It's a valid defense however you're witnesses are going to have to testify at trail and at your DMV hearing. With a refusal issue you have no choice, since you are looking at a one year drivers license suspension. You are absolutely going o need your own counsel. start checking around now, you have to get that DMV hearing booked.
There are various instances under California law where an officer does not need to personally observe driving pursuant to VC 40300.5. Exceptions include (a) The person is involved in a traffic accident, (b) The person is observed in or about a vehicle that is obstructing a roadway, (c) The person will not be apprehended unless immediately arrested, (d) The person may cause injury to himself or herself or damage property unless immediately arrested, (e) The person may destroy or conceal evidence of the crime unless immediately arrested.
You should not post any more facts here since it is a public forum. What you should do is consult an experienced DUI attorney in your area to look into defenses as it relates to the DMV administrative suspension issue and the criminal case. If you do not set a DMV APS hearing within 10 days of the incident and you were given a pink temporary license with the check boxes for .08 BAC and refusal, you will lose your license for at least 1 year.
You should consult an attorney ASAP. Most attorneys will give a free consult.
As you are aware the DMV will take your license for a year and you will have increased punishment if found guilty in court. It is time to hire an attorney. You did not do yourself any favors by refusing the evidential test. You will not solve this by yourself.
Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at www.theocduiguy.com.
If the cop had probable cause to arrest you for DUI, and did arrest you, and gave you a choice of blood or breath test, and you refused, then a refusal is a refusal. Get counsel [there are many people proficient in DUI law in your area], and post no more in public.
Will it be a defense at the DMV hearing that you were not driving? It would not be in Wisconsin. You have mixed answers from fine California lawyers. In both, though, lack of probable cause for the arrest would be a defense. This is not a defense that makes itself. DUI defense in not a good do-it-yourself project.
Often 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.
That you have been charged or that some contraption says your alcohol level was at a certain level does not mean that you are guilty. It certainly does not mean that you can 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.
If something I say disagrees with what your own lawyer is telling you, you should rely on your lawyer who is familiar with you, your entire case, the local courts and practices.
To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services.
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This is as good as it gets as far as a defensible DUI. You have learned the hard way that guess what, cops lie. All the time. You obviously can contest and have to contest the suspension. Hire local counsel and then if the City Attorney files it you have an excellent defense. I have gotten excellent results on facts like these in Van Nuys. Call if you need a consult.
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