Can I fight this DUI or at the least have it dropped to a wet and reckless?

Asked almost 2 years ago - Concord, CA

A friend of mine was in a fight at the bar I drove her there and I was to take her back to my house. The police officer at the scene told me to take her home now or he was going to take her to jail. I left and on my way home which is no more that 3/4 of a mile from the bar I was pulled over and given a DUI I blew .14 at the scene and I passed all sobriety tests I was then taken to the station where i blew .13. Later my public defender tells me that the officer is known for fabricating reports and he said that my headlights were off (they are automatic) I was swerving between lanes (while merging) and that I was going 49 mph in a 40 mph zone. I would like to have this dropped to a wet and reckless does it mean anything that an officer asked me to leave the bar that night do I have a chance?

Additional information

We were together at the bar. It was when we were leaving that she decided to get into a fight this was when the officer told me to take her home right now or he would arrest her. I understand that this was ultimately my decision to get behind the wheel.

Attorney answers (7)

  1. William Mark Weinberg

    Contributor Level 13

    17

    Lawyers agree

    1

    Answered . Your only viable defense would be entrapment, assuming you could prove the cop knew you'd been drinking. But it sounds like you drove drunk to get your friend and then were arrested on the way home. You could argue necessity as well but I think you may have an uphill battle. It's up to you to decide whether you should operate a car, not the police.

  2. Jacqueline Belen Goodman

    Pro

    Contributor Level 9

    15

    Lawyers agree

    1

    Answered . Mr. Weinberg is an excellent lawyer, and of you get 10 lawyers in a room, we'll have 10 different points of view, most if not all of which are valid. My take in this is different.

    A defense to drunk driving exists where the driving is done in response to an official order or show of police authority. This in a sense negates the willfull and unlawful elements of the crime. Much is contained in the phrasing of the question -- or in a lawyer's phrasing of the issue. So a cup-half-full spin would view this an order to you to drive the person home or away from the officer. I don't suggest that if tested at trial that such a theory would in fact prevaill. However most o our defenses involve the lawyer's ability to articulate a coloranle argument in a way sufficient to instill in the prosecutor enough of a doubt as to the strength of his own case such that a favorable disposition could be reached. It's a little like poker. The question- whether you can obtain a reduced charge-- must be answered in the affirmative. Not only for the reason we're discussing, but because of other potential issues ywe aren't even aware of at this time. It is, however, never a certainty.

    Please excuse typos. Im on an IPhone.

  3. Douglas Holbrook

    Contributor Level 17

    13

    Lawyers agree

    1

    Answered . Your situation does raise possible issues. I would agree that there may be the basis of an entrapment or necessity defense here. You could also argue that you were acting under the color of authority of the officer. However, each of these defenses would be somewhat iffy and not particularly easy to present.

  4. Ross Benjamin Green

    Contributor Level 7

    13

    Lawyers agree

    1

    Answered . All of the above lawyers came up with some good ideas. I have a few additional thoughts. If the officer involved is known to fabricate reports, then you can potentially get incriminating information on the Officer through a Pitchess motion. Additionally, since the Officer gave you an order, there is law related to estoppel which may prohibit the prosecution from then prosecuting you. It is obscure but I've seen it attempted a few times.

  5. Chris J Feasel

    Contributor Level 17

    13

    Lawyers agree

    Answered . Can you? Absolutly. Whether the DA agrees to a wet reckless, well that's up to them. Getting an experienced attorney is absolutly crucial. If you are dissatisfied with your PD, you can always hire a private attorney.

    Mr. Feasel is a former prosecutor in San Mateo County (CA) with over 10 years of criminal law experience. Nothing... more
  6. Amber H Lunsford

    Contributor Level 12

    10

    Lawyers agree

    Answered . I suggest talking to an attorney in person before making any decisions. If you feel that your public defender is not advising you well, you may want to think about private counsel.

    There are many defenses to DUI. What the information above suggests is that there may be a challenge to the officer's probable cause to believe you wee driving under the influence. Please note that I didn't say there definitely was, just that. These determinations are very fact specific and absent a conversation with you and a read of the police reports, it is impossible to determine for sure.

    As far as a wet and reckless is concerned: be careful here. I see a lot of people ask for these or plead to them because it means lesser punishment, but a wet and reckless is the same as a DUI for purposes of priorability, meaning if you get another DUI within the next ten years, the wet you are asking for now will be used to increase the penalty in that future case. Each conviction for DUI increases the penalty for the next during a ten year period and a fourth DUI in that time is a felony. In addition, if you are in an accident after having plead to a DUI or a wet, are found to have alcohol in your system, and that person dies as a result of injury, you can be charged with murder rather than manslaughter. A "wet" is much more serious than people assume. It is also a well-known lesser that will still impact your ability to get car insurance. Be careful. Think through the big picture. Remember how long ten years can be. And then make your decision. However, with a .13/.14 having a wet on the table at all is a very big reach and not likely to happen.

  7. Kasie Waiyee Lee

    Contributor Level 6

    3

    Lawyers agree

    1

    Answered . Thanks for laying out the fact pattern so clearly. I don't think a defense of entrapment would work in this case, because entrapment requires that the officer behaved in such a way to coerce an otherwise law-abiding citizen to engage in criminal behavior, which is differentiated from creating an opportunity for an individual to commit a crime. See here: http://www.justia.com/criminal/docs/calcrim/340.... In your situation, a normal law-abiding citizen would have said, "I cannot drive; I am drunk," and called a cab or chosen some other legal path.

    That is not to say that the officer's actions are not mitigating. It may help in negotiation. As an officer, he should be trained to be able to determine if someone is under the influence. And if he saw that you were and told you to drive anyway, that's pretty poor conduct on his part.

    There are lots of things to work with in your case, such as filing a Pitchess motion to go into the officer's record to see if he has a history of dishonesty and lying in his arrest reports. That would go to the detention issue. If he had no reason to stop you in the first place, everything else would be "fruit of the poisonous tree" and inadmissible in court. Your lawyer would also have to check the calibration records of the machine used, etc. etc.

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