My girlfriend just won her writ of mandamus to overturn her DMV refusal. Now as far as the criminal court, the DA is putting a little resistance on her refusal. Just wondering if she can use that civil case success for her coming up dui criminal trial as a leverage to fight that refusal. Thanks
This is a question best answered by her lawyer. The DMV hearing process is not the same as the court process, the applicability of a Writ decision to the underlying criminal case is a possibility but defintely NOT a certainty.
This answer is not legal advice, it may not even be relevant to the question answered, it definitely is does not establish an attorney/client relationship.
Her refusal could both help and hurt her case in criminal court at trial. It could help in that the refusal doesn't provide for a definitive blood alcohol level so DA cannot prove the B count (.08% or more), so the DA can only pursue the A count and has to rely only on officer observations as to impairment due to alcohol (smell of alcohol on body, slurred speech, bloodshot watery eyes, field sobriety test performance). If all the physical symptoms are minor and FST's are good, then great argument there is not enough proof of impaired required for the A count of DUI.
The refusal could hurt the case in hat a refusal to submit to a blood/breath test is admissible as "consciousness of guilt" evidence. The DA can argue she knew she was DUI, that's why she refused.
What has her lawyer said about it? That would be the person to ask, considering highly unlikely that she did a writ on her own.
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