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  1. #1
    Join Date
    Jul 2007
    Posts
    2

    Default Arrested For DUI 1 Hour After Being Home

    Location: Canby, Oregon

    On June 30 I was arrested at 4:35 AM. I have been home for 1 hour at the time, I was actually out in the driveway smoking a cigarette and talking on the cellphone. I had a long drive way, it was approx 150 ft, give/take, and I noticed flash lights coming up the driveway.

    I basically said Hi, and they said, "We're looking for a guy that has a out of state license." Which was me, since I have a California license. Which at that time I knew that my ex (who was still leaving with me) called the cops. They said, "We got a call saying you were freaking out." Which when I came home, I noticed that my file cabinet that has all my important tax papers and life insurance papers was moved/messed with (I was staying with family for a couple days and working on moving out and terminating my lease).

    Well I was simply putting the important papers in my small file firesafe so that there was a lock and key on it. I cooperate with the cops answer their questions and answer bluntly and truthfully. So then they ask me, "Well somebody called saying that they heard you wanted to beat the crap out of somebody." So I told them, "Sir, I was on the phone with a good friend of mine in California just telling her about my ex wanting to take me out side and fight yesterday. That is why I'm starting to move out." Then they go into the three questions:

    "Have you been drinking tonight?" "Yes sir"
    "Did you go out drinking?" "Yes sir"
    "Did you drive?" "Yes sir"

    Now I have been home for an hour, and they know that I've been home. The only question they failed to ask was, "Did you have anything to drink AFTER you came home tonight?" As I usually do keep a bottle of Patron in the house. How do they know that I didn't have anything to drink after I came home? And that is information I don't give up automatically.

    Well I just had my Administrative DMV Hearing on Tuesday. It was at 10:30 AM in Salem, OR. Well at 10:45 the Administrative Law Judge came out and said, "James, as of now, the officer has failed to appear and I will be dismissing this case." Great now I have my driving privileges back in Oregon and am allowed to drive around again.

    But the question is still, should I plead guilty & go to diversion, or plead no guilty? Because honestly, I don't know WHAT my BAC level was prior to having two or three shots of Patron after I got home, I was pretty wasted. As a co-worker said, "the cop probably just arrested you for that at the time to keep the situation calm at the house for the night.

    I've asked quite a few lawyers and they all said diversion (which is a Oregon way of getting rid of the DUI after a year). But they have one witness, my Ex as to that I was driving. But she can always testify that I didn't drink after I got home. I mean so many holes in this case in my opinion, but so nervous at the same time.

    James

  2. #2
    Join Date
    Sep 2005
    Location
    florida
    Posts
    40

    Default Re: Arrested For DUI 1 Hour After Being Home

    You didn't claim at the time that you were only intoxicated because you drank after you got home. You are concerned that if you try to raise that claim now, the witnesses who saw you at home will testify that you are lying. Those factors significatly weaken this line of defense. If you can get diversion, it seems a lot better than taking the case to trial and hoping the jury doesn't see through your story.

  3. #3
    Join Date
    Jul 2007
    Posts
    2

    Default Re: Arrested For DUI 1 Hour After Being Home

    Quote Quoting Gettingwrinkles
    View Post
    You didn't claim at the time that you were only intoxicated because you drank after you got home. You are concerned that if you try to raise that claim now, the witnesses who saw you at home will testify that you are lying. Those factors significatly weaken this line of defense. If you can get diversion, it seems a lot better than taking the case to trial and hoping the jury doesn't see through your story.
    Well that's because they read me my Miranda rights and I choose to be quiet. The witness can not say that I didn't drink anything after I got home, as she doesn't know that I had alcohol at the house and didn't know where I kept it.

    The witness never saw me minus when in the office for about three minutes. She never saw what I did in my bedroom and on the front porch. Already thinking of diversion by what legal is saying to do. But I still think that they arrested me way too long after words, and lots of people including other cops my family and I know have said, "It's going to be too hard for anybody to prove what your BAC level was WHEN you were driving, any judge that doesn't throw it out is messed up."

    I mean how do they PROVE what my BAC level was? It's too hard.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Arrested For DUI 1 Hour After Being Home

    You misunderstand Miranda. Your Miranda rights must be read to you before you are subjected to custodial interrogation, or the statements you make are subject to exclusion from evidence. But the issue of pre-Miranda silence is different. When there is something that an innocent person would have been likely to bring to the attention of the police, the failure to provide that information prior to arrest and the administration of Miranda rights can be admissible. The prosecution can, and I suspect they will, attempt to impeach any claim you make at trial that you only got drunk after you got home by pointing out that you didn't mention that claim to the police. That doesn't necessarily mean that a jury will disbelieve you (even though you would be lying), but with your silence and the observations of the witness it is quite possible that they will disbelieve you.

    If the police have no evidence of your BAC while you were driving, and no witnesses who actually saw you drive, their case is weak and I'm a bit surprised that a prosecutor signed off on the charge.

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