Will they drop my DUI Case?

[cyjeff]

the girl was never arrested on her warrant, just given a court date. She was placed in cuffs and then released within 15 mins. So that does not warrant a search as far as I understand.

Then you understand wrong.

The term is "Probable cause" not "definite cause". In other words, a police officer may investigate a crime even though, upon evidence gathering, there wasn't enough evidence to charge someone.

From what I see I could possibly argue the retrieval of these items being invalid. I don't understand, one of you says it's completely legal the other says it's possible that it is arguable in court.

Arguable is not necessarily winnable. People have been arguing that paying income tax is unconstitutional for years.

They don't win either.

And unless you find yourself a real maverick of an attorney, they won't embarrass him/herself in court with this.

Is it arguable that when the sargeant got there and I refused the tests, out of frustration he just goes up to the truck with the windows almost all the way up and says "I smell alcohol" and begins to ransack the truck finding what I am about to mention. I know this because there was nothing in the vehicle that smelled of alcohol. The bottle was clean, the beer was clean, everything closed including the brandy but it was half empty and therefore an open container. If he smelt any alcohol it's out of the pore's of the people drinking. Is it possible his search and seizure is unlawful?

Nope.

Out of the pores of babes is still smelling alcohol. Humans are not bloodhounds and cannot detect the exact source of fumes... hence the search.

However, feel free to trot all of this out in court.

Of course, if the judge laughs in your face and allows the search, the rest of your case is toast.

 

[CdwJava]

the girl was never arrested on her warrant, just given a court date. She was placed in cuffs and then released within 15 mins. So that does not warrant a search as far as I understand.

That is called "an arrest" ... she was arrested and released on a signed promise to appear.

When we arrest someone for a misdemeanor we often have the option of releasing them on a citation (a signed promise to appear in court on the date and time indicated).

From what I see I could possibly argue the retrieval of these items being invalid. I don't understand, one of you says it's completely legal the other says it's possible that it is arguable in court.

It appears to be legal under a couple of different theories. But, no one can predict a judge or an attorney with an astounding argument (and a DA with a case of the stutters) - you might be able to prevail ... who knows?

Is it arguable that when the sargeant got there and I refused the tests, out of frustration he just goes up to the truck with the windows almost all the way up and says "I smell alcohol" and begins to ransack the truck finding what I am about to mention.

You can try to argue anything. But, since DUI does not require the presence of alcohol, the only issues with your arrest are going to be whether you were seen dring, and whether or not they can show that you were impaired.

I know this because there was nothing in the vehicle that smelled of alcohol. The bottle was clean, the beer was clean, everything closed including the brandy but it was half empty and therefore an open container. If he smelt any alcohol it's out of the pore's of the people drinking. Is it possible his search and seizure is unlawful?

Speaking as one who does not drink and who has heard this argument a million times, yes, even "clean" (and empty) beer bottles have an odor. Plus, anyone who has been drinking has a distinctive odor as the alcohol is processing through his pores ... the odors are very distinctive.

It is POSSIBLE that the search was not lawful, and if you were cited for possession of alcohol (open containers or being underage), then you might prevail. As it is, suppressing the observation of the case of beer is not really all that relevant ... unless the cops were stupid and somehow used possession of a case of beer as proof of impairment! if they did that, they need to find a new career.

- Carl

 

[Josiahm1970]

It is POSSIBLE that the search was not lawful, and if you were cited for possession of alcohol (open containers or being underage), then you might prevail. As it is, suppressing the observation of the case of beer is not really all that relevant ... unless the cops were stupid and somehow used possession of a case of beer as proof of impairment! if they did that, they need to find a new career.

That is where I am trying to get at. They said they did not smell anything on me the entire time. I don't know what they used as proof of impairment.

 

[CdwJava]

That is where I am trying to get at. They said they did not smell anything on me the entire time. I don't know what they used as proof of impairment.

You'll find out if it goes to trial.

- carl