refused the test because I thought I would loose my car. But then he pressured me to take it over and over so finally I did it, but yet they're still trying to get me for a refusal. They said there were bottle in the car, there were......... GATORADE bottles, no liquor bottles one in the trunk though.
Criminal Defense Attorney
I can't know for sure, but you will probably not lose your car. The short answer is that police take your car if there are two aggravating factors. These aggravating factors include: 1)prior DWIs within 10 years; 2) underage passengers in the car; and 3) testing over a .20 alcohol concentration.
So if your prior offenses are from more than ten years ago, you probably will not lose your car.
I should add that you would have been in even bigger trouble if you had refused the test. So it is probably good that you took the test.
You should consult with a lawyer about your case. Charges and license revocation papers will probably come soon, and you need to be ready.
Criminal Defense Attorney
Did police give you a Notice of Seizure and Intent to Forfeit? If so, then your car will be forefeited administratively unless you serve and file a challenge to it in District Court. The time for doing so is quite short (30 days) so it's best to retain a lawyer quickly to have time to get it started before its too late. In general, criminal DWI cases have a ten year look back, but for purposes of drivers licenses there is a lifetime lookback (they never expire). So two priors more than ten years ago would not trigger a charge enhancement or mandatory minimum, but would trigger a "cancel and deny as inimical to public safety" "B-card" after a lengthy period. Will you win? The answer to that depends on "will you retain a good lawyer and put up a strong fight?"
Criminal Defense Attorney
Thank you for the inquiry.
If you do not have any enhancements on your current offense, it is not particularly likely you will receive a Notice to Forfeit. If you do receive such a document, you have ththirty (30) days to file a challenge and seek judicial review.
If you were charged with a refusal to test, 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. Though your prior offenses do not enhance the current offense because it was outside the ten year look back period, they can still play into a court's considerations when sentencing.
There is also a civil case that results in the revocation of your driver's license. On a third offense, you may be cancelled as imimical to public safety with a reinstatement period of one year or more. A review of the particular facts of your case would be necessary. However, it is likely that to reinstatem you would be required to sign documents for a B card meaning that you cannot consume alcohol again if you wish to hold a valid license. 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 also additional consequences to a conviction including skyrocketing insurance rates, plate impoundments and sometimes vehicle forfeitures.
There are many defenses to DWI offenses. Many do not become apparent until all of the evidence is revciewed. Some common challenges 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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