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I was recently pulled over for suspicion of DWI and charged with DWI-First Offense and Refusal to Consent. How to proceed?

Blacksburg, VA |

Stop was justified by an "abrupt stop" as I was leaving a pvt. parking lot. Officer justified FST based on alcohol smell and a wrist band from the restaurant I was in that indicated I was 21+. He did not observe slurring or stumbling on my part. Failed FST due to not following instructions. I forgot to mention this to the officer (I did mention at jail), but I have documented ADHD. I refused a breath test on the field, and at the police station I was told that I would only have a suspended license for 7 days for refusing (not one year as I now know). Officer did thank me for being completely cooperative through the process. Another officer even commented to him "are you sure this guy is drunk? He seems fine to me."

Every case is different, but any chance to reduce to "reckless"?

-Kept at jail for 7 hours without a phone call. It took 6 hours just to start the booking process. The officer from the police station said I could be released as soon as I blow a .000 and got bonded. This extended containment reduced my evidence gathering time. -Only administered 1 NHTSA test. Other tests were non-standard (counting backwards and finger count) -Did not read Miranda rights upon arrest, but did ask questions at station. -I was on the restaurants private property when the suspicion occurred. As I approached the sidewalk that border the street and lot, the cop then stopped, didn't turn on their lights, and waited for me to turn onto the street before immediately turning on their lights. I then immediately pulled over. -Pulled over b/c wheels were turned slightly as if I was going to turn left, but I was intending on turning right since it was a one way street (that is what I ended up doing prior to being pulled

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Attorney answers 3

Posted

You have a few issues that should be explored by you and your attorney. The first issue is the probable cause for the traffic stop. There is no law that governs "abrupt stops", particularly on private property. Next would be the probable cause for the DUI arrest. Probable cause is gathered from the time you are stopped up until the time the cuffs are placed on you. There are any number of things the officer is trained to look for, but the main element of PC is the result of the field sobriety tests. If you only took one, that may be challenged in court. You should be sure to mention this other officer to your attorney as well. While it's unusual for a fellow police officer to offer conflicting testimony against the arresting officer, it should still be investigated.

If you attorney is able to successfully challenge either the probable cause for the traffic stop or the arrest, both of your charges will fall. This is not something with which you want to waste time. Contact an attorney sooner rather than later.

Responses on AVVO do not establish an attorney-client relationship. All responses to questions should be used for informational purposes only. Always consult personally with an attorney prior to initiating or responding to any legal action.

Asker

Posted

Thanks for the response. I actually had 3 tests, but only one was NHTSA approved. The comment about me not seeming intoxicated came from the officer who was transporting me from the police station to the regional jail (based on easily conversing with him, not be difficult, and easily entering the police van).

Posted

You need a local criminal defense attorney.

Please understand that no attorney-client relationship exists until entry of a representation agreement setting forth the terms and conditions of our engagement. Every person's circumstances are different, so nothing here should be taken as legal advice for your situation or as creating an attorney-client relationship. No outcome can ever be guaranteed. Find out more at creekmorelaw.com.

Posted

You should definitely hire a local DUI attorney who knows how to challenge the issues in your case. From what you describe, you have several areas that are ripe for cross-examination - probable cause for both the stop and arrest, non-standard FST, and potentially exculpatory evidence by the other officer.

Don't wait until the last minute. These issues will take some time for your lawyer to prepare your defense.

By responding to questions on AVVO does not establish an attorney-client relationship between the questioner and Garrett Law Group, PLC. Responses should be considered and used for informational purposes only. Every case is unique in its facts, and all legal matters should be discussed with a licensed attorney prior to making any decisions or taking any actions.

Asker

Posted

Thank you for the comment. Is abrupt breaking considered an actual traffic violation? Also, the officer who made those comments made them in a jocular yet still serious manner as I was entering the transport van. Would audio recordings traditionally be done from either the vehicle or the loading area?

Asker

Posted

Also, I did admit to having 1-2 drinks if that makes any difference.

James Donald Garrett

James Donald Garrett

Posted

I know of no law that proscribes "abrupt breaking". Serious or not, the statement was made and should be investigated. I doubt a judge would believe a police officer was "joking" about a DUI offense anymore than him saying to a robbery suspect that anyone should have known that looks like a toy gun. Check with a local attorney. Many receiving areas do have video monitoring that may be useful in your case.

Asker

Posted

Great, thank you again for the responses. I've made an appointment with 2 local attorneys next week. If you don't mind answering one more question: Have you ever heard of the dismissal of FSTs due to documentation for (but non-treated) ADHD? There are a few articles online but nothing definitive. I did not mention I had ADHD during the traffic stop (but did upon release from jail). Obviously having ADHD would make tasks involving multiple distractions difficult even when sober. Plus the impulsiveness and inability to listen to instructions associated with ADHD may have led me to refuse the breath test. Here's one link: http://www.randolphwolf.com/blog/dwi-or-addadhd-symptoms/

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