Girlfriend Got DUI and Weapon Charge. She's Afraid She's Going to Jail

[ctwforgood]

What is the name of your state (only U.S. law)? Arkansas

My question involves criminal law for the state of: Arkansas

She was actually charged with refusal to take a dui test because she was asking questions and the officer didn't want to listen anymore and charged her with refusal. She had a pistol in her car. We met with an expert attorney and he said that he could most likely get her off of the dui and laughed about the weapon charge and said that in her situation it wasn't illegal. He said that even a public defender could, or should, be able to get her off of the weapon charge. The issue is the 5k down payment he wants. I don't see how we can come up with that. The public defender seemed completely useless and basically told her that she wouldn't be able to do anything about the weapon charge. I'm imagine the defender will do exactly nothing for her, as I know they are extremely overburdened in Arkansas.

We were considering trying to find an affordable lawyer just to try to get her off the weapon charge but I guess that depends on what we can expect from the charges. The original attorney we spoke to, who is held in the highest regard in this area and among the dui law community in general, told us that in the town she was arrested in the judge always gives the same punishment for 1st dui which is 365 days in jail, 364 of which is suspended and would not apply unless she got another dui, and 1 day served which was counted as the night she spent in jail. Also, a interlock suspended license for 6 months, MADD classes, and a fine. He just laughed about the weapons charge but the public defender had a different take on it.

Any advice and input as to how to proceed, what can be expected etc would be greatly appreicated.

 

[Zigner]

It's unfortunate that the attorney you speak so highly of is not necessarily the one that gave you correct information. Your GF was carrying a concealed weapon. She needs a permit to do that. https://static.ark.org/eeuploads/asp/Arkansas_Code_CHCL_Laws_updated_November_2017.pdf

 

[commentator]

Hire the lawyer.

 

[Just Blue]

What is the name of your state (only U.S. law)? Arkansas

My question involves criminal law for the state of: Arkansas

She was actually charged with refusal to take a dui test because she was asking questions and the officer didn't waShe is a store manager and takes large sums of the money to the bank nightly and carried a .22 pistol in her console. We met with an expert attorney and he said that he could most likely get her off of the dui and laughed about the weapon charge and said that carrying a concealed weapon without a permit is now legal in Arkansas (as of 2013) I believe. He said that even a public defender could, or should, be able to get her off of the weapon charge. He literally wrote a massive book on dui laws, technicalities and all of that but there's just no way we can afford him unfortunately. The public defender seemed completely useless and basically told her that she wouldn't be able to do anything about the weapon charge. I'm imagine the defender will do exactly nothing for her, as I know they are extremely overburdened in Arkansas.

We were considering trying to find an affordable lawyer just to try to get her off the weapon charge but I guess that depends on what we can expect from the charges. The original attorney we spoke to, who is held in the highest regard in this area and among the dui law community in general, told us that in the town she was arrested in the judge always gives the same punishment for 1st dui which is 365 days in jail, 364 of which is suspended and would not apply unless she got another dui, and 1 day served which was counted as the night she spent in jail. Also, a interlock suspended license for 6 months, MADD classes, and a fine. He just laughed about the weapons charge but the public defender had a different take on it. Clearly the defender is nothing compared to the attorney we spoke to.

Any advice and input as to how to proceed, what can be expected etc would be greatly appreicated.

Define "expert attorney". And why are so disparaging of Public Defenders? Is there a reason or are you just parreting the ignorance of others?

 

[HRZ]

There are some changes to carry wo a permit --and some debates too county by county

See Act 746 Aug 16,2013

She hires a lawyer who is likely to win the points she needs won.

Many a Public Defender works hard for a small wage and few resources ...but many do great jobs... I'm a bit surprised that a store manager qualifies for a Public Defender --then again some store managers are very poorly paid.

 

[LdiJ]

There are some changes to carry wo a permit --and some debates too county by county

See Act 746 Aug 16,2013

She hires a lawyer who is likely to win the points she needs won.

Many a Public Defender works hard for a small wage and few resources ...but many do great jobs... I'm a bit surprised that a store manager qualifies for a Public Defender --then again some store managers are very poorly paid.

Seriously...it depends on the store. Some store managers are lucky to make $12.00 an hour. I do tax returns for quite few store or restaurant managers and many of them make little more than a pittance compared to their responsibilities.

 

[quincy]

... She needs a permit to do that. https://static.ark.org/eeuploads/asp/Arkansas_Code_CHCL_Laws_updated_November_2017.pdf

There are some changes to carry wo a permit --and some debates too county by county

See Act 746 Aug 16,2013 ...

The law Zigner linked to is from 2017. In my quote of Zigner's post, I made the link "live" for easier access. A permit is needed to conceal carry.

Here is a link to the Arkansas Attorney General's clarification of the law, from 2015: http://www.handgunlaw.us/documents/agopinions/ARAGOpinionOpenandPermitlessCarry.pdf

ctwforgood, why was your girlfriend stopped by the police?

 

[ctwforgood]

Define "expert attorney". And why are so disparaging of Public Defenders? Is there a reason or are you just parreting the ignorance of others?

Is there a reason you're posting without contributing anything helpful whatsoever? I don't see any questions answered or advice in your post. Please troll on elsewhere.
Also, PDs in arkansas are notorious for doing next to nothing for people because they are so overworked, overburdened, and under funded. There is an extreme shortage of PDs here. The PD she spoke to made it clear that she was not of the same opinion of carrying weapons as the attorney general of arkansas is.

 

[ctwforgood]

Clarification : The attorney I spoke to did not say that carrying a concealed weapon without a permit was legal, just that in her situation, unlawful intent as mentioned by the attorney general is not implied.

Attorney General of Arkansas opinion:

"5-73-120 is what you want to look at.

Here is the opinion from the Attorney General

Opinions on open carry:

In my opinion, Act 746's amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s "possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use" if he or she simultaneously has the intent "to attempt to unlawfully employ the handgun ... as a weapon" against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

Opinions on Concealed Carry:

Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry licensing scheme in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a)."



Apparently the confusion comes from "is carrying a gun in a vehicle a concealed weapon.


She never refused the alcohol test at the police station, she was just asking a lot of questions and eventually the officer got tired of talking to her and charged her with refusal even though the intended to take the test.

What penalty is she likely facing here in regards to the weapon? Jail time? She has never had any kind of criminal charges before. I don't see how we can afford the 5k down payment that the trial lawyer we spoke to requires. What can we expect if we go forward with the Public Defender? I know in most cases here, attorneys don't go to trial and don't really do anything for DUI charges. What about the weapon charge?

If you don't have helpful answers or advice, please refrain from wasting yours or my time with posting. Those who have contributed meaningfully, thank you.

 

[justalayman]

Apparently the confusion comes from "is carrying a gun in a vehicle a concealed weapon.

What confusion? From the link by zigner and Quincy;

(2) "Concealed" means to cover from observation so as to prevent public view;

It sure sounds like it’s concealed to me. That would also fit with the interpretations of many other states as well.

 

[justalayman]

She never refused the alcohol test at the police station, she was just asking a lot of questions and eventually the officer got tired of talking to her and charged her with refusal even though the intended to take the test.

She can argue that one out in court but if the cop said; [do this] (take whatever test it was) and she didn’t do that, that is implied refusal. He didn’t say: do you have any questions before you [Do this] did he?

If she really intended to take the test, she would have when he told her to take the test. Cops are used to people stalling for a variety of reasons. Bottom line; if he said take this test and she didn’t, that’s a refusal.

 

[ctwforgood]

What confusion? From the link by zigner and Quincy;

(2) "Concealed" means to cover from observation so as to prevent public view;

It sure sounds like it’s concealed to me. That would also fit with the interpretations of many other states as well.

She can argue that one out in court but if the cop said; [do this] (take whatever test it was) and she didn’t do that, that is implied refusal. He didn’t say: do you have any questions before you [Do this] did he?

If she really intended to take the test, she would have when he told her to take the test. Cops are used to people stalling for a variety of reasons. Bottom line; if he said take this test and she didn’t, that’s a refusal.

More useless comments like I'm getting elsewhere. What good do these comments actually do for anyone?? They don't answer the questions I have posed. Is anyone here actually an attorney in Arkansas and have any experience with the issues she's facing? Are they afraid to speak up because they will reveal the fact that many attorneys take large sums of money from people just to hold their hands in court and not actually do anything beneficial for their clients??


What penalty is she likely facing here in regards to the weapon? Jail time? She has never had any kind of criminal charges before. I don't see how we can afford the 5k down payment that the trial lawyer we spoke to requires. What can we expect if we go forward with the Public Defender? The public defender made it pretty clear that she wasn't of the same opinion as the attorney general. I know in most cases here, attorneys don't go to trial and don't really do anything for DUI charges. What about the weapon charge?

What are the likely penalties that she is facing, what can an attorney actually do for her that the public defender won't do, and in fact, will the public defender or other attorney that doesn't cost $7k + actually do anything to argue or fight the charges at all?

Does anyone actually have any answers to these questions?

 

[quincy]

More useless comments like I'm getting elsewhere. What good do these comments actually do for anyone?? They don't answer the questions I have posed. Is anyone here actually an attorney in Arkansas and have any experience with the issues she's facing? Are they afraid to speak up because they will reveal the fact that many attorneys take large sums of money from people just to hold their hands in court and not actually do anything beneficial for their clients??


What penalty is she likely facing here in regards to the weapon? Jail time? She has never had any kind of criminal charges before. I don't see how we can afford the 5k down payment that the trial lawyer we spoke to requires. What can we expect if we go forward with the Public Defender? The public defender made it pretty clear that she wasn't of the same opinion as the attorney general. I know in most cases here, attorneys don't go to trial and don't really do anything for DUI charges. What about the weapon charge?

What are the likely penalties that she is facing, what can an attorney actually do for her that the public defender won't do, and in fact, will the public defender or other attorney that doesn't cost $7k + actually do anything to argue or fight the charges at all?

Does anyone actually have any answers to these questions?

Your girlfriend will need to hire her own private attorney in Arkansas or trust that the court-appointed overworked, underpaid public defender can devote enough time to her case to represent her well.

The major advantage a private attorney has over a public defender tends to be time available to concentrate on a single client and the client's case. Major advantages a public defender tends to have over a private attorney is greater experience that comes from larger case loads, and greater familiarity with the courts and the judges that will be hearing the cases, and cost.

Both the private attorney and the public defender, however, graduated from law schools and passed the same state bar exam. Competence, in other words, should not be an issue.

Why was your girlfriend pulled over?

 

[ctwforgood]

Your girlfriend will need to hire her own private attorney in Arkansas or trust that the court-appointed overworked, underpaid public defender can devote enough time to her case to represent her well.

The major advantage a private attorney has over a public defender tends to be time available to concentrate on a single client and the client's case. Major advantages a public defender tends to have over a private attorney is greater experience that comes from larger case loads, and greater familiarity with the courts and the judges that will be hearing the cases. Both the private attorney and the public defender, however, graduated from law schools and passed the same state bar exam. Competence, in other words, should not be an issue.

Why was your girlfriend pulled over?

Despite law training, some people are just inherently better at arguing and speaking eloquently and being persuasive. Also some are just inherently more intelligent and see things differently and more clearly than others and see other options. That is what makes a great attorney, or at least trial attorney. Even if the client seems to have obviously broken the law, a good attorney can make an extremely good argument that they did not in fact break the law. That's what makes a good attorney. They can find loopholes, be persuasive etc. Law training means very little in that respect. Despite the fact that attorneys have to get so many years of "education", there is nothing special or particularly skilled about what they do, unless they have the oratorial skills that are just inherent in some people. I've represented myself in court in family law. It blows me away that family law attorneys charge people so much to do what they do. I figured it out on my own in less than a week, filed the paperwork, took my arguments to court and won. While I only represented myself in court once, accomplished a lot through many different documents filed on many occasions without having to go to court. Many attorneys are simply parasites who don't actually do much of anything other than have paralegals / junior attorneys fill out paperwork and then charge $200 an hour for their "skills."

At any rate, she was pulled over because the cops in the particular town she was pulled over in harass pretty much anyone driving at late hours of the night. They're notorious for being overzealous traffic monitors.

It doesn't seem to me like the public defender will actually make any kind of argument that will do anything or even be able to spend the time to deal with the case properly in the first place. I'm trying to find out what kind of penalties to expect in Arkansas for her situation if found guilty.

 

[quincy]

Despite law training, some people are just inherently better at arguing and speaking eloquently and being persuasive. Also some are just inherently more intelligent and see things differently and more clearly than others and see other options. That is what makes a great attorney, or at least trial attorney. Even if the client seems to have obviously broken the law, a good attorney can make an extremely good argument that they did not in fact break the law. That's what makes a good attorney. They can find loopholes, be persuasive etc. Law training means very little in that respect. Despite the fact that attorneys have to get so many years of "education", there is nothing special or particularly skilled about what they do, unless they have the oratorial skills that are just inherent in some people. I've represented myself in court in family law. It blows me away that family law attorneys charge people so much to do what they do. I figured it out on my own in less than a week, filed the paperwork, took my arguments to court and won. While I only represented myself in court once, accomplished a lot through many different documents without having to go through court. Many attorneys are simply parasites who don't actually do much of anything other than have paralegals / junior attorneys fill out paperwork and then charge $200 an hour for their "skills."

At any rate, she was pulled over because the cops in the particular town she was pulled over for harass pretty much anyone driving at late hours of the night. They're notorious for being overzealous traffic monitors.

Also, the question is whether any attorney that doesn't charge tons of money will actually represent her well either. Why pay some attorney 3 grand who isn't going to actually do anything. You never know what you're going to get with these people. They say, yes I will represent you, I need 1,500 as a retainer. Then, what do they actually do besides show up at court?

I have problems with what I have bolded in your post quoted above but I am sure nothing I say will make you see things differently - so I am not going to try. This is not a debate forum.

I also will not take time to tell you all that an attorney does to represent a client or why an attorney's education and experience makes him better equipped to handle a case than someone who is not an attorney and who tries to learn the law by googling and asking questions on legal forums.

Your girlfriend can interview private attorneys at all pay rates and experience and decide whether any one of them impresses her more than the public defenders. If she qualifies for a public defender, she needs to decide on her own which attorney to choose, private or public.

Following is a link that provides access to drinking and driving laws in Arkansas - refusal to test results in a license suspension. And your girlfriend also has to deal with whatever traffic offense she committed that led to the stop.

https://law.justia.com/codes/arkansas/2016/title-5/subtitle-6/chapter-65/

Good luck to her.