There is an interesting case out of Livingston County where a man was arrested and charged with DUI and then the case later dismissed. According to the article, the man was involved in an accident and asked to take a breathalyzer test at the scene. This, after the officer at the scene said he smelled alcohol on the man’s breath. The man refused and was arrested, taken to the police station, booked and blood drawn. Apparently, in Livingston County, once someone is arrested and the case submitted to the District Attorney, they must go ahead and file formal charges. This is unfortunate for the individual in this situation because, even though it was later proved that he was not DUI, he now has an arrest on his record and a history of having a DUI filed in Court. It is the right of any individual to refuse to take a roadside breath test and to refuse to submit to a field sobriety test. However, when someone refuses, it usually results in being arrested and taken to the station where you are then required by law to submit to blood, breath or urine testing. So as is the case with this individual, his blood results did prove that he was not DUI, but he was then faced with having the arrest and charges on his record.
In California, and more specifically Orange County, the District Attorney will usually wait until the results of the blood test are available before deciding whether or not to file charges. This seems to make much more sense. For the DA to file charges just based on the police officer’s opinion that the individual was, or may have been under the influence, doesn’t seem to make much sense knowing that if they wait for the results, they will have scientific proof one way or the other.
For someone to refuse to take a roadside breath test or submit to a field sobriety test, may make the individual look guilty or give an officer a reason to doubt sobriety. So why would someone, who knows that they are not under the influence, refuse to submit to such roadside tests? There are some who feel that the roadside hand-held breathalyzers are unreliable and may produce false results. There are those who may refuse to submit to field sobriety tests merely due to the fact that they have balance issues and know that they will be unable to pass the test. So there are legitimate reasons that people refuse these roadside tests, and as mentioned above, it is their right to do so.
So, what can an individual do if they are faced with the situation we are talking about here? Can the record/arrest record be corrected. The answer is Yes. It is called a Petition for Factual Innocence. The process works this way: The Court is Petitioned to find the individual factually innocent based upon the circumstances presented. The Judge will review the Petition, and any supporting documentation such as the police report and test results, and then make a ruling either in favor of the Petitioner or will deny the Petition. In basic terms, the Judge must be able to determine that there was no reasonable cause for the arrest to have occurred. The scenario above could be problematic in that the police officer said he smelled alcohol which, if the Judge wanted to, could determine that there was good cause to arrest. But, given the circumstances and also, based on how the police report reads, it would seem that it is in the best interests of all to grant a Petition under these circumstances.
Anytime someone is arrested and charged with driving under the influence, all of the details beginning with the initial stop, all the way to the filing by the District Attorney must be reviewed. Law enforcement must follow strict guidelines in stopping, testing and arresting an individual for DUI. The process of administering field sobriety tests have guidelines, as well as administering a breathalyzer at the roadside. Having an experienced DUI defense lawyer is the only way to determine that law enforcement have followed the rules and guidelines they are required to follow and to determine that your rights have not been violated.
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An appeal in the Pennsylvania Superior Court claimed that a field sobriety test conducted on a snow-covered road, along with breath testing conducted without the 20-minute observation period required by Pennsylvania law, were insufficient to support a conviction for driving under the influence (DUI). The defendant/appellant in Commonwealth v. Favinger challenged the sufficiency of the evidence against him and the legality of the traffic stop that led to his arrest. The Superior Court ultimately affirmed the verdict and sentence, but its opinion offers a useful overview of the different ways that prosecutors may establish that a defendant was impaired by alcohol in a DUI case.
A Fourth of July fireworks display at the Washington Monument.
Another weekend, another sobriety checkpoint, another ten thousand in officer overtime.
Don't finish the tray before heading into an Orange County DUI Checkpoint