phragle

iTrader: (3)

Does this really work?????

http://www.break.com/video/smartest-...charge-2820310

Smarty

I will give you a detailed answer later this morning, ......till then think over why it may work, and the reasons it doesn't work....did I give away the answer......???

phragle

iTrader: (3)

Well, first wiith a pending breathalyzer...he is tampering with evidence drinking more....... lol

Unlimited jd

iTrader: (5)

5th dui!?!? Time to look into another hobby buddy

Smarty

As always the answer is "it depends"

I wanted to run that video by two other seasoned DUI attorneys, we all came to the same concensus, the BAC reading may with great lawyering may be an issue that could end up being inadmissible, with great luck and lawyering skill; HOWEVER, the road side tests, field sobireity testing in New Jersey which requires three hits (physical observations that the driver is under the influence) consist of any of following, with the BAC reading will determine the outcome.
Field Sobriety Tests
1. Nine step heal to toe, walk and turn
2. One leg stand - one leg six inches off of the ground for a 30 second count
3. HGN - Horizontal Gaze Nystagmus - It’s a test for high blood alcohol content (BAC) and is based on a quirk in human biology. An involuntary twitch (referred to as Nystagmus) occurs whenever a person looks sideways at an angle greater than 45 degrees (triggering peripheral vision). However, people with a high BAC twitch when the light is held at less than 45 degrees.
4. Reciting the alphabet - trickery here, officer usually has you start from the letter "F" or "N" not allowing as sing-song answer either.
5. Head tilt test
6. Finger to nose test

Are the most common test performed roadside, plus the detection the alcohol on the breath, and general appearance and disposition.

In the video, the man/accused starts chugging 80 proof liquor, a key to this case is what was his BAC reading? In New Jersey extrapolation is not permitted, ( STATE v. TISCHIO, 107 N.J. 504 (1987) 527 A.2d 388) meaning, if the man in the video was a .07 BAC (an assumption), under the limit, chugs 4 oz of 80 proof Vodka, then takes the breath test the Alcotest (New Jersey's breath sample machine which replaced the Breathalyzer) with a reading of .14 BAC, the argument is yes he was under the limit at the time of the stop, but extrapolation is not allowed.

The accused does not have perform the physical observational testing in New Jersey, but a breath sample must be given, if a breath sample is not provided then the accused not only is charged with DUI but also Refusal...in the video, I did not see the field sobriety test performed, nor do I know what his BAC was, both are extremely important. Even if he beats the breath test, he can be convicted by the physical observations alone without the breath test. If the breath test is invalid, suppressed, inadmissible then I would suggest trial if the physical observations are marginal. If the accused is clearly impaired on the video or miserably fails the field sobriety tests, then he is screwed, because I am not Jesus, nor am I a miracle worker, I need something to work with...that does not reflect impairment, or can be plausibly argued for the defendant's benefit.

Lastly, one thing to consider,the guy in this video could be charged with a 4th degree crime of tampering of evidence, by chugging Vodka. Suspicion of DUI during a motor vehicle stop with a seasoned DUI convicted driver, he clearly tampers with his own BAC to try to beat a new DUI charge that he realizes is about to happen, a smart prosecutor would charge and indict that driver with tampering of evidence, though I have never seen that charge brought this would be a prosecutorial tool that could be be utilized; that video supports that allegation/charge of tampering of evidence.

So the answer to will that chugging work is not in New Jersey, too much risk, not enough reward, don't try that sh*t.

PM or e-mail with questions, keep in mind I only defend DUI cases in New Jersey so I cannot comment on other states DUI laws...

Stephen R. Jones
Attorney-At-Law
[email protected]

I posted this 7+ years ago, about DUI-BUI in New Jersey
http://www.offshoreonly.com/forums/b...s-dwi-dui.html

Smarty

He knew he was burnt toast, he took a chance, yes, a better hobby, or a designated driver when he goes out on a bender...

In New Jersey the limit is .08 BAC. For a first time offender a BAC reading of .08-.09 on a first offense is a 90 day loss of license. .10 and above is a seven month to one year loss of license.

BUT, if you are facing a second, third, fourth offense and so on, a .08 BAC reading is enough to convict, the penalties are substantial....FYI

Smarty

If you are caught driving while suspended due to a DUI conviction, for a multiple offender it is now a 4th degree indictable, N.J.S.A. 2C:40-26, known as “Operating Motor Vehicle During Period of License Suspension,” this carries a minimum 180 days in jail up to 18 months, with no option of home arrest/bracelet or parole eligibility. It is very serious.....for a repeat offender who drives while suspended.

For a 3rd offense DUI the penalty is 180 days in jail, and a 10 year loss of license

phragle

iTrader: (3)

In Ohio, you get "party plates" after a couple dui's.... they are yellow with redletters/numbers.. different from normal ohio plates. And they mean a cop can pull you over when ever for whatever without rhyme or reason.

Smarty

That is crazy, I never heard of such a plate, I can't believe that exists, I learn something new everyday. When you wrote about tampering of evidence, I thought wow, that is novel but very on pint and smart. I went over the video with a guy I used to work for who been practicing law over 30 years in PA and NJ and has done thousands upon thousands of DUI's. He immediately brought the tampering of evidence without any suggestion from me.

Phragle, get your ass into law school, you think like a lawyer....

Stephen

glassdave

iTrader: (1)

this guy?? . . . in the banana hammock? . . . . . a lawyer ?? . . . . lol



yep, we have the yellow party plates here on Ohio. A friend had them plus the blow and go.