I had a couple of drinks and got behind the wheel but pulled over when my car started to smell. I was the one that flagged CA hwy patrol for help on foot, when asked if I had been drinking, I said I had drank a cup of vodka. According to the report I was being defensive stating I wouldn't cooperate, pleading the 5th and refusing the sobriety test so I was arrested. I also refused the chemical test at the station stating I needed a lawyer and spent the night in jail. No BAC was ever recorded. I did say I had been driving and my passenger did tell the cops I had been drinking too but never asked around what time we had drank. I had my arraignment where they want to give me 2 more days of jail time. I know implied consent applies but can't I just get a reg DUI fine? My PD did nothing for me
You may want to hire a private attorney. The issue is the refusal. Since you refused the chemical test after you were arrested there are enhances penalties. The CHP officer if they did their job correctly should have read to you the consequences of a refusal. Many times that can be worked out with the DA but it is a fight. Also if you were not successful in the DMV action you will lose your license for a year.
My colleagues are correct - you need an attorney on this. The problem is a refusal to take a chemical test is treated as essentially an admission you are DUI. This is a non-testimonial crime in the sense that the results of a chemical test speaks for itself. Your BAC has no independent right to remain silent and no Miranda warning is required before a chemical test.
That is why you are looking at extra jail time. Plus your admission to driving and the fact you were, I presume, by your car when you flagged down CHP, places you behind the wheel circumstantially within a short time prior to the contact with CHP.
There are thus a variety of issues to be addressed. Call me if you would like my assistance. (213) 324-4206.
In Florida, corpus delecti must be established prior to any admissions. That means that either the officer saw you drive, or you were in an accident, and police can establish your driving through that means. Otherwise, a misdemeanor crime must occur in the officer's presence.
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