Noe enough facts to answer. Obtian a defense lawyer ASAP. They can prove the charge in other ways such as BAC tests, under cerrtain conditions. And you may have defenses. Good luck.
Any response given is not to be taken as legal advice or to create an attorney client relationship.
Sorry to hear about your injuries, and I hope that your prognosis is good. As for the DUI, the fact that somebody else hit you does not absolve you of the charges. However, the circumstances under which the cop questioned you and then arrested you are unusual. I'd suggest hiring a local DUI attorney. Good luck.
You can be charged. The real question is can you be convicted? You need to consult with an experienced DWI attorney to go over all of the evidence as well as possible defenses. Good luck.
First, this is the greatest post I have ever seen on avvo. Second, neither blow is going to be admissible in court. They have to use an ECIR/II or take your blood. Portable blowing doesn't count.
The information provided by Attorney Matthew V. Silva is based upon the generic and ambiguous facts presented in short questions. Without a full consultation with an attorney, you should not rely upon any information presented in this forum. The intricate facts of every case are different. The information provided is not legal advice and should not be the basis of any decision without the actual guidance of an attorney. Further, any information provided by Attorney Matthew V. Silva should not be perceived as a willingness to represent you or actual representation. If you would like to speak with Attorney Matthew V. Silva, please call Silva and Sweet, PLLC at 910-333-9833 or visit www.silvaandsweet.com.
If you've been given a citation, you have been charged with DWI. Whether you can be convicted based on the evidence the officer gathered and whether it is admitted at trial is now your primary concern.
An officer can attempt to gather evidence while at the hospital. The portable breath test he had you blow into is not admissible at trial to prove your actual Blood Alcohol Content, but it may be admissible to indicate that your breath was "positive" or "negative" for alcohol. Since he charged you, the officer will likely testify that he administered the PBT and you tested "positive" for alcohol. That alone is not enough to prove the per se requirement of having a BAC of .08 or greater, but it may be enough to convince a judge or jury that you were "appreciably impaired" under the statute.
Since you were in the hospital, it is likely that the hospital drew blood at some point. The State may seek to obtain that blood from the hospital. The officer might also have requested a blood draw from which he intends to gather evidence of your per se impairment. Someone will ultimately have to analyze that blood and test it and results of your BAC should be available. You have a right to confront witnesses against you under the 6th Amendment. There is favorable caselaw that says you have a right to have the analyst present to testify at trial. Talk to an attorney in your area about these rights and determine the best way for you to prevail.
There are several issues that require thorough and detailed analysis in your case. You need to speak to an experienced DWI attorney in your area and make sure all the issues have been considered. Blood cases are highly complex. The consequences of a DWI can be severe. Seek qualified assistance.
Best of luck to you in your case and in your recovery.
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