Hello I have a DMV hearing coming up. A couple of things I noticed on the DS 367, there is not a Preliminary Screening test there. I remember him saying the machine was not working. I got pulled over at about 2:41 AM, then on the chemical test section I am listed at .09 at 3:53 and 3:56 .10. It is kind of fishy to me. Then on the investigation interview page he lists me at 2:58 AM blowing a .111 and then at 3:02 blowing a .110. Is this investigation interview page the same as the DS367, because I clearly remember him not being able to get a reading on me at the scene, but then an appoximately an hour later I get the .09 reading. Coud this be fought at the DMV hearing, or I am just going into an ambush?
This sounds like a “cut and paste” cop. Your case can be fought but it is too hard to tell what your chances would be without doing a full investigation. I will tell you this, you odds of beating the DMV and DUI in court are much better with a skilled DUI attorney then doing it on your own.
Of course, every DUI case is different and you should consult an experienced DUI defense attorney in your area with questions regarding your specific case. It is always in your best interest to have a good DUI attorney represent you when you have been arrested for a DUI.
The DS-367 is different than the arrest report. The DS is a sworn report. The other is not. I would strongly encourage you to find a local attorney that knows what s/he is doing in order to issue appropriate subpoenas and conduct a proper investigation. Especially with the BAC results you list, it sound like you have an excellent case for a rising BAC defense which you should not attempt on your own (mainly because you need an expert witness to make this argument).
Getting the breath machine's calibration logs and hiring an expert witness will be the first step.
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You need an attorney to review the documents. Beating a DMV hearing or DUI requires a skilled attorney .
The simple answer is that you can fight it. You have the right to testify at the hearing, either in person or over the phone. You could testify there was no filed breath test, or PAS test, and your lawyer couls argue that that is quite believable given the contradiction by omission in the DS-367 versus the arrest report.
However, understand going in that the DMV hearing officers are singularly interested in suspending your driver's license. The fact a cop lied will be glossed over by them or simply denied. Furthermore, they do not even need the PAS test to suspend your license. They deal with three questions. One, was there sufficient reason to stop you. Two, was there sufficient reason to arrest you. Three, were you 0.08% or more when tested. The difference between the 0.09% and the 0.10% is insignificant and common. The hearing officer can find you were at or above 0.08% just on the second test. In fact, they will probably suppress the numerical result of the PAS test.
Contact an experienced DUI lawyer to help you evaluate and argue all three issues.
Any comments offered are not intended as legal advice. This attorney does not know the specifics of the particular case sufficiently to offer legal advice. You should hire a lawyer who can evaluate the details of your specific situation before offering advice.
The most important piece of advice I can offer is to have a skilled DUI or criminal defense attorney by your side at the DMV hearing. You have the right not to testify at this hearing, and in most instances, I advise clients not to because anything that you do say can be used as impeachment material in the later criminal trial if it is at odds at all with any of your testimony. Yet this is the most beneficial part to the DMV hearing. Anything the officers say may be used to impeach them as well.
Remember that at the DMV hearing, the State has a much lower burden to prove, so it is not all too common for people to win at them. Hire and consult an attorney, go over all of the facts of your case, your medical and dental history (for example, did you go to the dentist within a few days of the stop or do you suffer from GIRD of Diabetes?) A skilled attorney will help you navigate this minefield and use it to your best advantage.
The worst thing you could do is to think "This is just a DUI, it's not serious" or "I can deal with this by myself." DUI law is some of the most complex and requires an understanding of special rules (it's one of the only places where you will find an instruction on the presumption of guilt), the science and mechanics of tests (calibration, ratios) and the ability to debunk junk science and expose an expert witness's weaknesses. You absolutely need to be represented by either a private attorney with knowledge of DUI law or a public defender. Do not go this alone. Feel free to contact my office for a free consultation, or contact another lawyer. The sooner you get to work on your case, the easier it is to work towards a positive outcome.
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