My daughter had a designated driver because she had two dui. The police told the driver to get out of the car then pulled my daughter out of the passenger side and told her to take the drunk test. She said no because she wasn't driving and they gave a third dui ticket and made her have a blood test. Their reasoning was that she drove the car there
The answer is yes. If the police believe, based on the totality of the circumstances, that your daughter and the driver switched as drivers upon seeing the cops, they can do what they did.
If your daughter truly wasn't driving, then she has a defense, regardless of whether she was charged with a DUI. But as my colleague suggests, if she was driving and then switched with another passenger, she could have a problem. Your description does not really make this clear, but with two prior DUIs your daughter is probably looking at a jail term if she is convicted. She needs an experienced Montana DUI attorney to help her. AVVO is a good place to begin your search, using the Find a Lawyer tab. Good luck to you.
The response I have provided is general in nature, and does not create an attorney-client relationship. My practice is based in Rhode Island, and the law and practice in other states or jurisdictions may be different.
If they had reason to believe she was driving they had the right to ask her to take field sobriety tests. (She does not have to take them, though, even if she was driving.) She needs a dui defense lawyer there, now. If they did not have sufficient reason to believe she was driving, the case should be thrown out. This is not a do-it-yourself proposition, though.
Sometimes people think that because it isn’t a murder case, a drunk driving case is simple. Nothing could be further from the truth. These cases can be among the most complex a criminal defense lawyer handles. The government is willing to spend an incredible amount of money to convict you though. They will have expert witnesses available for consultation and trial. It is certainly not a do-it-yourself situation, nor a situation where you want someone getting on-the-job training.
That you have been charged or that some gizmo says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you will be proven guilty using competent, valid evidence.
Field sobriety “tests” are designed to give police a reason to arrest. You cannot “pass” them. The police will admit that almost a third of healthy young adults who take these tests without any alcohol will be judged to be “under the influence” – and that assumes they are properly administered!
After even a first drunk driving conviction, you may face employment discrimination. You will certainly be charged higher for insurance. Having such a conviction will also make you a target for drunk driving arrest in future interactions with police. You will automatically become a suspect.
You will want a lawyer who is familiar with field sobriety “tests,” perhaps one who is certified to administer these tests. You will want a lawyer familiar with the weaknesses of the contraptions that are used to report alcohol or drug levels. You want an experienced trial lawyer, used to cross-examining police officers. Police officers are practiced, experienced witnesses.
That is, you want an experienced drunk driving defense lawyer, whether you call the offense DUI, OWI, DWI, OUI, or drugged driving.
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I am an experienced Wisconsin drunk driving (DUI/OWI/DWI) defense lawyer practicing in Madison (Dane County) Wisconsin. The laws in each jurisdiction can be very different. I cannot give legal advice over the Internet nor can I establish an attorney client relationship with you.
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Both great answers. My guess is that the officer will claim that he saw her driving and switching spots with a passenger. There are a lot of attorneys in Flathead County who do this type of thing, and I wouldn't wait another day before meeting with one of them.
An officer must have particularized suspicion that a criminal offense was, is, or about to be committed prior to stopping a vehicle. The officer may stop the vehicle long enough to confirm or dispel his/her suspicion. Generally, the reason for the stop and/or information gathered during the stop must create a particularized suspicion that your daughter was impaired AND in actual physical control of the vehicle for the officer to ask for a breath and/or blood test. Essentially, as the other comments have stated this suspicion should include some statement or evidence that your daughter was observed driving. Nonetheless, your daughter should seek representation right away because a 3rd DUI carries significant penalties.
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