Parked car with ignition off, eating fast food with a friend. Sheriff Deputy, stops and knocked on window asking for roll down. Points to an old dent and asked if I was in an accident. Told him "No" the damage was old. Officer stated that that he smelled alcohol on my person and ordered me to do a field balance test. Stated that I passed. He then asked me to take a PAS test and I refused. He stated that if I refused I would go to jail. I took the test and registered a .08.6% He then arrested me for DUI.
You need to retain an attorney and challenge the legality of the stop. There are several attorneys from San Bernardino who are very active on this site. Best wishes.
Experienced Criminal Defense Attorney--Former Prosecutor--Put my experience to work for you!
Make sure to request a dmv hearing within 10 calendar days from date of arrest.
Did you have a question? I see details, but no question.
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You need an attorney ASAP. I see a couple issues: 1) one issue is whether the police had a legal reason to make contact with you. It sounds like if you were parked and the cop walks up to you you have a choice of whether or not to talk to them. If you voluntarily roll down your window and start interacting with him, then you have consented to the contact. 2) If you were ordered out of the car illegally that could be a problem for them. 3) as a certified field sobreity test instructor, I can tell you that the FST's are not pass/fail.
In my opinion, this case will boil down to two things. The first is whether or not you told the cop what time you got to the place where you were contacted. The other issue will be what you told the cop as far as your time of drinking a.k.a. the drinking pattern.
Troy Slaten, Esq.
Mr Finnecy and Mr. Murillo are both correct. Set the DMV hearing ASAP and contact local counsel ASAP for a free consultation. Good facts but not enough to form a judgement without a police report. Hope these answers help?
get an attorney have many issues to contact the alcohol level you should talk to an attorney about possible defenses including a motion to suppress evidence make sure you get a hold of the DMV within 10 days of the arrest
Your right. ABSOLUTELY NO PROBABLE CAUSE FOR THE "STOP"...
Unfortunately, you weren't stopped because you were merely in the parking lot... the cop didn't activate his overhead lights or get on the fog horn, he merely came up to you, so the cop doesn't need PC to contact you. They'll considered this a consensual contact, upon which the cop smelled alcohol and began his investigation.
That said, SB Main is a very good jurisdiction to fight a DUI in. In fact, I just had all criminal charges dismissed on a 2nd DUI out of SB main with a .09% bac. Client was a commercial pilot and could have lost his pilots license if he was convicted. Even wrote an awesome review on avvo.. under the name Palo, so it's really important for you to contact and hire a lawyer immediately.
I am licensed attorney who focuses on Serious DUI Cases such a 2nd DUIs, 3rd DUIs, 4th DUIs, and Felony DUIs and DMV hearings. I also have much experience handling car accident cases. Although the information I provide is helpful, it is not legal advice. Although Avvo makes it clear to consumers that attorney answers to questions are for general purposes only and do not establish an attorney-client relationship, some attorneys prefer to add their own disclaimers to answers. You can set your custom disclaimer here and it will be automatically added to your answers. Do NOT include any direct solicitations or contact information.
If true, and the damage was normal collision damage that does not affect the safe travel of the vehicle, this Sheriff was 'fishing.' Essentially making up a reason for a contact. While the Deputy may not technically have detained you at the time of a contact, the standard is whether a reasonable person would feel detained under the circumstances. People v. Hodari D. Certainly walking up in uniform, badge and gun and asking you to roll down your window...I wouldn't feel free to leave. And I am an ex Cop and I would not have felt comfortable starting the car and pulling away lol. You were detained and yes without cause. This is ripe for a 1538.5 PC suppression motion.
You need an attorney. You didn't mention whether you had been drinking in the vehicle. But you idon'thave to been observed driving to be convicted. Get an attorney
Utterly bogus arrest, and he lied to you when he said you had to take the PAS test - you had a statutory right not to take it. You should not have done their stupid FSTs, which have NO scientific correlation to impairment by alcohol and should never be attempted by anyone. I and others here handle San Bernardino cases, of which I have several right now. Do not try to handle this yourself, any more than you would perform brain surgery on yourself. These things are winnable with the right lawyer. As others said, make the call to DMV before the 10 days runs.
You are right that you have defenses. To assert them competently, though, you need a good dui defense lawyer, there, now. 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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