Lawyer Worth It?

[Ratman_84]

What is the name of your state? California, Sacramento

Hi, I was just picked up for a DUI last night and I'm trying to figure out if a laywer is worth the money. Here's the situation.

I'd been drinking, but hadn't had a drink for almost 2 hours. My friend who is a diabetic, but drinks (he has problems) came up to me and was freaking out saying he couldn't find his insulin and probably left it at home, which is only 10 blocks away, and that he's had too much to drink and feels like he might be going into the first stages of an attack. So I feel completely sober and I tell him we'll get him to his house.

So we're on our way and a look in my rearview mirror and I saw a cops headlights go on and then the flashing lights. He had been sitting off the side of the road with his headlights out. I'm not sure if that is considered entrapment or not and how to prove it. He pulls us over and I pass the physical tests he gave me, except when I tripped a little walking a straight line because he had me do it on a slope with dry leaves. Then he breath tested me and told me I had a .15 which totally baffled me seeing as how I wasn't incoherent in the slightest and had had more to drink the week before when I was breath tested and only had .04 BAC. Also, I read that the officer needs to spend 15 minutes observing the suspect before chemical testing or arrest and he only spent about 5. So he took me to jail, never once reading me my rights. And he also ended up losing my house keys, my lighter, and my gum and then claimed he didn't take them. Gum and lighter...whatever, but my house keys?

And the police at the station ended up being completely unprofessional and also ended up letting an underage drinker caught drunk in public go without any charges.

Anyways, I guess my question is, with my medical reasoning for getting my friend to his insulin and the arresting officer's lack of proper procedure, would hiring a lawyer be worthwhile? How much can a lawyer really help to reduce the penalties? Also, is there going to be a period where I can't drive my car at all? What do they expect you to do about retaining your job? Taking kids/yourself to school? Grocery shopping? That kind of thing? And I also heard I can request that the breath tester be checked for a calibration near the time of my test, is that true?

 

[fagettaboutit]

You've been arrested for a very, very serious crime. I guess some may think being arrested for a serious crime doesn't warrant hiring an attorney, I tend to disagree. If you decide to hire an attorney, don't spend your money on a lawyer who doesn't fully understand, nor hasn't been trained in DUI defense. There are plenty of lawyers who think they understand DUI laws, but very few actually know how to defend them. Google: "dui defense college"

 

[>Charlotte<]

That you hadn't had a drink in almost two hours is irrelevant.
That your friend is a diabetic is irrelevant.
That your friend is a diabetic who drinks--you're right, he does have problems. Irrelevant.
That he couldn't find his insulin--irrelevant.
He lived only 10 blocks away--irrelevant.
His going into the first stages of an "attack"--not an excuse for you to drink and drive.
You felt completely sober--but the criterion for driving isn't feeling sober, it's being sober.
Sitting off the side of the road with his headlights out--not entrapment in any way, shape, or form.
You tested at .15--now that's relevant.

I read that the officer needs to spend 15 minutes, etc. observing the suspect before chemical testing or arrest

I don't know for certain that's not true, but I'm very tempted to assume you read a lot of fiction. Okay, I'll just go out on a limb and say it: total crap. If anyone can point me to a law that says otherwise, I'll be glad to take that back.

So he took me to jail, never once reading me my rights

You don't have to be read your rights just because you are arrested. It depends on whether you are going to be questioned about your charges.

And the police at the station ended up being completely unprofessional

Irrelevant

and also ended up letting an underage drinker caught drunk in public go without any charges.

No bearing on your arrest.

I guess my question is, with my medical reasoning for getting my friend to his insulin

You do not have the right to drive drunk in order to help your friend. If he was in need of medical care you should have called 911. I don't care how you present it, that excuse is absolutely not going to fly.

and the arresting officer's lack of proper procedure

So far, no improper procedure has been established.

Would hiring a lawyer be worthwhile?

I would if I were you. Others would say a lawyer is a waste of money. It's your call.

Also, is there going to be a period where I can't drive my car at all?

I don't think so. I believe you will be able to have restricted driving priviledges.

 

[fagettaboutit]

I don't know for certain that's not true, but I'm very tempted to assume you read a lot of fiction. Okay, I'll just go out on a limb and say it: total crap. If anyone can point me to a law that says otherwise, I'll be glad to take that back.

This law exists in all 50 states. It's DUI 101 law. I'm not going to point you to a source, you seem capable enough to find it. I suggest google. A suspect is watched for burping. If they burp, it's likely the burp will bring alcohol up from their stomach and skew the BAC results. That burp will give a much higher reading compared to their supposed impairment level.

The most interesting part to this is no one (as in those who make DUI laws) have accounted for the GERD factor. A person with acid reflux constantly must contend with stomach acid regergation. They don't burp - it just happens. Again, google it.

This is probably "irrelevant" to you. But in DUI law context, it's quite important.

 

[>Charlotte<]

This law exists in all 50 states.

Okay, well now at least I have reasonable doubt. I've asked a LEO to confirm, and I'll certainly retract my "crap" verdict if appropriate.

 

[garrula lingua]

Okay, well now at least I have reasonable doubt. I've asked a LEO to confirm, and I'll certainly retract my "crap" verdict if appropriate.

Several things you said are incorrect.
This board doesn't need 'reasonable doubt' ... it's not a question of being 'legally' cute, it's a question of being accurate with your information.

Look up the statute and look up the manufacturer's guide for the DataMaster/Breathalyzer, not the PBT/PAS field devices.

 

[garrula lingua]

This law exists in all 50 states. It's DUI 101 law. I'm not going to point you to a source, you seem capable enough to find it. I suggest google. A suspect is watched for burping. If they burp, it's likely the burp will bring alcohol up from their stomach and skew the BAC results. That burp will give a much higher reading compared to their supposed impairment level.

The most interesting part to this is no one (as in those who make DUI laws) have accounted for the GERD factor. A person with acid reflux constantly must contend with stomach acid regergation. They don't burp - it just happens. Again, google it.

This is probably "irrelevant" to you. But in DUI law context, it's quite important.

The machine shuts down when it detects mouth alcohol.
The old machines were vulnerable to issues such as GERD, the new ones are not.
In the recent past, this defense is dead.
The only real successful current defenses are rising defense and broken/non-calibrated machine.
Technology has improved.
Even the old machines were engineered to test deep lung breath.

 

[>Charlotte<]

Several things you said are incorrect...This board doesn't need 'reasonable doubt' ... it's not a question of being 'legally' cute, it's a question of being accurate with your information.

Nobody's trying to be "legally cute", nor was my comment an indication of what "the board" needs. I was skeptical about the fifteen minute rule, and fagettaboutit's comment gave me reason to believe it might have been true. I have since been told by a NC police officer that there is no such requirement in our state (which belies the "all 50 states" comment.) This may still be a requirement of Califorinia, the OP's state, and I still intend to retract my belief that it's not, if the indisputably qualified person I've asked responds that it is.

I make every effort to be accurate with the advice I give here. If "several" things I said are incorrect I'd appreciate it if you'd be more specific about what they were so I'll be better informed in the future. I sure hope it wasn't the part where I said his friend's medical emergency did not give OP the right to endanger other people by driving under the influence.

 

[>Charlotte<]

I'm told by a California LEO that there is a requirement for a fifteen minute observation prior to a blow. He also confirmed that this is due to the older machines being vulnerable to "mouth alcohol." The new machines are not--but the rule has not been amended.

 

[>Charlotte<]

Some clarification is in order. As far as the requirement for the breath test is concerned, my understanding of the OP's complaint is that he was talking about the portable unit some officers use during the FST. In the course of an FST, waiting 15 minutes is not required in NC, and therefore not a requirement in all 50 states. Whether it is required in California is still unresolved because I believe the person I asked thought I was talking about the formal test at the station.

Whether any of my other points are incorrect remains to be addressed.

ETA: There is no such requirement during a field sobriety test in California.

 

[garrula lingua]

Some clarification is in order. As far as the requirement for the breath test is concerned, my understanding of the OP's complaint is that he was talking about the portable unit some officers use during the FST. In the course of an FST, waiting 15 minutes is not required in NC, and therefore not a requirement in all 50 states. Whether it is required in California is still unresolved because I believe the person I asked thought I was talking about the formal test at the station.

Whether any of my other points are incorrect remains to be addressed.

ETA: There is no such requirement during a field sobriety test in California.

You are showing your lack of knowledge.
Anyone who practices and has tried DUI cases knows that the 15 minutes refers to the machine usage - Intoxilyzer or DataMaster.
Many states do not require the 15 minute wait/observe, (nor do they require the change of mouthpiece between the first and seccond blow); most machine operators do continue to do the observation period, as defense attorneys will try to create reasonable doubt in the absence of such.

Regarding mouth alcohol/burping: the Intoxilyzer has two safeguards - the instrument has a slope detector, which actually is a logic program that requires that the alcohol concentration essentially level off at the end of speciment delivery (changing by no more than 0.01 per second). Residual alcohol evaporates quickly so that the alcohol concentration would tend to rise rapidly and then fall rapidly, without ever leveling. Ergo, the machine will give an 'invalid test'. Also, the instrument requires that the two breath test specimens agree within 0.020 for a valid test. Residual alcohol tends to cause one score to be significantly higher than the other - again, an invalid test.
Burping prior to the test, consisting of only gases from the stomach, does not affect the test result, since the gasuous alcohol dissipates with the next breath and will not be present for the second blow.
By the way, many DUI cases are prosecuted successfully without the 15 minute observation for reasons stated above, as well as the objective signs and symptoms and the (poor) driving observed.

Clt747, you may research and assist people in a non-specific legal area, but don't give inaccurate guesses in a very specific area of the law. DUIs can be confusing enough for people to understand, don't be incorrect. Asking a cop you know does NOT guarantee he will give a correct answer, or you will interpret it correctly (unless it's Carl, who should be a lawyer).

PS: The PAS/PBT (preliminary alcohol screening/portable/preliminary breath test) are field devices; in CA, they are only used in court to show the detection/presence of alcohol, the actual reading is not admissible at trial.
Only the breath test (at the station) results (Intoxilyzer/DataMaster) are admissible in CA.

 

[>Charlotte<]

Anyone who practices and has tried DUI cases knows that the 15 minutes refers to the machine usage - Intoxilyzer or DataMaster.

I don't dispute that there is a requirement to wait 15 minutes before the formal test is conducted at the station. The OP clearly indicates he is objecting to the officer not waiting 15 minutes during the field test. There is no such requirement for the field test, and I informed OP of that accordingly.

Clt747, you may research and assist people in a non-specific legal area, but don't give inaccurate guesses

I wasn't inaccurate, and I wasn't guessing.

Asking a cop you know does NOT guarantee he will give a correct answer, or you will interpret it correctly

Well, for that matter, asking someone who went to law school doesn't guarantee a correct answer either. But the NC cop I asked is my husband, who I personally know to be extremely knowledgeable about the laws he is required to follow.

unless it's Carl, who should be a lawyer.

The Calfornia cop I asked was Carl.

 

[garrula lingua]

OKayyy.

You ask your NC police officer husband for answers on DUIs in CA, then ask Carl, and then post your 'advice'.
What are you, a reporter ?

I assume you've had a DUI so you have some foundation for your 'advice'.

So, Carl told you there's a law in CA which requires a 15 minute wait ? Which one did he cite ?? or is that 'crap', as you said ??

 

[>Charlotte<]

You ask your NC police officer husband for answers on DUIs in CA

As I stated before and will repeat: I asked my husband when I questioned fagettaboutit's assertion that it was the law in all 50 states. I clearly acknowledged that I was only stating NC law in response to the "all 50 states" statement, and I was still waiting for Carl to let me know if I was wrong about California--the OP's state.

I assume you've had a DUI so you have some foundation for your 'advice'.

Never have, never will.

So, Carl told you there's a law in CA which requires a 15 minute wait ? Which one did he cite ?? or is that 'crap', as you said ??

He didn't cite a law. He simply said the 15 minute wait was a requirement. Carl being Carl, that was good enough for me so I prematurely posted that I was wrong; however, I still found it hard to believe there was such a requirement. It occurred to me he might have misunderstood my question so I asked him if he understood I was talking about an FST. He had misunderstood and confirmed that I had, in fact, been correct all along.

The bottom line is, the OP asked a question and I answered him correctly, despite your accusation that I'm offering "inaccurate guesses" as advice.