When I asked that question to friends and family answers varied from “what kind of beverage you had consumed” to the more “what area of town you were in” and “what kind of car do you drive”?  None of these are the answer , surprisingly neither is “whether you were intoxicated or not”. The accurate answer is the individual differences of the arresting officer. This blog has often stated that DUI is the only crime that you can be convicted solely on the opinion of the arresting officer. Lawrence Taylor, a prominent DUI attorney in California has read the latest Department of Transportation Report that appears to confirms this. Taylor writes that variables affecting officer arrests include the age of the officer, whether the officer drinks or not, the officer’s ability to estimate the effect of alcohol, what the officer’s typical duty assignment is, whether the officer is about to go off shift, if the weather is good, whether the suspect is of the same or a different race, the age of the suspect, and the gender of the suspect. None of these variables appear in any statute or law but any of these variables could mean the difference in a non-stop and a costly and painful DUI charge. These factors should not be the deciding factors in your or any other DUI trial.

For Mr. Taylor’s full post please follow the link.

http://www.duiblog.com/2008/06/12/the-unknown-variable-2/

Here is Mr. Taylor’s Article reprinted in full, and the link below.

Due Process and Automatic License Suspensions

Posted by Lawrence Taylor on June 3rd, 2008

So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about due process: Can they punish me before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (“administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions — or else no highway funds

Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection!

Not too surprisingly, the DMV wins about 96% of these DUI hearings.

That’s called “due process” in a drunk driving case.

     http://www.duiblog.com/2008/06/03/due-process-and-automatic-license-suspensions/

Under the old law only those who were under 21 years of age were required to stay in jail over 24 hours. However, the new law will effect everyone.

This means that it is more important than ever to retain a lawyer that is experienced in handling dui cases. The difference between having a Memphis dui lawyer and not having one could mean two days in jail and tens of thousands of dollars in increased insurance and limited job prospects

Diversion, expungment, and dismissal–can I get this taken off my record?

I frequently get asked this question. If you’ve already been through the justice system and your case is disposed of, you’re too late. Expungment of a conviction is something your attorney needs to talk to you about on the front end, because that’s the only time you can get it. You can’t just go and ask for it later on. You have to set it all up beforehand. What does it take, then, to get a conviction removed from your record? In Tennessee, it is a process called diversion. There are two types, pre-trial and judicial. I’ll discuss both here.

Pre-trial diversion is the quicker, easier way to go, but the requirements are tougher and a client can do it only after they’ve been indicted. An indictment is a formal notice of the charge issued by the grand jury. Here in Memphis, it takes several months after arrest to get indicted in State court. See, before being indicted a person handles their case in General Sessions. One of two things will happen when the case is in Sessions: it will either be disposed of (guilty plea, dismissal, etc.) or it will move up to Criminal Court. On the way to Criminal Court, the case must pass through the grand jury. If the grand jury finds there is enough evidence, they will indict the person. So only after a client’s been indicted can I look into pre-trial diversion. Pre-trial diversion is great if you can get it. What it is is a suspension of the prosecution against the defendant. It’s also known as attorney general diversion because it is the attorney general (prosecutor) who will suspend the case. They basically will agree not to do anything on it for up to two years, and if at the end of that time the defendant’s done everything they need to do and has stayed out of trouble, the case will be dismissed. Whether the client gets it is completely up to the prosecutor. What’s great is that the client doesn’t have to enter a guilty plea. This is especially beneficial to immigrant clients who are trying to get citizenship or residency, because a guilty plea of any kind, even if it’s later removed, would be bad for them. I don’t know immigration law, but I do know that to ICE a criminal conviction is like the death penalty. The drawback to pre-trial diversion is that you have to wait to be indicted. Like I said, here in Memphis that’s going to take several months. You may want to dispose of your case when it first gets into General Sessions, but to do that you have to enter a guilty plea. Also, the case can be suspended only for up to two years, which means the case for which you’ve been charged must have a maximum two-year sentence. Many diversion-eligible charges fall outside of this. For instance, a person eligible for diversion indicted on a class C felony in Tennessee is looking at 3-6 years. They would not qualify for pre-trial diversion.

The other type of diversion is called judicial diversion. This is where a client enters a guilty plea and begins their probation, but the judge does not enter a judgment of guilt. It’s a deferral. Clients can enter judicial diversion at any time, whether in General Sessions or Criminal Court, and the deferment can last up to six years. At the end of their probation, the client can request to have the record of their conviction expunged. All public records of the conviction are destroyed, although the court keeps a non-public record for the sole purpose of preventing the individual from qualifying again.

How does one qualify for diversion in Tennessee? The biggest thing is that a client cannot have a prior felony or Class A misdemeanor conviction, and cannot have gone on diversion before. As part of the application process, the client must go through a Tennessee Bureau of Investigation background check. This check will tell if they qualify. Also, the charge for which they are applying for diversion cannot be a Class A or B felony, a sex offense, a DUI, or Driving with a Suspended, Canceled, or Revoked License. That means if you are convicted of one of those offenses, it will stay on your record forever.

An important thing to remember about diversion is that you qualify for it only once. So if you’re facing a criminal charge and you qualify, might as well use it while you’ve got it. Notice that any conviction below a class A misdemeanor does not disqualify one from future diversion. So if a client is facing, say, a reckless driving (Class B) or disorderly conduct (Class C) charge, they could be convicted and keep their eligibility. However, I would not want the words “reckless driving” or “disorderly conduct” next to my client’s name for the rest of their life. At that point I would try to get a dismissal of the charge, followed by an expungment.

In order to convict for a DUI the government must prove beyond a reasonable doubt that the driver is driving above the legal.  Breathalyzer tests should not make a DUI charge a DUI conviction. Tests can be inaccurate, flawed, and administered improperly.  Officers may have acted improperly in proceeding with an investigation into your case.  A lawyer can help insure that your rights are fully protected and that you have a skilled advocate to tell your side of the story.  Our Memphis DUI lawyers understand what all of the testing methods are, and most importantly what they are not.

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 Jeff’s story brings up a few good points that relate to Memphis DUI’s and Mississippi DUI’s. Under the laws of both Tennessee and Mississippi you can be found guilty of DUI for operating almost any type of vehicle. So just remember to not jump on any close by golf carts, lawn mowers or motorized childrens toys when you are ready to head home after an evening at the local pub!

 And as always for all of your Mississippi or Memphis DUI defense questions call our dui lawyers at 901-754-1340.

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated here in Memphis. The list is based upon research conducted by the National Highway Traffic Administration:

Turning with a wide radius
Straddling center of lane marker
“Appearing to be drunk”
Almost striking object or vehicle
Weaving
Driving on other than designated highway
Swerving
Speed more than 10 mph below limit
Stopping without cause in traffic lane
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Driving into opposing or crossing traffic
Signalling inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in lane)
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off

***Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

If you have received a dui in Memphis and need the help of a Memphis DUI lawyer call our office today.

This list courtesty of duicenter.com

 WEST JORDAN, Utah (AP) - The former head of Utah Highway Patrol’s DUI unit has pleaded guilty to alcohol-related reckless driving.

Fred Swain crashed his police cruiser into a concrete barrier in June 2006. A breath test at the time revealed his blood-alcohol level to be 0.11 - in excess of the state’s legal limit of 0.08.

Swain’s plea to the class B misdemeanor charge was entered in 3rd District Court on Monday. It was actually his second guilty plea - he had already entered one in Draper’s justice court, but was appealing that conviction. The city prosecutor says he doesn’t know why Swain ended the appeal process.

Just how expert is the average police officer at judging levels of intoxication in a DUI case?

To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication. The researchers’ conclusion: “The assumption that social drinkers would prove to be accurate judges…was not confirmed.”

In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.

The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests. Results?

When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.

The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).

Source: duiblog.com