“No one wins these hearings”

It is easy to lose hope following a DUI arrest.  I recently had a client that was charged with a DUI. She was taken to the jail to blow into the Intoxilyzer 5000.  She blew nearly three times the legal limit.  She wanted to fight but her friends told her "no one wins license hearings."  She wondered if she should even bother. 

It turns out, she made a good choice to fight her license suspension.  At hearing we were able to show that when she arrived at the jail, the officer placed her driver's license over the screen showing what her blow results were. This goes against what the officer was trained to do and what the manual dictates. My client blew into the machine, but when the time came to print the results, it was discovered that the machine was out of paper.   No one knew what her blow was.

So the resourceful officer had her blow again, and logged that result.  The problem is that, in doing so,  he didn't follow proper procedure.  In the event that the machine doesn’t print, the officer can write what the BAC was in the log and that becomes the official record. In this case, the officer went against protocol and covered up the readout screen. This meant there is no record of her first blow.

The Hearing Officer agreed. He overturned my client’s suspension. I was able to call my client and let her know that the good news and that her decision to fight her suspension had paid off.



DUI and Injury to Child - Dismissed

Facts of the Case

                 I recently had a client that was charged with a DUI and two counts of Injury to Child. The client was involved in an accident on HWY 19 where he went of the road, went through a fence and came to rest in a pasture.  As the picture shows, the damage to the vehicle was severe.

                Police were called to the scene and began a DUI investigation.  My client smelled like alcohol, had red, bloodshot eyes, and admitted drinking alcohol.  After searching his vehicle, officers found an open 12-pack of beer in the back seat. Based on this information, the officer administered field sobriety tests, which my client failed (all three).    A breath test was given and my client blew a .143.

 Attack

                 Immediately, I ordered the instrument logs for the breath test machine.  I noticed that, for the last 5 months, the machine was malfunctioning.  On nine separate occasions the machine was out of tolerance, a fact that put in question every DUI arrest for the last five months.  No one at the police station had taken the machine out of service or corrected the malfunction. 

                 Based on the malfunctioning machine, I was able to get the license suspension thrown out and the prosecutor, realizing the breath test results would be inadmissible, dropped the DUI and Injury to Child charges.  My client pled guilty to the accident itself.

                 A thorough investigation into every aspect of this case led to a great result for my client and his family.

 Lessons Learned

                 1. Don't lose hope.  My client thought the situation was hopeless.  Based on the information he knew at the time, he was probably right.  But DUIs are about more than the events surrounding your arrest.  Many cases can be won and only after a complete review of all the facts can anyone know the true outcome of a case.

                 2. Fight for your rights.  In this case the machine had been malfunctioning for 5 months!  That means that every DUI arrest based on that machine was suspect.  It also means that for five months no one had fought their charge, or no attorney had completely reviewed all the facts of the case.  Justice was denied to every defendant who was convicted of or pled guilty to a DUI charge based on the inaccurate breath test results.     

Alcohol and Sporting Events

I found a very intersting study from the University of Minnesota published earlier this year.  As a DUI attorney I thought the results were quite interesting.  Do you think the numbers would be the same here in Boise?

Summary

• Researchers conducted breathalyzer exams on a total of 362 adults after 13 baseball games and three football games. Sixty percent of fans tested had a blood alcohol content level (BAC) of zero, 40 percent had a BAC under the legal driving limit of .08, and of that group, 8 percent blew above that legal limit.
• Fans under 35 years of age have nine times greater odds of having BAC levels above the limit of .08.
• Those who drink at tailgating parties have 14 times greater odds of being legally drunk, compared to fans who had not tailgated.
• Nearly one in four attendees who tailgated reported consuming five or more alcoholic beverages while tailgating.

Interesting Podcast about Breathalyzers

I came across a pretty interesting podcast about how breath testing machines work.  The podcast is about a half hour long and describes the (complicated) science behind how different breath testing devices work.  I found it quite interesting. 

Most of the law enforcment agencies in Idaho including the Ada County Sheriff, Boise Police, Meridian Police, Garden City and the Idaho State Police use either the Intoxilyzer 5000 or the Lifeloc FC20.  So as you listen to the podcast, be aware that if you took a breath test a a jail or police station, the machine you tested on was an Intoxilyzer 5000 and if your test was done in the back of a patrol car is was probably a Lifeloc device.

Listen to the podcast here.

The written article (including some interesting diagrams) can be found here.

Can you Get a DUI on Horseback?

I was recently contacted by a potential client with a unique question about a DUI case.  He wanted to know if it was possible to get a DUI while riding a horse.  I thought a unique question deserved a blog post, so here is my response for everyone's benefit.

 To be convicted of a DUI in the State of Idaho, you have to be in control of a motor vehicle.  The Legislature has defined being in control of a motor vehicle to include sitting in the driving position with the car running, whether or not the vehicle is in gear.  This obviously includes someone who is driving a vehicle.  But you should also know that Idaho courts have consistently ruled that if you are sitting in the driver's seat and the car is on, you are deemed to be in control of the vehicle.  Sometimes, unfortunately, a client is trying to sleep off their alcohol consumption and have the car on simply for heat.  In cases like that, the Courts are likely to determine that the person behind the wheel is in control of the vehicle and would allow the prosecutors to proceed with a DUI charge.

So, to answer the question originally asked, a horse is not a motor vehicle.  If you are intoxicated over the legal limit and riding horseback, you cannot be found guilty of a DUI.  Additionally, you would not be subject to any driver's license suspension from the Idaho Department of Transportation.

So, if you have the choice of driving your car or riding a horse, you should choose to ride your horse.



Case Update - Prosecutor Dismisses All Charges

I wanted to update you on a recent Boise County DUI case. 

My client was arrested for DUI after she was stopped by a Boise County Deputy Sheriff on Highway 21.  She was given a breath test at the scene and blew .194/186 and was charged with a DUI.

After she contacted me, I requested and obtained the audio and video recordings for the stop.  Even though the officer claimed he stopped my client because her truck lacked mud flaps and the tires were too big for the vehicle, the video recording revealed that he was too far away from my client's truck at the time he turned on his overhead lights to see those details.  It was obvious had other reasons for stopping her.

His fall back excuse for the stop was that the light above the license plate was out. 

I scheduled a Motion to Suppress.  Before the hearing, the prosecutor made a very unfavorable offer to resolve the case.  My client stuck to her guns, rejected the offer and we went to hearing on the motion.  During the hearing, the officer admitted that he was too far away from the truck to see the tires and mud flaps but claimed the light over the license plate was out and he could see that from very far away.

The problem? Idaho law does not require the license plate to have a light.  The judge quickly picked up on this fact.  After a two-hour hearing, Judge Cockerille suppressed all evidence from the stop.

And the really good news is that, after taking the weekend take a look at his case, the prosecutor dismissed the case and all charges have been dropped.  My client will face no further punishment or prosecution for the DUI charge.