Legal Help DUI

[chemgear]

Originally Posted by T@T

Hypocrites!! yeah...I'm taking to all of you

Nobody has the right to be hypocritical except me. Yes, you read that correctly.

(wow, 16 pages of posts in two days!)

[Starfishy]

I find this particularly funny as it strikes rather close to home for me. I too was once "pulled over" by an emergency vehicle. In my case it was actually a fire truck (Sherrif). He followed me for a bit and then a police car pulled up behind me and on came the sirens. This was at 8:00am on my way into work. I had spilt a cup of used "spitz" and apparently was swerving slightly as I tried to pick them up. I took a breathalyzer, even though I could tell that the cop believed my story, and of course passed. Got off with a little bit of a chuckle from the cop.

I am not implying in any way that the OP was not in fact impared, but I am willing to give him the benefit of the doubt after having been in a similar situation.

This GDL thing is very interesting. I know that when I was 16 I got a real license (back in the day when we got learners at 14 and a real one at 16). I am 100% positive that there were multiple occasions in which I had a beer or two and got behind the wheel (I am not sure if this implicates me in underage drinking or not). I am proud to say that I have never felt "impared" behind the wheel and have on many occasions found alternative means of transport. However, a zero tolerance rule would have found me as a young man with a 24hr suspension or two. I am not condoning this behaviour, but it does seem a little harsh to me. I can't imagine someone a little older (say mid 20s) getting a GDL a little late and not being able to have one glass of wine with his dinner... WOW! Seems to me the rules on this one might be a little tight.

I would like to thank hockeycop for his contributions to this thread. He has been very informative, I wish that more posters would have read his posts as it seems to me that much of this thread is dedicated to discussion that was already summed up in his posts.

[valo403]

Originally Posted by jolinar of malkshor

Thats what I thought as well but if you read closely subsection (2) gives the authority for the officer to demand a Breath sample. Subesctions (3) and (4) tell what will happen if a breath sample is or isn't provided.

I don't see anywhere after (2) that allows for the suspension on suspicion alone. I didn't read it close enough yesterday and I believe I interpreted it wrong. Thanks to hockeycop it is now interpreted correctly.

OP: Appeal it and tell us what happens.

Is there nowhere else in the statute that refers to the ability to utilize a confession? Remember, you can't just read the particualr section as there is often more global controlling language outisde of that single clause. I hate statutes written that way as they cause unecesarry confusion for everyone.

[jolinar of malkshor]

Originally Posted by valo403

Is there nowhere else in the statute that refers to the ability to utilize a confession? Remember, you can't just read the particualr section as there is often more global controlling language outisde of that single clause. I hate statutes written that way as they cause unecesarry confusion for everyone.

Not that I read. I agree, a confession maybe sufficient but we would have to see a decision on an appeal to see how they interpret it.

[ken0042]

Originally Posted by Starfishy

This GDL thing is very interesting. I know that when I was 16 I got a real license (back in the day when we got learners at 14 and a real one at 16). I am 100% positive that there were multiple occasions in which I had a beer or two and got behind the wheel (I am not sure if this implicates me in underage drinking or not). I am proud to say that I have never felt "impared" behind the wheel and have on many occasions found alternative means of transport. However, a zero tolerance rule would have found me as a young man with a 24hr suspension or two. I am not condoning this behaviour, but it does seem a little harsh to me. I can't imagine someone a little older (say mid 20s) getting a GDL a little late and not being able to have one glass of wine with his dinner... WOW! Seems to me the rules on this one might be a little tight.

I think you answered your own question there. I would say most people start driving around the time they are also being introduced to alcohol. So instead of getting into the habit of having a beer or two; they get into the habit of just having a pop instead.

As for the few who start driving later on in life; it also teaches the same lesson. My Fiancee was 30 when she got her GDL; and because of the rules on drinking and driving she is quite the advocate of not having anything before getting behind the wheel.

The last multi-page drunk driving thread I said that we needed solutions to stop people from drinking and driving. I think the GDL restrictions are a good start in preventing kids from developing some of the bad habits you and I may have developed.

[valo403]

Originally Posted by jolinar of malkshor

Not that I read. I agree, a confession maybe sufficient but we would have to see a decision on an appeal to see how they interpret it.

Yep, I don't imagine this is the type of thing with published decisions either so past cases can't help.

[thesmugger]

So I've called a few insurance companies to get an idea how much insurance goes up. Average is around 20% they said, so I'd pay an extra 40 dollars a month.. Far from whats been suggested here by many, that I'd be paying upwards of $6000.

Now I'm trying to figure out what happens if I win my appeal. The suspention remains I know that much (I'm fine with that, time to reflect). But if I win the appeal is insurance not put up? Anyone know what happens here, everyone on the phone is super dodgy.

[Frank MetaMusil]

Originally Posted by thesmugger

So I've called a few insurance companies to get an idea how much insurance goes up. Average is around 20% they said, so I'd pay an extra 40 dollars a month.. Far from whats been suggested here by many, that I'd be paying upwards of $6000.

Now I'm trying to figure out what happens if I win my appeal. The suspention remains I know that much (I'm fine with that, time to reflect). But if I win the appeal is insurance not put up? Anyone know what happens here, everyone on the phone is super dodgy.

Your insurance rates won't go up since this will not go onto your driver's abstract if the appeal is successful.

[return to the red]

I didn't have time to go though all 16 pages but has the original poster stated his age at any point in this thread?

[Starfishy]

Originally Posted by ken0042

I think you answered your own question there. I would say most people start driving around the time they are also being introduced to alcohol. So instead of getting into the habit of having a beer or two; they get into the habit of just having a pop instead.

As for the few who start driving later on in life; it also teaches the same lesson. My Fiancee was 30 when she got her GDL; and because of the rules on drinking and driving she is quite the advocate of not having anything before getting behind the wheel.

The last multi-page drunk driving thread I said that we needed solutions to stop people from drinking and driving. I think the GDL restrictions are a good start in preventing kids from developing some of the bad habits you and I may have developed.

I will re-state the fact that I have never driven while intoxicated. I don't think it is a bad habit to have a beer or two before hopping behind the wheel. I likely do that at least once a week. In fact I had a beer at lunch and am about to hop behind the wheel right now. I could not tell a cop that I have had "nothing" to drink, I would be lying. But after 4 hours of sitting at my desk after a single beer I feel quite fine driving my vehicle safely home (provided this snow doesn't turn 90% of the other drivers on the road into idiots again).

It is the double standard with this issue that I don't understand. If a buddy and I both leave the bar at the same time after both having consumed one alcoholic beverage, is he somehow more impared by that beer than I was because he has a GDL?

I could understand an argument based on handicaps. Such as, if the drivers were both driving impared perhaps the more experience driver would be less dangerous. But to be completely honest, I don't want any impared drivers on the road, regardless of how experienced they are. So if the counterargument is that we don't want a GDL driver to be even a little bit impared, my point is still that I don't want ANY drivers to be driving impared. I believe that very few people are "impared" after one drink.

[Berger_4_]

Originally Posted by return to the red

I didn't have time to go though all 16 pages but has the original poster stated his age at any point in this thread?

Age isn't relevant to the GDL. If you're on it, you're not allowed an alcohol in your system. I had a friend who got dinged with a 30 day suspension because he blew .04...he's 21 and just hadn't gotten around to getting his full license.

[Bring_Back_Shantz]

After reading all of this thread (granted in pieces over the last day and a bit, but wow, what a slog), I still don't understand why you think you've got a chance on appeal.

Sure the ticket has boxes to check for the breat test or refusal of such breath test, but right below that is the cop's note that you admitted to drinking prior to driving.
Seems to me that's good enough, as confessions are good enough for convictions in just about any other crime. It's a zero tollerance pollicy which means ANY level of alcohol in your system warrants the suspension. If the cop smells booze on you, and you confirm that you've been drinking, that sure seems like enough evidence to me.
There are a lot of other laws that are written without an objective standard of evidence for a conviction. Murder laws for example don't say that they have to have a murder weapon with your finger prints on it for a conviction. Just that the total of the evidence must prove beyond a reasonable doubt that you did it. I'd say same applies here.

Cop: You smell like booze, have you been drinking?
You: Yes sir I drank some vodka (or whatever you said)

Any reasonable person: "Well I have no doubt that he violated the if you have any booze in your system, you can't drive, provision of his license."


Secondly, your assertation of the cop's question being ambiguous is kind of silly. I've been through a lot of chekstops and the question has always been "Have you had anything to drink tonight", not some ambigous quesiton, that any judge would believe anyone is ######ed enough to think means "Have you ever, in your life, had a drink" which is what you are implying with your "What if I had meant 'Yeah, I had a beer 10 days ago'" rant.

In summary, I fully support your bid to appealy this ticket, mostly becasue I think it's funny that you're more than likely going to end up spending more money for thinking you can outsmart everyone with your "Well he didn't specify if he meant today, or in 2007" argument, which I'm guessing would come up quickly after the "He didn't give me a brethalyzer", "Yeah, but you admitted to drinking" argument with the judge ends with the judge either laughing or sighing.

[Maritime Q-Scout]

BBS the reason he thinks he has a grounds for appeal (as do I, and hockeycop and a few others) is as follows:

Any reasonable person would believe he has alcohol in his system.

However, the standard is NOT what a reasonable person would believe, but proof beyond all reasonable doubt. There is a difference. An officer's belief does not equate proof beyond all reasonable doubt, it mearly equates to likely on a balance of probabilities.

There was a poster back somewhere in the dredge of 16 pages that said something similar happened to them, but when given the breathalyser he passed. Should they have still been charged? No.

Here the officer (if the information given is correct) did not properly execute his/her power. The system is set up so police cannot abuse their powers, part of this check is to ensure they follow procedure to ensure proof beyond a reasonable doubt.

With the information given, again I say with the information given, I believe that on a balance of probabilities the OP had alcohol in his system, however I cannot say beyond a reasonable doubt he did. I could if the police officer did their job properly (provided what we're told is accurate they did not).

If anything it will be getting off on a technicality. As the statute says in order to be charged a breathalyser must be given or refused. But if the officer did their job properly (which we pay them to do) we'd know for sure and there wouldn't be any debate.


The technicality is there so a police officer can't just pull over a teenager at 2:30 and say I smell alcohol, you lose your car for 30 days. If the OP admitted to having a drink, then the officer should have said "this will be real easy, blow here".

[jar_e]

Originally Posted by Maritime Q-Scout

BBS the reason he thinks he has a grounds for appeal (as do I, and hockeycop and a few others) is as follows:

Any reasonable person would believe he has alcohol in his system.

Except the OP who has stated numerous times in this thread that when the cop asked him if he has had anything to drink the OP said yes because he had a drink a few months ago....

[squiggs96]

Originally Posted by thesmugger

So I've called a few insurance companies to get an idea how much insurance goes up. Average is around 20% they said, so I'd pay an extra 40 dollars a month.. Far from whats been suggested here by many, that I'd be paying upwards of $6000.

Now I'm trying to figure out what happens if I win my appeal. The suspention remains I know that much (I'm fine with that, time to reflect). But if I win the appeal is insurance not put up? Anyone know what happens here, everyone on the phone is super dodgy.

Maybe if you answer some of our questions, we'll have some answers for you. I have asked you numerous questions on the situations without one response. Fair's fair.

[algernon]

Yes. thesmugger, how much Vodka had you drank before being yanked?

[Maritime Q-Scout]

Originally Posted by jar_e

Except the OP who has stated numerous times in this thread that when the cop asked him if he has had anything to drink the OP said yes because he had a drink a few months ago....

Sorry I'm from the Maritimes, any reasonable person believes we all have alcohol in our system at all times.

To borrow a bit from Mitch Hedberg "I used to drink, I still do, but I used to too." (he actually said do drugs, but it doesn't parallel quite as nicely)

[hockeycop]

Originally Posted by Bring_Back_Shantz

After reading all of this thread (granted in pieces over the last day and a bit, but wow, what a slog), I still don't understand why you think you've got a chance on appeal.

Because the law is written in a way that the suspension can not be legally issued unless there is a blood/breath test.

A comparison - Guy walks into a corner store and steals a chocolate bar with a value of $1.29. Prosecutors should file charges under CC322 (Theft - Under $5000), but instead they file charges for CC323 (Theft of Oyster Beds). The theft part is still correct, but an element of the allegation that is most important (that oyster beds were stolen) can not be proven because it was actually a chocolate bar that was stolen.

In the OP's case - The Officer could have suspended his licence for a 24 hour period under TSA S.89 because he admitted alcohol consumption. The Officer instead, suspended the licence for 30 days under TSA S.90. A key element to S.90 is that a breath or blood test MUST be administered (or offered and refused) in order for the Officer to hand out the suspension. Because that element was not proven (because there was no test offered), then this suspension is likely to be overturned on appeal, unless there is relevant case law from a higher court that says differently (no such case law could be found).



----


OP - If you win the appeal, then it would have the same effect as a not-guilty verdict on a ticket. It would go away and not appear on your abstract and insurance could not use that as a reason to raise your rates.

Also, OP as a GDL I really hope you have learned from this. Don't drink and drive at all as a GDL. Even after you get your full class 5, don't do it. You made a mistake and now it's up to you to learn from it and let it guide you in making better life choices.

[jayswin]

Anyone else really impressed by hockeycop's unemotional, unbiased posts in this thread? I know he didn't specify that he was a cop, but that he likely works with them in some capacity, and to me, his posts show the exact kind of attitude that an officer should possess.

[hockeycop]

Originally Posted by flameswin

Anyone else really impressed by hockeycop's unemotional, unbiased posts in this thread? I know he didn't specify that he was a cop, but that he likely works with them in some capacity, and to me, his posts show the exact kind of attitude that an officer should possess.

Thanks for the kudos.

It kind of goes without saying that everyone is against Impaired Driving. No one wants to have a drunk on the road who could kill them or their family. This case is a little bit different, the OP definitely shouldn't have been driving because he was a GDL, but it doesn't seem like he was hammered or anything. If he was, then a charge likely would have been layed.

Bottom line is that people don't learn anything when people on a random forum get mad at them on the internet. He didn't appear to be looking to escape accountability, he was asking what was going to happen and what his options are. I respect that.

I am a federally appointed Peace Officer. I don't work the "streets" like a CPS Constable would, but I understand the process and the law. When I am talking about legal issues, there is no room for getting emotional and biased. The law is complicated, and when interpreting it, it is important to only rely on facts and legislation, otherwise you can be in a whole world of trouble. Generally, when I am at work, I am dealing with messy situations and am making the allegations and jailing people when appropriate... So helping a CPer is actually kind of nice. I feel warm and fuzzy right now.