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Can the military really do this when the civilian courts throw it out

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M

mensaman

Guest
What is the name of your state? Hawaii

Recently my brother called to tell me of a problem that he's having...Here are the facts as I have been told:

He was pulled over at a DUI roadblock in late December...He was pulled over along with ALL other cars at the same time (5 in total) The predetermined car was suppose to be every fifth one....All drivers were forced to do FST. He admitted to the officer that he had his last drink 10 minutes earlier, he drank 5 blocks from his house and was 2 blocks away from home when pulled over. His FST was nearly spotless with the only thing marked being the eyes. The officer placed him under custody; he was burping and vomiting in his mouth at the police station. The officers waited an hour before giving him a breathalyzer, which he blew a .138...He asked to take another one and was ushered to a holding cell...He was never permitted to take a second breathalyzer.

He went to court and the judge threw out the case when the officers admitted that he should not have been pulled over in the first place. That he wasn't speeding or wavering between lanes. The officer basically stated that they were nearing the end of the roadblock time period and the supervisor was pulling over every vehicle for the last 30 minutes. The judge apologized to my brother for his 4th and 14th amendments being violated.

All that to tell you this...His base suspended his driving privileges for a year due to him blowing over the legal limit. They stated that it didn't matter that the breathalyzer was obtained illegally...It was over .08.

What is his legal stance on this subject...He's in the military, he's required to walk 12 blocks to work from a bus stop (there's nowhere to park outside the base), he has to walk 3 miles one way to medical/dental appointments.

Can the military really do this to its members when the civilian courts throw a case out?

Any assistance you can provide would be greatly appreciated.
 


M

mensaman

Guest
Not true about the stripe...

Years ago they would when I was in...But he had sent me a news article about double jeopardy in Washington State. What happened was the sailor's captain jumped at the chance of giving out punishment, gave some kid 30 days restriction, took money from him, and finally took a stripe. When the sailor appeared in civilian court the judge threw it out because of "D/J". The judge's decision was appealed up to the state's Supreme Court, who upheld his ruling because it met the factors of "D/J"...1) It fined the defendant a monetary & 2) It confined the defendant.

Since that happened base commanders have been instructed not to hold article 15's (or Captain's Mast), until after the civilian authority has completed theirs.
 

I AM ALWAYS LIABLE

Senior Member
"he was burping and vomiting in his mouth at the police station."


My response:

Gives you a nice mental picture, don't it?

Burppppppppppppppppp, bloooooooooooooooey!

IAAL
 

Shay-Pari'e

Senior Member
mensaman said:
Years ago they would when I was in...But he had sent me a news article about double jeopardy in Washington State. What happened was the sailor's captain jumped at the chance of giving out punishment, gave some kid 30 days restriction, took money from him, and finally took a stripe. When the sailor appeared in civilian court the judge threw it out because of "D/J". The judge's decision was appealed up to the state's Supreme Court, who upheld his ruling because it met the factors of "D/J"...1) It fined the defendant a monetary & 2) It confined the defendant.

Since that happened base commanders have been instructed not to hold article 15's (or Captain's Mast), until after the civilian authority has completed theirs.

I don't care about a news article, he is lucky at this point to only be restricted from driving on base. He blew it, he was DUI.
 
M

mensaman

Guest
Paradise

So the idea of having rights violated means nothing? It's all about if he was actually drunk or not? I don't think he was drunk when he got behind the wheel if you consider that;

He told me that his last drink was in a 20 oz glass...That someone else made it for him...It was at least half full of Jack Daniels...He was going to just leave it there, but peer pressure is a bitch...Once he finished the glass...He felt sick and decided to leave the party. He said he felt fine when he left and when he was pulled over...The police took nearly two hours to give him a breathalyzer...So it's obvious he wasn't at a .138 when he was pulled over, since alcohol takes some time to enter into the blood system...That and the constant burping and the occasional vomiting into his mouth would significantly increase the level of alcohol in his mouth.

Seems to me you don't care about facts...You just care that he blew over...You're obviously not a lawyer nor are you in a law field. That or you are so prejudice against anyone that receives a DUI that it taints you.
 

Shay-Pari'e

Senior Member
mensaman said:
So the idea of having rights violated means nothing? It's all about if he was actually drunk or not? I don't think he was drunk when he got behind the wheel if you consider that;

He told me that his last drink was in a 20 oz glass...That someone else made it for him...It was at least half full of Jack Daniels...He was going to just leave it there, but peer pressure is a bitch...Once he finished the glass...He felt sick and decided to leave the party. He said he felt fine when he left and when he was pulled over...The police took nearly two hours to give him a breathalyzer...So it's obvious he wasn't at a .138 when he was pulled over, since alcohol takes some time to enter into the blood system...That and the constant burping and the occasional vomiting into his mouth would significantly increase the level of alcohol in his mouth.

Seems to me you don't care about facts...You just care that he blew over...You're obviously not a lawyer nor are you in a law field. That or you are so prejudice against anyone that receives a DUI that it taints you.


"Taints" me?....OK, you got me. You have figured me all out and exposed the horrible truth about me. :rolleyes:
 

VR_Hunter

Member
mensaman said:
What is the name of your state? Hawaii

Recently my brother called to tell me of a problem that he's having...Here are the facts as I have been told:

He was pulled over at a DUI roadblock in late December...He was pulled over along with ALL other cars at the same time (5 in total) The predetermined car was suppose to be every fifth one....All drivers were forced to do FST. He admitted to the officer that he had his last drink 10 minutes earlier, he drank 5 blocks from his house and was 2 blocks away from home when pulled over. His FST was nearly spotless with the only thing marked being the eyes. The officer placed him under custody; he was burping and vomiting in his mouth at the police station. The officers waited an hour before giving him a breathalyzer, which he blew a .138...He asked to take another one and was ushered to a holding cell...He was never permitted to take a second breathalyzer.

He went to court and the judge threw out the case when the officers admitted that he should not have been pulled over in the first place. That he wasn't speeding or wavering between lanes. The officer basically stated that they were nearing the end of the roadblock time period and the supervisor was pulling over every vehicle for the last 30 minutes. The judge apologized to my brother for his 4th and 14th amendments being violated.

All that to tell you this...His base suspended his driving privileges for a year due to him blowing over the legal limit. They stated that it didn't matter that the breathalyzer was obtained illegally...It was over .08.

What is his legal stance on this subject...He's in the military, he's required to walk 12 blocks to work from a bus stop (there's nowhere to park outside the base), he has to walk 3 miles one way to medical/dental appointments.

Can the military really do this to its members when the civilian courts throw a case out?

Any assistance you can provide would be greatly appreciated.
It is simple. The civilian courts threw it out. That gave the military the opening they needed to impose punishment. It is not double jeopardy when there was no conviction in the civil courts. The UCMJ is separate for many reasons, the first and foremost is because the military covers the globe, second is the importance of what we do. Nobody in the civilian world is going to be put in jail for not showing up to work. In the military not showing up to work can get people killed and therefore the need for separate justice requirements.

The military had every right to impose punishment. He put the unit at risk. Paradise was correct. He is lucky he didn't lose a stripe. He could have been given an Article 15, reduction in grade, forfeiture of pay, loss of driving privileges (it is a privilege to drive on base), restriction and then some. That is extreme, but possible.

More than likely the reason he only got his driving privileges suspended was BECAUSE of the mitigating circumstances. The fact that he was driving under the influence was enough for the suspension. The ADC (Area Defense Counsel) probably advised the Commander not to press the issue and just suspend the driving privileges.
 

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