DUI with bac .05, took .25 mg Xanax 24 hrs earlier

[Raleigh]

My question involves criminal law for the state of: Oregon

Here are the basic facts of my situation:
Left a bar alone at approx. 1:30AM on Sunday night and noticed a police officer in the parking lot. Police officer followed me approx 1 mile and then pulled me over. Thinking I had violated no traffic laws, I was incredulous at being pulled over and demanded to know why I was being pulled over when the officer came to the driver side window. His answer: a broken headlight. I did not believe him and asked to see the light. Officer took license and registration and said he would show me the broken light after her ran my info. He came back and showed me the front right light was out. Really surprised me since I had just had all my lights checked at an oil place a week or so before.
While I was out of the car, the officer asked if I had been drinking that night (he followed me from a bar). I answered yes- had 4 drinks over the course of 3 hours. Did the FSTs and I noted some physical issues during them- I had a sore leg from running and one of my eyes has been diagnosed as lazy by optimologist (I wear contacts) I also am approx 30-40 pounds overweight at 6' 230. Also noted that I took a prescription Xanax (.25mg, lowest dose) 24 hrs earlier due to a panic attack and was taking a prescribed antibiotic). Thought I did ok on FSTs but seemed to spend a lot of time on HGT. Was told to put hands on car and that I was under arrest! I was most worried about my car being towed at that point since I knew I was under limit. Asked to blow right then and there but Oregon does not have car breathalizers. Was cooperative but very very upset. Arrested approx 1:47.

At station, took breathalizer at 2am and blew a .05. Wanted to leave but was still being held at station. Officer asked if would consent to DRE. I wasn't sure what to do but figured all physical evidence could get would be in my favor since I finally consented. DRE did all tests and kept trying to get me to say I had taken something in addition to what I had told officer. I hadn't. At end of exam, while taking urine sample, DRE said do not tamper with result or would be charged for felony not misdemeanor. I was shocked! Asked what part of DRE failed! Said I failed body temp (my temp was .5 degree high), blood pressure (had been to Dr Friday and had high blood pressure then + under stress!) and pupils in darkroom. That's it. Nothing with balance coordination tests etc. DRE also said during exam that taking Xanax 24 hrs prior would not cause impairment.
Officer and DRE were talking together while I was in cell seeming to help each other fill out report and confirm facts. I tried to eavesdrop but couldn't. Didn't seem right at all to me.


My arraignment is 3/1 but haven't seen police report. Not available yet.

I completed diversion for DUI in 2002 and am no longer eligible. I will fight this to bitter end because I am actually innocent vs my acknowledged guilt in 2002 but am wondering what I should be doing at this point before arraignment. Haven't been able to sleep for 4 days worrying about this.

 

[CdwJava]

Here are the basic facts of my situation:
Left a bar alone at approx. 1:30AM on Sunday night and noticed a police officer in the parking lot. Police officer followed me approx 1 mile and then pulled me over. Thinking I had violated no traffic laws, I was incredulous at being pulled over and demanded to know why I was being pulled over when the officer came to the driver side window. His answer: a broken headlight. I did not believe him and asked to see the light. Officer took license and registration and said he would show me the broken light after her ran my info. He came back and showed me the front right light was out. Really surprised me since I had just had all my lights checked at an oil place a week or so before.

So, the stop was valid.

Thought I did ok on FSTs but seemed to spend a lot of time on HGT.

What is the HGT? Are you referring to the Horizontal Gaze Nystagmus test?

At station, took breathalizer at 2am and blew a .05. Wanted to leave but was still being held at station. Officer asked if would consent to DRE. I wasn't sure what to do but figured all physical evidence could get would be in my favor since I finally consented. DRE did all tests and kept trying to get me to say I had taken something in addition to what I had told officer. I hadn't. At end of exam, while taking urine sample, DRE said do not tamper with result or would be charged for felony not misdemeanor. I was shocked! Asked what part of DRE failed! Said I failed body temp (my temp was .5 degree high), blood pressure (had been to Dr Friday and had high blood pressure then + under stress!) and pupils in darkroom. That's it. Nothing with balance coordination tests etc. DRE also said during exam that taking Xanax 24 hrs prior would not cause impairment.

An arrest is based upon probable cause and not absolute certainty. If the DRE observed objective signs of your being under the influence of a controlled substance consistent with a CNS depressant, then he can make the arrest. He does not have to show that you are tripping, only that you are under the influence.

If the chemical test comes back positive for benzodiazepines then chances are you will be looking at making a plea deal for, at least, being under the influence of a controlled substance if not for DUI. I am not sure what the status of the law is in your state, but one can be under the influence of a controlled substance here and still not necessarily be guilty of DUI.

What is the evidence of impairment? I'd love to know.

In general? For a CNS depressant? The presence of HGN and, usually, VGN ... a lack of convergence of the eyes ... slow pupil reaction to light ... lowered pulse rate ... lowered pulse rate, though the alcohol might boost it back to normal or higher ... lowered blood pressure ... normal body temperature.

Given the fact that the officer appeared to claim that your temp and BP were high, I'd say he was assuming something other than a CNS depressant (under which Xanax would fall). If the text comes back positive for benzos, then your attorney might have a decent defense case ... maybe.

I have researched the side effects and there is nothing concerning pupils.

Your pupils would be normal size, but they will react slowly to changes in light conditions.

 

[Raleigh]

*Update*

Arraignment was today and the state has not filed a criminal complaint.
Not 100% out of the woods yet (could possibly be filed up to 1 year later) but relieved that the justice system appears to be more rational than the arresting officer was.

 

[tranquility]

While I don't know anything about procedure in Oregon, around these parts that is not a sign which is either good or bad as to if there will be charges. The first date on the citation is not always, in some places often, determinative.

However, you should get an attorney. With a stop based only on a bad headlight and no driving deficiency (We'll see with the police report.), a below per se BAC is certainly arguable. The co-drug complexity is problematic, but that's what an attorney is for.

 

[Raleigh]

Actually, I do happen to be an attorney licensed in Oregon and I did consult with two other highly experienced DUI attorneys prior to my arrest. As I said, I'm not 100% past this with the no complaint but I certainly feel a ton better about the chances of nothing resulting from this than I did a few weeks ago. Still haven't seen the police report but not about to poke the sleeping bear and request it (per my advice from counsel).

 

[Raleigh]

To further add, arraignment was one month after arrest (a fair chunk of time) and Courtroom was full of DUI cases and only 2 no complaints there of the bunch. Attorney said would usually file charges and then drop later if were just waiting on something like urine test to come back.

 

[ElvinMelvin]

Actually, I do happen to be an attorney licensed in Oregon and I did consult with two other highly experienced DUI attorneys prior to my arrest.

So what do you expect any of us to add?

 

[Raleigh]

So what do you expect any of us to add?

I wasn't expecting you to add anything. Was merely giving an update on how my situation has resolved itself which i thought might be helpful to someone going through a similar situation. I never see how others' matters are resolved.

 

[CdwJava]

We do appreciate the updates as it does tend to provide information on how a particular issue was resolved or complicated.

Thanks for the updates.