Alcohol & Drugs: DUI, DWI Felony DUI

[CdwJava]

Are you sure they would not refund it if he was not found guilty of DUI. Then it would just be a collision which is paid by the normal revenue streams. I'm a little confused. A private attorney he spoke to did say there would be a refund if the case was won. He also advised him not to pay it until the case is over. He said it could be added to the court fines and collected that way. He claims it's done that way all the time.

Practices vary, but cost recovery is not necessarily tied to a guilty or not guilty verdict. However, never having worked for an agency that had a cost recovery plan in place, I can't speak to whether it is tied by law, practice, olr policy to any criminal verdict. Perhaps it is the policy or practice where you are that it be tied to the verdict.

I'm not at home this weekend, so I have limited internet access ... I'd look it up, but my connection at the hotel is slow.

- Carl

 

[CdwJava]

Forgot to ask, what gives the other guys attorney the right to seek insurance co information to get payment and my friend can't even get a copy of anything? Should he not at least have access to something or be able to talk to someone?

He can SEEK anything ... he just may nolt be able to GET everything.

The collision report is generally going to be available, so that information is likely what the insurance company is after - not the arrest report.

Your friend is free to talk to his insurance company or anyone he pleases ... he just does not have a legal right to all the investigative documents until discovery. Even then, his ATTORNEY can get those, but he might not.

- Carl

 

[agrieder]

Hi Carl,
It is now 10 days before the DMV hearing and he had not received his request for discovery from the DMV. Is there a reason for this? Does the fact that they did not send it as required make a difference?

 

[CdwJava]

Hi Carl,
It is now 10 days before the DMV hearing and he had not received his request for discovery from the DMV. Is there a reason for this? Does the fact that they did not send it as required make a difference?

The DMV is not a court, I do not believe they are required to provide him with any discovery.

What information was he seeking from the DMV before the hearing?

- Carl

 

[agrieder]

The evidence they have against him. On the telephone they asked him if he wanted what they had and he said yes. They also stated it was his right to have it 10 days prior to the hearing and that by law they must get it to him by then.

 

[CdwJava]

The evidence they have against him. On the telephone they asked him if he wanted what they had and he said yes. They also stated it was his right to have it 10 days prior to the hearing and that by law they must get it to him by then.

I am not aware of what he can do if he does NOT get the items as it is not a court, so it must be covered either under policy or elsewhere in the law. he might ask for a continuance of the hearing. Besides, the DMV doesn't HAVE much ... they will likely have the DS 367 (the Admin Per Se document) but they do not need to have much more than that. And your friend would have a copy of the DS 367 - just not the back side where the officer articulates his probable cause for the stop and the reason to believe he had a BAC of .08 or higher.

- Carl

 

[agrieder]

My friend has nothing at all. They gave him nothing whatsoever. he does not have the DS367. He did speak with the Hearing Officer yesterday and he didn't seem interested in anything other than the .15 BAC. He did say if my friend had a split done and determined that the blood was not his he would give the license back but in the same sentence said he may not because of the Breathalyzer machine machine. I left him a vmail for clarification on that point. I hope to hear back from him on Monday. He himself said what came out of his body (blood) overrides but then contradicted himself. Hopefully he clarifies that. Also, my friend had heartburn which I have read can give a false high reading on the machine. The Officer said he would need Dr. records. My question is, can't someone have severe heartburn without having gone to a Dr. yet? There are numerous witnesses including myself that he had heartburn and commented about it several times. Why do there have to be Dr's records if we can prove the blood was not his? He also asked that the hearing be moved back after the court hearing so He can have access to the blood. The hearing Officer mentioned just getting this over with on the tel so my friend wouldn't have to waste his time and come in for the hearing date. It appears he is not willing to work with my friend at all. What more can an attorney do in this situation?

 

[CdwJava]

My friend has nothing at all. They gave him nothing whatsoever. he does not have the DS367.

If they took his license when he was arrested, he was given the DS 367. He may not have it now, but it was almost certainly provided to him. But, like i said, it doesn't have the information the officer used, it only says the license will be suspended in 30 days if no hearing is scheduled.

He did speak with the Hearing Officer yesterday and he didn't seem interested in anything other than the .15 BAC. He did say if my friend had a split done and determined that the blood was not his he would give the license back but in the same sentence said he may not because of the Breathalyzer machine machine.

The DMV hearing is primarily concerned with two things: Was there good cause for the stop, and was there good reason to believe that there was a BAC of .08 or greater. That's about it.

I left him a vmail for clarification on that point. I hope to hear back from him on Monday.

If you mean that you left a voicemail for the hearing officer, he probably will not call you back. You have no legal standing in the matter and he is not obligated to even talk to you about your friend's case.

He himself said what came out of his body (blood) overrides but then contradicted himself. Hopefully he clarifies that.

He doesn't have to decide on that at this hearing, anyway. So he can contradict himself all he wants right now. IF your friend has it re-tested and a court concurs that the blood was not his, then MAYBE the DMV will hear the matter. Until then, that is not even an issue.

Also, my friend had heartburn which I have read can give a false high reading on the machine.

Not THAT high, and the machines today, it shouldn't cause any real problem at all.

It appears he is not willing to work with my friend at all. What more can an attorney do in this situation?

Maybe ... maybe not. Again, this hearing is limited in scope and there really is no great reason to postpone it. The hearing officer can always agree to delay a suspension if he chooses to ... he probably won't, but he could.

- Carl

 

[agrieder]

The heartburn can actually affect the reading and the hearing officer agreed. He did say he has seen a false reading as high at .20. He want's Dr's documentation though. Again, I guess a guy can't have heartburn without going to a Dr.
If he proves it was not his blood will all of the cost of testing be refunded to him?

 

[CdwJava]

The heartburn can actually affect the reading and the hearing officer agreed. He did say he has seen a false reading as high at .20.

Like I said, it depends on the machines. Defense attorneys like to toss that around, but it's not as big a factor as they often try to make it out to be. And without a doctor's exam and a statement that he suffered from heartburn on the night in question, he'll have to attack the machine in some other way.

If he proves it was not his blood will all of the cost of testing be refunded to him?

No.

He can always sue the lab, but I honestly have no idea whether he'd have a chance of winning or not.

- Carl

 

[agrieder]

I am in total shock. He just got the letter from the DA with charges. They are as follows:
A DUI with injury (felony), BAC over .08 with injury (felony), possession of a controlled substance (felony, but was his friends), Hit and run???? (felony) and possession of a methamphetamine??? (felony). We have no idea where they are coming up with these charges especially the Methamphetamines? Actually the first three make sense. The hit and run only because he thought it was the wind from the other persons car and he made his left turn. He did not intentionally run. The methamphetamine charges cannot be right. I cannot think of an explanation for this other than they were in the rental car as it was a rental or the cop planted it because he did not like him. My friend does not even know what meth is. Is he completely sunk and does not stand a chance here? These charges are just not right! The other guy was barely injured if at all and his insurance co has already substantiated that. Also, the hit and run and meth charges are what floor me especially the meth. That has to be a huge mistake or an intentional mistake.

 

[agrieder]

Hi Carl,
How are you Sir? I hope all is well with you.
I noticed you never responded to my last post. The DA's office claims the meth charge is not an error because it was on the police report. The only explanation is that it was in the rental car or the so called friend that left the Vicodin in the car also left that. He did some checking around and it appears she does not do meth and would not have had that kind of thing. The only explanation then is it was in the rental car. Since he only had the car for a few hours the PD said the charge may be dropped. What are your thoughts?

 

[CdwJava]

My thoughts are that it is unlikely that the drugs were left in the car by the rental car, but it is something that his defense can use to raise reasonable doubt. Especially if they want to throw down the passenger as a doper ... though, the prosecution is going to assert that dopers are not in the habit of just leaving their dope around.

- Carl

 

[agrieder]

Dopers are out of it most of the time so I could see them dropping it. It has to be the explanation. He called just about everyone that knows her and everyone said she doesn't do meth. We know she pops pills and drinks heavy but not meth. If there was really meth it had to be in the rental car. This whole thing is trippin' me out. Something isn't right.

 

[CdwJava]

Or he's feeding you a line.

The chances of the cop planting the stuff are near to zero, and the odds of the rental car company missing it are not too much better unless it's Juan's Rent-a-Wreck and they don't even clean the cars. The burden will be on the defense to provide reasonable doubt if he is taken to trial on the possession.

- Carl

 

[agrieder]

Or he's feeding you a line.

The chances of the cop planting the stuff are near to zero, and the odds of the rental car company missing it are not too much better unless it's Juan's Rent-a-Wreck and they don't even clean the cars. The burden will be on the defense to provide reasonable doubt if he is taken to trial on the possession.

- Carl

I agree the cop would not have planted it. Why would he risk his career for a nobody just because he smarted off to him? However, I used to work for two major car rental companies myself and the cars are not cleaned that well. Back of seat pockets etc are not looked in and/or vacuumed out and neither is the glove compartment. An attorney I spoke with made an interesting comment and told me make sure my friend kept it in mind and/or passed it on to his counsel. He never saw the officer search the car and never saw him find the stuff. Not sure how relevant that is. Your views? Also, just about every added charge carried a prior whether it was three years ago or fifteen years ago. I thought that was interesting. They have now tacked on a driving under a suspended license which he has a prior on three years ago. There are two other charges that have been added on with priors fifteen years ago. I just find that a bit odd. Bogus charges but all have priors...? I don't believe, in fact I know the meth was not his and I don't believe it was his friends but that I obviously can't be sure about.
Hey Carl, another question if you don't mind but may have already asked this but I'm too pressed for time to go through the entire thread. As you know he has posted a $50,000 bond and had appeared at his first required appearance and obviously intends on going to the next. At the next do you believe the judge will raise the bail given the new charges i.e. hit & run and meth or leave it at $50,000 because he is showing up? I've asked numerous people to get feedback and the answers are split about 50/50.

 

[CdwJava]

I used to work for two major car rental companies myself and the cars are not cleaned that well.

Which is a defense that can be raised to try and establish reasonable doubt at trial.

An attorney I spoke with made an interesting comment and told me make sure my friend kept it in mind and/or passed it on to his counsel. He never saw the officer search the car and never saw him find the stuff. Not sure how relevant that is. Your views?

The fact he never saw the officer search the car doesn't mean it was not searched ... it means, only, that he did not see him do it. A cursury search can take seconds, and if he was already arrested and in the back of the police car, he may not have been paying close attention to what any officer was doing at his car.

The defense will not even be allowed to INFER that the drugs were planted without something more than that.

I just find that a bit odd. Bogus charges but all have priors...?

If there is probable cause, they are not "bogus" charges. Old charges can be brought up as priors if they are relevant to sentencing or charging enhancements. Or, if he is on probation for prior charges, a violation of that probation resurrects the previous charge.

At the next do you believe the judge will raise the bail given the new charges i.e. hit & run and meth or leave it at $50,000 because he is showing up? I've asked numerous people to get feedback and the answers are split about 50/50.

If the DA does nto ask for increased bail, and he is not "add booked" (i.e. required to go back and be processed at the hjail on the new charges) then I doubt they will raise it. It's possible, but in my experience it isn't likely. But, I don't work where he is dealing with this, so I can't say with any certainty what the practice of your court is.

- Carl

 

[agrieder]

Thanks again Carl. What I meant by bogus charges for example is the driving under a suspended license. His license was not suspended at the time of the arrest but he had that charge three years ago. There are two others similar. I just seems strange that the charges that are in fact not correct have priors. There seem to be no new charges that have no priors. I know there's no reason for them to do such a thing but it's as if they looked at his rap sheet and added charges that he'd had in the past.