What are my chances of winning a DWI/DUI if I was arrested going through a DWI/DUI checkpoint?

The famous law school answer is - it depends! Police have to follow certain rules when stopping you at a checkpoint. If they do not, a skilled defense attorney can exploit that, and possibly beat the charge. You definitely want to hire an attorney as soon as possible. One of the reasons is when you get a DWI, you are entitled to an administrative hearing. If you fail to request this hearing, your driver's license can be suspended even though you have not yet been convicted! A good DWI attorney knows how to preserve your rights and fight through the final disposition of your case.

Let’s say Mikey is driving down Perkins Road in Baton Rouge when he sees flashing lights ahead. Mikey had three beers over a two hour period at Bulldog's pint night when a buddy spilled a beer on his favorite pair of jeans and he decided to leave. Mikey rolls up to the checkpoint and is greeted by Officer Hardcore who demands Mikey step out of the vehicle. Mikey is suspicious because Officer Hardcore let three nice vehicles through the checkpoint but stopped him. Mikey drives a beat-up 1970 Camaro. Immediately Mikey complies and Officer Hardcore notes the strong presence of an unknown alcoholic beverage emanating from Mikey's person. Officer Hardcore tells Mikey to perform a Standard Field Sobriety Test and Mikey says, "I'd really like to speak with my defense attorney Ed Atebara first."

Officer Hardcore arrests Mikey for suspicion of DWI and places him in the back of a van and tells him to give a breath sample. Mikey refuses the test politely and Officer Hardcore tells him that he is going to jail.  Mikey may be able to beat the wrap, but he can't beat the ride.

Mikey was right to be suspicious. For a DWI checkpoint to withstand constitutional muster, it has to abide by certain guidelines. Normally when the police stop you, they have to have a reason, otherwise it’s an illegal search and seizure of the person. However, DWI checkpoints are a little different, The United State Supreme Court set forth guidelines for checkpoints which the Louisiana Supreme Court has adopted. If the police deviate from the operational guidelines set forth for the checkpoint, then the stop may have been illegal.

In the example above, Mikey "refused to blow" and offer evidence against himself. This makes it harder for the state to prove its case and improves Mikey's chances of "beating the wrap.” Remember just because you're arrested for a DWI/DUI does not mean you will be convicted of one.

In all criminal cases, it is important to seek immediate legal advice, so that you do not sleep on your rights.

Police and Prosecutors: Instituting Criminal Charges

A frequently asked question I get from clients is when is my first court date and what are they charging me with? To understand the answer to this question you must understand the relationship between police and prosecutors. Police conduct investigations and interviews, gather evidence, write reports, testify in court if necessary, and make arrests. Prosecutors take all of the information and evaluate it, conduct additional investigations, choose when to institute criminal proceedings and present cases to the courts.

In every Parish in the State whether: East Baton Rouge Parish, West Baton Rouge, Livingston Parish, Ascension Parish or Jefferson Parish, if you are arrested by Sheriff’s Office, DPS, State Police, or City Police, the arresting officer must write a police report. This report is an account of your arrest and it explains the facts and circumstances in which the police would testify. It is also one of the most useful tools a prosecutor uses to determine what crime, if any, to charge you with. Generally it takes time for the arresting officer to write the report and then have a supervisor sign off on it.

Once the report is complete, it is sent to the District Attorney or the City Prosecutor's Office for review (different jurisdictions do things a little differently).  Weeks after you are arrested may go by before a prosecutor evaluates the case and determines which crime, if any, to charge you with. Charges are instituted by the filing of a bill of information (“bill”), or by indictment from a Grand Jury. Generally matters are only brought before a Grand Jury for serious felonies and capital cases. But did you know that prosecutors may bill differently? Prosecutors have great power in their discretion when instituting criminal charges.

For example, let’s say Susan is at the nightclub in Denham Springs when she gets into an argument with Cheryl which leads to the two fighting. Susan takes off her 4'' stilettos and beats Cheryl in the parking lot with her shoes. Police are called out and they issue Susan a summons (arrest her) for the crime of simple battery. A police report is written and forwarded to the District Attorney's Office in Livingston Parish because Livingston Parish Sheriff's Office answered the call. The prosecutor reads the report and decides that the 4" stiletto is a dangerous weapon and charges (bills) Susan with Aggravated Battery instead of Simple Battery. What's the difference?  Aggravated battery is a felony and simple battery is misdemeanor. Aggravated battery requires an additional element to the offense of Simple Battery, i.e., a battery committed with a dangerous weapon or instrumentality. One penalty is much more severe than the other.

Now take the same facts, but this time the police couldn't decide who started the fight, and the victim (Cheryl) would not cooperate with law enforcement. The prosecutor may determine that the facts were not severe enough, or that he could not prove his aggravated battery case without a victim and subsequently choses to "bill" the case as a Disturbing the Peace by Fistic Encounter (a misdemeanor).

Do you see how prosecutors have a great deal of discretion when instituting charges? If you get into trouble, speaking with a lawyer as soon as possible can help your case. Attorneys can communicate with the prosecutor about you case before it’s billed and that might be the difference between a misdemeanor and a felony. Call your Baton Rouge Defense Attorney Ed Atebara Today!!!