I rufused breathalizer test after bogus trafic stop and was arrested OWI how do I beat this?

Asked over 5 years ago - Wilmington, OH

The Ohio State Highway Patrole pulled me over leaving a club in Wilmington, Ohio. It was raining and I was on my Harley and had been drinking Coca Cola at the bar. He said I was speending, which I do not believe to be true and then went strainght into field sobriety test, which was given on an uneven, slopped driveway, in the rain, while I was dressed in full riding leathers head to toe. I supposedly failed the test, due to pre-existing lower back injury well documented and untreated (I take no medications). Then I was placed under arrest for 37mph in a 25mph zone, no MC endorsement and OWI. I refused a breathalizer test after being arrested and having asked to consult with an attorney. I am also on federal supervised release.

Attorney answers (2)

  1. Answered . The facts you have related raise numerous issues concerning probable cause for the stop, the officer's decision to administer the field sobriety tests and his decision to arrest you. These issues need to be addressed by an experienced DUI attorney. You would have little, if any, hope of litigating these issues without one. Not to mention, with a refusal the government would be saddled with the burden of proving (beyond a reasonable doubt) that alcohol affected your ability to operate a vehicle. Speeding alone may not suffice. You need to speak with a DUI lawyer immediately, since you will soon encounter deadlines that will bar some of your defenses. You also can appeal the refusal suspension if you act soon enough. Consult a DUI expert who handles cases on a regular basis in the court where your charge has been filed.

    Dan J. Weisenburger
    Attorney at Law


  2. Answered . Primary issues that will need to be addressed before a trial: 1) did he had the right to stop you, speed measured by laser/radar? Was he trained? Was the unit calibrated? Did he operate it properly? 2) Once he stopped you did he had reasonable suspicion to have you take the field tests, the officer will need more than just seeing you leave a bar. 3) Did he administer them correctly, according to the NHTSA guidelines (people with back, leg, or middle ear problems may not do well on the tests) (they should be administered on a reasonably dry and level surface)? 4) Was there probable cause to arrest based on the totality of the circumstances?

    Some potential problems: Under 4510.12, operating a motorcycle without a valid endorsement is an misdemeanor of the 1st degree - an arrestable offense. If you are on federal parole, you may have diminished search and seizure rights, although that may not come in to play here.

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Related Topics

DUI traffic stop

Getting a DUI is a process that involves a traffic stop, BAC testing, and field sobriety testing before you can be charged or arrested.

Field sobriety test for DUI

Field sobriety tests are a series of non-chemical tests typically conducted by officers who have stopped someone on suspicion of DUI.

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