The paramdics were called to private property after a girl wrecked on her quad, she was pretty beat up with a couple of broken bones, lacerations, and a hard time breathing. The medics told her the hellicopter was on its way, the girl became more freightened and upset by this, and told them not to call the hellicopter the ambuance would do just fine. The officer or medic got upset and then began to take off the oxygen mask to have her blow into a breathalyzer. She couldnt complete the test due to her breathing, so they called the hellicopter back to the scene. They then transported her to the hospital were they gave her a blood test determining her BAC was above .08% the officers never seen the girl driving the atv. She is over 21 and on private property. Should she have recieved a DUI?
Yes, someone can be convicted for a DUI while riding a quad on private property. Although she has a defense, it would take an attorney to tell her side of the story. In regards to the breath test, usually a "manual trap" is used with the breath machine in cases like hers. The blood can be retested through an independent lab to retest the blood alcohol level and anything else found in the blood. For example, if prescription medication is found in the blood. Have her call me so that she understands all of her defenses and how to best attack a case like hers.
Saving a license from suspension is something a good DUI Attorney can accomplish with the right facts.
More details are needed to answer whether she should have received a DUI. The prosecutor must prove that her blood alcohol level was .08 or greater at the time of driving. When the last drink was consumed and how many drinks were consumed could play a factor in whether her blood alcohol level was rising or falling. How long after the accident the blood was tested can make a big difference in the merits of the case. In fact, if the blood was taken over three hours after the time of driving, the test may be considered unreliable. Better yet, if the length of time between the time of driving and the time of the test can't be established, the prosecution may have some difficulty proving up their case if the blood alcohol level wasn't too high. She should definitely seek legal counsel.
You can be convicted of DUI for driving an ATV with a BAC over .08%, even on private property and even if nobody saw you driving. The prosecution will have to prove that she was driving with circumstantial evidence. If she admitted that she was driving, or the circumstances show that she was, then she can be convicted. If the circumstances are such that it can be argued that she was a passenger instead of a driver, she may have a defense. If her blood test shows a BAC that was only slightly above .08%, there are other defenses that might apply. She will need to discuss this with a lawyer.
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