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Unfair Dui Arrest

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Unfair Dui Arrest

Postby Pickford » Fri Dec 09, 2016 5:54 am

I weigh 210, am 68 years old, and consumed 3 beers between noon and 2:30.  At 3 PM I was stopped by a military police gate guard while entering the local Airforce Base in OHIO, because of the smell of alcohol.  My car was searched(several empty and full beer cans were found), I was given SFSTs,(which I thought I did pretty well on, given my age and bad hips), was taken to the Local civilian  police station for a breathalizer test.  The Airforce police officer read me the implied consent form, and asked if I understood it-I said "no-I'd like to call a lawyer to ask advice".  He called back to HQ, returned, and told me no lawyer, but he would read it to me again.  When he finished he again asked if I understood it. I said "no, but what will happen if I don't blow?"  He said I  wound lose my On-base driving privileges for 1 year.  I said"OK- Ijust won't drive on base for 1 year".  He said "are you refusing the test?". I said "Yes- I just won't ddrive on the Base for a year."  He then launched into a list of all the bad things that were going to happen to me- Arrest, jail, fines, loss of license, etc.  I said that he had tricked me, and that I wanted the breath test right now- I am sure that I said it several times, loudly and clearly.  (the 2 civilian police officers also heard all this).  The Airforce police officer again called back to HQ for advice, returned and said that I could not take the test since I had refused it earlier.  He cuffed me for the trip back to the Base, and as we were leaving the civilian police station, one of the civilian officers leaned over to me and whispered  "You'd better get a breath test as soon as they let you go".  The Base gave me 3 charges- dui, refusal to blow, and open container, and let me go at 5:45 PM, I got to the hospital at 6:30, and had blood drawn at 7:12.  The result of this test was a BAC of 0.00

I have a lawyer, but I think he plans on just getting this reduced to reckless op and calling it a day.  HERE IS MY QUESTION-Can I just ask the COURT to have an expert work backwards from the BAC of 0.0 at 7:12PM, to the breathalizer "refusal" at about 4 PM and acertain that I could NOT have been Per Se drunk(in OHIO it is .10) and just dismiss the whole mess?  I have spent lots of money and worried myself sick over this- it does not seem fair that a young, over-enthusiastic Airforce gate guard can accuse me of DUI and ruin my life this way.  Is there a way out of this without going to trial,(which I look at as a coin toss- heads you win, tails you lose a WHOLE LOT), or will this fiasco have to play itself out thru the court system?  (Not the State of Ohio courts, but the FEDERAL courts, since this took place on a military base.  I'm scared that this could turn out VERY badly- any help would be appreciated.  Thanks, Mr. Russell
Pickford
 
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Joined: Mon Jan 06, 2014 5:07 am

Unfair Dui Arrest

Postby Innes » Fri Dec 09, 2016 1:38 pm

I weigh 210, am 68 years old, and consumed 3 beers between noon and 2:30.  At 3 PM I was stopped by a military police gate guard while entering the local Airforce Base in OHIO, because of the smell of alcohol.  My car was searched(several empty and full beer cans were found), I was given SFSTs,(which I thought I did pretty well on, given my age and bad hips), was taken to the Local civilian  police station for a breathalizer test.  The Airforce police officer read me the implied consent form, and asked if I understood it-I said "no-I'd like to call a lawyer to ask advice".  He called back to HQ, returned, and told me no lawyer, but he would read it to me again.  When he finished he again asked if I understood it. I said "no, but what will happen if I don't blow?"  He said I  wound lose my On-base driving privileges for 1 year.  I said"OK- Ijust won't drive on base for 1 year".  He said "are you refusing the test?". I said "Yes- I just won't ddrive on the Base for a year."  He then launched into a list of all the bad things that were going to happen to me- Arrest, jail, fines, loss of license, etc.  I said that he had tricked me, and that I wanted the breath test right now- I am sure that I said it several times, loudly and clearly.  (the 2 civilian police officers also heard all this).  The Airforce police officer again called back to HQ for advice, returned and said that I could not take the test since I had refused it earlier.  He cuffed me for the trip back to the Base, and as we were leaving the civilian police station, one of the civilian officers leaned over to me and whispered  "You'd better get a breath test as soon as they let you go".  The Base gave me 3 charges- dui, refusal to blow, and open container, and let me go at 5:45 PM, I got to the hospital at 6:30, and had blood drawn at 7:12.  The result of this test was a BAC of 0.00

I have a lawyer, but I think he plans on just getting this reduced to reckless op and calling it a day.  HERE IS MY QUESTION-Can I just ask the COURT to have an expert work backwards from the BAC of 0.0 at 7:12PM, to the breathalizer "refusal" at about 4 PM and acertain that I could NOT have been Per Se drunk(in OHIO it is .10) and just dismiss the whole mess?  I have spent lots of money and worried myself sick over this- it does not seem fair that a young, over-enthusiastic Airforce gate guard can accuse me of DUI and ruin my life this way.  Is there a way out of this without going to trial,(which I look at as a coin toss- heads you win, tails you lose a WHOLE LOT), or will this fiasco have to play itself out thru the court system?  (Not the State of Ohio courts, but the FEDERAL courts, since this took place on a military base.  I'm scared that this could turn out VERY badly- any help would be appreciated.  Thanks, Mr. Russell
Innes
 
Posts: 26
Joined: Sun Mar 02, 2014 8:00 am

Unfair Dui Arrest

Postby Ammon » Sun Dec 11, 2016 11:40 am

Hi Bill,

It does seem that you went through a pretty nasty ordeal. Regrettably, I am unfamilar with the laws in Ohio or how the court system on the base go. It does sound like this might be a good case to go to trial on in my opinion, but you are right, even the best case in the world is only a 50/50 chance. You never know what a jury will do. I have had people who had cases where their videotape was perfect, no breath test and the jury convicted them anyway. I have had people who wobbled like crazy and fell off balance several times, and still the jury found them not guilty.

I am not sure what the reckless op charge is, or how it affects your driving privileges or what. In Texas, that would be a great deal, getting a reckless driving charge out of DWI, because in Texas you can get a deferred adjudication for reckless driving which would keep such off of your record where such is not available on a DWI charge.

I am surprised that Ohio has not dropped the limit to .08 like texas and most other states have done in the last few years. However, given the amount of beers you consumed, and the fact that you had a 0.00 BAC at 7:12PM, a good expert could have a good opinion as to what your BAC was at 4:00PM. Regrettably, a good expert would be expensive. One thing that bothers me is that you contacted me when you already have an attorney. That is an indication that you are not satisfied with the representation. Maybe you need to get a different one. I do not know how you located that one, but in my opinion, the best way to find a good one is to go ask at the courthouse where you case is set, the clerks and anyone else that actually works there, ask around about who they would hire if they were wrongfully charged with DWI. An effective attorney is going to be your best weapon in this case and will be able to advise you as to what options you have in the case.

Good luck, and let me know what happens. I wish those facts were present here, as it sounds like a good case for trial. The rate that alcohol is eliminated from the body is well known, so having a 0.0 makes it scientifically clear you had 3 beers in your system 3 hours earlier. At your body weight, you should have been below the limit. Regrettably, the breath test result would have shown differently, so you might have been wise to refuse it. However, if you did possess an open container, you would be guilty of that, if that is the element of the crime. As to whether or not you refused the breath test, in Texas, the first time you are asked and you refuse, you have refused.

One thing that would be of essential importance as far as trial strategy is whether or not there were any videotapes of any of this. In Texas, they tape people and in many cases the video equipment is in the breath testing area.

Find an attorney that you feel comfortable with. He will know what can or cannot be done.

Terence A. Russell
Ammon
 
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Joined: Wed Mar 12, 2014 5:46 am


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