“I’ll do any test you want me to do so long as I can have my attorney present.” This was the advice given by Jeffrey Rich via his blog regarding what to do should you be pulled over and investigated for DUI and are inclined to believe you would give a breath test above a .08. This theory was one that made practical sense for someone who knew they had had too much to drink but made the mistake of driving anyway. Recently the theory advised by The Law Office of Jeffrey M. Rich was put to use when a client who had read the blog got pulled over and investigated for DUI.
The client was pulled over for weaving on the road and upon contact by the officer, was requested to perform field sobriety exercises. At this point our client used the theory we put forth in the blog he read. When the officer asked him to perform the walk and turn exercise our client advised that he had no problem performing the requested exercises, but that he wanted an attorney to be present while he did so. As we advised in our prior blog, there is no right to an attorney at this stage of the officer’s investigation and there will be no attorney allowed to observe. However, as part of our rationale for advising anyone in this position to make such a request, our theory will prevent the state from using a “consciousness of guilt” argument to prosecute you. Typically when “consciousness of guilt” is used, the state will allege that you refused all testing because you were too drunk to perform and didn’t want to give the state evidence. Likewise, they will say you refused the breath test for the same reasons. When using our theory, a defendant isn’t refusing the exercises, they are merely requesting a dui attorney be present.
Ultimately our client’s driver’s license was suspended in accordance with administrative rules, yet his criminal case was made much stronger by following our advice. Upon being hired, we requested that the State offer a reduced charge of reckless driving. This was offered almost immediately with standard Reckless Driving probation sanctions. Knowing this particular case was not good for the state to pursue at trial, the client was advised to allow this case be set for trial. Upon setting this case for trial, the State again offered a Reckless Driving, this time with a withhold of adjudication, $100 fine, and court costs. By getting the withhold after using our theory, our client will be able to seal his record almost immediately and after 10 years of sealing, will be able to expunge his record completely.
Ultimately, the theory set forth in the Jeffrey Rich blog achieved the result it set out to obtain. It should be noted that if one has previously refused a breath test, doing so again, even under our theory, could result in an additional charge of refusing testing. Also, refusal of the breath test will amount in a longer driver’s license suspension than one would have gotten had they performed the breath test. However, this theory is built on the premise that the State will have a weak case and will likely reduce the charge to a Reckless Driving, which is far less significant that a DUI for purposes of criminal record and insurance purposes. If you or a family member is in need of a DUI attorney, please contact aDUI attorney at The Law Office of Jeffrey M. Rich at (813) 251-3330.