Not Guilty of DUI / Refused Breath / MVA hearing next

[justalayman]

My keys were in the car and on the floor. They weren't on me.

So nephew drove there in his car and you were there with the keys to your car (and if you think anybody would believe you left them in the car when you went home you're nuts) so who was going to drive your car home once you freed it?

Regardless, you had constructive control of your vehicle but regardless, you are sans license because you refused a breathalyzer test.

 

[Zigner]

I went to find something in the car when a cop pulls up. Cop starts talking to Nephew. I got out of car and approach cop to tell him it was me that got stuck.

This is from the original post and I think it's been overlooked.

The OP was IN the vehicle WITH the keys and admitted to getting stuck. He then gives a story about getting stuck half an hour before, walking home, drinking four beers, and then going back to the scene.

 

[justalayman]

Yep I overlooked that so I would guess op saw the cop and tossed the keys on the floor.


Of course everybody that gets stuck goes home and gets drunk before returning to extricate their vehicle.


Rafafa.

It sounds like you got very lucky. I think you might want to count your blessings and accept the slap on the wrist.

 

[Dave1952]

I think DaveW's point about engine temp is appropriate. Did the officer feel the hood of the car? The OP drank 4 beers before returning to his car. I'd think the engine would be rather cool. Did the officer note that the engine was cool?
If not I think the interlock is the way to go. If the cop did find the hood cool then the question becomes which is cheaper? The interlock? The MVA hearing?

 

[Zigner]

I think DaveW's point about engine temp is appropriate. Did the officer feel the hood of the car? The OP drank 4 beers before returning to his car. I'd think the engine would be rather cool. Did the officer note that the engine was cool?
If not I think the interlock is the way to go. If the cop did find the hood cool then the question becomes which is cheaper? The interlock? The MVA hearing?

OP was IN the car with the keys in his possession when the officer arrived.

 

[justalayman]

I think DaveW's point about engine temp is appropriate. Did the officer feel the hood of the car? The OP drank 4 beers before returning to his car. I'd think the engine would be rather cool. Did the officer note that the engine was cool?
If not I think the interlock is the way to go. If the cop did find the hood cool then the question becomes which is cheaper? The interlock? The MVA hearing?

Op said a lot of things but since the criminal case is settled and the license suspension is based on the refusal I think the op is dead in the water here.

 

[TigerD]

OP was IN the car with the keys in his possession when the officer arrived.

The only thing that matters here is that the OP refused his breath test. His story about going home and getting wasted is not relevant. The officer clearly met his burden in asking the OP to submit to a breath test (remember the OP admitted to the officer he had been drinking) and the OP refused.

DC

 

[justalayman]

The only thing that matters here is that the OP refused his breath test. His story about going home and getting wasted is not relevant. The officer clearly met his burden in asking the OP to submit to a breath test (remember the OP admitted to the officer he had been drinking) and the OP refused.

DC

I believe zig was merely trying to defend the cops right to demand the blow while Dave seems to want suggest the guy has a defense to refusing to blow.

 

[You Are Guilty]

Let's not forget the lower burden of proof in administrative hearings. "Beyond a reasonable doubt" went out the window with the criminal charges.

While I believe CA uses "clear and convincing" for DMV hearings, I am sure one of your Wrong Coasters can confirm (or correct) that.

 

[HighwayMan]

While I believe CA uses "clear and convincing" for DMV hearings, I am sure one of your Wrong Coasters can confirm (or correct) that.

Except that this was Maryland.

 

[davew128]

That's NOT correct. All it takes is a reasonable suspicion that the person was operating under the influence. The attorney can challenge that statement of suspicion.

You're talking about the DUI charge, which as we can see didn't stick. Sometimes common sense needs to rear its head here. Suspending a license of someone for refusing a breathalyzer who WASN'T in their vehicle and clearly hadn't been for some time is beyond ridiculous.

 

[Zigner]

You're talking about the DUI charge, which as we can see didn't stick. Sometimes common sense needs to rear its head here. Suspending a license of someone for refusing a breathalyzer who WASN'T in their vehicle and clearly hadn't been for some time is beyond ridiculous.

I guess you are still missing it...the OP was in the vehicle when the officer arrived.

 

[davew128]

I guess you are still missing it...the OP was in the vehicle when the officer arrived.

Missed that. Makes a world of difference. I was under the impression he was outside near the car.

 

[FlyingRon]

You're talking about the DUI charge, which as we can see didn't stick.

No, I'm not talking about the DUI charge and neither is the poster. He's talking about his upcoming MVA hearing about the REFUSAL for the test. I gave the EXACT standard of the Maryland implied consent law. All it takes is that the officer has reasonable belief that the guy was driving.
My comments were to specifically to correct your INCORRECT statement that the person must have been operating the vehicle in order for the implied consent to apply.

Sometimes common sense needs to rear its head here. Suspending a license of someone for refusing a breathalyzer who WASN'T in their vehicle and clearly hadn't been for some time is beyond ridiculous.

You're making great leaps here which subsequent clarification of the poster has born out.

The poster:

1. Was intoxicated.
2. Had constructive possesion of the vehicle (they keys were in it and apparently he was in or near the vehicle).

That would appear to raise a reasonable suspicion.

He can, as I already stated, challenge whether that suspicion was reasonable, but I suspect since his own lawyer, who is in more possession of the facts of the case here having already defended the CRIMINAL charge, recommended that he take the suspension (and enter the interlock program to get a restricted license) that he feels that it's unlikely that the challenge the validity of the breathalizer test is going to be successful at the DMV.

 

[You Are Guilty]

Except that this was Maryland.

Looks like I picked the wrong week to stop sniffing glue.

Oh wait, no I didn't. C&C is the administrative standard in most states, MD included
http://dui.washingtondccriminallawyer.net/dmv/