Is there an out??

[witzeroni]

What is the name of your state (only U.S. law)? Illinois
Here's the synopsis of what happened. I was driving late at night and the police were redirecting those in the direction I was travelling to make a right. I couldn't tell what the cop was trying to do at the time because it was very dark. Also, because I was in the left hand lane of a 2 lane street and there was a car next to me I couldn't make a right. So I went forward slowly and got cited for failure to obey a police uniform and dui. Their evidence will be based on the video. I refused all sobriety tests.

First off, let me state that my lawyer is clueless. He filed no motions and my court date is in 2 weeks. I will get a bench trial. Here's my questions: can I show up to that court date and tell the judge I am seeking a new lawyer as my lawyer has done nothing for me? Aren't there laws stating procedures cops have to take when they block off a road? Is it really 'disobeying a police officer' if my intent is not to disobey but because of the situation I essentially had to? If I can get the 'disobeying a police officer' charge toss wouldn't the judge have to throw out the dui case as there wouldn't then be a good reason to stop me? Any other loopholes?

 

[Curt581]

First off, let me state that my lawyer is clueless. He filed no motions and my court date is in 2 weeks. I will get a bench trial.

What is it you think he should have been doing for you?

What motions do you think should have been filed?

Here's my questions: can I show up to that court date and tell the judge I am seeking a new lawyer as my lawyer has done nothing for me?

You can try, but the judge is under no obligation to grant your request... especially if there's already been continuances for other reasons.

Aren't there laws stating procedures cops have to take when they block off a road?

There are some, but they're pretty open-ended. It's hard to write a law that would cover all possible contingencies. Cops have to close roads for a variety of different reasons, in a variety of different ways.

Is it really 'disobeying a police officer' if my intent is not to disobey but because of the situation I essentially had to?

How would they know "you had to", unless and until they stopped and spoke with you?

Once that happened, they found you to be intoxicated.

If I can get the 'disobeying a police officer' charge toss wouldn't the judge have to throw out the dui case as there wouldn't then be a good reason to stop me? Any other loopholes?

They don't have to convict you of disobeying in order to demonstrate good cause to stop you when you're trying to drive around a police road closure. They didn't even have to cite you in the first place. It goes something like this:

"Your honor, my partner and I were dispatched to Hwy123 and Smith Rd due to impassable flooding from a water main break in the 1000 block of Hwy123. The City DPW was on-scene with repair crews and heavy equipment. We were directed to divert all southbound Hwy123 traffic onto westbound Smith Rd to avoid the affected area.

My partner and I parked our squad car perpendicular to the traffic way with it's emergency lights on, and placed traffic cones and road flares directing traffic to the west. My partner and I stood in the intersection wearing flourescent vests and used lighted wands to direct traffic.

At approximately 1:30 am, the defendant's vehicle approached the intersection in the left lane. The driver drove over several cones and burning flares and attempted to drive around our squad car. Fearing the vehicle might hit a member of the work crews, my partner and both yelled at the driver to stop, but to no avail. My partner managed to stop the vehicle by knocking on the window as it tried to drive around him.

Upon warning him that the road was closed due to flooding, the driver stated, "So what? I have to go this way, I live right over there". While attempting to reason with the driver, it quickly became clear that the driver was highly intoxicated, having bloodshot glassy eyes, thickly slurred speech and a strong odor of stale beer on his breath. He was becoming very belligerent, stating, "F-you! I'm not going that way, I don't have to listen to you!"​

You get the idea...

I get the impression your lawyer thinks your case is a loser from beginning to end. He didn't file any motions because there's very little to try to get excluded. The reason for the stop is a no-brainer. Hell, you drove right up to them and forced them to stop you. You said you refused all tests. You can't challenge the validity of the tests if you outright refuse to do them at all. But, I bet your refusal plays right into them painting you as an uncooperative obnoxious drunk. The BAC test refusal is a slam-dunk.

You didn't give any lawyer much to work with.

 

[paguy88]

The BAC test refusal is a slam-dunk.

you know I don't always agree with this statment some exceptions... .

I am seeing a girl that works in a lawyers office..

you know what they tell there clients?

refuse EVERYTHING...

many dui lawyer web sites say the same thing refuse.

 

[Curt581]

you know I don't always agree with this statment some exceptions... .

I am seeing a girl that works in a lawyers office..

you know what they tell there clients?

refuse EVERYTHING...

many dui lawyer web sites say the same thing refuse.

I'm not sure I'd trust a law firm that would advise me to break the law.

 

[paguy88]

I'm not sure I'd trust a law firm that would advise me to break the law.

maybe not...

but still

if you say no you get punished so depending on the situation you get punished either way.

 

[witzeroni]

to Curt 581

You pretty much hit the nail on the head with your description - pretty unbelieveable. It's pretty much written like that on the police report.

I won't get into ALL the reasons I say that my lawyer is clueless but here are some:

1. he was not able to get the prosecution to view the video to see if we can plea bargain. I have the video we got from the cops and made a copy of it. He told me he goes to that court 'all the time' so I told him explicitly NOT TO DROP OFF MY VIDEO WITH THE DA's SECRETARY. That's exactly what he did, and sure enough they never viewed it. I told him I want my copy he gave the secretary back, he basically said 'no'.

2. he didn't know we were suppose to bring the video with us to previous court appointments. At one court appointment the prosecution said they had time to view the video. We didn't have it.

3. he's dirt cheap and I have to tell him over and over again my side of the story. Each time I see him, he rips out a fresh sheet of notebook paper and begins writing. I'm always thinking to myself - doesn't this guy have a record of what I told him last time?

4. I took the first part of the alcohol classes. Even though I wasn't convicted, it is common knowledge that you should do that ASAP - that way they are more likely to plea bargain - I even scored a 100 %. Still, he told me that it won't do me any good - that it would be pointless to show to the prosecution.

TOTALLY INCOMPETANT!!

 

[xylene]

Totally Incompetant!!

1. Fire Lawyer

2. Hire DWI expert. (will not be 'dirt cheap')

 

[Curt581]

You pretty much hit the nail on the head with your description - pretty unbelieveable. It's pretty much written like that on the police report.

I won't get into ALL the reasons I say that my lawyer is clueless but here are some:

-edited for brevity-

Was this the same video you proposed to alter awhile back?

I don't know what you hope to gain by having the prosecution view the video. I can tell you that when most defense lawyers hear that there's a videotape of a drunk driving arrest, they're automatically thinking about pleading Guilty. The last thing your lawyer is going to want is a judge or jury seeing a video of you admitting to drinking numerous beers and stumbling around telling a police officer to get stuffed when he asks you to do field tests. That's what's so puzzling... I would have expected you'd want that video buried forever.

As for the rest of it... your lawyer didn't screw you, you did. You think you know legal strategy because you knew enough to refuse everything. Well, that is a double edged sword. No, you didn't give them any evidence. That's not the same as them not having any. But by not giving them anything, you also shut the door on challenging anything they might have gotten. Can't challenge the breath machine calibration records if you refused to blow into it. Can't challenge the training of the officer who operated it if you refused to take the test. Can't challenge the validity of the SFSTs if you wouldn't do any of them. What the heck do you expect your attorney to file a motion on?

Yeah, you get punished if you take the test and are over, and you get punished if you refuse the test. That's how it works. My thought is if you take the test, at least you've got a chance of being under, no matter how small. It also shows you cooperated with the cops. That helps come sentencing time. If you refuse, you've got no chance at all, plus you show defiance to the cops and a definite lack of remorse.

I just don't see the prosecution agreeing to a wet reckless. Especially not a refusal and absolutely not with a prior. What incentive do they have to be lenient or make a deal with you? Answer: None.

Your conduct during the stop won't exactly endear you to the judge, either. Since you plan to go to trial, he'll get to see the video. If he finds you guilty, he doesn't have to follow any plea bargains. He can sentence you to the max if he so chooses.

If there was ever a step by step guide on 'what NOT to do when arrested for DWI', this is it.

 

[witzeroni]

Curt 581

Either you have an incredible memory or you looked at my previous posts from a while back. But no - I did not alter the video in any way.

You seem like you really know what you are talking about in some regards but in others I have to wonder. Why on earth would you blow or take the field sobriety test?? That just gives the prosecution more evidence. Good luck trying to get the BAC analysis thrown out if you go that route. If I was smart, I would have said absolutely NOTHING when pulled over. All information he is entitled to is on my drivers license - NOTHING MORE! Remember, everything you say CAN AND WILL BE HELD AGAINST YOU IN A COURT OF LAW!!!!

Here's another point on the above point. Just before he arrested me he told me to do the field sobriety test. I asked him if he was going to read me my Miranda. His response was that I may not be under arrest, they will determine that based on how I do on field sobriety. After refusing the field sobriety test, I was then placed under arrest. Here's the questions I want answered - since there was nothing I did from that point when he said I may not be under arrest to the point he arrested me, except asking if he was going to read me my Miranda, why should he be allowed to arrest me? How much questioning are they allowed to do before they read you the Miranda? If they are allowed to answer unlimmited questions, why don't they only read you the Miranda after they get ALL the information out of you. What is the purpose of Miranda then?? There has to be a law on the books that states when the Miranda is to be read? If they can read it to you whenever they want why are there so many complaints of people said they weren't given their rights? Again, if they have to read you your Miranda immediately after they know you have committed a crime what evidence did I give him from the time 'I might not be under arrest' to when I was arrested??????

 

[paguy88]

Either you have an incredible memory or you looked at my previous posts from a while back. But no - I did not alter the video in any way.

You seem like you really know what you are talking about in some regards but in others I have to wonder. Why on earth would you blow or take the field sobriety test?? That just gives the prosecution more evidence. Good luck trying to get the BAC analysis thrown out if you go that route. If I was smart, I would have said absolutely NOTHING when pulled over. All information he is entitled to is on my drivers license - NOTHING MORE! Remember, everything you say CAN AND WILL BE HELD AGAINST YOU IN A COURT OF LAW!!!!

Here's another point on the above point. Just before he arrested me he told me to do the field sobriety test. I asked him if he was going to read me my Miranda. His response was that I may not be under arrest, they will determine that based on how I do on field sobriety. After refusing the field sobriety test, I was then placed under arrest. Here's the questions I want answered - since there was nothing I did from that point when he said I may not be under arrest to the point he arrested me, except asking if he was going to read me my Miranda, why should he be allowed to arrest me? How much questioning are they allowed to do before they read you the Miranda? If they are allowed to answer unlimmited questions, why don't they only read you the Miranda after they get ALL the information out of you. What is the purpose of Miranda then?? There has to be a law on the books that states when the Miranda is to be read? If they can read it to you whenever they want why are there so many complaints of people said they weren't given their rights? Again, if they have to read you your Miranda immediately after they know you have committed a crime what evidence did I give him from the time 'I might not be under arrest' to when I was arrested??????

thats like the chicken or egg therory...

DUI situations for first timers with crime Circumvents what we believe to be traditional therorys for arrest many of which you get from TV.

I will tell you really how it breaks down for DUI..

it's a judgment call for a cop... in part of course the smell of booze from your car isn't helping him with that judgment call... he/she wants you to take the FST to fail... supporting his judgement call...

you are correct.. you can refuse to anwser anything the cop asks...

the mirandia right are only for when they want to foramlly ask you questions but once they read them to you again you can refuse to anwser anything until you get a lawyer ALL OF WICH TAKES TIME AND YOU COULD SOBER UP... if you think about it the BAC is for the most part a slam dunk if they can get it from you for a convition.

cop not going to tell you the things you do and dont have to anwser.. most normal people think hey I am dealing with a cop and if I go along he might let me go...

that could work with a regualr traffic stop but not a white collar crime like dui...

but no on really thinks he is going to arrest them...

but guess what they do...

 

[CdwJava]

you know I don't always agree with this statment some exceptions... .

I am seeing a girl that works in a lawyers office..

you know what they tell there clients?

refuse EVERYTHING...

many dui lawyer web sites say the same thing refuse.

I like refusals ... that way, if I have enough for an arrest, I can compel a blood test and they also get a mandatory suspension for the refusal REGARDLESS of the test result! It's a win-win!

Oh, they are also less paperwork ... articulating all those FSTs can get wearisome.

- Carl

 

[CdwJava]

After refusing the field sobriety test, I was then placed under arrest. Here's the questions I want answered - since there was nothing I did from that point when he said I may not be under arrest to the point he arrested me, except asking if he was going to read me my Miranda, why should he be allowed to arrest me?

Apparently because he had observed enough to form the opinion that you had been operating a motor vehicle while impaired by alcohol and/or drugs. He can form that opinion based on observations OTHER than the FSTs.

We train cops to begin noting things from the time they observe the vehicle in motion all the way through the booking process. The first two legs of the observation process have to do with the vehicle in motion and the contact. Your actions prior to his arrest can all serve as evidence against you. There are a host of clues that can be observed that tend to be objective symptoms consistent with alcohol impairment.

How much questioning are they allowed to do before they read you the Miranda?

Quite a bit. Miranda requires both custody (equivalent to an arrest) and interrogation. Field interviews do not generally count, but there can be exceptions ... though these exceptions rarely occur in DUI cases.

There has to be a law on the books that states when the Miranda is to be read?

Yep ... when you are in custody and being interrogated.

If they can read it to you whenever they want why are there so many complaints of people said they weren't given their rights?

People often say that because they see television cops doing it whenever a person is cuffed. That is, in fact, policy with the NYPD - and it used to be in many agencies in San Diego County here in California, too. But, the legal standard is custody and interrogation - not just custody and not just interrogation. Yes, I can be a fine line, but it is a line that the court has to rule on, it is not a bright line set into a statute somewhere that says four questions is good but five is bad.

- Carl

 

[paguy88]

I like refusals ... that way, if I have enough for an arrest, I can compel a blood test and they also get a mandatory suspension for the refusal REGARDLESS of the test result! It's a win-win!

Oh, they are also less paperwork ... articulating all those FSTs can get wearisome.

- Carl

define "compel a blood test" meaning get a warrent for a blood draw?

Oh I asked another question you missed... carl..

lets say you pull me over just a regular traffic stop... say i am going 45 in a 35 nothing else..

you take my DL back to your car...

what exactly do you see when you run it?