James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases.
In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines.
In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee.
Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com].
In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012).
Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice.
He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing.
He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge.
Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.
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I live in Florida, and had no trouble atiinntag another lawyer when my current lawyer was doing nothing. I did NOT have to pay him, because as you stated you signed the pay if we win clause. If he does not produce any money for you, you owe nothing. Try talking to other ACCIDENT attorneys, and see what they have to say. You do not state if you are suing for injury or property damage. Those rules are tricky, and vary from state to state. Chances are, if your case is solid, you will have someone jump on your case that is more aggressive. Talk to locals who may have had a similar case. They can be very good at referring. I got lucky, was referred to a new lawyer, and after the case had been stagnant for 2+ yrs, she was able to finish it out, win me a little money, and most importantly pay off the surgery, and accrued medical bills from all this. Best of luck in your case. I hope your injuries are not bad.Good luck. I hope your injuries are not bad.
You won’t need a lawyer if it is your first ofnfese and you will most likely get probation, fines, and community service. A lawyer could talk to the prosecutor to try and get it reduced to a lesser charge. If you cannot afford a lawyer then I completely understand alot of people dont like spending money on them. But, without a lawyer you will plead guilty, no contest, whichever you choose same thing pretty much and you will recieve your sentence and I know this sounds bad but we all make mistakes as long as he learned his lesson.When you go to the court, just try to be short and definite in all of your answers. Judge doesn’t have time for listening 100+ DUI violators everyday. You will have about 2-3 minutes to talk to him and the rest will be already prepared in the document. There are not much that you can change on the spot. All the probation officer order, fines and classes will be already prepared for you.Good luck to you
I just want to say something to the pepole who keep saying the government shouldnt regulate responsibility and individuals should be responsible for their own actions . If some guy came into a mall waving a loaded gun around and acting piss drunk, should the police just say “oh well he should have been responsible for himself” and not do anything about it? NO. When you get behind the wheel after drinking, you are gaining control of a LETHAL WEAPON with limited inhibitions and lowered reaction time. The level is set there because that is where the government thinks a person is no longer reasonably able to control their own vehicle, where the reaction time slows on an average person. Like others have said, if you are driving erratically and blow something lower than a .08, you will still be held responsible. If it is set at .00, many pepole who are fully functioning could be cited at traffic stops where they test everyone. They put it at a limit so they can catch those who are actually inhibited. And this has nothing to do with prohibition or personal responsibility. If it were up to me, anyone given a DUI would automatically get a suspended license.
These numbers are itniresnetg in that they suggest that very few people have charges dismissed outright or win an acquittal. In your experience, what percentage of cases actually result in a dismissal or acquittal?
High Profile people got the money too- to keep the DUI Inc. pftaiorble for the city and state. If the city was really concerned about safety- why dont they make a Bar/Nightclub Safe Transportation System – which gives people an affordable method to get themselves and car home after a night of drinking? Or affordable chauffers to park your car in a secure monitored overnight garage and have a shuttle system to take you to and from the garage? Not everyone is a short taxi ride away from a bar
Thank you for reading my blog and tnkaig the time to comment. I apologize for not responding sooner. For some reason comments to the posts were not forwarded to me for review and posting. I was unaware of your post. I am working on that problem. For now I will check daily.You are correct in your assessment that the long term consequences of a DUI/OUI conviction are serious, especially for a college student. They can include increased insurance costs, restrictions on foreign travel, limitations on available graduate schools, foreclosed career choices, and a host of other problems.It is difficult to tell what your daughter should do without a lot more information. It may be that there is a valid defense. It may be that the costs of defense (attorney, experts, expenses) outweigh the likelihood of success. What your daughter needs is a consultation with an attorney with a thorough knowledge of DUI defense. That consultation should give her the information she needs to determine the proper course of action for her to take. If you have not already consulted an attorney please feel free to contact me for a recommendation. I generally do not practice in the USM area, but I can direct you to competent counsel in that area. My number is 207-990-5855.
Lawyers are easy to find by searching onnile phone directories, but the best way to find an attorney who specializes in DUI cases and criminal law, would be to contact the local bar association for your city or state. They provide free lawyer referral services and you can ask them to refer you to a lawyer who mainly represents people who have been arrested and charged with DUI. +1Was this answer helpful?
any time you purchase a new/used veilhce your insurance company will check your record. unfortunately they know that not everyone is honest and that is how they get their information. not every insurance company will tell you that they are checking it again nor will they always tell you their findings, unless of’ course they raise your rates.would they see it on your record yes. but since you have not been convicted, they wont see that. they may recheck it to find out the outcome.i’ve dealt with many insurance companies and law enforcement agencies and they pretty much work together. good luck
Good video, There is a common perception out there that DUI is about obviously drunk people driving. In reality there is a large number of defendents who have had one or two drinks and are perfectly coherent and able but the inaccuracy of the machine, poor field conditions and the reliance on assuming everyone is average in height, weight, medical condition, balance, sleep, diet etc convicts them. This is why you have seen an explosion of high profile, responsible people get convicted.
I think in any DUI having an attroney is essential. If this is your first offense an attroney may be able to help you get the case plead down to a non DUI offense. I am an attroney in Ohio and can often get first time offenders tickets plead down to a lesser non DUI offense.An attroney can also negotiate with the prosecutor on your suspension and other punishments. They can also help you obtain driving privileges. A good attroney will be familar with the judges/prosecutors attitudes and what they normally do in DUI cases. This helps to protect your criminal and BMV record. In Ohio the look back period for DUI’s is 6 years and up to 20 in some cases. I don’t know the law in California but you don’t want to just plead guilty and get another DUI in 10 years and have it come back to bite you b/c you didn’t do all you could to protect yourself the first time. You could also plead not guilty and attend the pre trial with the prosecutor yourself. But again you won’t be as familar with how the court handles DUI’s as an attroney. At the very least it never hurts to set up an office visit and get an attroney’s opinion.
Nice very nice. Works on GPS and smart phones 2. If you hate ticteks this is a service you will like. If only I had known about it a while back. A few months ago I got a $200 ticket from a speed camera and I was pissed to say the least. My friend told me about phantom alert and showed me how it works on his garmin. We drove past the spot where I got the ticket and guess what his GPS went off alerting us to the location even before we could see it. Well it made it clear to me that if I had had phantom on my garmin that day I just might have avoided that $200 ticket. I guess better late than never. Get it before you get a ticket. Learn from me Pros: Also works on Android phones. downloads were easy. Updates are also easy. Clear tutorial and responsive customer service. Lots of types of POIs red lights, speed cams, rr crossings, schools, DUI spots and of course speed traps.Cons: need more people to be involved. Need to come out with an app for windows mobile.
It is to save lives and property. For an example, I have a female friend whose mother was an alcoholic. She was always seen with a drink in her hand, and when she went on the road she would always pack an ice chest full of beer. One night, at 1am, her mother swerved into the incoming lane. She not only killed herself, but she killed a 17-year old male on his way home from work. I had to speak at her funeral. Ask yourself how would you describe her legacy? This is only one example, one statistic due to DUI situations. It’s a needless loss of life or lives. It transcends politics. Law enforcement has to do their jobs if drivers are so irresponsible to drive in conditions like that. It has nothing to do with profits, and most insurance carriers WILL NOT cover losses dealing with DUI’s in case of deaths.
I think that there seems to be far to much observatory discretion left up to police to raise a reasonable suspicion as to whether or not someone is intoxicated by alcohol or drugs. In Australia they use road side handheld breath testing machines. If a person fails that test then they must submit to a more accurate test back at the police station. Scientific machines are used by police so that there is very little room to argue for a not guilty verdict when the matter goes before the courts.
I agree with you that too much discretion and subjective criteria are granted the police. However, in my experience breath testing devices are unreliable and very often inaccurate — the handheld units in the field particularly, but the larger machines at police stations as well.
I would suggest that the HGN performed by police officers (even in an abbreviated or possibly inaccurate way) should only be considered qualified reasonable suspicion/and further probable cause to convince the performing police officer that the subject might very well be operating a motor vehicle under the influence of some substance or other impairment. If the subject fails the HGN test in the field, he/she should be required to provide a blood sample that can accurately determine the quantity of outside substance within the blood that could impair the driver’s ability to perform behind the wheel. Too many states will not recover blood without the subject’s permission. This is the wide open door that gets the DUI subject off of the hook. It happens too often that a subject is IN FACT operating while under the influence and a small (even almost impossible to find) technical point in the element of the law is either missed, hidden intentionally or some smart attorney manages identify and employ some other technicality and the DUI subject gets off. This is not correct. IF you have had too much to drink, it needs to be reported that way and a DUI conviction needs to be the result of a 100 percent blood toxicology report. Period !!!!! No questions, no dispute, no trickery. Just use the facts. My opinion as a retired law enforcement officer. Thank you.
Over the last couple of years we have seen a huge spike in Police related drink driving incidents. Gone are the days when a fellow police office would sweep the matter under the carpet a let a colleague off. More and more police are being caught DUI and they should simply know better. Even judges are breaking the laws that they work to uphold.
In most states if you refuse the breathalyzer machine you are automatically considered drunk so how on a DUI first offense in West Virginia you can get your charge dismissed and your record expunged.
It is soooo important to get legal representation asap when this happens…my brother was arrested for DUI but he had passed 4 breathalyzers and the walking test and they still arrested him. We were lucky to have a lawyer on our side ASAP otherwise he would have been wrongfully charged and his record destroyed.
Contacting a lawyer for representation as soon as possible can help protect important rights. Waiting can have an impact on your ability to keep your license valid while the case is pending. I agree – contact a lawyer as soon as possible.
Thanks for putting No Refusal Weekends into perspective Steve. Based on what you’ve written here it seems that most people I’ve talked to are terribly misinformed on the issue. My guess is the fact that the title is a clear misnomer has something to do with this – and not by accident either.
Google +1d.
There should be federal legislation put in place so that there can be no confusion about the rules – especially when we are talking about traffic and DUI offences which are the most common of the criminal offences.
This article was very informative, that is why state vs. melendaz-diaz is a great case
This article was very helpful, thank you
Don’t you think .02 is a little crazy
I was convicted of an OUI in Maine a little bit ago. Even though I was not even in a car. Don’t ask me how that happens. The officer never saw me driving and I was not behind the wheel. Anyways, I was found guilty anyways regardless. But, I am hoping that someone might have an answer to a question. I have to take the drug alcohol education course called D.E.E.P. I was told that at the end of the 20 hour course you have to take an assessment test about yourself and based on those answers you either pass or get a referral for more counseling. Does anyone know what this test is? I do not drink, only have once or twice since I turned 21. So, please any information on this test would be appreciated. I just worry it is one of those trick question test and regardless of what you answer they will find a way to fail you. If you end up getting a referral you can’t get your license back and you basically lose the $300 it cost for the course in the 1st place. Thank you.
I keep seeing this as a recurring issue and many people are talking about it. I know a simple solution. Use a wet nap before issuing the breathalyzer. These machines are not completely accurate, but I wonder what advancements in technology they will come up next. Thanks for posting.
so what happens to people that were perm. revoked for 3 dwis and could apply for a waiver after 5 years? is the five years applied to the waiting period and they have to have a breath device for five years? thats how i am understanding the law. tried to call dmv but that was useless because they dont even understand the law. any help would be great.
thanks
mj
A friend of mine has a DWI case with an alleged alcohol reading of 0.23. He is being tried for felony because he had a child of 7 years old in the car at time of arrest. Will this amount to an aggravated DWI that would lead to a deportation even if there is no previous criminal records? There was no accident or bodily harm to his child and wife who were in the car. My colleague’s immigration status is G4 visa.
The three dangerous DD’s.. Drunk Driving, Drowsy Driving, and Distracted Driving. I think that if individuals could stop doing these three things the number of fatal and injury accidents would decrease significantly. Drunk and Distracted Driving are easier to stop because they are more of a choice then drowsy driving is, but there are still a lot of things people can do to decrease the risk of drowsy driving. Mentioned in the article above.
Anytime you are accused a lawyer is a good idea. A person who represents himself has a fool for a client. You never, ever give police evidence to convict you. And a police officers job is to gather evidence which can and will be held against you. Believe them when they tell you that. Shut up and lawyer up. Your lawyer will have to overcome the blood test, but I’ve seen it done, for all who could afford to pay, time and time again. AND don’t re-offend. Learn your lesson, don’t drink and drive, it’s a lot cheaper, not to mention safer for you and others. Good luck.
California requires proof of SS nubemr when first applying for a CA drivers license or ID card. If your card is lost, you can get proof by going to a local Social Security Office and get a printout with your SSN and your name, they’ll stamp it with a SSA rubber stamp, and the DMV will accept it. (former Rock Hill, SC resident now living in Sacramento). Oh, and drop the Cali thing. I know SC people say Cali but no one in California uses that. It’s Cal when you live in the state, not Cali.References :
Request for Amendment of a RecordDMV maintains the ientgrity of its database, which contains approximately 24 million driver license/identification card records. If your record contains incorrect information, request a correction by completing a Driver License Record Correction Request (Traffic Violations/Convictions Only) (DL 207) or Traffic Accident Record Correction Request (Traffic Accident Information Only) (DL 208). You maydownload the form orcall 1 (800) 777-0133 to have one mailed to you orpick one up at any DMV field office.For additional information contact the Mandatory Actions Unit at (916) 657-6525 or write to them at:Department of Motor VehiclesMandatory Actions Unit, Mail Station J233P. O. Box 942890Sacramento, CA 94290-0001
Hello Everyone:
If you have read the newsletter you will know by now that the Mug Shot Bill has been dropped. It is Bill HB 150. People all over the Country are calling Rep. Bruce’s office inquiring the status of the bill. I do not want to make any assumptions, so for those who are unaware of how the legislative process work you can see the details below or you can go to http://www.legis.ga.gov for legislative information.
HB 150 is currently assigned to the Judiciary Civil Committee, and I found out today that our first hearing on the bill will be on Monday, Feb. 11, 2013. I do not have the time at the moment, but I wanted to give you a heads up and ask that you come out to the hearing to testify. Our aim is to let the committee hear from us the ones whose lives have been negatively impacted by these mug shot companies.
I must share with you that Rep. Bruce has been soliciting support of this bill every chance he gets (colleagues and any official that will listen). He has really gone above and beyond to push this bill on our behalf, and I am very proud of him. I see it every day, but he needs us to do our part. We are stronger in unity, so I implore you to make an effort and come out, not just for you, but for others that is and will face this kind of extortion. Realistically, there are no guarantees that the bill will pass, but we are off to a great start and we have to give it our best effort. We will keep pressing until we get the changes we need. Please let me know who can testify next Monday. I will send the time and room # as soon as possible. Lastly, I want to share a timely quote I read today.
“Never doubt that a small group of thoughtful committed citizens can change the world; indeed, it’s the only thing that ever has.”
– Margaret Mead
Please note: I have BCC everyone to secure your privacy.
Tracking a Bill Through The General Assembly
IDEA
Legislator sees need for a new law or changes in existing law and decides to introduce a bill.
DRAFTING
Legislator goes to Office of Legislative Counsel. There, attorney advises legislator on legal issues and drafts bill.
INTRODUCTION AND FIRST READING
Legislator files bill with the Clerk of the House or Secretary of the Senate. On legislative day after filing, bill is formally introduced. In chamber, bill’s title is read during period of first readings. Immediately after first reading, presiding officer assigns bill to a standing committee.
SECOND READING
In the House only, on next legislative day, Clerk reads bill’s title (second reading) in chamber, although actual bill is now in committee. In Senate, second reading comes after bill is reported favorably from committee.
COMMITTEE ACTION
Bill considered by committee. Author and other legislators may testify. If controversial, public hearings may be held. Final Committee action reported in a written report. Committee options are:
Recommend Bill or Resolution Do Pass;
Recommend Do NOT Pass;
Recommend Do Pass with changes (amendments or substitutes);
Hold Bill.
THIRD READING AND PASSAGE
Clerk or Secretary prepares a General Calendar of bills favorably reported from committee.
Legislation which was second read the day before is placed on a calendar in numeric order for floor action prior to the the Rules Committee meeting to choose bills for consideration.
After a certain point, set by rule, the Rules Committee meets and prepares a Rules Calendar for the next day’s floor consideration from bills on General Calendar.
The presiding officer calls up bills from the Rules Calendar for floor action in order as they appear on this calendar.
Once presiding officer calls bill up from Rules Calendar, Clerk or Secretary reads bill’s title (third reading). Bill is now ready for floor debate, amendments, and voting. After debate, main question is called and members vote. if bill is approved by majority of total membership of that house , it is sent to the other house.
TRANSMITTAL TO OTHER CHAMBER
Bill is passed if:
If second chamber passes bill, it is returned to chamber where bill was introduced.
If first chamber rejects changes and second chamber insists, a conference committee may be appointed. Committee report is accepted by both chambers.
Bill is enrolled and sent to the Governor (if requested). Otherwise, all enrolled bills sent to Governor following adjournment sine die.
GOVERNOR’S SIGNATURE/VETO
Governor may sign bill or do nothing, and bill becomes law. Governor may veto bill, which requires two-thirds of members of each house to override.
ACT
Act and other laws enacted at the session are printed in the Georgia Laws series. Also, act is incorporated into the Official Code of Georgia Annotated. Act becomes effective the following July 1, unless a different effective date is provided in act
Sophia Andrade
2013-2014 Legislative Assistant for Rep. Roger Bruce:
Georgia House of Representatives
608 Coverdell Legislative Office Building
Atlanta, GA 30334
O: 404-656-0314
F: 404-656-0250
The meeting wil be held at 9:00am at the GA State Capitol Building in room 132. If you can please come support this bil.
On February 12, 2013, the House approved H. B. 481 by a vote of 112 to 4. Although the bill still requires approval by the Senate, it is clear that support for the bill may have been underestimated. With over 90% approval in the House, it is evident that the there is overwhelming support for the proposed legislation. And we will be closely monitoring the upcoming Senate votes to see if this bill becomes law.
For more information on House Bill 481, please visit http://billstatus.ls.state.ms.us/2013/pdf/history/HB/HB0481.xml
For more information on Mississippi DUI laws, DUI defense, and related matters, please visit our website at http://www.mississippidui.com/
Great article.
I have a heard of several police officers being taken off of regular DUI patrols for over arresting for DUIs. With their intention being the double pay the would recieve for court hearings.
Stories like this make you think twice about driving at all! And they remind us of the need for great DUI lawyers no matter what state your arrest was in.
I was just reading an article about Arizona’s DUI laws and the lingering traces of the inactive drug found in marijuana. I find it sad that while one state has legalized certain marijuana use another can up and flip their law completely once a user exits Colorado state territory. Users must be aware of the varying DUI laws in states outside of Colorado, and must be careful not to drive after several days of usage if the plan to leave the state.
Good job in making your points well understood. Ignition interlocks are a great products that is available not only to offenders but to the public. The purpose of the device is to control and monitor vehicles driven by convicted DUI offenders, thus enhancing public safety.
Good job in making your points well understood. Ignition interlocks are a great products that is available not only to offenders but to the public. The purpose of the device is to control and monitor vehicles driven by convicted DUI offenders, thus enhancing public safety.
Thank you for this article, it was verying informing. Personal breath testing products are a great way to know your status before you drive.
I was stopped at a checkpoint in November of 2012. I admitted to having 2 drinks having assumed that that would register under .04. I also admitted to being on Xanax, which I have had a perscription for, for 40 years. They tested me at the scene twice in order to come up with a reading of .05. Before they officially arrested me they searched my vehicle and found a baggie with .75 grams of a controlled substance. At the station I tested at .03 BAC. My current attorney has gotten a plea deal done to 2 misdemeanors which, to me, does not sound like a deal at all. Can’t I get this dismissed?
Mr. Bennett,
While we appreciate your inquiry, it is not appropriate for the contributors to this blog to counsel you about your case when you have either hired or been appointed counsel. We do, however, appreciate you reading this blog and hope you will continue to do so in the future. You might even suggest your lawyer take a look at our entries having to do with the issues involved in your case. Good luck, Steve Oberman
Wow- finally, something bucking the trend.
Does this ruling have any barring if you did a blood test under the warnings from the officer that you “have to submit because of the implied consent” and not notifying you of your constitutional right to refuse even with the “implied consent” rule from the DMV?
An important question and one which will provoke a great amount of litigation. The Prosecution will likely argue that your consent trumps the need for a warrant. But, the implied consent admonitions in the state of California expressly provide that the licensee be warned that a failure to “consent” will result in a lengthy license suspension, jail time and an inference at trial that the refusal demonstrates a consciousness of guilt. Is this a consent that is freely, knowingly and voluntarily given or, is it submission to authority to avoid significant penal consequences ? Well trained and experienced lawyers who specialize in DUI defense will argue that this statutorily compelled consent does not amount to consent for the purpose of 4th Amendment analysis. McNeely will not apply in cases where the evidence suggests that the arrestee genuinely chose the blood test over the breath test.
I wish this would be done in all States. I Live in florida And Its on My record for 75 yrs. Im 23…a single mother, go to school And I just think Its Wrong to punish someone for the rest of theyre lives When no actual harm was done. I blew .11…hurt no one And have to Live with this for the rest of My life.
I refused a breath test, I have not been convicted / diverted for a charge or refusal in the past. The state has suspended my drivers license for 1 year and will require 2 years on ignition interlock. Can I get a lesser punishment for a first time offence?
These are the minute points that lawyers miss (specially inexperienced ones). I found this blog really helpful for those who are new in industry and for those also who are attentive towards their profession.
How reliable is Alcovisor MK X as I am a diabetic. If you do consume alcohol and sleep for 8 hours how would you know if you would be detected in the morning at a company security before entering premises where they have zero tolerance.will Alcovisor reading be allowed in a disciplinary hearing at work?
I was accused of DWI in 1987.I was taking my sister in law home and my tail lights was’nt working. I was instructed to exit my vehicle.I was handle kinda rough so I was irritated.One of the afficers said just give him a DWI.Just like that.Taken to jail where I took the breath test the test guy said I had 1 too many.There is no way I was Drunk.Help
Thanks to Steve for sharing these insightful posts about DUI. They must be building awareness among people to some extent. I appreciate your efforts of educating people about DUI defense.
Mr.Wagner, I would suggest that you look at the complete law passed in 2013 re: drugs in the body. I am still trying to find it. I believe there is a important item not mentioned in your document. Robert White
These are some impressive statistics. I am surprised that half the deaths between 25-34 are from people who were intoxicated. We all know that people make poor decisions while drunk. It seems that we truly have taught people not to drive drunk and we need to educate them to put themselves in safer situations when they choose to be intoxicated.
Stories like this always make me sick to my stomach. This is the main reason I am a DUI defense attorney in Arizona. I hate when people are taken advantage of just because law enforcement has power.
Great Article. It’s too bad the courts are allowing inferences of criminal intent when it is clearly not the intent of the defendant that somebody else DUI. People are just trying to be safe by having the least intoxicated person drive. Fear of being prosecuted as an accomplice may lead to the conclusion that it doesn’t matter who drives. That could be a dangerous situation. Poor policy. Thanks for sharing.
You are a wonderful person and a true hero. My family has been plagued with DUI. My youngest sits in jail now for 90 days b/c of drugs in his system. He didn’t use them the day he was arrested for a driving infraction. He now has another pending DUI, a 3rd with a 2yr prison sentence for riding a bike getting hit by a car and found unconscious on the side of the road. He had 3 broken facial bones and needed stitches. We have no public transportation, he will never got a job around here. He is ruined and since he won’t be able to pay the $25,000 in fines, he will go back to jail over and over. Makes me sick. It’s all about money.
Greetings,
I am Robert Allen Walker and I am fighting for my life. In the Superior Court of Coconino County AKA Flagstaff, AZ. I have been charged with DUI and have been fighting my case for a year and a half. Can you say “6th amendment?” Your article on the Intoxilyzer 8000 and recent cases is great, and thank you for your objective reporting.
I have since the beginning been railroaded, my constitutional rights denied, and have now found new hope with the flaws in the Intoxilyzer machine. I have fired the court appointed council, they say that is your right, and yet it took over five months to do so. I am alone, untrained as a lawyer, and being held to the exact same standards as a lawyer, and am up against a team of lawyers and their helpers and clerks and so forth.
Any case law you can provide, that’s the only thing they will accept in court, would be appreciated, that and any more current articles on the subject would be greatly appreciated.
I intend to fight to the bitter end, and to bring a class action suit that will set aside all such cases in my area and or state. When you see how they treat people, the coercion and threats and intimidation it makes a fella motivated. That, or an inmate.
Why test someone’s breath to measure blood alcohol? To save money? To buy a $7,000 machine to save money on simple blood tests? I think not, it is a money making machine, literally.
Thanks again, my trial is Tuesday and I look forward to upcoming appeals.
Sincerely,
Robert Allen Walker
(928) 699-6799
OK. I just Googled the case law sited above and wow, yay, wow, hell ya, and thank you. Still, one can not be too sure, so any other case law that totally help and are relevant would be helpful. Something tells me these guys are not going to like this, and will fight it anyway.
Thanks again.
RAW RAW RAW
Great article Lawrence!
Yes unfortunately I feel like there are a lot of gray areas within our court system. I have personally witness the K-9 illegally search a vehicle in hopes of the dog alerting and then using that as the probable cause to search. As if the dog smelled the narcotic and alerted.
I just thought it was funny that with three officers and a dog they didn’t find anything in the car. But oh yeah the dog alerted on something. Anyway, good information and to my understanding, entrapment was when an officer uses their authority out of the scope of the law to threaten or coerce someone into doing something they didn’t want.
Anyway I hope to finish my degree one day. Thanks again!
Thank you for this information, Ignition interlocks are a great products that is available not only to offenders but to the public. The purpose of the device is to control and monitor vehicles driven by convicted DUI offenders, thus enhancing public safety.
Great article, I enjoyed how you balanced facts and personal impact. About one-third of all drivers arrested or convicted of driving while intoxicated or under the influence of alcohol are repeat offenders
Rock on Mr. Katz! I’ll admit I get a little kick from hearing about your exploits on this front!
What are the “steps” one must follow to protect their rights if pulled over by an officer of the law in Tennessee..if they are taking prescribed meds and if they are NOT under the influence of that medication. Should they say they are on meds, or choose to be silent, refuse to answer? Should they TAKE the breath test if they have not been drinking? Basically please give an senerio of what a person will be asked…and how SHOULD behave/answer, and how to properly answer questions, and how NOT bring to bring legal meds up in the first place.
I am currently under the impression that one should not answer any question other than the basic car stop with/out bringing up legal meds should the officer decide to ask about prescription use…and at time just saying that the officer might want to contact my Dr. about any meds perscribed. Does this make sense? Thanks in advance for your opinions!
Tony,
I will attempt to provide you with some general information based on current Tennessee DUI and related criminal defense law with the understanding that each case/situation may differ significantly enough to substantially change my legal advice. Moreover, the law is in a constant state of flux, so today’s correct answer may be incorrect tomorrow. If you’d like specific information, you should contact me by telephone at 865-249-7200.
That being said, I will tell you that the best course of action is to always be polite when approached by an officer. You are likely obligated to identify yourself by displaying your driver’s license if you are in fact driving. If you are not driving, there is some legal authority that you have the right to walk away from an officer unless you are ordered to stop Cite** Again, the rule is based on the specific facts of your situation.
In reference to your inquiry about DUI by drugs (prescribed or not), I can advise you that there is a complex protocol that can be implemented by the officer to make that determination (Drug Recognition Evaluation – DRE), but your voluntary consent is required for most of the protocol. Remember that you may be convicted of DUI even if the medication is prescribed to you. If you are being specifically asked if you are taking any medication, the officer likely suspects you are under the influence and is fishing for information to support his suspicion. In that case, your best chance of avoiding arrest or at least conviction may be to politely decline to answer any questions without first consulting your lawyer. You are not obligated to submit to any field sobriety tests such as the horizontal gaze nystagmus (HGN) test, the Walk and Turn Test or the One leg Stand test, or any other field test (meaning not a chemical test of a bodily substance such as breath, blood or urine).
Before an officer may legally request that you submit to a chemical test, he must first be able to establish “reasonable grounds” or “probable cause” that you have violated the law. The more information you provide, the more likely it is that you will assist the officer in reaching that threshold. Once the officer has sufficient proof that you are driving under the influence of alcohol or drugs, or both, it is the officers choice about which tests to request from you. Keep in mind the officer may request more than one test. You should also be aware that in some circumstances, you may be committing a separate crime if you refuse a chemical test requested by the officer. If you fall in that category (too complex to describe here) I am obligated to advise you that you should not commit a crime. Finally, keep in mind that an officer always has the right to request a search warrant to obtain a bodily substance – even forcibly if necessary.
I regret I can’t provide you with an exact script to recite to an officer. There are simply too many variables to give you an accurate answer. I hope this foregoing information will help you better understand your legal rights. Remember, though, that the best way to avoid an arrest for DUI is not to consume any medication, drug or alcohol that impairs your ability to operate your motor vehicle. Consult with both your doctor and pharmacist before taking medication and driving.
How disgusting for this acclaimed DUI attorney to compare the Nazi’s systematic state sponsored extermination of 6 million innocent men, women, and children to our nation’s attempt to foster safer roadways. You demonstrate a staggering lack of knowledge and understanding of such a dark period in human history. Your argument carries zero weight counselor.
We should never toss aside people’s constitutional rights. MADD is encouraging everyone to do just that. I am so glad to see someone is fighting against bad DWI Laws. The DWI laws these days are insane and unconstitutional. Sure we need to arrest people but we should never violate citizens rights and least we not forget those arrested for DWI are still citizens.
Your article was very informative. As I speak, I am fighting this right here in Kansas. I won’t spoil myself with
unreasonable hope, but the charge of refusal was thrown out in Wichita two months ago because the judge agreed
that it was unconstitutional. There are several cases in the Appellate Courts right now in Kansas. Mine is not one
of them yet.
I lived a hard youth and have a lot of experience with law–though the wrong side of it. I went to college
initially to be a lawyer and studied some Constitutional law.
I find this issue to be relatively simple once common sense is applied. I have several rights–not privileges–
that clearly state I don’t have to take this test. Furthermore, once the motives behind making these laws are
explored, it is painfully obvious that it was to win more cases in court, because constitutional rights get in the
way. Period. Furthermore, on the what-if-it-were legal spectrum, it would lose again. Because to suggest rights
can simply be overlooked for public safety, judicial success or any other excuse is absurd. One might very well
test this with a very simple understanding of the applications of this train of thought. The refusal statute
consequences is akin to the idea that you can be punished for invoking your right to remain silent, or your right
to an attorney, or your right to be a black kid in a white school. This is just disgusting NAZIism, evolving our
system into a nanny state that puts safety–and the consequential tyranny-to-come–and the forefront of the end of
the Forefather’s dreams. Consequently rendering those once-considered brilliant ideas an abstract failure.
This is very simple once you take all the righteousness and politics out of the equation. This is blatantly
illegal according the the real Law of the Land. The Constitution.
Thank you for the discussion,
Justin
I want to suppress the states intoxilyzer 8000results from a oct. 13 2006 dui is this possible ?
Scott,
There is no time limit to suppress evidence assuming the judge’s deadlines have not expired and your case has not yet been resolved. I suggest you consult with a lawyer in your state. If you don’t have one, please contact me at 865-249-7200 and I will refer you to a knowledgeable lawyer. Steve Oberman
I blew 0.09, one point over. They said the court dropped it down to reckless driving but dmv picked it up. please help.
Mr. Spears, I spoke with you today and suggested you contact Mr. Harley Wagner. He will be much more knowledgeable about West Virginia law than I. Good luck, Steve
“Very good post…well i think writing this kind of article is a tough job.Thanks for your blog.
DUI
I was convicted of two duis in West Virginia. I have moved to Florida and since they have raised a wreckless charge back to dui after it was accepted. What I want to know, Florida has nothing on me and I cannot get through to West Virginia on the phone. I need to know (they need to know) how much longer I have to have this thing in my car. It has been there for 15 mos and I am no threat I assure you.I am disabled and it is bearing on me financially to have this machine in my jalopy .
Than k you for reading this and please help.
Marsha Brown
1507 Ocean Breeze Ln
Gulf Breeze,Fl.
32563
Ms. Brown,
Licensing issues and conditions of probation can be complicated and therefore time consuming. I suggest you seek advice from your lawyer. While I appreciate your inquiry, it is not appropriate for the participating attorneys to counsel you on a matter when you have either hired or been appointed counsel. I wish you the best of luck, Steve Oberman http://www.tndui.com.
As soon as someone is convicted using this evidence it will be appealed. At least I hope so.
I don’t like drunk driving but I dislike dishonest cops and judges much more. 300,000 people drive drunk each day in America. That is a threat to us but corrupt government officials is a much more serious danger.
There is a lot of recidivism with drunk drivers. This is a good thing but it is probably as far as the law should go with drunk drivers.
As an alcoholic I know that if a person really abstains from alcohol for a few months they notice changes in themselves but Diversion does little to require their clients stay sober for the full time.
Many people take classes on Friday afternoons so they can drink all weekend. If we could make them truly abstain they could get some distance and see what they are doing.
The crime is drunk driving, not alcohol abuse. We want them to not drive drunk. This device accomplishes that objective.
I caught a “blip” on the news about a dui conviction resulting in the convicted having to turn over their car and car title to authorities. I have tried to find details on this to no avail. Are you aware of any such proposal or law?
Great question. There have been some changes to the law as it pertains to Oklahoma DUI forfeitures. Check back tomorrow and I will have a new blog article posted explaining it. John Hunsucker
What was the legislative intent in the ten year look back rule? Wasn’t it to give a person a clean slate after ten years as well as enhance sentences for DUI’s within that ten years? I had three DUI’s 23 years ago. I Served my time. Last Summer, I was arrested for misdemeanor DUI in Tulsa and posted a 1K bond. At my arraignment, the DA charged me with a Fifth FELONY, using my 23 year old DUI’s . I am a paralegal and researched it and found SalatHiel and Kolberg and the ten year look back rule. (Read the briefs on my motion to dismiss in State v. Wirtz, @ OSCN.net Tulsa County No. CF-2014-4934, pending ruling, ESPECIALLY MY REPLY). At oral arguments on Feb, 2nd, I want to argue the intent of the ten year rule was to give a person a clean slate after ten years. Where can I find the legislative history?
It appears from OSCN.net that you are represented by counsel on a pending case. As such, under Oklahoma Ethical Rules, it would be improper for me to give any legal advice or comment. Your attorney of record should be able to answer these questions for you. Good luck on your case
I am a ny resident and I am on the ard program. My license in ny is suspended and they want me to take a duo 7 week class in ny. I have no du I convictions in ny. Why is my license suspended in ny and pa?
Your license should not have been suspended for being on the ARD Program in PA as NY operates on convictions, not administrative suspensions. Were you up for renewal in NY? If so it is possible that NY looked to see if you were suspended in any other state, saw your PA license suspension, and won’t reinstate your NY license until you are reinstated in PA. I am unsure of why they would also require you to take the classes if you have to do them as part of the ARD program in PA. Please do not hesitate to call our PA office at (610) 999-9384 or Peter Gerstenzang in NY at (518) 456-6456 with any additional questions. Giving us additional information on your case may shed some light.
Spice was made as a legal, synthetic marijuana. It makes sense that spice would be hard to prove and convict. Fortunately, marijuana reform has led to less spice incidents and more people using a substance that’s safer, healthier and not going to pose a serious health risk. It’s good to see spice usage declining! Stories like this were common just years ago.
Thank God that in Texas we have Art. 38.23 which should still prohibit this nonsense in our courts. I’m still shocked that the Roberts Court made such a massive change in criminal law. Federal DWIs just got tougher. Great article, Mimi.
I was charged with DUAI June 30th,2014.Originaly a DWI for incident on 12/14/2013,i hadnt heard of the new regulations until i went to court and got an attorny.i also refused the breathaliser .i had the hearing for the refusal postponed til i dealt with local court on DWI issue where it was dropped down to a DUAI,it was considered a 1st offense because it has been 19 yrs. since last DWI offense.i recieved 3 monthes suspended license but DMV revoked it for a year because i have 3 offenses in 25 years.attorny waived my right to DMV hearing and said it wouldnt have helped me at all to have hearing.i have 5 DUI offenses in my lifetime and am hearing i will be banned for life and will never drive again,is there anything i can do about this.i have lost a very respectable job over this and will have to sell my house as i am not on a bus route and do not have job prospects near my home.please help
i have never involved anyone else nor have i ever hurt anyone in my offenses,i had a clean record for 19 years before this latest incident.added to last comment
Tim unfortunately it does not look good for your situation. These new laws weld you and absolutely are unfair. The 25 year look back is the most ridiculous part about it. I recently was denied a nice promotion at my job because I cannot drive in NYS. Despite doing the programs required of court and becoming a more productive member of society these mistakes seem to haunt my everyday life. It is hard to believe that most judges and lawyers are clueless of these laws. But after being persuaded by a public defender that taking this plea for a DWI instead of fighting the charge I have ruined my future even further. At no point was I told I would be permanently revoked a license in NYS. In fact the judge said I could apply a year after sentencing and needed an interlock device installed in my car for 3 years. I wish that were true. But he had no clue what he was talking about and DMV shows no mercy and are not open to restoring my drivers license. Stay strong the only way to fight to get it back would be to get the charge vacated by saying you were misrepresented. That means a lot of money to an educated attorney and more than likely a long drawn out process that is nothing more than throwing shit at a wall.
Hi Rhidian,
First let me commend you on the excellent article. I operate a Canadian immigration law firm focused entirely on Canada DUI entry, and this is one of the most well researched and factually correct articles I have read on the subject. From my experience, many American DUI attorneys are not well informed about the consequences an alcohol related driving offense has on international travel, and it can occasionally be a disservice to the client. For example: last week I spoke to a businessman who travels to Canada regularly, and the individual told me had he known a wet reckless would still render him inadmissible to Canada he would have plead not guilty to his DUI (0.084 BAC). Instead he made a deal which resulted in a “harmless” reckless driving charge and ended up getting denied entry at the Canadian border as a result. Your knowledge on the topic assures me that had a similar client retained your services he would much better understand the true ramifications of cutting such a deal.
Regards.
Gordon Vuong
http://www.canadaduientrylaw.com
WOW!
So do you mean to say that it’s as if “Nothing ever happened”?
Basically, we go back to how things were PRIOR to October 2014?
So, Normally it happens like:
1) Officer pulls me over for “suspicion of drunk driving”,
2) He ASKS me to take a “Field Sobriety TEST”; then he FLUNKS me. Thus giving him “Resonable Cause”.
3) Then, he ASKS me to take a PRELIMINARY breath test; which i blow OVER the legal limit.
4) Then i am arrested for OWI. And i go to the station for the OFFICIAL Breath/Blood/Urine test.
5) Now, If i REFUSE this test… i face a potential 6-points & a suspended license.
So, Now, instead:
1) Officer pulls me over for “Suspicion of drunk driving”,
2) He ASKS me to take a “Field Sobriety TEST”; and i can LEGALLY DECLINE (Thus, No “resonable cause”)??
3) Even without “RC”, he still ASKS me to take a PRELIMINARY Breath Test; which i REFUSE again; and the ONLY penalty (at this point) is a Citation/fine??
Is that correct?
4) I understand that he can STill INVENT some other Reason to ARREST me for OWI… but at least i can fight it with an attorney (and possibly dismiss the OFFICIAL Breath/Blood/Urine test results).
Any insight is appreciated,
VK
First things first, the law has been set back to the way it was previously. See: http://www.yourmichiganduilawyer.com/lawful-refuse-roadside-sobriety-testing-michigan/. Either way, you may refuse either the FSTs or the PBT. Currently there is no violation of the law in refusing FSTs in Michigan, and just a fine, no points or DLS in Michigan for refusing PBT. As you suggested, it’s likely the Officer will still arrest you, and ask you to submit to test back at station. If you’d like more details, your best bet is to speak with a qualified Michigan DUI lawyer.
This technology would be great, when it arrives on the market. Until it does we will have to ask the public to voluntarily either refrain from drinking and driving, or to simply get their own personal breathalyzer, sot that they know what their BAC is before stepping into a vehicle. You can get one here http://www.sentryinterlock.com/personal-breathalyzer/
I’m looking to get my dui expunged, from 2006
Good information and probably something that is occurring more frequently than most people suspect.
http://www.candidaplan.com/2929/driving-under-the-influence-of-candida/
I was convicted of misdemeanor ADWI . My license is revoked for 1 year. The Judge is ordering installation of an ignition interlock device on my live in girlfriend’s (unrelated) vehicles. I do not own and cannot operate any vehicles due to the revocation period. I have never owned any of her vehicles. Does my girlfriend have to install this device and what are the consequences if she refuses.
Thank you!
Michael
Michael:
The long and the short of New York’s IID regulations is that you can only be required to place an interlock on any vehicle you own or operate. If you own no vehicle, you cannot be required to place the device on more than one vehicle. That being said, I did have a situation where the Judge required an interlock to be installed on my client’s wife’s vehicle.
That requirement was overturned by an appellate court in an unpublished decision.
Ed Fiandach
Thank you for your response. I did not realize you responded until I happened upon your website again. Does your response indicate my girlfriend may have to have one installed on one vehicle, even though I can’t operate ANY vehicle and own none? In the case you reference, was your client’s license revoked and did he own a vehicle that had to have the device installed?
Thanks again!
I believe your body temperature does have in impact on what you blow or your blood alcohol content. I also think the weather has in impact on this. Has anyone had experience with this.
Excellent article Steve! While the DADSS system sounds great in theory, and would realistically save lives, I believe there are some MAJOR liability issues here that will delay this technology from going mainstream in North America. It won’t take long before a drunk driver sues the company for not detecting his or her intoxication.
im a pa resident, if my license is suspended for an physical control in ohio, will it also be revoked in pa? and if so, will i have to go to ohio for ard classes or can they be taken in pa?
Tony,
Unfortunately, it is not appropriate to provide legal advice through this forum. Please consult with your lawyer or contact Ashley Killeen at 610-999-9384. Best of luck, Steve Oberman
I am a York County resident on administrative probation and ARD program due to DUI and small possession of MJ in Perry county…..I have to take the highway safety courses but have no way of getting up to perry county….are these courses required for my DL restoration? The restoration requirements letter does not say so. Or do these classes have to be completed to get off probation? I can apply for DL again on Nov. 1st. I am on probation till Jan of 2016. I need to get to the classes but cant due to i cant drive….im between a rock and hard place….or am i wrong?
Josh,
Unfortunately, it is not appropriate to provide legal advice through this forum. Please consult with your lawyer or contact Ashley Killeen at 610-999-9384. Best of luck, Steve Oberman
My brother was tested with the 8000 intoxilyzer three times different readings no blood test was sentence to 4 yrs prison. They used a past domestic violence he had already served to boost a aggrivated dui. What we do at this point? There are several other being done the same way in kingman az Mohave cty.
Ms. Huerta, The best thing for your brother at this point is to hire a good lawyer well versed in the area of DUI defense. I strongly recommend the law firm of Nesci & St. Louis in Tucson (520) 622-1222 (regular contributors to this blog). If they can’t assist for some reason, they will refer you to someone who can. Best of luck to you, Steve Oberman
I’m an RN ~been one for 30 years. I got a first and only DUI In January 2013. I have an accusation attached to my nursing license. My BAC was 0.14. I’ve had my hearing in July 2015 and the judge wants my license revoked as well as the board of nursing. They let me respond to this revocation and I admitted I was an alcoholic. I failed to mention that in my hearing. Do you help nurses like me?
Excellent article. We should never toss aside citizens constitutional rights. We have been doing just that and MADD encourages just that. The DWI laws these days are insane. Yes, we do need to arrest people for these things but we should never compromise anyone’s constitutional rights in order to do so. I personally think we have went way over board here and we should stop. When reckless driving, injuries and accidents are not involved then we should not be so overzealous.
I lost mine in 2011, the judge said 18 mo, dmv took it for life I was a truck driver for 33 years, I speeding ticket, no accidents, yet they deemed me an unsafe driver.. I have more miles in reverse, than theses people given the power to take my license..my cdl was taken after the second dui, one that I wasn’t even driving the vehicle, because I was afraid of getting one, the driver slide into a ditch, then took off leaving me with the vehicle, the keeys were in the ignition, so I was arrested. lost my cdl the judge didn’t want to hear anything, I lost my home, my job, my family, my self esteem..i never hurt anyone. I got a dwi, 4 years later after a day of fruitless searching for a job..It wouldn’t have happened if not for a corrupt system.. Maybe coumo will get arrested as I heard he likes his booze.Im sure he will get away with it. just like the dmv commissioners brother did..drunk hit and run, just not fair.. my life has been taken away…bullshit!
In August of 2015 I moved to NY from Maryland, I sold my home in MD and moved to the summer home in Woodstock. I surrendered my MD license was issued a NY license. Within 2 weeks I received a letter from DMV telling me my application was denied and that I needed to surrender my license. It was based on the 2012 repeat offender law. Yes I have had 5 DWI’s on my driving record, with the last being 29 years ago. I went through medical advisory boards, multiple programs etc all required by Maryland to get my license back which I have had for decades, I have been clean and sober for 29 years ( ever since my last DUI). My driving record information was put on the application , and if I had been made aware of the law I would not have surrendered my Md license and would not have become a NY resident. I would have stayed in Md. Its very discouraging.
OMG! I cannot believe this – what a draconian and oppressive regulation. 25 years???? So if you have, Thank God, injured no one, was NOT involved in any accidents but have a disease (addiction) and have turned your life around and suppressed one’s “failings”, say, for 15 years it is still possible a driver is still subject to permanent revocation in NYS.
Though an inexact analogy, it is reminiscent of how totalitarian regimes have treated their personae non gratae.
My situation- .06 1995, .1 1998, refusal 1999.
from the refusal (pled guilty) I did 3months in Nassau County correctional mostly in the substance abuse program with in the jail.
When released I entered a halfway/sober house with an intensive out patient program ,that I completed, while living in the sober house for over a year.
I also made it through 5years of fenonly probation without any issues (sentence from the refusal).
I changed my life at that point.
2007 I got my license back, got married, have a son.
2013 I’m going to pick my son up from school and am pulled over and given a cell phone ticket (not texting). I denied it and pled not guilty.
I had no idea I was facing revocation when I went to court, with out a lawyer, to fight the ticket.
I left that day finding out I would lose my license (maybe for good).
So here I am 46, still don’t drink, married, and have no issues with the law except for a cell phone ticket.
Because of having alcohol issues (no acidents) in the past which came to an end 17 years I have lost my license.
I attempted a DMV hearing but later found out there is no one that has been able to get out of the 25yr look back injustice.
The lawyer I hired knew that but did not let me know that bit of info until After I paid him $1500.
What is the deal with this? It’s a cell phone ticket!
It’s not another dui/dwi.
I don’t drink for 17yrs.
I just want to be a dad who takes his son to his hockey travel games.
And be able to help my 70 year old parents if they need me.
Thank you for your great work. Many people have lost their job and or reputation because of this faulty device. Why not mandate the blood test? Just because the blood test makes inconvenient for the police, it doesn’t mean it should not be mandated.
Can you tell if this error was made from the printed results? Or does a specialist have to physically look at the machine?
I had a dui in July of 2015, I was convicted and sentenced, but I can’t let it go. I am certain I was under the limit. The test used in my case was the aforementioned.
I’ve since been tracking news on the Alcotest 9510, waiting for proof there is something wrong with this machine!
DUI in PA, DE resident. License was suspended 2 months at ARD hearing January 18th, and filled out the form, maybe DL16 since I am an out of state resisdent and kept my physical license. Been a month so far and still no letter from Penndot. The court gave me no other steps to take other then handing in the form I did at court.
Thanks Lawrence, interesting read. We’ve got random drug tests happening here in Queensland with instruments trying to detect THC in saliva. However, if it’s not conclusive and even if a blood test is done claims have been reported like that at CBS News that “frequent users of the drug can exhibit persistent levels of the drug long after use, while THC levels can decline more rapidly among occasional users.”
Oh, now I hear its a lifetime look back..this is ridiculous ..I never hurt anyone, clean and sober, yet Cuomo lets illegals caught with dwi go..looking for the 2020 votes..unfair. I would leave this state, but you cant get a license anywhere else if you have a revoked ny license…just not fair
Same here. 3 incidents in 25yrs. It’s been nearly 9 years since revocation,,at the time of conviction it wouldvery been 2.5 year revocation. Due to multiple “policy” changes and D.I.B. dragging feet,,,I’ve just recently been restored. It was finally light at the end of the tunnel. Except that there are restrictions,,,even on my learner permit I can only drive to work and with the interlock…so much for practicing for a road test
Marie,
I strongly suggest you contact Mr. Nesci or another lawyer in his office for more information. Best of luck, the moderator
Nothing in Arizona can be expunged. Unlike other states, Arizona has no expungement statute. The best that can be done is to set-aside the conviction, if it was a felony. That restores your rights. If it was not a felony, then nothing can be done.
My boyfriend has a smart start breathalyzer in his car. But what if someone else uses the car and blows into it and gets a violation. But there is a photo of the other person making the violation. What are the consequences ?
Sarah,
Unfortunately the laws differ significantly from state to state, so it is not possible to provide a specific answer over a blog. I suggest your boyfriend discuss this with his lawyer ASAP. This has the potential of being a serious probation violation. Steve Oberman
It sure was nice that you suggested choosing an attorney that focuses his practice on DUI defense because they know the ins and outs of a DUI case. My brother was charged with a DUI case since he was caught driving while drunk the other night. He said that he is afraid to lose his license, and he had to rush home because of sudden stomach pains. I will ask him to follow all your tips for his defense.
It was reduced to reckless op. Amazing how this happens. My son gets a DUI 3 weeks before Covid (2020), loses his license for a year waiting on a court date (the system was shut down during covid), then finally goes to court in February 2021 and they suspend his license for another year. He’s now 25 with no license, no job and living at home. He has weekly drug and alcohol tests. He’s spent over 10 thousand dollars on this as well as getting new vehicle insurance even though he can’t drive. The system is corrupt and this proves it. This case is no different. This Sheriff should face the same.
Jay, thank you for your comment. I have a few pre-Covid-19 cases still unresolved. Tolling Speedy Trial rules by the FL SCt hasn’t helped. Prosecutors can take their own sweet time resolving cases.
I’m sorry your son ended up with a conviction. Is he eligible for a business permit? If it’s a first offense he should be able to apply for one. https://www.duilawdefense.com/miami-dui-lawyer/frequently-asked-questions/
It caught my attention when you mentioned that proof of installing an ignition interlock device is usually required within 10 days of being released on bail if you’re accused of DUI. Coincidentally, I have a cousin dealing with this kind of situation right now since he was caught drunk driving last night by the police. I’ll have to tell them this before they find bail bonding services to hire.
It’s great that this article discussed how DUI offenses come with harsh punishments and serious repercussions that will be with you forever. This is the reason that attorneys tend to specialize in, or at least restrict, their fields of practice. Given that he was detained last night on a DUI charge, my friend should consider this. I’ll see that he retains an experienced DUI attorney who can support and defend him in his case. Thanks!
Everyone deserves a second chance at a clean slate, unfortunately, Madison County in TN does not believe the citizens deserve that chance. The district attorney and the judges struggle to understand the current laws of expungement! Unfortunately for me, this meant that i was denied expungement of a crime that was eligible. They mocked the new law and said “they are just trying to give everyone a chance”…Im a 50 year old nurse, wife, mother of 5 and grandma of 9 who is active in the community and I was denied. The complexity of the laws gives citizens no chance in tn. While you fight for your DUI expungement please ask for simplicity to the law, something easily understandable so thar equality is maintained…Missouri has a simple expungement law easily understood. TN expungement has so many hurdles, loops and sinkholes that the judges just do whatever they want….
I’ve caught a dwi back in 2018 and found out in 2021 that The law has changed to 10 years. I also found out that applies to people like myself that caught it before 2021 which is sickening. So no matter how much I’ve done to stay clean and do the right thing, My years of not having a good stable job is stretched out now. This is not what anyone was aware of that got the charge before 2021. This needs to be resolved immediately!
Opposition to BUI and DUI diversion:
I am reaching out to you with the hope that you can assist me in raising awareness about the discrepancies that exist between BUI and DUI offenses. The recent amendment of AB 3234 means that DUIs no longer qualify for the misdemeanor diversion program, but BUIs still do. This is a matter of great concern.
On September 15, 2019, my son, who was only eleven years old, lost his life due to a BUI incident. My husband, Javier Burillo, whom I had been married to for two decades, was taken into custody and charged with three felonies and additional enhancements. Mr. Burillo chose to consume alcohol that night, placed our autistic son in the riskiest area of the boat, and disregarded the high wind warning by speeding. After the incident occurred, he left the scene and changed his clothes while leaving our son’s remains behind. It was Mr. Burillo’s reckless decisions that resulted in the loss of our child’s life. Children do not just succumb to tragedies like these without any justification. Despite strong objections from the district attorney, Mr. Burillo’s charges were dropped to misdemeanors and he was granted diversion.
While I hold no intention to defame Javier, my objective is to spread awareness about the risks associated with boating under the influence. There is a common misconception that BUI is less dangerous than DUI. However, this is not the case, and the penalties for BUI can be far more lenient. It is crucial to raise awareness of this matter to prevent further accidents in the future. By ensuring that the consequences for BUIs are comparable to those of DUIs, we can encourage safer practices and prevent future fatalities.
As a mother who has lost her only child to BUI, I implore you to help me speak out about the injustice that has occurred. Everyone must be held accountable for their actions, regardless of their background. We cannot let this tragedy be in vain, and we must take the necessary steps to make sure that every offender is treated equally, regardless of the mode of transport.
Please help me set the precedent that BUI and DUI offenses are treated equally, and that those who commit these crimes will be held accountable for their actions. Thank you for your time and attention to this important issue.
Thank you for your time.
Sincerely,
Rose Grant (FKA Rose Burillo)
https://www.marinij.com/2021/11/09/marin-judge-grants-diversion-for-father-in-boating-fatality/