2nd offence

[boardmor]

Heres a couple of questions which I want to know hurt or help my case in va they have to read Virginia Code Section 18.2-267 before a pbt they didnt do that but they ask me what I think I blew and I blurt out a number. Did that give them probable cause and also since they didnt say anything in the virginia code does that mean they can use the real breath test on me as well. Im doing all the research I can so when I see the lawyer on friday I can point out some things that I notice wrong. Also the field soberity test is there any link that will tell you more specific instructions on conducting the test. I have found a few that flaw there offence I am 50 lbs overweight so the one legged stand I drop my leg twice on doesnt hold up as well I at least I would hope the court would see it in my favor it also read something that said you have to drop your leg 3 times in order to fail and you should be on a flat surfuce. I was on a incline. I also only messed up on walk a straight line by not pivoting when I turn also another thing I read says you have to mess up 2 times on it in order to fail the hgn I did fine. He also did the alphebet from d to u and I didnt do well on that but I have read that cant be used as evidence since its not one of the three nhtsa test he also did finger to nose and I did great on that. So if anyone can lead me in the right direction would be great.

 

[candriver]

Depending on what state you live in, a second DUI within five years of the first one can result in double the fine, jail time, and duration of license suspension. Read about the "Habitual Offender laws" passed in many states associated with those who repeatedly have committed the same crime for more information.

 

[boardmor]

After reading about va laws I am not considered a habitual offender by law.

 

[CdwJava]

Did that give them probable cause and also since they didnt say anything in the virginia code does that mean they can use the real breath test on me as well.

If they had sufficient probable cause to make the arrest without the PBT, then that test should not have any real bearing on the outcome of a trial.

Also the field soberity test is there any link that will tell you more specific instructions on conducting the test.

There are a few. NHTSA is the agency that conducted the research that developed the SFSTs, so any links you have to NHTSA would be best.

I have found a few that flaw there offence I am 50 lbs overweight so the one legged stand I drop my leg twice on doesnt hold up as well I at least I would hope the court would see it in my favor it also read something that said you have to drop your leg 3 times in order to fail and you should be on a flat surfuce. I was on a incline.

Your attorney can bring those up. But, understand that most DUI offenses are beaten by getting the detention rules as unlawful. Defeating a DUI by arguing a lack of probable cause may be the number two method, but this is much more difficult because the defense has to try and defeat the officer's interpretation of the tests and his observations. The evaluation to support an arrest is of all the officer's observations and not just the SFSTs.

Dropping your leg during the one leg stand is a valid clue. Dropping it three times just affirms it. Being 50 lbs. overweight may, or may not, have any real bearing on the matter. This is also why they conduct the battery of tests and not just one (if done properly), because when taken together the accuracy rating goes way up.

I also only messed up on walk a straight line by not pivoting when I turn also another thing I read says you have to mess up 2 times on it in order to fail the hgn I did fine.

How do you know that you did "fine?" I'll let you in on something ... officers are trained to tell you that you are doing fine during the tests. It prevents arguments and continues the cooperation.

He also did the alphebet from d to u and I didnt do well on that but I have read that cant be used as evidence since its not one of the three nhtsa test

All because it is not one of the SFSTs does not mean it cannot bve used. Its validity is certainly suspect, and I do not encourage officers to use it because there is no evidence to support this as a valid test. It is easily cast aside by a competent defense, so it is unreliable as a tool to support probable cause. It is not really a divided attention test, but more a literacy test, so it is not an effective tool.

he also did finger to nose and I did great on that.

And you know you did "great" how?

 

[boardmor]

I know how well I did because I was listening to him when he presented his case to the magistrate. He sited me messing up on the one legged stand and the walk the straight line and exactly what I did wrong. I am saying I did so well because I was sober enough to tell.

 

[CdwJava]

I know how well I did because I was listening to him when he presented his case to the magistrate. He sited me messing up on the one legged stand and the walk the straight line and exactly what I did wrong. I am saying I did so well because I was sober enough to tell.

Although, you were also not the one doing the observing. The key will be the clues that he observed in each of those tests. If a court finds that there is sufficient articulable probable cause to support the arrest, then you may have a tough time beating the rap.

Dropping the leg is one of the clues for the one leg stand (i.e. you triggered one clue of impairment), and not pivoting as instructed/demonstrated is another clue (i.e. you triggered a second clue of possible impairment). Those could be perfectly sufficient to support an arrest and the obtaining of a chemical test.

What was your BAC?

 

[boardmor]

I understand that the did not tell about implied consent which in va they are required to do before they give you the official breath test. I blew a .06

 

[CdwJava]

I understand that the did not tell about implied consent which in va they are required to do before they give you the official breath test. I blew a .06

That could be cause to get the test tossed out, but i am not familiar with the laws in this regard in VA. Your attorney should be.

With a BAC of .06, unless they feel they have drugs on board, or you performed significantly poorly on the SFSTs, then it might even come to pass that the state will not pursue the matter.

 

[boardmor]

Thats what I am hoping and with all this new info I researched and told my lawyer it looks as though we are going that route with it. I talk to him more about it on friday. I know drinking and driving is wrong and I wouldnt put myself behind the wheel if I dont believe I able to fully operate it. I know that sounds stupid but I will have a beer or two and leave at that that when I am out with in a social setting I also make sure not to take any of my prescription drugs that day if I attend to go out until I get home just so I dont have them produce some side affect that would cause me not to be sober. I think I have a good chance though with this I think this cop was just out to get me on whatever he could and disregarded my rights. I know its his job and the area I was in he probably gets a lot of dui cases come his way so I believe he just assumed I was just another usual case. I learn my lesson the first time so I dont want to do it all over again. I just need to be a little more responsible if I am going to have a beer or two when I go out. I dont do it often but I just manage to make one stupid mistake to give him the right to investigate me.

 

[CdwJava]

I know drinking and driving is wrong and I wouldnt put myself behind the wheel if I dont believe I able to fully operate it.

Keep in mind that the physiological symptoms of alcohol impairment can be identified beginning as low as .02 BAC. That's the equivalent of a single beer, glass of wine, or shot of the hard stuff. Judgement begins being effected at about the same level or .03. Many people feel they are fine to drive when they are, in fact, not. That is why the best policy is to NOT drink and drive. Or, if you are drinking beer or wine, allowing 2 hours to pass for each bottle or glass consumed (as that will virtually guarantee a BAC of .00). The problem with hard alcohol is that some people lose count and the alcohol content can vary depending on the specific alcohol consumed. Likewise with mixed drinks. One bar might serve a Long Island Ice tea with 4 shots, another with 6. You cannot always know what you are getting in some establishments so making a judgment call may not always be the best bet.

I know that sounds stupid but I will have a beer or two and leave at that that when I am out with in a social setting I also make sure not to take any of my prescription drugs that day if I attend to go out until I get home just so I dont have them produce some side affect that would cause me not to be sober.

Yes, many prescription meds can have a synergistic effect with alcohol thus exaggerating the impairment caused by each.

I think I have a good chance though with this I think this cop was just out to get me on whatever he could and disregarded my rights.

It may be less a dark conspiracy against your civil rights and more a matter of the officer being poorly trained in the SFSTs and proper DUI procedure.

I just need to be a little more responsible if I am going to have a beer or two when I go out. I dont do it often but I just manage to make one stupid mistake to give him the right to investigate me.

Another thing to keep in mind. If you set a personal two drink limit when you go out, the day that you start rationalizing or justifying "just one more, because ..." is the day you should re-assess your drinking habits. It was a pattern of those justifications that helped scare me sober 21 years, 19 days ago.

Good luck.

 

[boardmor]

Thanks for the the advise and I do try to use wise judgement when I go out. I commend you on your sobriety but I am very strict with myself and wont get another unless I have a alternative way home but that doesnt happen so I keep it at two and wont allow myself the temptation. I usually play it safe and be the dd that way I can still go out have a good time with friends and let off a little steam. I am kinda the older guy of a bunch of frat brothers so they still like to take there chances so I try and curb that chance by volunteering to dd but there is the occassion I will go out with them and have my two drinks. Anyway getting off subject I thankyou for your input it helps to get another perspective of something I am not a expert on. I am just trying to do my best to be informed