OOT lawyers:drinking and driving question
 

Here's the situation:

Tonight, my girlfriend and a couple of friends head out to the bar for a couple hours. We reach the bar at around 10:30, and closing time is at 1:30. My girlfriend in that span has 4 beers, and by 1:30 we leave the bar, and me and her get dropped off at my house by about 1:45. She has to go home, so she leaves my house about 10 minutes later. Well it turns out that on the way home she gets pulled over, after she (according to her), slightly sped up to pass through a yellow light.

The officer comes up to the window and tells her that she sped up to pass through the light,etc. She explains that she didn't think she would be able to safely break and time and didn't want to slam on the brakes. The officer then asks if she had been drinking, to which she responded that she had "one beer at 11pm" (stupid to admit drinking at all I know...she just said she was nervous and didnt know what would happen if the officer said he smelled it). He then tells her to get out of the car because he has to talk to her about something (questionable?). They do a field sobriety test (sans breathalyzer) which she passes, and the officer issues her a traffic violation for $140-150, most likely for "running a red light".

My question: she is going to appeal the ticket, does she only have to articulate why she sped through the yellow light, or will the officer bring up the mere fact that she admitted to drinking one beer about 4 hours before (and no more)? Also, if it were to be brought up, what would be the best course of action for her to take?

Cliff notes:girlfriend gets pulled over for running a yellow/red light, admits to drinking 1 beer 4 hours previous, passes field sob. test (no breathalyzer),gets a ticket for running the red light. Will her admitting having drank one beer be brought up by the officer in court?

Re: OOT lawyers:drinking and driving question
 

just pay the ticket instead of dealing with the pain in the ass of it all.

Re: OOT lawyers:drinking and driving question
 

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just pay the ticket instead of dealing with the pain in the ass of it all.

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If she shows up in court it'll end up being at most $60

Re: OOT lawyers:drinking and driving question
 

they can't charge her after the fact with DUI. if you're going to fight it you should just send a lawyer anyway, and he can handle that question no problem. most of the time when they fight a ticket like this, the lawyer just sends a bunch of motions and it gets dismissed without going to arguments, if i understand it correctly.

Re: OOT lawyers:drinking and driving question
 

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just pay the ticket instead of dealing with the pain in the ass of it all.

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pain in the ass? checking a box then going to traffic court for an hour or two (which can be VERY entertaining), and at least getting the fine reduced or even thrown out?

Re: OOT lawyers:drinking and driving question
 

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they can't charge her after the fact with DUI. if you're going to fight it you should just send a lawyer anyway, and he can handle that question no problem. most of the time when they fight a ticket like this, the lawyer just sends a bunch of motions and it gets dismissed without going to arguments, if i understand it correctly.

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Yea my dad's a lawyer at the state's attorneys office but 1).this didn't seem appropriate to ask his professional opinion as it's fairly small and 2).OOT is just as good as a real lawyer amirite?

I wasn't concerned with them charging her after the fact with DUI, as she passed the sob. test and didn't even receive a breathalyzer. I was just curious if her appealing the traffic violation would be impacted by the fact that she admitted to drinking a beer 4 hours earlier.

edit:I'm an idiot, I left out that there were 2 unopened natty light cans on the ground in the back seat from when we went to the beach a week ago, which probably change the story a tad bit. The cop saw them and understandably became suspicious

Re: OOT lawyers:drinking and driving question
 

Doesn't matter about the drinking. The cop obviously thought nothing of it and more than likely won't even remember that she said she was drinking. Is there anything on the ticket?

I mean if you were a cop, handing out say 10 tickets a day, would you remember the one girl who passed the field sobriety test but you gave her a ticket anyway? Probably not. Also, chances are the cop doesn't even show up to court, esp for something like this. She should definitely fight it.

Re: OOT lawyers:drinking and driving question
 

Why do people continue to take breathalyzer tests?

Sure it worked out fine this time, but unless you've literally had nothing to drink, why risk it?

I get the whole automatic license suspension thing, but it just seems like the second dumbest thing. The dumbest being the people that have drugs/guns in their car and tell the cop they don't mind if he searches.

Re: OOT lawyers:drinking and driving question
 

pics of girlfriend so we may decide what her chances are of getting out of future speeding tickets?

Re: OOT lawyers:drinking and driving question
 

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they can't charge her after the fact with DUI. if you're going to fight it you should just send a lawyer anyway, and he can handle that question no problem. most of the time when they fight a ticket like this, the lawyer just sends a bunch of motions and it gets dismissed without going to arguments, if i understand it correctly.

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LOL at the suggestion of retaining a lawyer to fight a $160 traffic ticket!

She'll have paid more for the lawyer by the time he parks his car at the courthouse than she would have paid for the ticket, including the stamp to mail it.

Re: OOT lawyers:drinking and driving question
 

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She explains that she didn't think she would be able to safely break and time

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omg please tell me this is not a typo (both parts)

Re: OOT lawyers:drinking and driving question
 

OP, I'm still not sure I understand the question.

Is GF worried about being charged with DUI, or is she worried that her admission of drinking one beer will be used against her as evidence of speeding up to make the light?

If it's (a), she won't be charged with DUI. If it's (b), it's irrelevant. She's on the hook for the ticket and that's it.

Re: OOT lawyers:drinking and driving question
 

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She explains that she didn't think she would be able to safely break and time

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omg please tell me this is not a typo (both parts)

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http://i176.photobucket.com/albums/w...179/hammer.jpg

Re: OOT lawyers:drinking and driving question
 

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Why do people continue to take breathalyzer tests?

Sure it worked out fine this time, but unless you've literally had nothing to drink, why risk it?

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I'm pretty sure OP's girlfriend didn't take a breathalyzer.

Re: OOT lawyers:drinking and driving question
 

haha noah, are you saying if you had 1 beer over the course of 2 hours you'd refuse a breathalyser and take the suspended license?

Re: OOT lawyers:drinking and driving question
 

This is solid advice:

At appeal, just say she just dropped off her drunk boyfriend and was on her way home. This will work 100% of the time.

Re: OOT lawyers:drinking and driving question
 

[ QUOTE ]
they can't charge her after the fact with DUI. if you're going to fight it you should just send a lawyer anyway, and he can handle that question no problem. most of the time when they fight a ticket like this, the lawyer just sends a bunch of motions and it gets dismissed without going to arguments, if i understand it correctly.

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At the cost of?.....


You think lawyers be filing motions for nothing?

Re: OOT lawyers:drinking and driving question
 

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haha noah, are you saying if you had 1 beer over the course of 2 hours you'd refuse a breathalyser and take the suspended license?

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OK, well if it was one beer then I would, but a girl having had four beers in a couple hours, theres no point in cutting it close.

if you think the chance of you failing is greater than 10%, then i wouldn't do it. without a breathalyzer, or you literally be falling down drunk, they have no real evidence against you. if you fail one, you can argue that they aren't reliable, but its a much tougher sell.



FFK,

whoops. still applies to the other 20 drunk driving threads that have been on here.



also, yeah never admit to having had any alcohol. people always think that being up front will get you out of trouble, and while this may be true in some cases (traffic tickets) its generally a pretty bad rule to follow. just keep your mouth shut.

Re: OOT lawyers:drinking and driving question
 

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[ QUOTE ]
haha noah, are you saying if you had 1 beer over the course of 2 hours you'd refuse a breathalyser and take the suspended license?

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OK, well if it was one beer then I would, but a girl having had four beers in a couple hours, theres no point in cutting it close.

if you think the chance of you failing is greater than 10%, then i wouldn't do it. without a breathalyzer, or you literally be falling down drunk, they have no real evidence against you. if you fail one, you can argue that they aren't reliable, but its a much tougher sell.



FFK,

whoops. still applies to the other 20 drunk driving threads that have been on here.



also, yeah never admit to having had any alcohol. people always think that being up front will get you out of trouble, and while this may be true in some cases (traffic tickets) its generally a pretty bad rule to follow. just keep your mouth shut.

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In NJ, the penalties for refusing a breathalyzer are roughly the same as if you had failed it and received a DUI. This includes a suspension of your license for what I believe to be 6 months for your first offense, and two years for your second, as well as thousands of dollars in fines. The last time I went to traffic court, I overheard a lawyer saying to his client that if there is any chance that you could pass a breathalyzer, then you should take it. This makes sense since the penalties for DUI and refusing a breathalyzer are similar.

Re: OOT lawyers:drinking and driving question
 

[ QUOTE ]
also, yeah never admit to having had any alcohol. people always think that being up front will get you out of trouble, and while this may be true in some cases (traffic tickets) its generally a pretty bad rule to follow. just keep your mouth shut.

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Great advice here. Never admit to anything, including traffic tickets. Say you don't know the speed limit. Say you have no idea how fast you were going. Admitting either is admitting guilt and 90% of the time you're getting a ticket. OK pulled 90 out of my ass, but every cop I know will give a ticket to someone who admits to the crime.

Also, in MN if you refuse a breathalyzer and fail the roadside they will take you in and get your BAC at the station. If you are over at the station, THEN you get the automatic up to gross misdemeanor instead of just a misdemeanor. However, if you refuse and pass everything nothing will happen.

Re: OOT lawyers:drinking and driving question
 

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[ QUOTE ]
[ QUOTE ]
haha noah, are you saying if you had 1 beer over the course of 2 hours you'd refuse a breathalyser and take the suspended license?

[/ QUOTE ]

OK, well if it was one beer then I would, but a girl having had four beers in a couple hours, theres no point in cutting it close.

if you think the chance of you failing is greater than 10%, then i wouldn't do it. without a breathalyzer, or you literally be falling down drunk, they have no real evidence against you. if you fail one, you can argue that they aren't reliable, but its a much tougher sell.



FFK,

whoops. still applies to the other 20 drunk driving threads that have been on here.



also, yeah never admit to having had any alcohol. people always think that being up front will get you out of trouble, and while this may be true in some cases (traffic tickets) its generally a pretty bad rule to follow. just keep your mouth shut.

[/ QUOTE ]

In NJ, the penalties for refusing a breathalyzer are roughly the same as if you had failed it and received a DUI. This includes a suspension of your license for what I believe to be 6 months for your first offense, and two years for your second, as well as thousands of dollars in fines. The last time I went to traffic court, I overheard a lawyer saying to his client that if there is any chance that you could pass a breathalyzer, then you should take it. This makes sense since the penalties for DUI and refusing a breathalyzer are similar.

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You left out the part about the DUI being a criminal conviction, which makes it infinitely worse than the suspension of a driver's license. That lawyer was an idiot.

If there is any chance you are over the limit, refuse the breathalyzer, period. If you are definitely under it, then take it.

Re: OOT lawyers:drinking and driving question
 

Also, when the cop asks you to recite the alphabet backwards, that is not the actual test. The response the cop is looking for is: "The alphabet backwards? I can't even do that sober---oops."

Re: OOT lawyers:drinking and driving question
 

[ QUOTE ]
You left out the part about the DUI being a criminal conviction, which makes it infinitely worse than the suspension of a driver's license. That lawyer was an idiot.

If there is any chance you are over the limit, refuse the breathalyzer, period. If you are definitely under it, then take it.

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I know someone who got arrested for possession and he was telling me he was going to plead guilty instead of doing pretrial intervention because then he would have to pay $200 instead of doing 10 hours community service, which he didn't want to do. I tried to convince him that it wasn't worth going on his record and thats like $20/hr to not do the community service, but he wouldn't listen.

Re: OOT lawyers:drinking and driving question
 

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Also, when the cop asks you to recite the alphabet backwards, that is not the actual test. The response the cop is looking for is: "The alphabet backwards? I can't even do that sober---oops."

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Say you refuse the breathalyzer, what do people think of taking a cell phone video of yourself?

Video of yourself saying something like "I was just arrested for DUI, however I am completely sober and coherent...."

I'm assuming this is just dumb?

Re: OOT lawyers:drinking and driving question
 

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[ QUOTE ]
they can't charge her after the fact with DUI. if you're going to fight it you should just send a lawyer anyway, and he can handle that question no problem. most of the time when they fight a ticket like this, the lawyer just sends a bunch of motions and it gets dismissed without going to arguments, if i understand it correctly.

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LOL at the suggestion of retaining a lawyer to fight a $160 traffic ticket!

She'll have paid more for the lawyer by the time he parks his car at the courthouse than she would have paid for the ticket, including the stamp to mail it.

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are you one of those idiots that drive without insurance?




just hire a cheap lawyer that specializes in traffic stuff, it will be 70 to 100 for teh lawyer, and 150 or so in court costs/fine for non-speeding violatio, but you wont get any points. its a real racket though as 99% of the time, the lawyer just writes a letter to the prosecurter or the judge and its a reall wink wink nudge nudge thing and it taken care of before the trial even starts.

Re: OOT lawyers:drinking and driving question
 

[ QUOTE ]
[ QUOTE ]
Also, when the cop asks you to recite the alphabet backwards, that is not the actual test. The response the cop is looking for is: "The alphabet backwards? I can't even do that sober---oops."

[/ QUOTE ]

Say you refuse the breathalyzer, what do people think of taking a cell phone video of yourself?

Video of yourself saying something like "I was just arrested for DUI, however I am completely sober and coherent...."

I'm assuming this is just dumb?

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If you're drunk, this is horribly dumb, because it will be admissible against you.

If you're drunk and stopped for DUI, you should refuse every request and basically say nothing. Put your head down in your hands and do not respond to anything. Let them arrest you and haul you downtown and do not say anything except "I want to call my lawyer."

Re: OOT lawyers:drinking and driving question
 

Drew,

What do you think the best course of action is if you think you are VERY on the edge - had maybe 2-3 beers, and you're likely to blow anywhere from .07-.09.

First, I imagine when asked if I've been drinking, the answer is always "no" no matter what. This at least gives me a chance to get off completely clean, as I don't believe there's any real penalty to lying to a cop on the spot like that.

Obviously if you know you are going to pass, just blow, and if you know you are way over, just refuse the test.

I feel like I'd hate to refuse the test and lose my license for a year if there was a 75% chance I'd pass the test, you know?

Re: OOT lawyers:drinking and driving question
 

If there is any doubt, refuse the test. You want to avoid a DUI conviction at all costs, and a positive breathalyzer test leaves few options for your lawyer.

And at least in Texas, you can pretty easily get an "occupational license" that allows you to drive to and from work/school, so it's not like you're house bound for a year.

Re: OOT lawyers:drinking and driving question
 

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She explains that she didn't think she would be able to safely break and time

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omg please tell me this is not a typo (both parts)

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I was pretty drunk last night, and it kinda sounded like "in time" blah blah

Re: OOT lawyers:drinking and driving question
 

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Yea my dad's a lawyer at the state's attorneys office but 1).this didn't seem appropriate to ask his professional opinion as it's fairly small

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Why on Earth would you not want to ask him for advice about this? You have a great source of free legal advice and you're asking OOT instead?

Also, wrt to hiring a lawyer to defend a $160 ticket, people do that all the time; it can easily be worth it if there's a risk of getting points on your license that'll bump up your insurance.

Re: OOT lawyers:drinking and driving question
 

Again, a great video about how best to deal with police encounters. You can skip to about 14 minutes in and not miss too much.

Re: OOT lawyers:drinking and driving question
 

LOL at people saying refuse the breathalyser. Implied consent FTW. Seriously though, as a condition to getting your DL, you've already agree to take one. Thus, they can go buckwild on you for refusal. And yes, this is still a criminal conviction, and in many jurisdictions is the equivalent of a DUI. If you choose to contest the refusal citation, they can go after you for the full DUI, and your refusal to blow is treated as a presumptive positive test. At this point, your best hope is that you can demonstrate that there was no PC to administer the field test. Good luck with that.

Re: OOT lawyers:drinking and driving question
 

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LOL at people saying refuse the breathalyser. Implied consent FTW. Seriously though, as a condition to getting your DL, you've already agree to take one. Thus, they can go buckwild on you for refusal. And yes, this is still a criminal conviction, and in many jurisdictions is the equivalent of a DUI. If you choose to contest the refusal citation, they can go after you for the full DUI, and your refusal to blow is treated as a presumptive positive test. At this point, your best hope is that you can demonstrate that there was no PC to administer the field test. Good luck with that.

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So then when you go to the station, have a blood test that comes up perfectly fine and legal, what happens to the presumptive positive test that you've been "convicted" of?

Re: OOT lawyers:drinking and driving question
 

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Why do people continue to take breathalyzer tests?

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In New Jersey it's illegal to refuse to take a breathalyzer.

Re: OOT lawyers:drinking and driving question
 

I am a lawyer and don't practice traffic/criminal law but I can say that most of the advise and commentary in this thread sucks.

(1) Once she was not charged with DUI at the scene, she is not going to get charged with it later. The fact that the cop was suspicious of her should not play into the decision on whether to fight the ticket.

(2) There are many matters to consider when deciding whether to hire an attorney for a traffic violation. You need to know what you can do personally and what an attorney can do -- sometimes an attorney is unnessary and sometimes an attorney is critical. The biggest long-term considerations are typically (a) whether your license could be suspended, and (b) whether a guilty verdict (or plea) will have a significant effect on your insurance rate.

(3) Everything varies by state and could even vary by county within the state (depending on the state). To give any general advise across all U.S. jurisdictions is nearly impossible.

Re: OOT lawyers:drinking and driving question
 

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LOL at people saying refuse the breathalyser. Implied consent FTW. Seriously though, as a condition to getting your DL, you've already agree to take one. Thus, they can go buckwild on you for refusal. And yes, this is still a criminal conviction, and in many jurisdictions is the equivalent of a DUI. If you choose to contest the refusal citation, they can go after you for the full DUI, and your refusal to blow is treated as a presumptive positive test. At this point, your best hope is that you can demonstrate that there was no PC to administer the field test. Good luck with that.

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Which state is this, so I may never go there. Any state that treats a refused breathalyzer as equivalent to a DUI is pretty wacked.

Re: OOT lawyers:drinking and driving question
 

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LOL at people saying refuse the breathalyser. Implied consent FTW. Seriously though, as a condition to getting your DL, you've already agree to take one. Thus, they can go buckwild on you for refusal. And yes, this is still a criminal conviction, and in many jurisdictions is the equivalent of a DUI. If you choose to contest the refusal citation, they can go after you for the full DUI, and your refusal to blow is treated as a presumptive positive test. At this point, your best hope is that you can demonstrate that there was no PC to administer the field test. Good luck with that.

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Which state is this, so I may never go there. Any state that treats a refused breathalyzer as equivalent to a DUI is pretty wacked.

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They tried to pass a bill in Maryland this year that would have made refusing the breathalyzer a crime IF you have refused the test in the past, i.e. you only get one freebie and after that it's automatically a DUI. Thoughts?

Re: OOT lawyers:drinking and driving question
 

this is by far the worst "drinking and driving" post ever.

Re: OOT lawyers:drinking and driving question
 

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LOL at people saying refuse the breathalyser. Implied consent FTW. Seriously though, as a condition to getting your DL, you've already agree to take one. Thus, they can go buckwild on you for refusal. And yes, this is still a criminal conviction, and in many jurisdictions is the equivalent of a DUI. If you choose to contest the refusal citation, they can go after you for the full DUI, and your refusal to blow is treated as a presumptive positive test. At this point, your best hope is that you can demonstrate that there was no PC to administer the field test. Good luck with that.

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Which state is this, so I may never go there. Any state that treats a refused breathalyzer as equivalent to a DUI is pretty wacked.

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They tried to pass a bill in Maryland this year that would have made refusing the breathalyzer a crime IF you have refused the test in the past, i.e. you only get one freebie and after that it's automatically a DUI. Thoughts?

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Weird. I don't think you could constitutionally make a refused breathalyzer into a DUI. I suppose you could just make the penalties the same, but cheese and rice, this is off the deep end.

Re: OOT lawyers:drinking and driving question
 

Sorry, my post was misleading - it would have just been the exact same penalty as DUI, obviously not an actual DUI conviction. The second refusal itself would have been the crime.