have been difficult as they had a witness in the security guard anyway).

Yes, the DA can consider your career when considering the charges, but there is really not a lot that can be done with sentencing as that is done by a judge and a lot of mandatory things come in to play. If your BAC was not too high, you might consider a plea to a "wet reckless" (CVC 23103.5). There is still a 2 point hit on your license, but it is probably not a disqualifier for employment as a firefighter. A DUI might be a problem for your employer - particularly if you get suspended as a result of a conviction.

- Carl

[FireCapt]

Thank you very much for your help.

Do you know anything of this firm?

Summit Defense
San Francisco

They seem to be very good so far.

Some times you get in trouble trying to do the right things...

Thank you again

[CdwJava]

I am not familiar with the firm, but that does not mean anything as I have not lived in the SF Bay Area since 1990.

Good luck.

- Carl

[FireCapt]

So I finaly Talked to the arresting officer and got my BAC for the evening.

She said I had a .170 and .163

[shoman24v]

That's kind of a cheap shot by the Police. Arresting someone for DUI without proof of you driving the car. They didn't observe you driving so I don't see how you could get a DUI. They should have at least got you for public intoxication or something like that. I would have told the security guard to F off and just leave.

Now you have to deal with this BS of this thing, and it could jeopardize your job just because you moved your car. Then the fact that you blew over a 0.15 only is going to aggravate the situation.

Just how I feel about it, my personal opinion.

Good luck I hope you beat it.

[CdwJava]

Originally Posted by FireCapt

So I finaly Talked to the arresting officer and got my BAC for the evening.

She said I had a .170 and .163

Ouch! That may put a wet reckless plea out of play. Your attorney may have to do a lot of cajoling.

- Carl

[CdwJava]

Originally Posted by shoman24v

That's kind of a cheap shot by the Police. Arresting someone for DUI without proof of you driving the car. They didn't observe you driving so I don't see how you could get a DUI.

Most murders are not observed, yet you get confessions ... in fact almost ALL crimes are NOT observed by the police, yet convictions are obtained all the time based upon evidence.

The law in CA requires that the driving be observed (with some few exceptions), and in this case the driving WAS observed ... by the security guard. And then the driver admitted to driving as well. So, the driving element was met quite handily.

Hardly "a cheap shot."

They should have at least got you for public intoxication or something like that. I would have told the security guard to F off and just leave.

But ... he was DRIVING a motor vehicle! We call that DUI.

And telling the security guard to F off would have been a quick and easy way to get arrested for both DUI AND hit and run. Remember, the police were there investigating a possible collision. Had the OP left the scene, he might have been facing hit and run charges as well.

Yeah, it's all a tragic shame, but none of it is BS.

- Carl

[cyjeff]

I agree with Carl.

the defense of "I was only going to drive a little" still means you were driving. Considering that you can get a DUI by sitting in the driver's seat with the keys in the ignition... this isn't a large stretch.

Especially when there is no amount of distance that must be traveled to validate the charge.

[shoman24v]

Originally Posted by CdwJava

Most murders are not observed, yet you get confessions ... in fact almost ALL crimes are NOT observed by the police, yet convictions are obtained all the time based upon evidence.

Comparing a murder to someone who moved a car is stretching it a bit. Someone could say that they drive drunk every weekend and never get caught but that doesn't mean you will get arrested for it.

Originally Posted by CdwJava

The law in CA requires that the driving be observed (with some few exceptions), and in this case the driving WAS observed ... by the security guard. And then the driver admitted to driving as well. So, the driving element was met quite handily.

I can see this as being valid. But you can also get a DUI for falling asleep in your car.

Originally Posted by CdwJava

But ... he was DRIVING a motor vehicle! We call that DUI.

And telling the security guard to F off would have been a quick and easy way to get arrested for both DUI AND hit and run. Remember, the police were there investigating a possible collision. Had the OP left the scene, he might have been facing hit and run charges as well.

Well, to be fair he didn't hit the car so there would be no hit and run... I don't get why the security guard was so quick to call the police without even seeing if the car had damage. I'm no cop but from experience they don't rush out to a scene for something like this. I had a friend who had his truck broken numerous times and it took the cops forever to come.

I'm not saying that what he did doesn't fall into the lines of a DUI, but it's hard to believe that it compares to the 'guy who' got a DUI for driving and wrecking his car.

I know trying to pull the opinion card is lame but yeah.

[cyjeff]

Originally Posted by shoman24v

Comparing a murder to someone who moved a car is stretching it a bit. Someone could say that they drive drunk every weekend and never get caught but that doesn't mean you will get arrested for it.


I can see this as being valid. But you can also get a DUI for falling asleep in your car.


Well, to be fair he didn't hit the car so there would be no hit and run... I don't get why the security guard was so quick to call the police without even seeing if the car had damage. I'm no cop but from experience they don't rush out to a scene for something like this. I had a friend who had his truck broken numerous times and it took the cops forever to come.

I'm not saying that what he did doesn't fall into the lines of a DUI, but it's hard to believe that it compares to the 'guy who' got a DUI for driving and wrecking his car.

I know trying to pull the opinion card is lame but yeah.

Other than blood alcohol levels, the degree of DUI is not effected by your points whatsoever.

The stop was legit. The police did not charge him with a DUI, but were obligated to investigate.

The moment he said, "I was driving" he opened up the investigation as to DUI...

Your opinions of what the laws should mean isn't worth very much here.

[CdwJava]

Originally Posted by shoman24v

Comparing a murder to someone who moved a car is stretching it a bit. Someone could say that they drive drunk every weekend and never get caught but that doesn't mean you will get arrested for it.

Of course it's a stretch. The point is that most every crime that occurs is NOT committed in the presence of an officer, yet they can still be prosecuted.

In this instance, the driving was observed. That element was met. No argument can be made on that point.

I can see this as being valid. But you can also get a DUI for falling asleep in your car.

In my state that could only happen if you fell asleep while driving the car and had alcohol or drugs in your system.

Well, to be fair he didn't hit the car so there would be no hit and run...

But had he LEFT the scene, that would have been the allegation. And he would not have been there to refute it, so this would almost certainly have been alleged.

I don't get why the security guard was so quick to call the police without even seeing if the car had damage.

Perhaps he believed the driver might flee ... perhaps he smelled the alcohol o aw that the driver might be inebriated ... perhaps it is policy when someone hits a car, which the guard apparently believed had happened. It is the guard's job to observe and report, not to sort out who did what.

I'm no cop but from experience they don't rush out to a scene for something like this. I had a friend who had his truck broken numerous times and it took the cops forever to come.

Why would the cops come out if his truck was "broken?" Now, if they were responding to a report of a BREAK IN, that would be a cold report and not a high priority as it already happened. If you have something in progress with one of the parties still on scene, it sort on jumps it up on the ol' priority scale.

I'm not saying that what he did doesn't fall into the lines of a DUI, but it's hard to believe that it compares to the 'guy who' got a DUI for driving and wrecking his car.

All because no wreck occurred does not change the level of the offense.


- Carl