DUI or Not?

[mrboma]

There is nothing useful anyone here can say except get the best lawyer you can afford. Anything else is complete crap.

Mike,
I am beginning to think you are right.
Regards,
Mike

[mrboma]

I might not even lawyer up yet...get a copy of the arrest report first.

Check those facts against what your buddy remembers, and the cell phone text evidence.

Wait and see what happens at the first court appearance. If they are going to proceed with a DUI or wet reckless at that point just plead not guilty and ask for time to get a lawyer.

They may just drop it based on what you posted...why give an atty $$$ for that?

Keen,
This was exactly my advice when I spoke with him. I have seen the txt and I was friend #1 he called. I have it saved in my home phones caller ID. I did not answer because I am not awake at 1:00am.

I have asked him if he has a copy of the arrest report. Thanks again for the reply.
Mike

[hitman13]

Hitman,
You are the one making assumptions. I will thank you for your on topic response. Seeing that you reside out of state your opinion is no longer needed in this thread.
Regards,
Mike

No, actually you are assuming that the story was 100% true and correct, or you are lying about it being you. Where I live has nothing to do with a legal question based on secondhand knowledge or an untruthful story.

Furthermore, I'll post where I want, until a moderator says otherwise.

Regards, Hitman13

[mrboma]

No, actually you are assuming that the story was 100% true and correct, or you are lying about it being you. Where I live has nothing to do with a legal question based on secondhand knowledge or an untruthful story.

Furthermore, I'll post where I want, until a moderator says otherwise.

Regards, Hitman13

Troll on then sir.
Regards,
Mike

[hitman13]

Troll on then sir.
Regards,
Mike

Think what you want. You came to the LEO section of CGN asking a question, and proceeded to get upset by multiple people who have given you a LEOs point of view. Now that you can not accept the answers given, you are calling me a troll... Classy.

With warm regards,
Hitman13

[mrboma]

Think what you want. You came to the LEO section of CGN asking a question, and proceeded to get upset by multiple people who have given you a LEOs point of view. Now that you can not accept the answers given, you are calling me a troll... Classy.

With warm regards,
Hitman13

Hitman,
I am not upset by anything on topic. The "LEO points of view" you speak of are to "shut up" and "lawyer up".

I did not ask "what would you do in this situation". I simply asked if the situation described above warrants a DUI charge. The one sentence you gave me that was on topic:

"Is it a valid DUI? Yes, atleast where I live. Would I have handled it differently? Depends on the totality of the circumstances."

I thanked you for.

Everything else you have added:

"If you weren't there then you don't know if anything was lied about or omitted... "

"There is nothing to discuss. Either A) it's about you and you screwed up, or B) it's not about you, you weren't there, and you are making assumptions based on one side of the story told by someone who was intoxicated at the time"

"No, actually you are assuming that the story was 100% true and correct, or you are lying about it being you. Where I live has nothing to do with a legal question based on secondhand knowledge or an untruthful story."

Does nothing to answer my simple question. Please look at the question in my OP. When I see a troll, I call you on it.

Again, I thanked you for the on topic answer to my question. Everything else is not helpful in anyway.

Regards,
Mike

[Ron-Solo]

Ron,
I was hoping you might chime in. I was also hoping it would be helpful.
Can't win them all I guess.
Regards,
Mike

Sorry, but I call it as I see it. I worked DUI enforcement for many years and drunks are horrible about getting facts straight. That's an opinion based on experience. I've qualified in a dozen different courts as an expert witness on DUI.

Best advice has been given.. Lawyer is needed.

[mrboma]

Sorry, but I call it as I see it. I worked DUI enforcement for many years and drunks are horrible about getting facts straight. That's an opinion based on experience. I've qualified in a dozen different courts as an expert witness on DUI.

Best advice has been given.. Lawyer is needed.

Ron,
You do not need to apologize. I also do not challenge your experience in these matters in any way shape or form. I have also stated that an attorney has been retained.

I am not, and did not, ask for "advice". That is something I would ask an attorney, not an internet forum. I simply asked the LEO of Calguns if the above scenario warrants a DUI charge. That's it, nothing more.

I thought that was part of this Forums purpose as stated in the sticky.

I apologize if I was not clear, I thought I was.
Regards,
Mike

[Tacit Blue]

Never mind the police - perhaps you should talk to a DUI DEFENSE ATTORNEY! That's why we are here! In Ca, "volitional movement" of the vehicle is required for a DUI. Your description doesn't include that, but these cases case be tricky. PM me for more details or refer the "friend" to a DUI defense atty in his area.

He is correct in what he said about the " volitional movement". There's 4 elements needed to qualify for DUI. For both 23152 A&B.

23152(a): to obtain a conviction for driving under the influence under VC 23152(a), the prosecution must prove that:
(1) defendant drove a vehicle,
(2) while under the influence of any alcoholic beverage or drug, or the combined influence of any alcoholic beverage and drug."



" Driving requires only “volitional movement of a vehicle.” Where there is no direct eyewitness evidence to driving, “driving” may be established by circumstantial evidence (Mercer v. DMV 1991 53 C3d at 769). However, if the defendant’s driving is to be established by circumstantial evidence, the prosecution’s evidence must be of such a nature “as to exclude every other reasonable hypothesis…” Unfortunately, in their desire to validate drunk driving convictions, the courts have marked a tendency to overlook rule."


23152(b): to obtain a conviction for driving under the influence under VC 23152(b), the prosecution must prove that:
(1) defendant drove a vehicle;
(2) while having the requisite blood alcohol content of at least .08 percent

There has been debate if said person who is intoxicated has " physical control" of the keys such in the ignition. They have been prosecuted for DUI. You have to obtain a copy of the police report to see what the officer put in his report. It could end up different than what your friend told you. I'm willing to bet another version of the story will be told.

http://beyondareasonabledoubtdefense.blogspot.com/2009/05/elements-of-dui-california-vehicle-code.html

[Falconis]

Question for the brave men and women in Law Enforcement.

I have a friend who was arrested for a DUI just recently. Here is what happened...

1. Friend is drinking at bar with friends
2. Friend has too much to drink and head to his truck to call for a ride home and not embarrass himself in said bar
3. Friend sits in drivers seat and puts keys and wallet on seat
4. Friend calls first friend for ride home, no answer
5. Friend texts next friend for ride home, text received and replied to with a "yes, on my way"
6. Friend then proceeds to fill the passenger side floor mat with vomit
7. Friend sits up to catch his breathe and gets a knock on the window by LE
8. Friend is taken into custody and booked for DUI
9. Friend spends night in jail and is let go at 5am for a cold walk home.

The charge listed on the citation is 23152 (a) (b)

There is nothing I have omitted that pertains to this situation.
Could someone in the know shed some light on this for me.
Much appreciated.
Mike

Mike, you came in here asking for advice and validation in the LEO forum from leo's. opinions go with that here. despite what you said and or think, hitman's response was valid and is good. his perceived diplomacy isn't the issue.

to answer your question, yes that is a valid arrest. the conviction is up to the jury. and as a poster above stated, if your friend vomited I would also question his ability to recall the event accurately as well. I'll give you the benefit of the doubt and assume this is your friend and not you but posting details on the internet usually isn't a good idea. If it's about someone else's care, that's even more jacked up.

[IrishJoe3]

I've made many DUI arrest that resulted in conviction where I did not witness the individual actually driving.

40300.5 VC In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:


(a) The person is involved in a traffic accident.

(b) The person is observed in or about a vehicle that is obstructing a roadway.

(c) The person will not be apprehended unless immediately arrested.

(d) The person may cause injury to himself or herself or damage property unless immediately arrested.

(e) The person may destroy or conceal evidence of the crime unless immediately arrested.

Dunno if this section applies to your friends case, but....

[jessegpresley]

I don't know how you or your friend can accurately recall his exact actions when even by his own admission he was totally wasted. This is the principle flaw in your argument.

[CAL.BAR]

I've made many DUI arrest that resulted in conviction where I did not witness the individual actually driving.



Dunno if this section applies to your friends case, but....

EXACTLY. Circumstantial evidence can be used to prove driving and thus convict. Although based upon the facts as stated by the OP, it may be difficult in this case (if the facts are correct)

[IrishJoe3]

EXACTLY. Circumstantial evidence can be used to prove driving and thus convict. Although based upon the facts as stated by the OP, it may be difficult in this case (if the facts are correct)

Agreed to both counts.

I've arrested people for DUI who I found hammered behind the drivers seat who claimed they were "sleeping it off". The totality of the situation comes to play. If they are hammered on the side of the road in the middle of nowhere and other facts indicate they drove to that location....off to county lockup.

If I encounter the exact same situtaion except they are parked across the street from a bar etc and the evidence doesn't indicate they drove impaired, thats a different story ...

All the facts of the matter and the evidence that led up to the arrest will be in the report. I've dealt with enough drunks to be skeptical of their recolection of the chain of events.

[Tacit Blue]

I don't know how you or your friend can accurately recall his exact actions when even by his own admission he was totally wasted. This is the principle flaw in your argument.

His credibility is going to be destroyed. Sober Officer of the law verses drunk who threw up on himself. Hmmm....