False Satements by Police made Fighting a DUI too complex and expensive

[Jdosch]

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

Last July I was stopped by the local police. There was no erratic driving, checkpoint or other observation made by police for the stop. The police were looking for a Hit Skip in a vehicle similar to mine.

The officer can be heard on the Video saying He didn't believe I was involved in the Hit Skip. (Later inspection of my front bumper showed no evidence of even a minor collision.) Immediately I was questioned about consuming alcohol.

Earlier in the day I had met a friend for a few beers and chicken wings. The amount and the time that had passed should have kept me well below .08.

I was never asked to do a FST, or breath Test. It was raining and I had just left a store, tripped in the parking lot and busted my head, so I was transported to the E.R. and blood was drawn for testing.

I hired an attorney and waited 3 months and 3 continuances before county prosecuters handed over discover.

Blood test was .207 and the Police report included False information including details of a FST that I "Performed Poorly on" The audio in the video is evidence no FST was done. Also in the police report my vehicle is noted as having a Damaged front Bumper. I was never cited for hit and run, just given the OVI citation. Never arrested Nor read Miranda . At my last court date, A suppression hearing, I was offered minimums if I plead guilty. I reluctantly took the deal. I just could not afford to fight the case.

My attorney could not see any flaws in the blood test but if a Police officer could fill a report with lies to get a Slam Dunk conviction I wouldn't put it past him to tamper with the samples he had in his care custody and control.

My question is: Since the false information in the police report can be proven False using the traffic stop video, do I have a Civil case against the officer, Police Dept and City for damages? I lost a Job, health insurance and retirement because of this and my guilty plea was due in part to seeing what dishonesty I was against. I still have the option of withdrawling my plea if the judge permits, but going to trial and loosing could lead to a much stiffer penalty. Would be worth it to see the Police squirm on the stand trying to explain why he flat out lied.

 

[OHRoadwarrior]

Mention of bumper damage is not grounds for a lawsuit.

 

[Jdosch]

Mention of bumper damage is not grounds for a lawsuit.

I am more concerned with the Field Sobriety Test Comments. In the video you can clearly hear the police officer state he was not going to ask me to do a FST. yet in the police report he writes: .... motioned for _____ to walk to a clear flat surface in the lot and walk along a painted line. Subject stumbled and was unsteady on his feet. subject performed poorly on FST...... This is total fiction.

 

[Proserpina]

I am more concerned with the Field Sobriety Test Comments. In the video you can clearly hear the police officer state he was not going to ask me to do a FST. yet in the police report he writes: .... motioned for _____ to walk to a clear flat surface in the lot and walk along a painted line. Subject stumbled and was unsteady on his feet. subject performed poorly on FST...... This is total fiction.

What is it you think you'll accomplish?

Taking the officer to court won't change the fact that you were WELL over the per se limit.

 

[CdwJava]

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

Last July I was stopped by the local police. There was no erratic driving, checkpoint or other observation made by police for the stop. The police were looking for a Hit Skip in a vehicle similar to mine.

The officer can be heard on the Video saying He didn't believe I was involved in the Hit Skip. (Later inspection of my front bumper showed no evidence of even a minor collision.) Immediately I was questioned about consuming alcohol.

Then that makes the contact (arguably) lawful. As a result of that contact it appears the officer developed reasonable suspicion to believe you might be driving while impaired (likely as a result of the odor of alcohol emanating from you).

Earlier in the day I had met a friend for a few beers and chicken wings. The amount and the time that had passed should have kept me well below .08.

Just for grins and giggles, how many beers are we talking, what size were they, and over what period of time?

I was never asked to do a FST, or breath Test. It was raining and I had just left a store, tripped in the parking lot and busted my head, so I was transported to the E.R. and blood was drawn for testing.

So, you were driving with a head wound when the officer contacted you? Combine that with the odor of alcohol and you've got some pretty strong reasonable suspicion to investigate further.

Blood test was .207

Obviously your assumption on the alcohol and time frame were a tad off.

and the Police report included False information including details of a FST that I "Performed Poorly on"

They did not ask you to perform any of the tests mentioned in the report? That's odd, but, if true, then it's heinous and I hope that this lie can be proven.

What tests do they state they gave?

Also in the police report my vehicle is noted as having a Damaged front Bumper. I was never cited for hit and run, just given the OVI citation.

They don't have to cite you for hit and run to arrest you for DUI.

Never arrested Nor read Miranda .

If you were not arrested, then Miranda does not generally apply.

At my last court date, A suppression hearing, I was offered minimums if I plead guilty. I reluctantly took the deal. I just could not afford to fight the case.

Ouch! Well, that sort of puts and end to things, then.

My attorney could not see any flaws in the blood test but if a Police officer could fill a report with lies to get a Slam Dunk conviction I wouldn't put it past him to tamper with the samples he had in his care custody and control.

It is outside of the ability of a patrol officer to contaminate the blood sample without some very serious, specific knowledge, and likely the complicity of medical staff. What motivation would the officer have to do this? Why would he risk losing his career and federal prison just to try and boost your BAC for a misdemeanor offense?

My question is: Since the false information in the police report can be proven False using the traffic stop video, do I have a Civil case against the officer, Police Dept and City for damages?

Uh ... maybe. But, it's going to be uphill since you pled guilty to driving DUI. Your damages are as a result of your guilty plea. You could have fought this at trial.

You can certainly consult an attorney and ask what the chances are.

 

[dave33]

Jdosch, The police are very good at not getting backed into a corner or making statements in absolutes. You will never get one to "squirm" on the stand. This may not be a worthy battle.

 

[justalayman]

I lost a Job, health insurance and retirement because of this and my guilty plea was due in part to seeing what dishonesty I was against.

Yes, I can see you being upset because you lost a job, health insurance, and retirement. Remember that next time you consider driving drunk, especially at a .207. Dang, that's 2 1/2 times the legal limit.

The amount and the time that had passed should have kept me well below .08.

I'm guess there was an error in your calculations. It was probably due to you being so drunk you didn't remember some of the drinks you had.


and to suggest he tampered with the test somehow; really? on a blood test? any idea how accurate he would have to be in adulterating the sample so it did't come across so high only dead people test that high?

and if your lawyer hasn't walked up to you and said:

no problem dude. The cops screwed up big time on this and there will be no problem suppressing the test results or the stop itself,

well, I guess that ain't happening since you already had the suppression hearing and here you are.

 

[dave33]

Yes, I can see you being upset because you lost a job, health insurance, and retirement. Remember that next time you consider driving drunk, especially at a .207. Dang, that's 2 1/2 times the legal limit.

I'm guess there was an error in your calculations. It was probably due to you being so drunk you didn't remember some of the drinks you had.


and to suggest he tampered with the test somehow; really? on a blood test? any idea how accurate he would have to be in adulterating the sample so it did't come across so high only dead people test that high?

and if your lawyer hasn't walked up to you and said:

no problem dude. The cops screwed up big time on this and there will be no problem suppressing the test results or the stop itself,

well, I guess that ain't happening since you already had the suppression hearing and here you are.

Yup,You pretty much said everything there is to be said.

 

[Ohiogal]

So a warrant was obtained for the blood test for alcohol? Or you consented? Not that it matters because you took the plea.

 

[Jdosch]

Thanks for the advice to everyone that gave advice, hence the name "Advice Forum"

For the record I had 3 pints (Glasses) of beer with a meal. This was consumed during one hour and 15 minutes. After leaving the restaurant I stopped at two stores and when I was stopped 2 hours had passed since I left the restaurant. I weight 230 lbs. The receipt from the restaurant, the person I was with as well as the server can confirm my consumption. I calculated that to have a BAC of .207 I would have needed to drink nearly 300 oz of beer.

I was stopped because someone reported seeing a Hit and Run.

The officer can be heard on the video saying, " I don't think you hit another car" He goes on to point out that there is NO DAMAGE to the front of my vehicle. The police report contradicts this by describing SUBSTANTIAL DAMAGE to the front of my vehicle.

A witness statement gives the name and address of an individual who states "He witnessed me hitting a car then leaving the scene....." The address of the witness was googled and belongs to the towing company that towed my vehicle from the scene. The witness has an unusual name and I just found out last night the witness is a two truck driver for the company that towed my vehicle after I was stopped.

Blood test be damned I have advised my attorney to change my plea and wrote him another check. This whole case Stinks and if I come out ahead on this me next move is to dish out a few civil suits for damages.

 

[FlyingRon]

Your calculations are way off. It only takes someone of your weight about 130 ounces to hit .20 That's a bit over 6 pints (and that's presuming the american mass-produced fizz water), some beers have higher alcohol %.

While you can challenge the reasonable suspicion for the stop, all he needs is reasonable suspicion and given a witness statement (even if the witness was trolling for a tow) the officer would have all he needs to stop you. From then on, the fact you had been drinking ANYTHING more than likely gave him enough PC to compel the chemical test. You're not going to beat the chemical test on your allegations you hadn't had that much to drink.

Perhaps a lawyer can spot holes in it, but going pro se, you're going to be found guilty.

 

[TigerD]

It is outside of the ability of a patrol officer to contaminate the blood sample without some very serious, specific knowledge, and likely the complicity of medical staff. What motivation would the officer have to do this? Why would he risk losing his career and federal prison just to try and boost your BAC for a misdemeanor offense?

Yup. It is very unlikely that a police office would intentional contaminate a sample -- especially when the OP said the sample was drawn at the hospital. However, that doesn't mean the sample was clean. How did the nurse collect the sample? Was the needle entry point washed with iodine or alcohol? How long was the kept prior to testing? Was it kept refrigerated? What are the qualifications of the tech conducting the test with the gas chromatograph? Maintenance records for the gas chromatograph? Was the gas chromotograph properly calibrated with a NIST verified sample? Did the tech run blanks and known confirmation samples in the batch to verify continued accuracy?

And finally - if you were not under arrest at the time the police transported you to the hospital, did they get a warrant for your blood sample? I assume Ohio has some form of implied consent -- did they read that to you after arrest (and before the blood test)?

For gods sake - get a different attorney. Contact your state bar for a referral, NACDL, or the National College for DWI Defense (NCDD.com).

DC

 

[betachains]

This has been mentioned on previous threads, but I wonder about the accuracy of the BAC calculation charts (which are sent out with all drivers' licenses here in CA). My brief Googling can't find the study population on which they are based. If (as I suspect) they are young healthy volunteers in a controlled setting , then the results may be different for middle-aged, out-of-shape drinkers at a bar or restaurant. Also, there is no indication of variance in these charts. What if the average BAC is calculated to be 0.1, but the 95% confidence level is 0.02 to 0.20 ?

I think many people are misled by these charts, and end up surprised by DUI's.

 

[quincy]

This has been mentioned on previous threads, but I wonder about the accuracy of the BAC calculation charts (which are sent out with all drivers' licenses here in CA). My brief Googling can't find the study population on which they are based. If (as I suspect) they are young healthy volunteers in a controlled setting , then the results may be different for middle-aged, out-of-shape drinkers at a bar or restaurant. Also, there is no indication of variance in these charts. What if the average BAC is calculated to be 0.1, but the 95% confidence level is 0.02 to 0.20 ?

I think many people are misled by these charts, and end up surprised by DUI's.

There have been a couple of studies done recently that anyone charged with an alcohol offense supported by a high BAC may want to consider.

In October, the National Alcohol Beverage Control Association issued a report on the potency of drinks served in bars and restaurants, and another study in Michigan was based on the actual amount of alcohol being served when ordering a drink in a bar or restaurant.

The Michigan study showed that, when ordering a drink in a bar or restaurant, you will often be served far less alcohol than you are paying for. A pint of beer, for example, is often less than a pint.

On a bit of the flip side, the NABCA report issued in October ("The Blurring of Alcohol Categories," www.nabca.org) indicated that, even if ounces served may be less than what you ordered and expect, the alcohol content in each drink stands to be greater. The alcohol content in your blood may be at a level greater than what you believe it could be after consuming one or two drinks, due to the increased potency of the alcohol in each drink.

If you are arrested and charged with an alcohol offense, therefore, and the BAC results upon which the charges are based seem high, it can be worthwhile to investigate not only the amount of alcohol you were served at the bar or restaurant (did your pint actually equal a pint?) but also the potency of the drink served (the alcohol content in each serving).

If the BAC still seems out-of-whack when considering size and potency of each drink, then it is smart to investigate the hospital procedures when testing the blood (as DC suggests). And hospital testing procedures should be part of any thorough investigation on charges which are dependent on BAC levels, anyway.