QUESTION
Can both DUI and refusal charges be dismissed?
Asked on Apr 29th, 2013 on DUI/DWI - Michigan
More details to this question:
I have a driving under the influence and operating while intoxicated charges. From research, it sounds like these two charges are constitutionally well-built statues among many state's justice system to increase operating while intoxicated convictions or the consequences thereof. At the stop, I had to perform a Sobriety Field Test and preliminary breath test. I felt I was able to accomplish all the task of the sobriety test - I was able to follow the eye test and walk. It was after the preliminary breath test that I was placed under arrest. I felt I was instructed to fail the test. The 1st blow the officer felt the equipment was defective. The 2nd blow the officer said I blew too hard. He then instructed me that I blow normally on the 3rd time. It was blowing normal then he said I was under arrest and read me my Miranda rights. It was during this time when he also included the Implied Consent Law notice. Of course, the immediate reply is I want to see a lawyer and he charges me with refusal. I will be seeking a driving under the influence attorney but it seems like because of this being constitutionally protected, an attorney would only be able for damage control and not proving my innocence.
5 ANSWERS
Criminal Defense Attorney serving Oakland, CA
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Kapsack & Bair, LLP
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There is new case law on this point regarding the confusion induced by informing you that you have the right to an attorney and then telling you that you don't when you are making the decision which chemical test to provide. A DUI lawyer can help you determine whether you can beat the refusal charge. Additionally, if you were not lawfully contacted and/or arrested you have constitutional challenges to both the DUI and the refusal as implied consent isn't applicable unless you have been lawfully arrested.
Answered on May 07th, 2013 at 12:10 AM
Yes, but you need to hire a DUI specialist, and do it soon because you have only 10 days to save your license. Refusal cases are more serious, but they are usually more defensible, provided you have someone who knows what he is doing.
Answered on May 02nd, 2013 at 11:04 PM
The state has the burden to prove you guilty of an offense. You or your attorney never need to prove that you are innocent. There are certain affirmative defenses, but those only apply in specific circumstance. I do not know what you do for a living. If my car breaks down, I take it to a mechanic. If I have a problem with the wiring in my house, I hire an electrician. If my water pipes burst, I hire a plumber. Attorneys spend several years first learning the law and then learning how that law applies to certain facts. Please do not underestimate the value of an attorney. What may seem like damage control to you, could be the difference between you going to jail and being found not guilty.
Answered on May 02nd, 2013 at 3:10 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Yes, it is possible that there is sufficient evidence to convict you and an attorney would be seeking to accomplish damage control. However, that may be all than your can reasonably expect.
Answered on May 02nd, 2013 at 3:09 PM
Criminal Defense Attorney serving Bloomfield Hills, MI
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Law Offices of Marshall S. Tauber
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You are not required under the law to prove your innocence. The Prosecution must prove guilt beyond a reasonable doubt. You need to show doubt about the evidence that the prosecutor has. This is more than just possible, over 50% of the criminal cases that are actually tried before a jury result in a finding of not guilty of the crime charged. It takes hard work, a committed lawyer, the right facts on your side and a client willing to look at the long term costs of a conviction versus the short term costs of paying your attorney well in order to represent you effectively. Each case is unique in it's facts. The prosecutors typically think of these cases as the same and do little to analyze the factors favorable to the accused. My advice, find an experienced and seasoned defense lawyer you can trust who will listen to your side, present you with all of the factors both negative & positive to your defense and then secure your agreement to chart a course for the most realistic and favorable outcome that may be expected given the facts of your case.
Answered on May 02nd, 2013 at 3:09 PM