DUI Arrest Legal??

[duiadviceplease]

I was arrested in CA for a DUI. My friend and I were outside of the car changing a flat tire. We finished changing the tire and were taking off the jack, when a cop car pulls up. He asked if everything was okay, if we had been drinking and who the driver was, which I said was me. He had me do a field sobriety test and take a breathalyzer, which after three times, came out to 0.09 and proceeded to arrest me.

Do I have a winning case of dismissal because the officers NEVER saw me or the friend behind the wheel, there are no witnesses, the keys were outside of the vehicle (which was off), and according to the law, the officers must see you behind the wheel or have evidence to support it. I can't figure out if I should get a lawyer, represent myself, or ask for a public defender (if i qualify). I don't want to waste my money on a lawyer who isn't interested in fighting for the defense, but also don't have the money to go to trial, which I think it will. Opinion's please??

 

[Zigner]

I was arrested in CA for a DUI. My friend and I were outside of the car changing a flat tire. We finished changing the tire and were taking off the jack, when a cop car pulls up. He asked if everything was okay, if we had been drinking and who the driver was, which I said was me. He had me do a field sobriety test and take a breathalyzer, which after three times, came out to 0.09 and proceeded to arrest me.

Do I have a winning case of dismissal because the officers NEVER saw me or the friend behind the wheel, there are no witnesses, the keys were outside of the vehicle (which was off), and according to the law, the officers must see you behind the wheel or have evidence to support it. I can't figure out if I should get a lawyer, represent myself, or ask for a public defender (if i qualify). I don't want to waste my money on a lawyer who isn't interested in fighting for the defense, but also don't have the money to go to trial, which I think it will. Opinion's please??

Get an attorney...the police HAVE evidence...your statement is evidence!

 

[InsaneJane]

? Your vehicle had a flat. Were there any signs that it had been in an accident?
Did he ask when it happened?

 

[justalayman]

if we had been drinking and who the driver was, which I said was me

Unless you are going to claim you drank whatever since you got out to change the tire, not sure how you claim you are not guilty of DUI

BUT..if I remember correctly, it does seem like Carl had said something about the officer needing to have seen the person driving to make it a valid bust. Not sure about that but it's just something stuck in my head.

 

[CdwJava]

Yes, in CA there must generally be observed driving for the offense to be complete. Absent that, then all the officer MIGHT have is public intoxication.

There are exceptions to the observed driving rule and this might have fallen under one of them.

40300.5. In addition to the authority to make an arrest without a
warrant pursuant to paragraph (1) of subdivision (a) of Section 836
of the Penal Code, a peace officer may, without a warrant, arrest a
person when the officer has reasonable cause to believe that the
person had been driving while under the influence of an alcoholic
beverage or any drug, or under the combined influence of an alcoholic
beverage and any drug when any of the following exists:
(a) The person is involved in a traffic accident.
(b) The person is observed in or about a vehicle that is
obstructing a roadway.
(c) The person will not be apprehended unless immediately
arrested.
(d) The person may cause injury to himself or herself or damage
property unless immediately arrested.
(e) The person may destroy or conceal evidence of the crime unless
immediately arrested.​

It would seem likely that at least one or more of these conditions might have been present.

OP, consult legal counsel ASAP.

 

[lenny71]

Sounds like the officer thought you were in an accident. Not too good for your defense. I would get an attorney asap.

 

[FlyingRon]

Sounds like the officer thought you were in an accident. Not too good for your defense. I would get an attorney asap.

Or that the tire changing operation was obstructing the roadway though it's not a stretch that an assertion of clauses (c), (d), or (e) may also apply.

 

[swalsh411]

and according to the law, the officers must see you behind the wheel or have evidence to support it.

oh really?

 

[NellieBly]

Please get a court appointed attorney.

 

[George1776]

I was arrested in CA for a DUI. My friend and I were outside of the car changing a flat tire. We finished changing the tire and were taking off the jack, when a cop car pulls up. He asked if everything was okay, if we had been drinking and who the driver was, which I said was me. He had me do a field sobriety test and take a breathalyzer, which after three times, came out to 0.09 and proceeded to arrest me.

Do I have a winning case of dismissal because the officers NEVER saw me or the friend behind the wheel, there are no witnesses, the keys were outside of the vehicle (which was off), and according to the law, the officers must see you behind the wheel or have evidence to support it. I can't figure out if I should get a lawyer, represent myself, or ask for a public defender (if i qualify). I don't want to waste my money on a lawyer who isn't interested in fighting for the defense, but also don't have the money to go to trial, which I think it will. Opinion's please??

Sounds to me like he got you ... silence is golden in these situations .. just tell the cop you do not wish to speak with him, simple

 

[Zigner]

Sounds to me like he got you ... silence is golden in these situations .. just tell the cop you do not wish to speak with him, simple

Are you stupid? The OP already talked to the cop.
I understand that your 16 year old comprehension skills leave a lot to be desired...but sheesh! My 7 year old had better comprehension skills than you seem to have!

 

[LakersFan]

I was arrested in CA for a DUI. My friend and I were outside of the car changing a flat tire. We finished changing the tire and were taking off the jack, when a cop car pulls up. He asked if everything was okay, if we had been drinking and who the driver was, which I said was me. He had me do a field sobriety test and take a breathalyzer, which after three times, came out to 0.09 and proceeded to arrest me.

Do I have a winning case of dismissal because the officers NEVER saw me or the friend behind the wheel, there are no witnesses, the keys were outside of the vehicle (which was off), and according to the law, the officers must see you behind the wheel or have evidence to support it. I can't figure out if I should get a lawyer, represent myself, or ask for a public defender (if i qualify). I don't want to waste my money on a lawyer who isn't interested in fighting for the defense, but also don't have the money to go to trial, which I think it will. Opinion's please??

I think you have a chance here. I don't know how they can determined what your BAC was at the time you were driving.

 

[CdwJava]

I think you have a chance here. I don't know how they can determined what your BAC was at the time you were driving.

The defense can certainly argue a rising BAC if they wish. But, since the BAC is legally good if taken within 2 or 3 hours (I forget which), the burden may well be on the defense to make this claim.

It could also be that they said they had just crashed, or lost the tire within the last hour or some such thing. Unless it took them 2 or 3 hours to change a tire, chances are the driving was relatively easy to establish. If the officer did not nail it down to some sort of approximation, bad for him (or her).

 

[George1776]

Are you stupid? The OP already talked to the cop.
I understand that your 16 year old comprehension skills leave a lot to be desired...but sheesh! My 7 year old had better comprehension skills than you seem to have!

Zinger appears to disagree with everybody else posting on this thread ... senility is the question Zinger needs answering regarding himself.

Either that or a new set of reading glasses .... old man try'n to pwn me is a laugh.

 

[Calboy]

Sadly in SD no penalties are given to police for a bad DUI arrest. It's a revenue racket which you're soon to encounter. The police make money, the city makes money and the defense attorneys make money. You'll soon see it's all connected. They hand these DUIs out like candy here.

It is definitely helpful to the defense that you were not seen driving. Also the .09 breath should be easy to argue. You don't state what you blew at the station so it's hard to say whether you were going up or down.
Also, you are only required to answer certain questions by law. You are not Mirandad cause it is conflictual with the arrest report.
Sorry to say you'll need an attorney but on a brighter note, based on what you're stating here the DA will have a hard time making that stick as a DUI. Make sure not to get an attorney who'll fall on the sword. Get a fighter. It'll cost you more in the long run with a disposition.
Show up for the first court date and request a continuance. Get all the discovery and then get an evaluation with a few attorneys. Prepare to be a little bummed out on the ambiguity of the attorneys. They don't say much until they get the dough. Then after you hire one, they keep in very little touch. For you it's a drag of a life experience. For them it's day to day routine.
Good Luck