Idaho Criminal Lawyer & Attorney : Chuck Peterson Law Firm : Civil Rights, Trial, Felonies, Assaut, DUI : Boise, Idaho Falls, Pocatello, Idaho

If you have been arrested and charged with DUI (driving under the influence), you may think your chances of winning your case are good.  You are presumed innocent.  The prosecutor must prove his or her case by legal and competent evidence establishing guilt beyond a reasonable doubt. You can remain silent and rely on your lawyer to ask great questions until that cop who arrested you cracks like an egg under the pressure and proclaims your innocence - right? Not a chance!  The deck is stacked against you in a DUI trial whether you are in Boise, Idaho or Honolulu, Hawaii.  Here's why - 

First - the politicians who passed those tough DUI laws are against you. They know that being tough on crime gets them re-elected, and they want to be re-elected. So being tough on drunk drivers is a "no-brainer."  Who will complain if they make it more expensive and more difficult for drunks to drive!  The few folks who will complain only do so AFTER they have been convicted. Their answer is to keep lowering that BAC limit, and increasing the punishment. You can't expect a break from politicians!

What about judges? Not a chance! Go to court and watch how that all works out if you are convicted. You will be fined - around $1000 for a first time DUI.  You will lose your driver's license. The judge doesn't have a choice here as the politicians have made suspending your license mandatory. And just how will you work with that restricted license? Your problem - not theirs. And then there is jail time. Usually the sentence includes 180 days in jail with 170 days or so SUSPENDED. You may be able to avoid actually serving the jail time by doing community service (like 40 hours or so) or by picking up trash along the road on a "work crew." But that suspended time is hanging over your head like an axe ready to fall if you make another mistake. Violate the law while on probation and you can expect to serve part or all of that suspended time. And you will have to go to an alcohol evaluation, and the classes they recommend, and the victims panel, and pay the increased costs of insurance and re-instating your drivers license.  Help from the judge? Right!

What about the "$500 to get you through this" lawyers who "used to be a prosecutor" and got your name from the jail records.  You know - the guys who send you that "Dear DUI Defendant" letter. They want you to be afraid to do anything except plead guilty. Help? Some - but  only if that is the best you can do. 

What then, is the answer? More about that after this weekend is over and I have time to write again. Today I am off to prepare for a TRIAL. You know, where defendants actually make the state prove their guilt.

• Email This
• Print
• Comments
• Trackbacks

I had a question this week about driving under the influence of alcohol or drugs: "Do I have to be driving to be guilty?"  Survey says - NO!  Idaho, like virtually every other state makes it a crime to be under the influence and to drive or be in actual physical control of a motor vehicle.  The statute - Idaho Code § 18-8004 does not require that you be driving, or that the car's engine even be started.  If you are in the car and intoxicated and sleeping it off with the ability to physically control the car - like having the keys - you can be convicted. 

In a study released last April, the US Department of Health and Human Services estimated that last year 30 million Americans drove while intoxicated.  Thirty million.  That's a serious road hazard if it is true.  And the mere fact that the government has the statistic shows us why a DUI charge is so serious. If you are convicted of driving under the influence you will lose your drivers license, be fined, face time in jail, have to undergo an alcohol evaluation and go to alcohol classes and treatment if ordered.  You will also have to figure out how to get to and from work without privileges and pay the costs of a fine and increased insurance.  It may not be a felony (assuming you don't have priors) but it will be expensive and a serious impediment to your future.  So treat it seriously if you are charged with DUI.  And avoid it - a night of drinking and driving can leave you with a serious "hangover" for a long time.  Simple rule - do not drink and drive - grab a cab! 

• Email This
• Print
• Comments (2)
• Trackbacks

I was just looking at Virginia Attorney Bob Battle's website, and his advice on choosing a lawyer to represent you if you are charged with driving under the influence.  The advice makes sense whether you are headed to court in the great South or the Northwest.  Survey says:  choose wisely!  As a client in a criminal case in Idaho, you want to hire an experienced lawyer.  Some Boise lawyers send out letters everyday to anyone charged with a crime.  They get that list of potential clients at the courthouse and then send off a FORM letter that may scare you into jumping into their caseload.  Don't jump. Think! Why are those lawyers "fishing" for clients anyway?  Successful and experienced lawyers (criminal and otherwise) get clients from their reputations and by referral.  Just how many TRIALS have they had this year?  What were the results?  And will they be handling the case or passing it off to an associate?  Look, it's your case, and your life.  Why would you entrust it to any lawyer who could not give you the answers you deserve?  Here's our pitch:  Hire me for the experience and you get just that; me and twenty-seven years in the courtroom. 

So what kind of cases have I handled?  In the past five years the cases have included murder, manslaughter, racketeering, drug possession and trafficking, fraud, medicaid fraud, illegal possession of guns and ammunition, sex offenses, DUI, domestic battery, assault, aggravated assault, and other misdemeanors.  Civil case?  Wrongful death, ski injuries, defective design of Ford Expedition, personal injury automobile accident, truck accidents, defamation, malpractice, breach of contract, fraud, and defective products.  Need a lawyer?  Like Bob Battle says, choose wisely.   

• Email This
• Print
• Comments
• Trackbacks

I had this issue again, yesterday, in a Boise DUI (driving under influence) case before an Ada County Magistrate Judge.  The answer may not be as simple as the City of Boise would argue.  They contend that an arrest does not occur until the handcuffs are on the defendant - and that usually does not occur until after the field sobriety tests.  Accordingly, the defendant is not in "custody" and there is no obligation to provide Miranda warnings.  My case involved a defendant who had been arrested going the wrong way down a one way street in Boise, after 2:00 a.m.  With the bars closing and his driving pattern, the officer made a stop with his lights flashing and approached the car.  He testified that he smelled the odor of alcohol, and that he observed the bloodshot and glassy eyes of my client.  His next question:  Have you been drinking tonight?  Was there a duty to advise the defendant of his right to remain silent?  Answer:  not yet.  The judge ruled that there was no arrest for Miranda purposes until further investigation had occurred.  That "investigation" was the officer administered field sobriety tests.  Statements made by my client during those tests are admissible, as is the breathalizer result.  The message here - you are not going to hear the officer tell you that you may remain silent until after you have taken the field sobriety tests.  Of course the case has not been tried yet, and the breathalizer results are not 100% accurate.  Still at issue - whether the state must provide the source code for the Intoxalizer 5000, and whether the defendant's BAC is admissable and enough to prove that he was operating the car while intoxicated.  Don't drink and drive.  The cost is simply too high.  Have a question about drinking and driving in Boise Idaho?  Comment or send me an email.

• Email This
• Print
• Comments
• Trackbacks

The Idaho Court of Appeals has ruled that a police officer must give Miranda warnings to the driver of a car after finding drugs in the car, when he has been sufficiently treated like he is in custody, and not simply the subject of a traffic stop.  In State v. James, a divided Court held that the appellant was entitled to have been warned under the circumstances presented.  James had been stopped late at night, his car searched (with his consent), and he and his passengers had been removed from the car and frisked.  Officers under such circumstances who ask the magic “who owns the dope” question must first advise the detainees that they have the right to remain silent, per Miranda.

James is not an earth shattering decision, although it is seemingly  inconsistent with the United States Supreme Court decision in Berkemer v. McCarty, 468 U.S. 420 (1984), and the Court’s earlier decision in State v. Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct. App. 1992). In those cases the decisions involved more routine traffic stops.  The test of whether a person is “in custody” is still objective -  “how would a reasonable man in the defendant’s circumstances have understood his situation?”  With the usual traffic stop falling far short of “detention,” defendants have typically not received the protection of Miranda. In Idaho, a traffic stop – involving a brief stop and questioning by the officer – without such warnings, has not been the basis for suppression. The Court here distinguished the facts, finding it looked more like an arrest than a traffic stop. In particular, the deputy threatened to arrest everyone unless someone admitted possession of the drugs. The driver got the message – he confessed to save his friends from arrest.  Judge Perry (dissenting) did not agree that the circumstances added up restraint that was akin to a formal arrest under the totality of the circumstances.  In particular, he did not think the officer's threat to arrest everyone in the car was enough to elevate the investigative detention into custody. 

So what do we take away from this decision? Miranda warnings are required when the circumstances would cause a person to believe he or she is under arrest, particularly when an officer is treating the situation like an arrest. If you have been taken out of the car, separated from other passengers, frisked, had the dogs called in to search your vehicle and the cops are telling you somebody is going to jail, you probably get that all too famous warning: “you have the right to remain silent….”  Now, will you remain silent?  All too often persons stopped by the police give them all they need to produce a later conviction.  Not every stop will result in Miranda warnings, but this case gives greater clarity as to the circumstances that may lead there.  But what about the typical DUI traffic stop and questioning by the officer?  "Have you been drinking?"  In custody or not?  Likely not if it is the usual sort of case, but James may give us a better argument that statements thereafter are subject to suppression.

• Email This
• Print
• Comments
• Trackbacks