I got my first DWI in April of 2008. I got my second in August of 2010 - my BAC was .23, and I was finally charged in January of 2011. I was on probation when I was arrested, but finished probation January 5th. They did not charge me until January 19th - 5 months after my arrest- and after my probation was finished. Will they likely charge me with a probation violation? My court summons did not mention any probation violation charges. Probation violation aside - what am I looking at as far as sentencing? Am I eligible for a SCRAM bracelet? What costs are involved with that?
Thank you for the e-mail.
If you had a Blood Alcohol Content over .20, or if you have a second DWI within 10 years of a first, you were charged with a third degree offense. This is very serious and carries with it maximum criminal penalties of one year in jail and a $3000 fine. If convicted there are also mandatory minimum penalties of $1000 and 30 days in jail. Different Judges give different sentences. As a result, understanding your Judge and knowing how to change Judge's can be an important part of the process.
There is also a civil case that results in the revocation of your driver's license. On a third degree offense, you may be revoked for up to six months. This is a separate case even though the challenges are largely the same. In order to challenge you license revocation, you must seek a judicial review by filing a petition within 30 days of the offense.
There are many challenges to a DWI. Officers must follow very specific steps as part of the arrest. If any one step is missing, the case may be dismissed.
Even more compelling, on April 30, 2009, the Minnesota Supreme Court issued a decision related computerized source codes of breath testing devices that has added a new facet to the DWI defense attorney's ability to seek a dismissal of DWI charges by suppressing any breath test results.
Other points of a defense anaylsis include:
· Reasonable Suspicion. The officer must have reasonable suspicion to believe a specific crime has been committed in order to stop a person. If that reasonable suspicion is lacking the stop and the ticket may be invalid;
· Probable Cause to arrest and charge. The officer must make sufficient observations to form a basis for probable cause to believe that you were operating a vehicle while intoxicated. Oftentimes, officers perform field sobriety tests incorrectly making the arrest invalid;
· Procedures at the Station. The officer must follow very specific procedures at the station including reading and recording an Implied Consent Advisory that informs you that you have a right to a lawyer. If any of the steps are omitted, the charges may be dismissed;
· Test Procedures. Testing methods to determine blood alcohol concentrations are imperfect at best. Like any scientific method, any test result has a margin of error. If the machinery is not properly maintained and even if it is properly maintained, the test results may vary from true Blood Alcohol Concentration. A sufficient variation may result in a reduce charge or no charge.
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As the previous poster said, it matters where this is. You should expect that penalties increase with each DWI. As a result, fees of lawyers increase with each DWI. You should contact an attorney in your area using NCDD.com. These lawyers are dedicated to DWI defense, and they stay current on all the latest defenses. Accordingly, they will be in the best position to minimize the punishment in this case.
DUI laws vary and I am not sure which State you are in. In Washington State where I practice, the mandatory minimum sentence for a second DUI in 7 years with a BAC over .15 is:
45 days in jail, followed by 90 days of electronic home monitoring, $1121.00 fine, 2-3 year license suspension, Ignition Interlock Device for 5 years, SR-22 insurance, alcohol evaluation + follow up, DUI Victim’s Panel and 5 years of probation.
Prosecutors are typically tough negotiators for repeat offenders, especially with such a high BAC, but that doesn’t mean legal defenses do not exist in your case. You should definitely speak with a DUI attorney that practices in your jurisdiction. In Washington we have a program called deferred prosecution, which is sometimes a good way for a person in your position to resolve their case. It involves undergoing two years of treatment, but it eliminates the jail requirement.
As far as your question regarding probation, if your probation ended, then the court cannot punish you for a probation violation, regardless of the timing of the offense. I highly recommend you consult an attorney to discuss your options. Best of luck!
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