Probable Cause to Arrest

[ronnies1]

Hi

I was arrested recently in NC state, for DWI. I was stopped because i was going at 104 mph in a 55 mile zone.

The officer pulled me over and asked me if i had been drinking, and i said i had 2 beers an hour ago. Then he gave me a mini breath test on the road which i blew a 0.9. He asked me to count from 1 to 15 and backwards which i did perfectly, and he told me to recite A to Z, which i did perfectly. Still the officer proceeded to arrest me based on the 0.9 blown on the mini. Everything is on video tape which i reviewed with my lawyer.

Now, my lawyer is suggesting that we file for No Probable cause to arrest - on grounds that officer should have done more of the standard tests (like walking in a staight line) before arresting me just on the basis of the fact that i blew a 0.9 on the mini test, and based on me saying i had 2 beers an hour ago. My lawyer is charging me 2000$ for to file this motion.

I am confused. This is a lot of money. Can someone please advice, whehter i have a chance. My lawyer says it is 50-50. Please help.

[Some Random Guy]

Its all a matter of how much you are willing to spend on a chance to get off. Your motion may be total garbage but still have a 5% chance of convincing a judge. Are you willing to drop $2000 on a 1 in 20 chance?

Or are there any other areas that your money is better spent on?

Also, you have reviewed the tape, but does the police report concur with what is visible on the tape? The police report may state blurry eyes, or breath stinking of alcohol of other factors which are not easily picked up on video.

Does the police report specifically state that you were placed under arrest for DUI? Did your lawyer say whether speeding 104 in a 55 could get you arrested?

[BigMistakeFl]

Yeah, as pointed out above, the stop was legal..... speeding, and the cop felt compelled to ask if you'd been drinking. That all adds up to probable cause.

By the way, two standard beers and you would not have reached 0.09 BAC. Did you get a second breath test at the station?

[wyett717]

By the way, two standard beers and you would not have reached 0.09 BAC.

If OP weighs 100 pounds and hadn't eaten all day, it could happen. However, there could easily be more to the story.

[ronnies1]

To reply to your questions

1) The police report does say that the officer smelled alcohol in my breath.

2) I had two beers both of which were in quick succession, and may not have been an hour ago, but closer to the time i was stopped. I just gave the officer a rough statement.

3) I had a breath test done at the station which was a 0.09.

I reviwed the tape and here are the sequence of events
1) I got pulled over for speeding - 104 in 55 mph zone
2) Officer asked if i had been drinking and i said 2 beers over an hour ago
3) Officer asked me to count 1-15 and recite A-Z which i did and its on tape.
4) I blew a 0.9 on mini-breathalyzer
5) The officer arrested me and took me to the station where i blew a 0.09

Based on this my lawyer wants to file the motion that the officer should have done more tests that what he already did as explained above.
Wwhat do you think now?

[You Are Guilty]

While this depends on the particular judge who hears the motion, I think 50-50 is a bit optimistic. PBT + ETOH odor + admission of drinking, in my opinion, is sufficient probable cause. Factor in that you were nearly doing twice the speed limit, and I think it's a no-brainer.

On the other hand, you have nothing to lose (other than the $2k) by filing the motion. Even a 1% chance of success is better than 0.

[cyjeff]

Let's not forget that the BAC is just a definitive benchmark.

DUI means, literally, driving under the influence.

There can be a case made that says you can be DUI UNDER that benchmark.

This would be in cases where you have shown very poor driving judgment that a sober driver would not be expected to make.

Such as driving almost double the speed limit.

The field test is worth almost nothing. In fact Carl, our resident cop supervisor, doesn't use em. However, your also blew at the station where the equipment results ARE worth something.

I agree. Go with an attorney. You need all the help you can get.

[BigMistakeFl]

2 standard 12 oz beers, within an hour, weighing 100lbs and his BAC would have been around 0.04. But we'll let the various online calculators split those hairs. It's still likely that the OP had more than two, but as has been pointed out many times before, when a driver says he's consumed a couple beers, rarely is that accepted as having actually been 2.

[CdwJava]

Given the .09 field blow (it's NOT 0.9 ... you'd be dead ...) there was the probable cause to believe you were in violation of the per se DUI statute. You had alcohol, and admitted to drinking "two" beers (which, by the way, is the single most common response when asked how much a person has been drinking and it is usually a lie). Those would have had to be very powerful or large beers to get anywhere near .09 even in one hour unless you have one of a handful of medical conditions concerning your stomach and digestive tracts.

I suspect a plea deal is in your future.

But, if you have nothing else to go on, then you challenge the probable cause for the arrest. It's a long shot and not likely to succeed, but there is always that slim chance. It's your money and if you think it's worth the fight, go ahead.

- Carl

[ronnies1]

Alright, from the above posts, what i get is that 50-50 chance is an overstatement on my lawyers part. But i have a very slim chance. All i have to figure out is whether it is worth putting in the 2k for.

Thanks for the responses. And as far as i remember i had 2 corona extras. I dont know whether my acid reflux condition caused the high reading, or the fact that i had not eaten anything.

Thanks...

[Zigner]

Originally Posted by ronnies1

Alright, from the above posts, what i get is that 50-50 chance is an overstatement on my lawyers part. But i have a very slim chance. All i have to figure out is whether it is worth putting in the 2k for.

Thanks for the responses. And as far as i remember i had 2 corona extras. I dont know whether my acid reflux condition caused the high reading, or the fact that i had not eaten anything.

Thanks...

THAT is not a good sign...

[ronnies1]

The incident happened last year, and hence the words - as far as i can remember. i am on the 6th month extension of the court date, trying to figure out what to do...

[tranquility]

Let me disagre with Carl a little, it's not that they say two beers, it's "just two beers." Always the "just".

And as far as i remember i had 2 corona extras. I dont know whether my acid reflux condition caused the high reading, or the fact that i had not eaten anything.

That will not help with the probable cause for arrest argument.

What was your BAC on the actual test?

[CdwJava]

Originally Posted by tranquility

Let me disagre with Carl a little, it's not that they say two beers, it's "just two beers." Always the "just".

Sometimes ... though, to be honest, I can't recall whether "just" is in there very often ... good point, though. Or other qualifiers, such as "only".

What was your BAC on the actual test?

He also blew a .09 at the station. In his second reply he indicated:

5) The officer arrested me and took me to the station where i blew a 0.09

So, I'd say .09 is a good bet. In our state that would allow a plea to wet reckless. Perhaps if his state has some similar "lesser" charge???

- Carl

[BigMistakeFl]

"just two beers." Always the "just".

It's also lovingly referred to as "a couple" beers/drinks/glasses.