[golfhobo]

Originally Posted by GMAN

I know of someone who was convicted of DWI in my state for refusing to take the breath test. This individual was not driving nor was his vehicle operable. The keys were in the ignition and he was charged and convicted. He didn't serve any jail time, but his license was suspended for a year and he now has a conviction for DWI on his record.

GMAN: Again, I don't mean to imply anything, but I believe there is some confusion here.

I don't believe ANYONE can be convicted of DUI/DWI just for REFUSING the test(s). One can be convicted IN SPITE OF refusing the test. Also, we have established the fact that, in some states at least, one can be convicted without actually DRIVING.

But, in this case, I believe the person was convicted (on the basis of other evidence) IN SPITE OF refusing the test, his license was suspended for one year BECAUSE of the refusal to test, and since he was STILL convicted.... yes... he has a DUI conviction on his record.

The information that I conveyed came from an attorney who works with these types of offenses. Granted, it has been several years ago, but I assume the laws haven't changed that much. There is a chance that if you take the test that you might not be convicted of DUI, but if you refuse to take the test, whether you were driving or not, you WILL be convicted of DWI. He told me that in my state a refusal is an automatic conviction.

Well.... I'm not saying this attorney doesn't know his state's laws, and I'm not saying that you NECESSARILY misunderstood him. Perhaps, he didn't speak clearly. I don't believe, nor can I find ANY evidence to support, the two statements I have highlighted. I have googled all over the place concerning Tennessee laws, and other state's laws, and can find NO PLACE where these words are used.

I agree with you on many of your points about convictions based on possible actions. And I appreciate that you share my concerns for any infringement on our constitutional rights.

I'm in NO WAY condoning drunk driving! I just think there has been a bit of confusion concerning how a refusal to test can affect the conviction for DUI. It CAN add to your sentence IF you are convicted. And it WILL lead to a DMV suspension of your license even if you are NOT! But, it can NEVER lead to an "automatic" conviction.

I THINK he meant.... "There is a possibility that if you TAKE the test, you still MIGHT NOT be convicted of DUI, but if you REFUSE the test...it doesn't mean you WON'T."

And that "in your state (and pretty much all others) a refusal to test is an AUTOMATIC SUSPENSION."

It can NEVER mean an automatic CONVICTION. But, it almost ALWAYS means an automatic SUSPENSION.

Hobo

[kc0iv]

Originally Posted by golfhobo

KayCee: I had NOT read the Q&A section when I first posted. I HAVE now.... and my analysis STANDS.

The paragraph you quoted is very poorly written. It doesn't even make it clear until the end of the third sentence that it is referring to refusing a BREATH TEST. At any rate, it NEVER says you can't refuse the TESTS (even tho' it is 'required' of you.) And the "separate crime" referred to is simply the crime of more or less "revoking" your implied consent, the penalty for which is additional years of suspension and/or fines, etc.

I'm fully aware that refusal can be used as evidence in court. But, it can NEVER be used as uncontestable PROOF that you were under the influence.

I did not click on EVERY state to check for these "additional crimes," but the ones I did check basically just referred to the additional suspension/punishments for refusing the test. This was known all along. If anyone wants me to check a particular state, I will be glad to, and will say so if I find I was wrong.

BTW, we are agreed on what you said in your last paragraph. That was not the subject of MY part of the discussion.

Well lets look at this for a moment.

1) You have been stop by law enforcement.
2) The officer suspects you might be under the influence.
3) The officer has you perform a field sobriety test. More than likely it is recorded on his dash cam.
4) The officer determines you failed the field sobriety test so he request you do a breath breathalyzer test.
5) You refuse to perform the test.
6) The officer places you under arrest.

Several weeks later you appear in court.

7) The prosecuting attorney calls the law enforcement officer.
8 ) The officer explains why he made the stop. What he observed and in his opinion you failed the field sobriety test.
9) He then explains you refused to take the breath breathalyzer test.

What kind of defense are you going to use to prove you are not guilty?

What kind of chance do you think you have of winning in this case?

That is my point. This is how the system works. They won't go into court if all they have is your refusal of breath breathalyzer test. They don't even have to have a breath breathalyzer test to get a conviction of DWI. What they can't prove is how drunk you were.

There is another crime I can think of off the top of my head. You can be charged with public intoxication.

I know you like to debate as do I. But the point is Don't Drink and Drive.

kc0iv

[golfhobo]

Originally Posted by kc0iv

Well lets look at this for a moment.

1) You have been stop by law enforcement.

Probable cause - admissible in court.

2) The officer suspects you might be under the influence.

Based on training and criteria - admissible in court.

3) The officer has you perform a field sobriety test. More than likely it is recorded on his dash cam.

This TOO can be refused, and with the advent of dash cams, probably SHOULD be.

4) The officer determines you failed the field sobriety test so he request you do a breath breathalyzer test.

Probably will ANYWAY if he smells alcohol.

5) You refuse to perform the test.

KNOWING this will cost you your license for a year, it is a hard choice to make.

6) The officer places you under arrest.

Probably will ANYWAY unless you haven't been drinking.


Several weeks later you appear in court.

7) The prosecuting attorney calls the law enforcement officer.

And your defense attorney should be prepared.

8 ) The officer explains why he made the stop. What he observed and in his opinion you failed the field sobriety test.

No surprise to ANYONE. (of course, if you didn't TAKE the sobriety test, he'll be searching for other good reasons for being in court.)

9) He then explains you refused to take the breath breathalyzer test.

The judge will then inform the jury that they can INFER what they want from this, but that it is not an admission of guilt.

What kind of defense are you going to use to prove you are not guilty?

An EXPENSIVE one! :wink:

What kind of chance do you think you have of winning in this case?

Better than if you took and failed the tests.

That is my point. This is how the system works.

We all KNOW how the system works.

They won't go into court if all they have is your refusal of breath breathalyzer test. They don't even have to have a breath breathalyzer test to get a conviction of DWI.

I think I SAID that.

What they can't prove is how drunk you were.

Which AT LEAST can help you avoid "aggravating factors" in your sentencing.

There is another crime I can think of off the top of my head. You can be charged with public intoxication.

Which has NO affect on your license.

I know you like to debate as do I. But the point is Don't Drink and Drive.

Yes, I like to debate. But, mostly I like to make sure that facts, laws or regs are not misconstrued or misrepresented. You don't see a post from me on the FIRST page, because there were no misconceptions at that point. From there, it got a little "sticky," and I joined in.

If you use the term "automatic" like a rich, handsome guy will "automatically" get laid ..... I can see your point. If you say that REFUSING a test will get you CONVICTED "automatically" as in some "de facto" evidence of guilt.... I cannot!
kc0iv

[GMAN]

Golfhobo, at the time this happened, Tennessee made a distinction between DUI and DWI. The attorney who informed me about these laws was also a state legislator in Tennessee. I also spoke with a couple of other attorneys in my church who basically told me the same thing.

There are a couple of things that bother me about this particular conviction. First is the fact that unless you take the breath test you are automatically guilty and will at the very least have your license suspended. He was told that unless he plead guilty to the charge he would be convicted and jailed for at 48 hours. That is coercion. Unless you give evidence against yourself you are guilty. Second is that this individual wasn't driving. He was sitting in the car, but it was inoperable. Frankly, at the very most he should have been convicted of public intoxication. Of course, the only reason he got out of the car was because the officer ordered him to do so.

[golfhobo]

Quoting GMAN:

Golfhobo, at the time this happened, Tennessee made a distinction between DUI and DWI. The attorney who informed me about these laws was also a state legislator in Tennessee. I also spoke with a couple of other attorneys in my church who basically told me the same thing.

GMAN: Several states make that distinction, and even "I" have a problem seeing the difference at times! However, in this case, I would surmise that the difference was that the lesser offense, which was "Offered" to him, did not include the jail time.

As for the intelligence and comprehension levels of State Legislators.... we won't even GO there! I don't care what "several attorneys" told you... MANY attorneys lose alot of their cases! A law degree, like any other professional degree, means you spent the time and turned in your homework! Some of them actually FAILED English Comprehension!

There are a couple of things that bother me about this particular conviction. First is the fact that unless you take the breath test you are automatically guilty and will at the very least have your license suspended.

NO.... as I've said, you will be "automatically" in violation of the "implied consent" law, and because of THAT the DMV will suspend your license, whether you win your court case or NOT.

He was told that unless he plead guilty to the charge he would be convicted and jailed for at 48 hours.

He was probably told that unless he plead guilty to the LESSER charge, they would go for the bigger charge and IF convicted, would spend 48 hours in jail.

That is coercion.

Yes.... it IS!!! But, that is the way they win HALF of their cases!

Second is that this individual wasn't driving. He was sitting in the car, but it was inoperable. Frankly, at the very most he should have been convicted of public intoxication.

NO....your state, and many others, allow for a conviction even if the car is not being "driven." OPERATING even the radio or heater COUNTS (for them.) However, according to the Implied consent law, he should NOT have lost his license for a REFUSAL, because the law stipulates being on a HIGHWAY. He should have gotten a better lawyer!

Of course, the only reason he got out of the car was because the officer ordered him to do so.

And THIS you MUST do, if "ordered." However, a good attorney could have defended an action resulting from a LAWFUL order that contradicted the intention of the accused.

GMAN, in going through my google search yesterday, I found SOME reference to the court battle concerning Tennessee's laws. I don't have time to find it again tonight, but I will do so when I return from this trip. There MAY be info here that I am not considering, but as of the CURRENT info on the site that KC0iv referenced, your state is about "average" on these laws. I have QUOTED the "implied consent" laws, and the fact that one CAN refuse the test. I have tried my best to explain the difference between a CONVICTION and a SUSPENSION.

Under the current laws, your friend COULD be convicted without DRIVING the car, OR taking the test. But, he cannot be convicted SOLELY on the fact that he REFUSED the test! However, if he refused the test, he WILL lose his license for a year "administratively" from the DMV (per the implied consent laws) which, if he had a better attorney, might could have been beaten since he was NOT on a highway (I assume.)

You CANNOT get 48 hours in jail for REFUSING a test. ONLY for a conviction of DUI (or whatever they're calling it now.) If he was coerced... he MIGHT want to hire an attorney and go for an expungement.

I don't know what ELSE I can say on this.

[kc0iv]

I'm not an attorney. However I did stay at a Holiday Inn Express. Quoting from the website: http://www.duinetwork.com/dui/tennes...tennessee.html

Can my DUI be erased from my record?

In Tennessee, a DUI can only be erased or expunged if it has been dismissed. If you are convicted, the DUI charge will remain on your criminal record forever. Also note that if your DUI is reduced to a lesser charge, your criminal history will reflect that you were originally arrested for DUI, but that the charge was reduced.

Additionally, several specific procedural steps must be taken to have a charge expunged from your record. If you qualify for expungement (ie. your DUI was dismissed), you should contact an experienced criminal defense attorney to assist you.

Hobo you might want to read this site about Tennessee laws since it is written by a practicing attorney. Not someone who stayed at a Holiday Inn Express.


kc0iv

[mf2004champ]

Thanks for the responses guys. Bottom line, after the 1 year DMV suspension for the CDL is up, what will the outlook be for his future in the trucking industry?

The DUI was dismissed and expunged, so the criminal record is a non-factor. But the license suspension for the refusal is the problem, since it is on the driving record, and it is related to a DUI, unless you can expunge a driving record. I'm not sure. This 1 year suspension will be the only blemish on the driving record.

Also, remember the guy only drove for a couple of months out of school, then quit trucking and got the license suspended 6 months later, so he will have little or no experience when he does get his CDL back.

[GMAN]

He will need to explain the suspension. A DUI is not automatically the kiss of death in this business, but it can sure put a damper on things, especially for someone with no experience. As long as the suspension shows up on his MVR there will be questions. If it were an administative suspension, such as failure to pay a parking fine that he forgot about, then it might not be as problematic.

[golfhobo]

Originally Posted by kc0iv

I'm not an attorney. However I did stay at a Holiday Inn Express. Quoting from the website: http://www.duinetwork.com/dui/tennes...tennessee.html

Hobo you might want to read this site about Tennessee laws since it is written by a practicing attorney. Not someone who stayed at a Holiday Inn Express.


kc0iv

KayCee:

Thanks for the link. It cleared up one or two minor questions. I was NOT aware that, in Tennessee, the officer could choose the type of test. In many or most states, the Defendant has the choice. The REST of the article supported EVERYTHING I've said to date.

Since you focused (I guess) on what I said about expungement, let me quote this from the same site:

Should a person be convicted at trial, he or she has the right to appeal the conviction, the sentence, or both.

I think we addressed this on another thread, but it is MY understanding that, IF one wins the appeal, the conviction is "dismissed." Therefore, and expungement would be a possibility.

Do you have any MORE questions? If NOT, then please excuse me while I go on a date with the front desk clerkette from the local Holiday Inn Express! :wink:

Oh, BTW..... LONG ago, I received a "conditonal" acceptance to the Wake Forest Law School. [um.... do YOU have one of those?] :lol:

[ToxicWaste]

Originally Posted by got mud?

cops don't just write a search warrent! a search warrant must be filed with a court and and the officer must show probable cause for a search. the judge if he finds probable cause then signs the warrant and the officer may serve it. also no cop is going to be administering a blood test. if and when he does have a search warrant he will take the person to a hospital and have them draw the blood. the only reason we have implied consent is so their is a penalty for refusing to take a breath or blood test.

Refusing to take a test can be used as evidence in a trial but evidence doesn't mean guilt. a decent lawyer will argue that the person refused to take the test because they don't believe in it etc!

The cop cant prove anything! he can testify that he smelled what he smelled and what he saw but that is not Proof! it is still up to a jury of your piers to look at all the "evidence" and find you not guilty or guilty beyond a reasonable doubt! thats not somewhat guilty or probably guilty! just refusing to take a test does not PROVE you guilty beyond a reasonable doubt!

the problem is the jury is made up of people that think cops can just write search warrants and strap people to chairs.

the bottom line is when you get a drivers license you accept the fact that if you refuse a test you will lose your PRIVILEGE to drive. life has rules! You either follow them or you don't! You have the choice, but you also have the consequences!

Directed to got mud:
My friend's a cop in AZ dip :dung: He was swore in over the phone by a judge than stuck the needle in the drunk's arm himself. It's called a cop being certified as a phlobotomist. All he had to do was write a probable cause statement and tell it to a judge over the phone. Until you know what you're talking about keep driving your truck!!!