As a general rule, is it a good idea to refuse a breath test if you ever find yourself pulled over?

This is a question that we get asked frequently, and the answer really depends on you, how much you have had to drink, and whether you have a prior DUI. The main reason to refuse the test is that the breath test results often form the crux of the state’s DUI case against you. A breath test that indicates a BAC greater than .08 makes a difficult case to defend that much harder. Then again – in Idaho – if you refuse the test you will lose your driving privileges for a year – absolutely no driving at all. And that loss (through the Idaho Department of Transportation) results from the refusal, whether you win the trial or not.

Some people think they can avoid this trap by purchasing pocket breathalyzers. These devices, ranging from $10 to $300, are advertised as means of allowing you to test yourself before driving home.

Recently, one news organization put one such breathalyzer, the BACTrack S80, to the test. The $150 device is advertised as providing “professional accuracy at an affordable price.” The organization conducted a controlled experiment to determine just how accurately the device measured a person’s BAC. The test also served as a training exercise for officers to help them recognize signs of an impaired driver.

Four women and one man where served measured amounts of alcohol designed to bring their BAC close to the .08 legal limit. The participants self-assessed the amounts of alcohol served, guessing that they were given the equivalent of two or three drinks apiece. After each round of drinks, the participants were asked to blow into both the police breath test device and the BACTrack S80. Almost every time, the BACTrack S80 device had a lower number than the police authorized device. Moreover, the BACTrack S80 consistently registered lower blood alcohol levels than police breathalyzer device.

This difference was most pronounced after the first round of drinks, which could lead to a false sense of security. Believing that his BAC is lower than it really is, a person may choose to drink more than otherwise planned, causing him to be more intoxicated than he intended or believes himself to be.  Or, given the false sense of security of having a low breathalyzer number, he may decide to drive despite actually being impaired.

One of the officers who helped conduct the test stressed that the number itself was not important. The number is more a proxy of impaired driving rather than proof of impaired driving. Officers look first for actions such as inability to maintain a driving lane as proof of intoxication. If a person is caught driving in a manner that indicates he’s impaired, he will get pulled over.

Two of the volunteers, women in their late twenties and early thirties, were demonstrating signs of impairment after two rounds of drinks. One woman had trouble walking in a straight line while the other could not maintain a sense of balance. Both women’s breath tests indicated that their BACs were under the legal limit (.071 and .079 respectively).  However, the training officers indicated that they would have arrested both women despite the fact that they “passed” the breath test.

Headed to trial? Got a case that you want to talk about? Call our experienced Idaho criminal defense lawyers today at (208) 342-4633.Continue Reading How good is that pocket BAC device?

 I frequently check out Lawrence Taylor’s DUI blog for info on trends and tips on trying these tough, tough cases.  Check out his recent post that examines where we are headed with respect to drinking and driving: are we likely to take the "legal limit" even lower. Currently the magic number is .08% – but will that number go even lower? The law is intended to reduce the number of intoxicated drivers on the road. Lowering the blood alcohol level even lower serves only to trap drivers who may well not be intoxicated at all. Check out Taylor’s post as he discusses this.


Continue Reading Will States Go To .05% for DUI: DUI expert following this

The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.

If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.

So what does the Sixth Amendment provide?  It provides you with these essential rights at trial:

You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.

These basic rights are just the start – for example you don’t want just any lawyer – you want an experienced trial lawyer.

You don’t really want just any jury that might be impartial – you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.

So the Sixth Amendment gives us a framework to defend you, but the key to your defense – your trial and your innocence – is the lawyer you choose.

Before you hire a lawyer who says he or she has the experience you need to face a prosecution – STOP.  Ask that lawyer the five questions we have here.  Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.Continue Reading Just One Tool – Protecting Your Sixth Amendment Rights


A change to Idaho Misdemeanor Rule 5(b) now requires that anyone charged with either an excessive DUI (BAC over .2) or a second DUI offense appear for arraignment in person within 48 hours. This rule now requires a personal appearance, the filing of a notice of appearance by your lawyer will not do.

What is behind this rule change? There is no statute in Idaho that requires a personal appearance for a second DUI offense. More importantly, the rule change is said to have occurred because prosecutors on the Misdemeanor and Infraction Rules Committee complained that persons charged with their second DUIs were getting another DUI before the second had been adjudicated. 

Does this ever happen? Probably. Does it happen often? I don’t think so. Then what is the practical effect of the rule change? 

Prosecutors now routinely ask the judge to add a condition to pretrial release: alcohol monitoring.

Say that you have a second DUI and post a $1000 bond. At the arraignment, the Judge will consider the request and decide whether to add this condition (or any other condition) to your release. If added, you will have to pay the cost of the SCRAM device – which monitors for alcohol use. If you cannot pay the SCRAM cost, you cannot stay out on bail. 

Look – a DUI can ruin your day. A second DUI or an excessive DUI has even more serious consequences – including that one year drivers license suspension the will not allow you to drive anywhere, not even to work. But adding alcohol monitoring as a condition of release simply makes it more likely that defendants will not be able to stay bonded out and employed.

As I said, the prosecutor will ask the judge to add this condition to your release. The judge may deny that request and order that you abstain from using alcohol instead. Magistrate judges in Ada County do a pretty good job of making their own decisions about what it will take to cause a defendant to comply with the conditions of release. But be careful if you are headed to that arraignment. Be prepared to tell the court why the alcohol monitoring is not needed in your case.

Facing a DUI or other criminal case in Idaho? Call us for a free consultation to protect your rights.


Continue Reading Attention Anyone Charged With A Second DUI or An Excessive DUI – Your Bond May Be In Jeopardy!

Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don’t act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area – this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information – then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.


Continue Reading Idaho Criminal Defense Blog Is About Content – Free Information For You On Criminal Defense In Idaho

Courtney has today’s blog entry – and she looks at probable cause.

I just found out I’ve been driving around with only one working tail light and it got me thinking about reasonable suspicion and DUI. The only thing a police officer needs to pull you over is reasonable suspicion that a crime has been or is being committed. One of the most common complaints we hear when a person has been charged with driving under the influence is that their driving was fine, they can’t imagine why the officer had reason to pull them over, and it must be entrapment. Reasonable suspicion is easy. It can be as obvious as my burned out tail light or as minute as not having a turn signal on for at least five seconds after a stop sign (which is the law in Idaho, by the way). Most DUI stops occur early in the morning after the bars have closed. People cry entrapment because an officer parked near the bar and followed them after leaving. That’s not entrapment. Just leaving the parking lot of a bar is not generally enough for an officer to pull you over. They’ll just follow you for a bit and wait until you do something that gives them the right to pull you over. There’s your reasonable suspicion. Once you’re pulled over for "weaving inside the lane" or going one mile over the speed limit, they’ve got a chance to see if you’re under the influence. Stop leads to field sobriety tests, a breathalyzer demand and maybe – a DUI.

Here’s one more thought:  When a police officer pulls you over, what is the first thing he or she always asks? Even before you’re asked for your license and registration, it’s the same question every time.

“Do you know why I pulled you over?”

And do you know what you should say every time they ask you? NOTHING. Absolutely nothing. The officers are looking for an admission. They want you to tell them why they should have pulled you over. If they’ve got you for failing to use your blinker and you tell them you were speeding, how many tickets do you suppose you’ll get? My guess is two.

Have a question relating to a traffic stop?  DUI?  Reckless or inattentive driving?  Give us a call.

Charged with a DUI and wonder if the stop was legit? Give us a call.


Continue Reading Courtney Peterson: When Can I Be Stopped While Driving?

 In an odd combination of Justices, the United States Supreme Court has ruled that the 6th Amendment right to cross-examine and confront witnesses against you includes the right to question the lab analyst who tested your breath for alcohol in a DUI case. Justices Ginsberg, Scalia, Sotomayor, Thomas and Kagan joined in the majority opinion in Bullcoming v. New Mexico, handed down yesterday.  Opting for efficiency over exercise of the right to cross-examine, Justices Kennedy, Breyer, Alito and Chief Justice Roberts thought a certified written report could be introduced by a technician familiar with the laboratory procedures. The result may turn the DUI business on it’s head.

The Court has now specifically ruled that merely calling that report "scientific" is not enough. This should signal the end of "the machine says he’s guilty, its on the print-put." Prosecutors will have to actually call THE lab analyst so he or she can be cross-examined. Isn’t that the way it should be if the State is trying to convict you of a crime that will leave you unable to drive and serving time?

Gotta go to the dentist so no more time to write about this, but you can read all about it at the here.


Continue Reading BAC Report Not Admissible Without Live Lab Analyst – This Changes Everything For DUI Cases

 For about thirty years I have been trying criminal and civil cases. I am, as a result, a skeptic.  Consider this news from the City of Brotherly Love – and the scientific marvel that is the Breathalyzer.  It comes to us from

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months

Philadelphia, PA. March 25 — A day after

Continue Reading The Machine Lies. At Least In Philadelphia.

 I had a call this morning from a guy who wanted to know if I thought DUI was a big deal. It would be a big deal if I was charged with any crime, facing time in jail and the loss of my driver’s license. How big a deal? Just think about these three consequences if you mishandle this.


Continue Reading “DUI Is A Big Deal – Just Ask Somebody Who Has Lost Their License for a YEAR!”