Can i get charged with a DUI Minor and have no sobriety test at all? No Police report from the officer in 6 months either

Asked almost 2 years ago - San Marcos, TX

I was pulled over on July 4, 2012 for my country music being "too loud" while I left Sonic drive in passing two squad cars that had another poor soul pulled over. Immediately the officer asked me to step out of the car and asked if I was intoxicated? I replied honestly "no" (this is around 11 p.m., I did however have A SINGLE BEER with my lunch that day around 1p.m.) and he started to threaten me about an arrest going to happen and taking me to the station for blood testing!! I guess he got what he wanted and I told him about the beer and he wrote me the ticket. No handcuffs, just a phone call to my girlfriend to come pick me up. Also the officer has STILL NOT FILLED HIS REPORT! I have had to reschedule 3 times because of this! What do I do? My original attorney did nothing so I let him go

Additional information

I turned 21 in September of 2012. I was in the process of enlisting in Army, something I will do because I'm determined to serve, and this has totally screwed me over. Almost 7 months now and they keep re-scheduling my court appearance, makes me almost start to wonder why should I want to risk my own life to serve my country if they can't even serve me my right to a fair and speedy trail regardless of conviction or not.

Attorney answers (5)

  1. Cynthia Russell Henley

    Contributor Level 20

    15

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    Answered . Your attorney can do nothing until the charges / report is filed by the officer. No one can "make" him file it.

    You have no right to any tests for the charge of DUI. The law in Texas is ZERO tolerance for any person under 21 to have any alcohol in them and drive.

    If you told the officer what you said here (with the time, etc.), then he was probably messing with you and has no intention of filing the charge, and it might simply go away. Otherwise, it does not sound like they can make the case. (The officer will have to testify that he smelled alcohol on your breath to even try to have a case.) But, if the charge is filed, you do need a lawyer.

    Cynthia Henley
    713-222-1220

  2. Martin Ben Zimmerman

    Contributor Level 11

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    Best Answer
    chosen by asker

    Answered . Ms. Henley is correct, you CANNOT force the officer to file a report. The reason for this is the only penalty for the lack of a report is that the officer must testify that the report, if any, has been lost and he has no independent verification of the facts because he failed to preserve the evidence.

    As for resetting your case. Who is making the motion for continuance? The prosecutor or your attorney? If the prosecutor, the next time you are present for court, you need to have your lawyer object to the prosecutor's request and demand a speedy trial. Usually the judge will bend over backwards to let the prosecutor find the evidence to prove his or her case IF it really exists. However if the evidence has been lost due the officer's failure to follow correct procedure, the State can only request a reasonable opportunity to recover the evidence, otherwise the case must be dismissed.

    The key question is how much is a reasonable period of time. The criminal offense of DUI-Minor Under Age 21 is found at Section 106.041, Texas Alcohol Beverage Code and is classified as a Class C Misdemeanor. This means that maximum criminal sanction is a $500.00 fine. Under Article 12.02(b), Texas Code of Criminal Procedure the statute of limitation for a Class C Misdemeanor is 2 years from the date of the offense. Therefore the prosecutor can legally take up to 2 years to produce the offense report. Now there maybe some other avenues we could consider.
    My office is in New Braunfels, but I regularly practice in Hays County and have a well known reputation among both Hays County judges and prosecutors for not putting up with petty bull crap. Call my office at 830-606-7886 to schedule a free consultation.

    Martin Zimmerman

    Martin Zimmerman, P.C. 189 E. San Antonio St. P.O. Box 310704 New Braunfels, Texas 78131-0704 Tel: (830) 606-... more
  3. Macy Michelle Jaggers

    Pro

    Contributor Level 20

    11

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    Answered . DUI is any detectable amount of alcohol. That means odor of alcohol, admission of drinking, etc. The officer doesn't have to do a breath or blood test or field sobriety tests. It's a completely different standard than a DWI.

    Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers... more
  4. Carmine John Giardino

    Contributor Level 14

    9

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    Answered . Not filed the report or not filed the ticket? There's a huge difference between the two and this information from you is needed to answer your question.

    If this answer was helpful to you or if it was the best answer, please click the buttons that state helpful and... more
  5. Stephen A. Gustitis

    Contributor Level 13

    9

    Lawyers agree

    Answered . Hire a new attorney. Your lawyer will be in the best position to advise you. They can investigate the case and discuss your options. Be thankful the police officer has not written his report yet. That may work to your benefit. Retain your lawyer, allow them to work the case, and be patient.

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