DUI - BAC level 0.07

[Ajosin]

I'm another 0.07 dude

I was also recently arrested for DUI. Details are below,

Where

City; Beaverton
State; OR
County; Washington County

Time-Line

Events begin on 8/30/07

• 6pm-8pm I left work and met some coworkers at a local tavern. I had one 12oz beer and a plate of chicken wings.
• 8pm-9pm A coworker and I decide go to a strip bar. I had one 16oz beer there.
• 9pm-12:30pm The same coworker and I decide to go to a different strip bar. Girls are a lot cuter at the second establishment and I have 5 16oz beers in 3.5 hours.
• 12:30pm-1:15 I drive my friend home (he drove his bike to work which is in my trunk).
• 1:15-2:15pm I go back to the strip club. One more 16oz drink there.
• 2:15-2:45 - I head home. I am 100% confident that I can drive home safely after having 8 beers in 6 hours and would have bet my life savings that I could have gotten home safely and without causing any accidents. I notice a police car in my rear-view mirror. I obey all traffic regulations while they are behind me (they follow me for ~1 mile). However, I am pulled over for not completely stopping at a stop sign while making a right turn and for failing to signal when changing lanes (both violations occurred before I saw the police on my rear view mirror). The police ask me to perform a Field Sobriety Test (FST). The test took over 30 minutes. They spent a LOT of time doing the "follow the pen with your eyes" test (my eyes got tired). My legs were shaking b/c I was nervous but I managed not to stumble or fall (although my support leg was visibly shaking during the 1-leg stand test). I think I did well on all tests and I really believe that (a) my nerves and (b) the test length were the two major factors that helped add up enough FSB mistakes for them to consider arresting me. The two police officers seem uncertain of what to do, but eventually arrest me.
• 2:45-4:30 - I am in police custody and blow a 0.07 BAC about 1 hour after my last drink. The police fill out all the paperwork, give me a court date and release me.

Current State of Events

I am a young professional with a high level of education (PhD). Until the arrest happened I considered myself to be a law abiding citizen and a valuable member to society. I was proud of my engineering job and contributed valuable ideas to my field. My wife and I were trying to have a baby (going to the strip bar helps me when it is time to impregnate my wife). All this may sound corny but it is true.

My life has changed since the arrest. My wife and I are no longer trying to have a kid. The distress this has caused us is very bad (worse than the time we got mugged). I will never touch a drop of alcohol for the rest of my life in fear of the consequences this may bring due to our zealous legal system.

My New Life After the Arrest

I basically have two options now;

1.- Plead guilty and admit that I was impaired (in other words, tell a lie) and take Oregon's Diversion program. This would result in ~ $20,000 extra car insurance fees over 5 years and may hurt my future career opportunities since a diversion would show up on my permanent driving record.
2.- Go to trial. The lawyer I like owns his own firm and is asking for 12.5K, but he can refer me to one of his junior associates for 7.5k (I found other options as cheap as 4k, but the other lawyers did not seem as hawkish). If I lose the trial I will have my license suspended for 1 year, have a criminal record which would surely hurt my future employment opportunities, and have the same $20,000 in fees mentioned above. Aditionally, I will be sentenced to 48 hours of Jail or 80 hours of community service (probably the latter since I would be tried in a municipal court).

My questions to the forum are,
a) What should I do (diversion or trial)?
b) If you were in a Jury and heard my case would you vote guilty or innocent to the DUI charge? (I am being honest in my description of events since I may use your answers to decide whether to go to trial).

Thanks for reading/answering/caring.

 

[moburkes]

We'd be more than happy to assist you - once you start your own thread.

 

[dui_dude]

I would suggest hiring a lawyer and trying to get the best deal from the DA, but stop just before the jury trial. The jury(as in normal people) may not have sympathy with you based on the fact that you drank so much. They will go with a stereotype mind that you were driving while drunk. I "feel" you might be able to get off with a "traffic" infraction. I am just speculating, so wait for others to comment on your story. Good Luck, hope you get cleared with the charge or get the best deal out of the situation.

I am still hunting a lawyer for my case.

 

[CdwJava]

And as has been stated here, rarely is a cop going to release you after you are pulled over and tested, despite the BAC. (Even if it's under the "legal limit")

I suppose it depends on what you mean by "rarely". Since most the time we balance people out for DUI because the signs are there, they usually are. Statistically, about one out of four legally impaired drivers ARE released (unintentionally) with a warning or a citation for some unrelated offense. It's kinda scary when you think about it. Usually, when an officer starts the FSTs, he has a strong indication already that the person is impaired ... so, it is very likely he or she WILL be hooked. However, even *I* have let people go after FSTs - and I give no quarter!

- Carl

 

[BigMistakeFl]

BigMistakeFl

about one out of four legally impaired drivers ARE released (unintentionally) with a warning or a citation for some unrelated offense

Ok, I can believe that. But let's look at the statistics more closely. Rather than impaired people who are accidentally released, give me an idea of how many people are released AFTER having been tested (field sobriety or breath/blood or both)? How many times do you let the driver go after you suspect he or she has consumed any alcohol?

 

[CdwJava]

Ok, I can believe that. But let's look at the statistics more closely. Rather than impaired people who are accidentally released, give me an idea of how many people are released AFTER having been tested (field sobriety or breath/blood or both)? How many times do you let the driver go after you suspect he or she has consumed any alcohol?

Off hand, I do not know. However, remember, any arrest has to be based upon probable cause ... simply having alcohol is NOT probable cause as drinking and driving is not unlawful. In my case, I woul dhave to say that I release maybe 1 in 8 that I balance out (conduct FSTs upon) that are released. But, I do not balance out every operson I stop, so if I AM doing FSTs, I already have good cause to believe they are impaired to some degree based upon my observations upon initial contact. And, by the way, if any combination of TWO pre-contact and contact clues (observations) exist, the statistical odds of the driver being impaired at .10 or more is 80%. So, if FSTs are being conducted, it's likely the officer observed two or more clues, and one would expect that 8 out of 10 people tested would later be arrested.

- Carl

 

[Ajosin]

I would suggest hiring a lawyer and trying to get the best deal from the DA, but stop just before the jury trial.

Unfortunately that is not an option for me. Plea bargaining a Oregon DUI to a lesser offense such as reckless driving, wet reckless, or any other offense is now prohibited by statute. (ORS 813.170).

 

[dui_dude]

Unfortunately that is not an option for me. Plea bargaining a Oregon DUI to a lesser offense such as reckless driving, wet reckless, or any other offense is now prohibited by statute. (ORS 813.170).

So do you mean all DUI based cases in Oregon end up in a Jury Trial ? ..... I would in that case recommend going to Trial, but just find out a statistic of BAC levels and Conviction rates, so as to gauge your chances based on your scenario.

I believe the defense lawyer will have to prove that alcohol impairment was NOT the reason why you did not stop at the "Stop" sign completely and that you "could" have possibly done it without alcohol in your blood as well. If you were impaired you wouldn't even bother to slow and stop. I see it more as a case of not following the 'traffic manual' instruction of bringing the vehicle to a full stop on a STOP sign. I guess it will depend on the PD report and the officers observation of your FST.

 

[CdwJava]

No pleas to a lesser offense? No WONDER the OR criminal justice system is in such dire straits!!! No money, and now they have to either go to trial or let DUI drivers go ... unbelievable!

- Carl

 

[Ajosin]

dui_dude, after many hours of lawyer research I recommend the following resourse to choose your lawyer https://attorneypages.com.

It took me a while to find trial statistics. Although I could not find the particular numbers for DUI trials with BAC <= 0.07, here are some encouraging numbers,

Jury trial cases result in a ~ 50% conviction rate overall. However, the particular conviction rate is strongly dependant on the type of crime. The easiest crime to convict by jury is Murder with a ~90% conviction rate because every defendant, including guilty ones, go to trial since they have nothing to loose. The most difficult crime to convict of is battery/assault with a ~40% conviction rate. Except for murder, conviction rates are low because people who are really guilty or people aginst whom the prosecution has built a sstrong case simply try to get the best deal by a guilty plea.

More interestingly, I have also learned that a typical defence for <= 0.07 BAC "offenders" is the following when there are no wreckless driving charges (as long as you were not intentionally driving wrecklessly there should be none because you are not drunk anyway).

1.- The only evidence of DUI is the SFST (Standard Field Sobriety Test).
2.- The SFST was designed to identify BAC levels of 0.10 or higher. That is, a person with a BAC < 0.10 should pass and a person with BAC > 0.10 should fail (within the small margin of BAC not affecting everyone equally).
3.- If the officer claims that you failed the SFST, then your BAC <= 0.07 is exculpatory evidence showing that the officer made an incorrect assesment of the SFST results. See http://ezinearticles.com/?DWAI-in-New-York-State:-Fight-or-Deal?&id=598799 for a better explanation.

Because of 3.- There is no evidence to convict you! This techniche was developed by defence attorneys in NY, where you will allways be charged of DWAI if 0.05<= BAC <=0.07. In practice, only those people who do not get a good lawyer or those who were wreclessly driving get convicted of this charge. I see no reason why our lawyers could not use the same argument in our BAC = 0.07 cases.
This techniche will not help if 0.08 <= BAC < 0.10 because BAC >= 0.08 is evidence by itself that you were impeared (the prosecuter would not be able to use the SFST against you, but the BAC reading alone should be enough to convict you). In summary, because of how the SFST was designed, the SFST cannot be used as evidence if a BAC <=0.10 is admitted into court.

Does it sound like the law is broken? That is because it is. Unfortunately, it is very difficult to redesing the SFST so that could scientifically detect a BAC > 0.05 with a reasonable level of sucees (say, 90%) in a group of controlled test subjects. This is because the effects of alcohol at those levels are similar to those of being nervous, tired, etc. Also, a sober (BAC = 0.00), calm, rested person will not get a perfect score whithout some practice (think of a gymnist routine), so the signal-to-noise ratio is high to begin with.

PS, It is not uncommon for me to do a 'rolling' stop when turning right and forget to turn my blinker on every once in a while. I think the police were simply looking for an excuse to pull me over since I was leaving a bar at 2:15 am.

 

[dui_dude]

dui_dude, after many hours of lawyer research I recommend the following resourse to choose your lawyer https://attorneypages.com.

Thanks.

It took me a while to find trial statistics. Although I could not find the particular numbers for DUI trials with BAC <= 0.07, here are some encouraging numbers,

Jury trial cases result in a ~ 50% conviction rate overall. However, the particular conviction rate is strongly dependant on the type of crime. The easiest crime to convict by jury is Murder with a ~90% conviction rate because every defendant, including guilty ones, go to trial since they have nothing to loose. The most difficult crime to convict of is battery/assault with a ~40% conviction rate. Except for murder, conviction rates are low because people who are really guilty or people aginst whom the prosecution has built a sstrong case simply try to get the best deal by a guilty plea.

More interestingly, I have also learned that a typical defence for <= 0.07 BAC "offenders" is the following when there are no wreckless driving charges (as long as you were not intentionally driving wrecklessly there should be none because you are not drunk anyway).

Indeed encouraging. Seems like you have a good chance of winning the case.

Also, a sober (BAC = 0.00), calm, rested person will not get a perfect score whithout some practice (think of a gymnist routine), so the signal-to-noise ratio is high to begin with.

You sound like an Electrical Engineer .... you working for the Big semiconductor out there.

PS, It is not uncommon for me to do a 'rolling' stop when turning right and forget to turn my blinker on every once in a while. I think the police were simply looking for an excuse to pull me over since I was leaving a bar at 2:15 am.

I have done that quite a few times myself.

 

[CdwJava]

More interestingly, I have also learned that a typical defence for <= 0.07 BAC "offenders" is the following when there are no wreckless driving charges (as long as you were not intentionally driving wrecklessly there should be none because you are not drunk anyway).

Coincidentally I was at a training seminar for DUI today ... I asked the other instructors if they had ever heard of this "exculpitory" defense, and none of them had ever heard it used. They hypothesized that it has likely been TRIED, but to their knowledge it was not widely used (thus, not widely successful) at least in CA. Further, they presented some fine arguments that would shoot that defense down ... hence the reason it probably is a rare defense to mount.

And since the SFSTs have a huge battery of reserach supporting them, I wouldn't look to them being discredited anywhere in the near future ... certainly not in my lifetime.

- Carl

 

[dui_dude]

OK. What happens when you hire an attorney and he does not show up for you to your arraignment or court date ? In other words, how do you guarantee that he will show up and not end up having an arrest warrant issued against you ? If an arrest warrant is issued, how or where do the the law enforcement agency locate and find you ?

Thanks

 

[moburkes]

OK. What happens when you hire an attorney and he does not show up for you to your arraignment or court date ? In other words, how do you guarantee that he will show up and not end up having an arrest warrant issued against you ? If an arrest warrant is issued, how or where do the the law enforcement agency locate and find you ?

Thanks

YOU show up.

 

[dui_dude]

YOU show up.

I mean he(attorney) says you don't need to come, but he himself forgets to go for the alloted time.