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DUI laws lawyers and information about drunk driving
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Yankees pitcher Joba Chamberlain arrested for DUI
New York Yankees pitcher Joba Chamberlain was arrested for allegedly driving under the influence, speeding and having an open container of alcohol in his 2006 BMW.
He was given a Breathalyzer test on the spot and was moved to the Cornhusker Place, a detox center in Lincoln where all the drunk drivers have an overnight visit. Another Breathalyzer test was administered there, but results are as of yet to be released. A call made to Joba's father, Harlan Chamberlain, resulted in Pops saying "no comment".
Nebraska State Patrol spokeswoman Deborah Collins said Chamberlain was stopped for speeding on U.S. 77 near his hometown of Lincoln at about 1 a.m. Saturday.
Collins said Chamberlain was taken to the Cornhusker Place Detox in Lincoln, which she said is the normal protocol. Chamberlain was lodged at the center on charges of driving under the influence, having an open container of alcohol and speeding. Collins said the county attorney likely would file formal charges Monday.
Chamberlain, 23, just completed his second season in the majors with the Yankees, compiling a 4-3 record with a 2.60 earned run average in 42 games, including 12 starts. He has been used as both a set-up man and a starter, and team chairman Hank Steinbrenner said recently that the team would probably use him as a starter in 2009.
Cops destroying DUI evidence before court
What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test. In fact, it's the ONLY evidence of the crime of driving with over .08% blood alcohol. And it's pretty important for the 'driving under the influence' charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn't get more important than that.
So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer's word that he administered the test correctly and that the test results were from the defendant.
Unfortunately, the breath sample is routinely destroyed moments after it is tested. But how can this be? That's a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:
Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).
How hard is it to save the defendant's breath sample for later retesting? The Court noted that a 'field crimper-indium encapsulation kit' was readily available, cheap and approved by the California Department of Health Services. So why isn't the evidence saved in DUI cases today?
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).
1. The possible value of the defendant's breath sample in helping prove innocence was not apparent before it was destroyed'..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?
2. The defendant was able to 'obtain comparable evidence by other means'. How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him ' but it would probably be so much later that it would not be relevant or even admissible in court.
College president of the year arrested for DUI
Randolph Flechsig, president of Davenport University in Michigan has pleaded guilty to a DUI and refusing to take a breath test during his arrest. Davenport was declared the 'College President of the Year' in 2003. While a spokesperson first denied alcohol was the culprit (as opposed to a diabetic complication), he now admits to multiple Bloody Marys. Of course, he can claim that unlike a college president in Iowa recently, he did not have a picture taken pouring a beer keg in the mouth of a student.
Flechsig was arrested in the afternoon of Sept. 21. Two hours after the arrest showed Flechsig, 51, had a blood-alcohol content of .09 percent. In fairness to Flechsig, this is just over the .08 line. It does not take much to reach .08 ' though it was probably a bit higher two hour earlier.
The biggest problem for Flechsig with the board should be the statement that his representative released after his arrest. The Grand Rapids Press newspaper reported university spokeswoman Chris Ervin as saying that Flechsig 'believes his condition when arrested was the result of a diabetic reaction and blood tests will substantiate this.'
However, on Monday, he pleaded guilty and admitted to 'beer and some Bloody Marys' at home before his arrest. The judge delayed sentencing until Oct. 24 so as to review information that includes a letter from a motorist claiming that Flechsig was speeding in his Porsche and ran her vehicle off the road.
The Grand Rapids Press said that Flechsig likely would be fined, and have his driver's license suspended for six months. A restricted license to drive to work could be issued after 30 days. Davenport University has 13,000 students specializing in business. Flechsig makes more than $500,000 a year, according to the Chronicle of Higher Education.
Does your body produce alcohol naturally?
The presence of alcohol in human specimens containing glucose and yeast should come as no surprise. Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase.
The Japanese report the auto brewery syndrome in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness.' Mullholland and Townsend, 'Bladder Beer ' A New Clinical Observation', 95 Transactions of the American Clinical Climatological Association 34.
In other words, the body is manufacturing alcohol by itself ' in some cases, enough to become legally intoxicated. This has been confirmed by other studies.
So can this be used as a legal defense in court to combat a DUI charge? Don't count on it. Unless the breathalyzer machine isn't working properly, once they see that you've been "drinking" it's up to you to prove you weren't in court. And if this really happened to you, you would need a great doctor to prove your body indeed produced enough alcohol to consider you legally intoxicated. More.
How to get an easy DUI charge
Also known as, why you have to be smart, even when you're under the influence of alcohol. The daughter of the late owner of the Washington Redskins was arrested for DUI outside a bar this weekend. But this is a situation that could have been (more than) easily avoided, and it's a good lesson to remember when you're drinking. Stay smart.
Jacqueline and her friend got into her car when police officers pulled up and asked if they were going to drive home. They said "not right now", and the cops told them to get a cab home. The cops sat, waited and watched them for a while. A while later, Jacqueline started yelling at the cops, and said "You can watch us all night, we're driving that car home no matter what you say". WRONG!
You don't boss police officers around, no matter how right you think (or know) you are. Especially when you're drunk. As soon as Jacqueline started her engine, the cops arrested her for DUI.
This probably seems like common sense to most of us, but when you're drinking you think and act different that when you're sober. If a police officer is ever nice enough to tell you to get a cab home, get a cab home that second and pickup your car in the morning. Even if it gets towed, you'll only pay a couple hundred dollars max to get it back. A DUI will cost you close to $10,000. Just think about it.
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Arrested for DUI while you're completely sober
How is it even possible to be arrested for a DUI while you're stone cold sober? Failing a field sobriety test. Sarah Fenske wrote an article of a woman arrested for failing a field sobriety test, despite being completely sober she was still arrested and charged with DUI. Now Sarah is taking another look at this violation of civil liberties.
A woman in Arizona named Heather Squires was arrested for DUI despite being totally sober. Her husband is a DUI attorney so some people speculated that was the reason for her harassment. It turns out though, this isn't the first time somebody in Arizona has been arrested and charged, despite their BAC being under the legal limit.
One expert who tests blood samples for BAC said about 15% of all tests come back below the legal alcohol limit. How is this possible? The Forensics Guy offers this piece of advise: "The important part to remember from this article is that in Arizona at least, you do NOT have to perform field sobriety tests, and you really shouldn't. There are no criteria for "passing" field sobriety tests. There are only criteria for failing them. And if you don't "fail" the results are inconclusive. Don't make your defense any harder than it already is going to be by giving them ammunition."
In Colorado, the law is almost the same. If you are pulled over and suspected of DUI, you can refuse to take a breathalyser and a field sobriety test, but you will be detained and taken in for a blood sample. If you refuse everything, they can take your license away and assume you were driving under the influence because of your complete refusal to prove otherwise.
How to beat your Colorado DUI arrest (Part 1)
If you choose to drink and drive, sometimes you just have to bite the bullet. But there are times where the arresting officer is sloppy, your civil rights were violated or any host of other things that could either reduce your DUI charge, or get it thrown out altogether. Remember if you don't have $10,000 to cover your DUI, get a taxi. But chances are if you're reading this, you're post-planning and not pre-planning, so here's how to beat the wrap.
Illegal Stop. A police officer can't pull you over unless they believe a traffic law or other law has been broken. Similarly, you can't be arrested unless a violation has occurred. Keep in mind, the police officer may still arrest you, this isn't the person to argue with. Accept your arrest, get a decent lawyer and get the case thrown out in court.
Anonymous Tip. You can't be stopped simply because somebody gave a police officer a tip that you're drunk. The officer needs to see a crime being committed, or have probable cause to pull you over. Again, get a good lawyer and have him argue on your behalf to the judge.
Field Sobriety Tests. Even in healthy people, the "stand on one leg" test can only be completed by 65% of sober adults. People with injuries, medical conditions, are 50 pounds or greater overweight, or are 65 years or older can't be judged by these tests. Breath tests are also inaccurate. The Colorado Supreme Court has ruled that breathalyzers are not fool-proof, so if the arresting officer only gave you one test, you can argue the accuracy of that test.
Police Tapes. If you think the arresting officer may have been fabricating parts of his story to put you in jail, it's your right to request the dash cams and videos from the police officers involved. This way you can see your driving and field sobriety tests, and confirm that the officer's testimony matches the taped evidence.
Demand a Trial. You have a right as an American citizen to request a speedy trial. If your trial does not happen within 120-160 days of your demand, the charges must be dismissed. You should not count on this tactic alone to beat your DUI.
Breath Test Operator License. Did you know the breath-test operator in Colorado must possess a valid, unexpired operator’s license, or the breath test results are inadmissible in court. Do not demand to see the officer's operator license during the arrest, as they can call another officer with a valid license to provide the test. Demand to see the unexpired license in court.
Breathalyzer Machine Status. At your trial, demand to see the record of the breathalyzer machine you were tested on. If there was a malfunction 60 days before or after your breath-test, your results will be invalid in court.
Reading Your Rights. If you are arrested for a DUI, but the arresting officer fails to read you your Miranda Rights (right to remain silent, etc), anything you said to the officer (like "I only had one beer") will be inadmissible in court.
Portable Breath Tests. Colorado law prohibits the use of portable breath testing results as evidence in court. If an officer asks you to blow into a portable device, do it, then bring up this law to the judge in court to have your case dismissed.
DUI Observation Period. In Colorado, police officers must observe a DUI suspect for a a minimum twenty minutes prior to a breath test in order for the results to be considered admissible and valid. This is to make sure the suspect doesn't eat or drink anything to interfere with the breath test. If the officer fails to wait 20 minutes before asking you to do a breath-test, do the test and then argue this law to the judge in court.
So there you have it, 10 ways you can beat your DUI in Colorado. This is just the first part in a many-part series, because if you know enough laws, there's usually a way to beat the law.
How much will your first DUI cost you?
This question depends on a few different factors. Let's say you were pulled over right after leaving a bar after having a few too many beers. After you're done paying lawyer fees, court costs, license fees, probation fees and raised insurance rates, you can expect to fork over about $10,000. Ten thousand dollars for one night of fun, hardly worth that extra beer. And you might also lose your job, have trouble finding new work and much more that can put you in a financial strain.
But what if you are less lucky, decide to drive drunk and you get into a car accident? Even worse, what if you kill somebody while you're driving drunk? Can you put a price on another person's life? Sadly yes. Every DUI death costs $3.6 million dollars. $1.1 million in monetary costs and $2.5 million in quality of life losses. Colorado lost $2 billion dollars in the year 2000 due to these costs.
On your first offense, you're only paying the state between $500 and $1,500 dollars. Like I said before, the other 90% of your money will go to fines, fees, insurance increases, mandated alcohol classes, and attorney fees. You might think this is excessive and that you've learned your lesson, but every day an accident happens, like the one pictured above. And let's be honest, some people understand money better than anything else, so losing ten grand might send a stiffer message to many people.
The bottom line is it's not worth it. Have a drink or two at the bar, then finish your night of drinking somewhere safe, or make sure you have a designated driver. But if you risk it and get busted, just remember you could have used that $10,000 to buy a ton of alcohol. Stay safe, stay alive and keep your hard earned cash!
The Colorado Ignition Interlock Program
The ignition interlock law came into effect in Colorado on January 1st, 2007. It requires all drivers who test over 0.17 BAC (blood alcohol content) to install and drive with an interlock device in their car for at least two years after your license is un-suspended. Repeat offenders may be required to have the interlock system for up to five years.
So what is the ignition interlock system? It's a breathalyzer in your car. Every time you put your key into the ignition, the interlock system boots up and requires you to blow into it. If you have alcohol on your breath, your car will not start. It also requires you to blow into it at random times while you're driving, and if it detects alcohol your car will cease to operate. This is because it's not hard to find a sober person to start your car, but unless they're going home with you, you will get caught.
In 2005, New Mexico became one of the first states to require interlocks for all first time DUI offenders. Since then, alcohol-related fatalities in the state have fallen by 20 percent.
The cost of an interlock system is about $75 dollars per month, plus an installation fee. Each car registered to you must have an interlock device installed in it. There are very few places in Colorado who have been contracted by the state to install the interlock system, and here they are:
Smart Start Inc.
1-800-880-3394
Westminster, CO 80030
National Interlock Services Ltd.
1-800-475-5490
Aurora, CO 80011
Guardian Interlock Systems
1-800-499-0994
Denver, CO 80022
Draeger Safety Diagnostics, Inc.
1-800-332-6858
Denver CO 80216
For a non-state-contracted store, you can check out this list of stores at Smart Start Colorado.
Here is The Official Interlock Brochure from the Colorado Department of Revenue.
Avoid auto-suspending your license after a DUI
If you are arrested and charged with drunk driving, DUI or DWAI in Colorado, you only have 7 days from the date of your arrest to request a hearing with a Colorado DMV. If you do not request a hearing within the 7 days, your license will be automatically suspended.
If you request a hearing, it must occur within 60 days. During that time your license must stay in good standing (no traffic tickets, nothing) until the end of your DUI trail. At your hearing you will defend yourself and explain why you should be allowed to keep your license until your trail is complete.
These DMV hearings provide you with the chance to question the police officer who arrested you, under oath. The hearings provide us with the chance to get their testimony soon after your arrest, and to freeze it so they can't change it. It also gives you the chance in the least expensive way to evaluate your case, giving you a good idea on your odds of success at your trial.
But don't confuse the DMV hearing with your court date. The DMV and criminal proceedings are separate and independent events, and the outcome of one doesn't affect the other.
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