my husband is on probation for unauthorize use of a motor vehicle he got 10 years probation back in 2001 just this month he picked up 2 charges evading arrest with motor vehicle and a third dwi. he was not trying to get away he didnt stop because he was around the corner of our apartment just trying to park the truck so it wouldnt get towed. it still got towed anyways he was not driving fast at all maybe 10-15 mph through our apartment complex.he did not resist arrest at all he got out the truck when asked to. two cops had guns on him and sprayed mase all over him not just the eyes they put him in the cop car within minutes they were gone when he got to jail he said the cop threw him in the drunk tank and hosed him down the cops never asked him to take a breath or blood test nor did they do the tests to see if he was trunk like walking or abcs dont know whats its called by name. when i picked up his property a few days later the yellow piece of paper was in there and the officer put that my husband refused to take a breath or blood test my husband said they never gave him the option. when they do the tests does it have to be taped or recorded? is there any legal advice you can give me about this case? or what action can my husband take ?
Criminal Defense Attorney
First, your husband needs a good lawyer. He's on probation for one state jail felony, and he's charged with a second state jail felony (evading in a motor vehicle) as well as a third-degree felony (third DWI). He's facing up to two years in state jail and up to ten years in prison, assuming that he doesn't have any felony convictions.
Evading arrest is a very subjective crime -- the cops will testify that in their opinion your husband was trying to get away from them, but the facts as you describe as you describe them don't strongly support that conclusion.
The tests (one-leg stand, walk-and-turn, and horizontal gaze nystagmus) are the "standardized field sobriety tests." They don't have to be recorded. Without a breath test or SFSTs, the state may have trouble proving that your husband was intoxicated at the time he was driving.
You have a short time (fifteen days from the arrest) to ask for a hearing (or, better, get a lawyer to ask for a hearing) on the administrative license suspension that could result from your husband's alleged refusal to give a breath sample.
I would add to check the paperwork that the police gave your husband. Typically, that paperwork has the persons signature where it states that they are refusing to take a breath test. In larger counties they are required to videotape the field sobriety tests that are conducted at the station. Since you did not provide the county where the arrest occurred I can not answer if they tests were required to be videotaped.
Your husband has the disadvantage of being on probation. It is likely that the court will file a motion to revoke his probation since he picked up two new felonies while on probation. Thus, be prepared to post a new bond for that if the court files the motion
We can not provide specific legal advice for your husband's case, but you need to realize that his probation may be revoked for these charges even if the state can not prove the new charges beyond a reasonable doubt, You should contact a few lawyers that practice criminal law exclusively and meet with them in person. Pick the one that you feel most comfortable with after getting an explanation of all your rights. Be wary of any attorney that guarantees a result for your husband.
When interviewing a DUI defense lawyer ask the following questions:
What percentage of your annual caseload is relegated to defending DUI?
How many DUI jury trials did you have in the past 12 months?
Can you provide a list of DUI training seminars or conferences attended in the past 2 to 5 years?
What percentage of your clients enter a plea of guilty to the crime charged?
Have you or any members of your firm written articles or books related to defending DUIs?
How many lawyers are in the firm, and are they all DUI defense attorneys? If so, will they collaborate with their colleagues about your DUI case?
How many years have you defended DUI cases?