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Will they drop my DUI Case?

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Josiahm1970

Junior Member
Modesto, California.

I run a stop sign and was speeding 15 over or so, get pulled over. The officer pulls me out of the truck almost immediately, and everyone else as well and sits us on the curb.

I tell him I picked up the 3 occupants from another DUI in a nearby town, where they administered a breathalyzer test on me to be sure I was eligible to take them home. They were all inherently intoxicated.

He administers a test on 2 of the occupants. One girl had a bench warrant for a missed court date and was 20 years old. They did NOT administer a breath test on her NOR me. I told him I did not have anything to drink.

The officer asks for my license and registration and whether or not he can get it out of the glove box, I clearly said in front of everyone and hopefully the camera on the car 'no I would like to get it myself'. He gets flustered and demands me to sit down and goes and gets it out anyway, observing the interior once he opened the doors.

He asked to search the vehicle as he saw a sweater slightly over a box of bud light in the window. I declined respectfully.

They were going to let me go with the stop sign ticket, and in the middle of that they backpedal and decide to administer the breath test. I respectfully decline. He says, "You do not smell like alcohol whatsoever as your friends do". I said I will not take any test, turn around and put my hands behind my back and ask to be taken straight to jail. He calls in the Sargeant, who is all fired up. He goes up to the truck, says he smells alcohol in the truck and opens the doors finding a bottle of alcohol.

He then tells me I will have to take a blood test, one or the other and that I have no choice. I was baffled, I thought I could decline everything with a stiffer penalty, so I ask him to say it clearly, "Sir, are you saying I have no choice whatsoever". He responds "that is correct". As far as I know I do not have to take the blood test. They held me down in the hospital forcefully withdrawing blood.

Still awaiting those results. How can I find out? More importantly, will a good lawyer have a chance of getting this case dropped?
 
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FlyingRon

Senior Member
So what did you end up being charged with?
How old are you?
What was your BAC?

You don't have any right to refuse a blood test. You can refuse the roadside breath test, but they are free to go ahead and arrest you at that point.
 

BigMistakeFl

Senior Member
Refusal?

Why refuse when you've had nothing to drink? If you had nothing to drink, you only harmed yourself by your refusal.

They were all inherently intoxicated.
So, they were born drunk?
(Why should Ron have all the pun?)
 

Josiah87

Junior Member
nothing against you I would just rather not say until the case is closed.

I did not pick up on the sarcasm if you were doing so, so where would I find the statute number. Is it the same as a Penal Code?
 

seniorjudge

Senior Member
nothing against you I would just rather not say until the case is closed.

I did not pick up on the sarcasm if you were doing so, so where would I find the statute number. Is it the same as a Penal Code?
The statute number is on the charging papers; it could very well be "penal code".

We need to know the statute number if you want any kind of intelligent help.
 

Josiahm1970

Junior Member
22450(a)VC - Stop Sign (checked "i" for infraction)
23152(a)VC - DUI (checked "m" for misdemeanor.

Those are the Violations. Thanks in advance. Also, is there a way to obtain a copy of the video footage?
 

CdwJava

Senior Member
I run a stop sign and was speeding 15 over or so, get pulled over. The officer pulls me out of the truck almost immediately, and everyone else as well and sits us on the curb.
Okay.

The odor of alcohol will often cause that reaction.

The officer asks for my license and registration and whether or not he can get it out of the glove box, I clearly said in front of everyone and hopefully the camera on the car 'no I would like to get it myself'. He gets flustered and demands me to sit down and goes and gets it out anyway, observing the interior once he opened the doors.
How do you know the camera was operating? It may have been ... but, it may not have been. Depending on the camera and policy, it might have been shut off unless they felt they were going to conduct FSTs or some such thing.

But, they do not have to let YOU retrieve the item from the car ... I wouldn't. I'd ask where it was and I'd go to get it.

He asked to search the vehicle as he saw a sweater slightly over a box of bud light in the window. I declined respectfully.
And, you have that right ... though, given the discovery of the alcohol, it is possible he could articulate good cause to search further and to look for any open containers. It's not a difficult stretch.

He then tells me I will have to take a blood test, one or the other and that I have no choice. I was baffled, I thought I could decline everything with a stiffer penalty, so I ask him to say it clearly, "Sir, are you saying I have no choice whatsoever". He responds "that is correct". As far as I know I do not have to take the blood test. They held me down in the hospital forcefully withdrawing blood.
If they had probable cause to make the arrest, then you are required by law to submit to a chemical test - breath or blood. If you refuse, they may obtain a blood test against your will. Unfortunately for you, that refusal (no matter the test results) could result in an automatic suspension of your license for a year even if you are never prosecuted for DUI.

Still awaiting those results. How can I find out? More importantly, will a good lawyer have a chance of getting this case dropped?
Your attorney can find out the results in discovery. Your attorney can also seek any reports and video in discovery. A "good attorney" might find a flaw int he case, or, they might just be able to get you a goo deal. A lot will depend on the results of the chemical test. If you were telling the truth, I guess your test will come back at .000 ... but, since you have not said this is your expectation, I strongly suspect that you know it will come back positive to one degree or another. Of course that will damage your credibility at trial if they have you on audio and/or video lying and then coming back with a positive test.

Consult local counsel ASAP.

- Carl
 
did the OP drink on the way home from picking up his friends for DUI? Is that what he is referring to, or did he do drugs? I'm thinking he drank, since he refused a breathalyzer.

LOL!
 

Josiahm1970

Junior Member
Carl, are you certain that he was allowed to grab my insurance and registration, and look in the car while doing so? Why could they not have watched me slowly grab the documents with a flashlight pointed on my hands and inside the box? Is this not unlawful search and seizure?

They insisted I did not smell like alcohol and my story checked out. They were going to let me go but at the last minute I asked them if we could talk about the stop sign ticket while he was asking me to sign it and the partner comes up, "Look, we didn't even test you for alcohol...why don't you come back here" and asked me to finally blow, almost an hour later. That is when they called the sargeant, and he opened the doors after the "hmm, smells like alcohol in the truck...which no other officer must have observed before hand."

"How do you know the camera was operating? It may have been ... but, it may not have been. Depending on the camera and policy, it might have been shut off unless they felt they were going to conduct FSTs or some such thing."

Once they decided they were going to conduct a breath test on the friends shouldn't they have started recording?

"And, you have that right ... though, given the discovery of the alcohol, it is possible he could articulate good cause to search further and to look for any open containers. It's not a difficult stretch."

They never saw any alcohol until the Sargeant arrived and opened the doors.

"If they had probable cause to make the arrest, then you are required by law to submit to a chemical test"

What are you referring to with a "probable cause to make the arrest", is refusing to take an FST or breath test one? Can anyone verify they are allowed to forcefully remove blood? I just want to understand my case more.
 
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seniorjudge

Senior Member
Q: Carl, are you certain that he was allowed to grab my insurance and registration, and look in the car while doing so?

A: Certainly. It's called officer safety.



Q: Why could they not have watched me slowly grab the documents with a flashlight pointed on my hands and inside the box?

A: They could have.



Q: Is this not unlawful search and seizure?

A: No; getting a registration is not unlawful search and seizure. Looking inside your car is plain view and not a violation of the fourth amendment. Google.



Q: Once they decided they were going to conduct a breath test on the friends shouldn't they have started recording?

A: To my knowledge, there is no requirement for this. (Carl should answer that one.)



Q: "And, you have that right ... though, given the discovery of the alcohol, it is possible he could articulate good cause to search further and to look for any open containers. It's not a difficult stretch." They never saw any alcohol until the Sargeant arrived and opened the doors.

A: Plain view.
 

CdwJava

Senior Member
Carl, are you certain that he was allowed to grab my insurance and registration, and look in the car while doing so?
He does not necessarily have to allow you back in the car, and if he does, he is certainly free to accompany you and watch very closely.

And you wouldn't expect him to blindfold himself, would you?

Why could they not have watched me slowly grab the documents with a flashlight pointed on my hands and inside the box? Is this not unlawful search and seizure?
It will be up to a judge to decide, but I strongly suspect that a court will see the officer's retrieving these items as valid. And, of course, the state could argue inevitable discovery ... one person arrested on a warrant (area within lunge of her is subject to arrest), and the likely odor of alcohol emanating from the vehicle might be sufficient to justify a search anyway.

I don't know what they did, but the alcohol possession is NOT what they likely based their presumption of your impairment on.

Once they decided they were going to conduct a breath test on the friends shouldn't they have started recording?
Maybe. If the unit had a camera (and most cars in CA do not), they might have ... you won't know until your attorney seeks this through discovery.

"And, you have that right ... though, given the discovery of the alcohol, it is possible he could articulate good cause to search further and to look for any open containers. It's not a difficult stretch."

They never saw any alcohol until the Sargeant arrived and opened the doors.
But, they had the odor of alcohol and a wanted person in the car. This is sufficient to ask you out, and the area near the person arrested is subject to search ...and, given the "lunge" range in a car, most anywhere in the vehicle would thus have been subject to search.

Of course, you were not cited for possession of alcohol, and possession (if closed containers) is not a crime. You were arrested for DUI ... that means, they felt you were impaired. If they don't cite the case of beer as the reason they suspected you were DUI (and that would be silly since it is not relevant to your impairment) then it will not be all that relevant.

- Carl
 

cyjeff

Senior Member
Maybe they just figured someone blazing through stop signs at 15mph had to be high on something...
 

Josiahm1970

Junior Member
CdwJava;2114451 [B said:
It will be up to a judge to decide[/B], but I strongly suspect that a court will see the officer's retrieving these items as valid. And, of course, the state could argue inevitable discovery ... one person arrested on a warrant (area within lunge of her is subject to arrest), and the likely odor of alcohol emanating from the vehicle might be sufficient to justify a search anyway.
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.

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.

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?
 

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