Alcohol & Drugs: DUI, DWI Illegal police stop?

[LucieM]

My husband and I were riding on the motorcycle coming back from visiting his brother...we were just turning on the street were we live when a police officer pulled us over. When he came up to us, he said that he pulled us over because our license plate light was blue, (which it was not, it was an LED white) then he asked for our info, and when he came back from running the info he asked my husband if he had drank anything that night, my husband said yes, he had a beer at his brothers house. So the police officer took my husband over to his car and had him do a breathalyzer test and he blew a .09 (.01 above the legal limit) so he arrested my husband. When I saw him arresting my husband I went over to ask him why he was being arrested, He hadn't done anything wrong. The police officer then told me to go sit by the bike and shut up. I said to him "Sir, I want to know what is happening with my husband." He then told me he was going to arrest me if I didn't go sit next to the bike right then. I asked him "Why, I just want to know what is happening with my husband" He then took my arm and twisted it behind my back and threw my to the ground and put cuffs on me, after this I asked him (politely) to remove my helmet because I am very claustrophobic, and I couldn't take it off myself because the cuffs were on me...He then told me if I didn't shut up he was going to tazer me. I want to know what my husband and I can do about this situation legally. I am a mommy and a wife! I am NOT a criminal and have never been treated the way that officer treated me! I had bruises all over my body and I still can't hardly move my wrist. I have court on friday and I need to know what to do. The officer who drove me to the jail (different officer than the one who arrested me) was very polite to me and recommended lawyers to me and took pictures of all the dirt and stickers and grass on me from the other officer throwing me down. I don't think I should plead guilty to anything...But I don't know anything at all about my rights.
~Lucie

 

[tpajet]

OK, I tried posting and it didn't seem to take, so here goes again.

First of all - DO NOT plead guilty to anything until you talk to a lawyer. You are entitled to one, so exercise that right.

One important question - what were you charged with?

As for the rest of your post - First of all, anytime an officer is telling you to do something, you need to do it. It sounds like the cop probably had a big head, but that aside, look at this from his angle. He just handcuffed a guy who has blown over the legal limit (even if just a little) and the wife is approaching him, and won't step back when told. She just keeps approaching him. He had no way to know if you had a knife or other weapon.

As to your husband's situation, the actual amount drink doesn't matter. The BAC test is for how much alcohol per a certain amount of blood. So with one beer, this means one of three things. Either A) your husband is one skinny dude, B) he had a German stein sized beer, or C) he had a couple more that you didn't know about. Now it's very possible that A is the case. I'm not accusing you or him of dishonesty here. The point is some people can go over the limit with just one, but also ask any cop when the ask someone "Have you been drinking?" and they will tell you the standard answer is "Only a couple".

Lastly, here is something that both your lawyer and his should think of, but ask anyway, and that is, was this stop legal in the first place. The cop's basis was that the plate lights were an illegal color. If you can show that they are not, it's possible you might be able to get the whole thing (for both you and your husband) thrown out, or at least some of this reduced.

 

[CdwJava]

When he came up to us, he said that he pulled us over because our license plate light was blue, (which it was not, it was an LED white)

Many LED lights emit a light with a bluish tint. While it may end up being legal, the cause for the stop is based upon REASONABLE SUSPICION and not absolute certainty. Unless a court dismisses this as good cause for the stop, it will be moot.

So the police officer took my husband over to his car and had him do a breathalyzer test and he blew a .09 (.01 above the legal limit) so he arrested my husband.

Two things ... First, .08 is NOT "the legal limit" - it is the per se limit. That is, it is the BAC at which there exists a legal presumption of impairment. In every state I am aware of this is a separate offense from simply being impaired.

Second, if the device is even remotely reliable your husband lied about having only one beer. As mentioned by the previous poster, either your husband was a very tiny dude - Lilliputian, even - or he consumed far more than a single 12 oz. beer. On average, it would take five 12 oz. beers over an hour's time (more if a longer stretch) to reach that BAC.

However, many roadside test devices are no adequately maintained and may have a very wide margin of error.

When I saw him arresting my husband I went over to ask him why he was being arrested, He hadn't done anything wrong. The police officer then told me to go sit by the bike and shut up. I said to him "Sir, I want to know what is happening with my husband." He then told me he was going to arrest me if I didn't go sit next to the bike right then. I asked him "Why, I just want to know what is happening with my husband" He then took my arm and twisted it behind my back and threw my to the ground and put cuffs on me,

The officer does NOT have to explain himself to you. If he is inclined to do so, he does not have to do so at that moment - in fact, he would be foolish to allow himself to be so distracted. When you twice refused his lawful order to move away, you created the circumstance that lead to your arrest.

I want to know what my husband and I can do about this situation legally.

If you were charged with any criminal offenses, the two of you need to hire an attorney or attorneys (one for each of you). Your husband will likely need an attorney that specializes in DUI cases, you will not need one that has such a specialized practice. Plus, your matter might not be filed on. At least in my state, many of these arrests for resisting or obstructing are dismissed as being settled by the arrest.

I am a mommy and a wife! I am NOT a criminal and have never been treated the way that officer treated me!

The officer is under no legal obligation to have a roadside debate with you or anyone else. You were directed to move back and refused to do so - twice. It was your action that created the situation.

If you feel that the amount of force utilized to effect the arrest was excessive you can consult an attorney who can evaluate the matter and attempt to make a claim against the agency for your damages. If the claim is denied (and it probably will be) then you will have to decide if it is worth spending a large amount of money for a roll of the dice.

I have court on friday and I need to know what to do.

Speak to an attorney. If you cannot afford one at the arraignment, request the court assign one.

The officer who drove me to the jail (different officer than the one who arrested me) was very polite to me and recommended lawyers to me and took pictures of all the dirt and stickers and grass on me from the other officer throwing me down.

It was a bad idea for the officer to recommend attorney as that can lead to allegations of improper conduct (or even bribery). As for the photos, those were also to show that you were not bleeding, twisted, and otherwise mangled so that any future claim you might make cannot be characterized as something beyond what it was.

I don't think I should plead guilty to anything...But I don't know anything at all about my rights.

You have the right to remain silent. You should consult legal counsel before pleading to anything. At the arraignment, if you have not yet consulted an attorney, your best bet might be to plead "not guilty" and request legal counsel be assigned if you cannot afford an attorney on your own.

- Carl

 

[Miss_Cherokee]

Please file a grievance against this particular officer. It sounds as if he used undo force in this situation. It also sounds like he is not a very good public servant by the way you were treated and man handled. Did he possibly grope you? You must now take into mind what you thought the officer was doing by the actions he took against you personally.Look and keep looking for a lawyer that is interested in looking into your complaints. Knowledge is power, and evil 'cops' need to follow the laws of the land when arresting, detaining or searching Americans. May be this is a civil rights violation? I don't know but I hope you have the energy to see that this 'cop' is held accountable and at least censured in some way. The person that counseled for you to do what ever a cop is ordering you to do is correct. When the officer ordered you to basically stand down and sit while he dealt with your husband's issues was well within the law. However it seems as though excessive force was used and unnecessary. Subpoena the dash cam that recorded this event and show it to your lawyer. Good Luck . I am not a lawyer but I encourage you to see this through. Use the internet, try to contact law students, call Legal Aid for advice. Research and be stead fast if you are very strong about this. It could pay off for you big time in the long run and you may be helping to get a troubled 'cop' off the streets.Good Luck again.

 

[Miss_Cherokee]

Lastly, here is something that both your lawyer and his should think of, but ask anyway, and that is, was this stop legal in the first place. The cop's basis was that the plate lights were an illegal color. If you can show that they are not, it's possible you might be able to get the whole thing (for both you and your husband) thrown out, or at least some of this reduced.quote This is good advice. As far as taking the cops over zealous physical actions to the situation file a grievance against this officer. IF you take it to a civil trial always request a jury decision from your peers instead of allowing just a judge to make a decision on the civil case if you decide to sue. A panel of your peers is best and most fair . A judge is biased no matter what by the fact that he works with and is influenced indirectly or directly by those he associates with at work. Cops, lawyers, probation officers and others involved in law enforcement or the legal/trial arena. A jury of your peers and those not associated with Law and law enforcement would of course be less biased and best suited to decide . Good Luck.

 

[Sunday_Soprano]

my boyfriend had something similar happen to him and he ended up getting 20 hours of community service but he did file a complaint against the officer.

 

[tpajet]

Please file a grievance against this particular officer. It sounds as if he used undo force in this situation.

I'm going to disagree here, at least to a point. As I said in my last post, look at this from the cops angle for a second. He just cuffed the husband who was over the limit, and now the wife is approaching him, asking him why the husband got cuffed. And when the cop is telling her to back off, she won't. In fact, he told her if she didn't back up, she would get arrested, and she still kept approaching him. So now the cop is effectively in a domestic dispute of sorts. The other thing is, how much had she had to drink? Granted we don't know for sure, but it's a possibility. Regardless, though, when she's approaching the cop, how does he know she doesn't have a weapon?

Quite honestly I'd say the only reason she didn't get the tazer is he probably wasn't carrying one. And please understand that I'm not trying to call the original poster a liar, but her husband had one beer, but was over the limit. Somehow I don't think we got the whole story.

 

[chrisrich]

I have to agree, It doesn't matter how polite you are being. If a peace officer tells you do sit and be quiet...that's what you do. My police officer friend told me that if you are asked if you have been drinking your answer should always be "NO". I know you only want to tell the truth...especially if you have only had one.

 

[CdwJava]

Answering "no" when it is obvious you HAVE had a drink can play against you as it automatically tells the officer you are a liar and he cannot believe anythin gyou have to say. It also plays into credibility at trial when it comes out that you LIED to the officer.

Best bet would be to simply remain silent on the question or tell the officer, politely, "I would prefer not to answer the question."

And, in some states, lying to the officer could be criminal.

- Carl

 

[raskalnikov]

I agree with Cdw on this one.