First BWI, confusion over driver
I was pulled over for speeding on my boat and to protect me, my fiance who hadn't been drinking as much told the officer that it was her that was driving. He asked if we had been drinking so he gave me, her, and my two roommates a test and told us we were over the limit. He questioned her in his boat and put handcuffs on her. When I saw that I immediately told the officer that it was me who was driving, she is a teacher and I could not let her take the blame. The officer then told us that we would have to go to the station to sort everything out. When we arrived they questioned her more and gave her another breathylizer that she passed with a .05. She stated that it was me who was driving and took her home. When I went in for questioning I told them that I didn't want to get her into trouble and that it was me who was driving, he told me he had seen the switch. I took 2 breathylizers and both were .11. I signed the results and the officer told me that I was charged with BWI and that I was under arrest and would need to be booked at another station. I went through the system and was released with a 9/11 court date. What sort of charges/fines am I looking at and do I have any grounds for an arguement? Do I have any sort of a case?
3 Answers from Attorneys
Re: First BWI, confusion over driver
Thank you for the post.
If the officer is unable to make an independent observation as to the driver of eth boat, it would be very difficult for a prosecutor to succeed in prosecuting the case. There is also a significant question as to whether the officer had a reasonable suspicion of BWI to even request the field sobriety tests which included the preliminary breath test.
The offense, if it was a first offense and you have no DWI offenses, is a misdemeanor punishable by up to 90 days in jail and a $1000 fine. If you have a prior BWI, DWI or alcohol related Implied Consent violation, you would also lose your driver's license. Your right to operate a motor boat will also be revoked for a six month period commencing now and extending into the next year's boating season.
For a consultation call 612.240.8005.
Re: First BWI, confusion over driver
Over the years I have found many, many of these cases winnable, though less than half. Usually, the defense that resulted in the win was unknown when I started work on the case, but uncovered through investigation and legal research. The lesson I've learned from this is that you never know which case can be won, so if it's important, fight each and every case. It will only be after major effort and patience that these cases can be won. If it's an important case, fight it. For help doing so, give me a call to talk about it.
Re: First BWI, confusion over driver
The best way to go after a case like this is to set it up for litigation all the way to trial, but weaken the case enough so that the prosecutor may be willing to reduce the criminal charge to something like "Careless Boating." (Yes there is such an offense.) The part of your factual scenario that hurts the most is that your fiance still said you were driving even after she knew she was under the legal limit. If she had been the actual driver and was trying to shft blame to you, her incentive to do so would have been gone at that point. But still, I like the prospect of trying to convince the prosecutor to reduce since your test reading was relatively low and the driving conduct wasn't horrible. Don't attempt to do this on your own, since any conversation you have with the prosecutor can be used against you at trial. Those prosecutors can be tricky sometimes!
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