Probable Cause Question

[vonnegutfan]

What is the name of your state? Pa, but I was arrested in Md

I was pulled over for speeding in Md this weekend. When the officer asked for my paper work, he said that I was speeding, but he didn't know how fast I was going. He didn't clock me or anything, and he issued me a warning that said I was doing "25+ in a 25mph zone". Then he said he smelled alcohol and told me to do the field sobriety tests. He then took me to the police station to give me a breathalyzer. I was pulled over at 11pm and didn't recieve the breath test until about 1 1/2 hrs later. Also, the machine printout has the wrong date on it. It says I was tested 24hrs after I actually was.
I'm wondering if "25+ in a 25mph zone" is probable cause, and also whether the wrong date on the printout will effect my trial? Also, I was wondering how an out of state arrest works, since I live in PA and was pulled over in MD?

[stephenk]

so what were the results of the breath test? how much had you been drinking before being pulled over? how much time had passed from your last drink to when you were pulled over?

[vonnegutfan]

The results were .130 and .137. I had my last drink about 45min before being pulled over. I had 2 beers, a shot of rum, and a 7 and 7 (on an empty stomach). Also, the officer said that I couldn't drink from the water fountain at the PD because of something about mouth alcohol. What does that mean?

[stephenk]

consult with a criminal defense attorney. good shot on getting the breath test results kicked out. they took too long to test you.

[vonnegutfan]

Thanks for the response. I will be in touch with a good DUI attorney tomorrow (monday). My only other question is how state to state dui works. I'm sure I'll go to court in MD, but how does that carry over to PA if I were convicted? Also, do I have any case for probable cause?
By the way, this is my first and only offense for anything. I'll be 24 in a month. If I am convicted, what charges would I be facing? Thanks again, vonnegutfan.

[CdwJava]

I don't know about other states, but out here 2 hours is usually good as a presumptive level ... and even if longer in many cases - especially if the performance on the FSTs were substandard.

Rising and lowering alcohol can be argued. And after 2 hours, it is likely safe to assume a lowering rate. Thus a .13 can be argued as having been lower than it was at the time of stop!

- Carl

[Bravo8]

Originally Posted by CdwJava

And after 2 hours, it is likely safe to assume a lowering rate. Thus a .13 can be argued as having been lower than it was at the time of stop!

- Carl

Exactly what I was going to point out. PA law requires we test them within 2 hours of the stop, unless we can show exigent circumstances that required a delayed test.

As far as the arrest impacting on Pennsylvania, I'm not sure what you are asking, vonnegutfan. The arrest will be entered upon your criminal history maintained by the FBI in the NCIC system. Pennsylvania will suspend your driver's license in accordance with PA law, if you are convicted or plead guilty. This DUI will also count as a "first offense" in the event you get arrested in PA for DUI in the future (in other words, a future arrest in PA will be considered your second offense).

[stephenk]

but if the poster had just finished drinking right before he was pulled over, there is also the argument of increasing BAC while he waits to be tested.

a good dui attorney can argue he was not drunk when pulled over but his higher BAC was due to the wait.

Or am I off on the time argument?

[CdwJava]

Originally Posted by stephenk

but if the poster had just finished drinking right before he was pulled over, there is also the argument of increasing BAC while he waits to be tested.

a good dui attorney can argue he was not drunk when pulled over but his higher BAC was due to the wait.

Or am I off on the time argument?

I think it might be tough to argue a rising BAC after two hours unless you could argue, in this case, some 4 to 5 drinks - almost back to back - within minutes of being arrested. I would think that would be a tough case to make.

However, had there been a signifcant meal (to slow the absorption rate in to the system), AND lots of drinking, I suppose the argument might be made effectively. Though with the .13+ BAC tests, I think that rising alcohol is still going to be a very tought sell ... that would mean a minimal rise of .05 in two hours when the absorption should be on its way down after an hour.

I suppose it's possible, but it might stretch believability.

- Carl