What is implied consent?

 When pulled over for a traffic stop, one of the things a police officer will tell you is that you need to submit to field sobriety tests and some form of chemical testing, either a breathalyzer or a blood draw. As a result of you driving a vehicle on Idaho roads with an Idaho driver's license (or an out of state license), you have given your implied consent to submit to the testing requested by the police officer.

Idaho courts have stated that "any person who drives or is in actual physical control of a vehicle [has given their implied consent to] evidentiary testing for alcohol at the request of a peace officer with reasonable grounds for suspicion of DUI. Implied consent to evidentiary testing is not limited to a breathalyzer test, but may also include testing the suspect's blood or urine. The evidentiary test to be employed is of the officer's choosing." State v. Diaz, 144 Idaho 300, 160 P.3d 739 (Idaho 2007).


How does this affect you when you are pulled over for an Idaho DUI traffic stop? First, because you were driving, you have given your implied consent to be tested for DUI. This does not mean that they can force you to complete the evidentiary testing. You can respectfully and politely decline to do the testing. However, if you do decline, odds are they will require a forced blood draw, which has been held as valid by the Idaho Supreme Court. State v. Diaz, 144 Idaho 300, 160 P.3d 739 (Idaho 2007). Also, if you refuse to complete the testing the officer may cite you for a refusal, which could result in a one year suspension of your driver's license.

Another thing, you do not have the right to an attorney prior to taking the evidentiary tests.

So what is the best course of action? If you are confident you blood alcohol content is under the legal limit, take the tests. If you believe that you are under the influence, you can refuse the field sobriety tests and the breathalyzer, but if you do, you probably will be forced to give a blood sample. You will also be cited for a refusal which may result in a one-year suspension of your Idaho driver's license.


To develop a personalized DUI Defense Strategy contact Mark Petersen, a Pocatello Idaho DUI Lawyer with Snake River Law PLLC by email or by calling 208.406.9885. Mention "idahoduilawyer.blogspot" and get your DUI Defense Strategy session, a $400.00 value, for free.

Protecting your Driver's License

If you have been cited with an Idaho DUI, you were also likely served with either a failure or a refusal of the breathalyzer or blood test. It is essential that you challenge the failure or refusal of the breathalyzer or blood test if you want to protect your driver's license. If you do not challenge the failure or refusal, you will lose your driving privileges for at least 30 days.

If you failed the breathalyzer or blood test you have seven (7) days to file a hearing request with the Idaho Department of Transportation (IDOT). This hearing request must be filed with IDOT in Boise, Idaho. A hearing is then schedule over the phone for sometime before your temporary license expires in 30 days. It is essential to review all of the documents involved with the traffic stop that lead to your DUI citation. An experienced Idaho DUI Lawyer can assist you in collecting the information you need to challenge your failure of a breathalyzer or blood test.

If you refused the breathalyzer or blood test you have seven (7) days to file a hearing request with the Prosecuting Attorney in the county or city where you received the refusal citation. You will receive a hearing notice where you can go and discuss the case with the prosecuting attorney, and, if necessary proceed to a court trial on the refusal. An experienced Idaho DUI Lawyer can assist you in challenging your refusal of a breathalyzer or blood test.

Contact Mark Petersen, a Pocatello Idaho DUI Lawyer with Snake River Law PLLC for more information regarding representation if you have been cited with an Idaho DUI. Mark can be reached by email or by calling 208.406.9885

What is a Refusal?

When a driver is arrested on suspicion of an Idaho DUI, he or she must provide a sample of their blood or breath for testing for alcohol content under Idaho Implied Consent Law. A driver found to have refused consent can face stiff consequences from the Idaho DMV, a one-year suspension of his or her driver's license and a $250.00 fine.

 

So what is a refusal? Idaho DUI Laws indicate that a refusal can be anything other than agreeing to perform  the test(s). Typically, two kinds of refusals exist in Idaho: Express refusals (the person saying no to the test) and implied refusals (where the police officer says a refusal occurred but the individual did not expressly refuse). An experienced Idaho DUI Lawyer can assist you in evaluating your case to determine whether you have any defenses against your refusal.

A person arrested for an Idaho DUI does not have the right to consult with an attorney before deciding whether to submit to the chemical test. However, if someone is charged with DUI, and they aren't properly told of the consequences of refusal, namely, that their driver's license will be suspended or revoked, or if the officer fails to advise the individual of the Idaho Implied Consent Law, the person will have a defense against the refusal.

If you have been cited for refusing a breathalyzer or blood test you must file a challenge to the refusal within seven (7) days from the date you were given the refusal.

 

Contact Mark Petersen, a Pocatello Idaho DUI Lawyer  for more information regarding representation if you have been cited with an Idaho DUI. Snake River Law PLLC offers reasonable flat rates and does not bill by the hour. Mark can be reached by email or by calling 208.406.9885

 

 

Withheld Judgments and DUI's

One question to consider when being cited with a DUI in Idaho is whether you are eligible for a withheld judgment. Below is a little background on withheld judgments to consider when negotiating a sentence for your Idaho DUI citation/offense:

WITHHELD JUDGMENTS

A Withheld Judgment is a form of sentence that a judge can impose on you once you have plead guilty to a DUI charge. Typically you are only allowed one withheld judgment in your life, although there are some exceptions. When you are granted a withheld judgment, you are not convicted of the DUI offense. Instead, you are placed on probation and upon successful completion of probation you can apply to have the charge dismissed.

EFFECT OF WITHHELD JUDGMENT

Even with a withheld judgment, the judge can impose jail time, fines, court costs, and can suspend your driving privileges. However, with a withheld judgment, a judge can suspend the driver's license suspension, resulting in no suspension of your license.

WITHHELD JUDGMENTS AND PROBATION

If you receive a withheld judgment you will likely receive court/record check probation or supervised probation. The Court has the discretion to put you on either type of probation. There are costs associated with each type of probation that you will have to pay in addition to your fines and court costs. If you fail to comply with your probation terms, the judge can re-sentence you and reimpose any of the sentence that was previously suspended.

Contact Mark Petersen, a Pocatello Idaho DUI Lawyer  for more information regarding withheld judgments if you have been cited with DUI in Idaho.

Idaho DUI Penalties - 3 or more convictions

If you plead guilty or are found guilty of a DUI, and its your third or more offense within ten (10) years, you will be guilty of a felony.

1. Jail sentence: A mandatory minimum period of thirty (30) days, the first forty eight (48) hours of which must be consecutive, and ten (10) days of which must be served in jail.  The maximum jail sentence is up to ten (10) years.

2. Fine: Up to five thousand dollars ($5,000.00).

3. Impact on Driving Privileges: Mandatory minimum period of one (1) year after release from confinement with absolutely no driving privileges of any kind, with additional suspension with absolutely no driving privileges for up to five (5) years.  Note: this suspension is separate from any administrative suspension before the Idaho Department of Transportation, so you could potentially have two Idaho driving privilege suspensions.

4. Ignition Interlock System: You will be required to drive only a motor vehicle equipped with a functioning ignition interlock system, following the one (1) year mandatory license suspension period during your period of probation.

5. Probation:  The court will likely impose a period of probation, regardless of the type of sentence entered, for a minimum of one (1) year.  All supervision costs are at your expense.

6. Commercial Driver's License. The provisions regarding disqualification of your commercial license will likely apply, which results in a one year suspension of your commercial license.

If you have been cited with a third offense DUI in Pocatello, American Falls, Blackfoot, Preston, Soda Springs, Malad or Montpelier please contact Mark Petersen, a Pocatello Idaho DUI defense lawyer at Snake River Law PLLC. For other Idaho counties, contact an Idaho DUI Lawyer.

Idaho DUI Penalties: Second Offense

DUI: Second Offense

If you plead guilty or are found guilty of a DUI, and its your second offense within ten (10) years, you will be guilty of a misdemeanor.

1. Jail sentence: Mandatory minimum period of not less than ten (10) days the first forty‑eight (48) hours of which must be consecutive, and five (5) days of which must be served in jail. The other five days, at the discretion of the judge, may be served on the Sheriff Inmate Labor Detail. The maximum jail sentence is up to one (1) year.

2. Fine: Up to two thousand dollars ($2,000.00).

3. Impact on Driving Privileges: Mandatory minimum period of one (1) year after release from confinement with absolutely no driving privileges of any kind. Note: this suspension is separate from any administrative suspension before the Idaho Department of Transportation, so you could potentially have two Idaho driving privilege suspensions.

4. Ignition Interlock System: You will be required to drive only a motor vehicle equipped with a functioning ignition interlock system, following the one (1) year mandatory license suspension period during your period of probation.

5. Probation: The court will likely impose a period of probation, regardless of the type of sentence entered, for a minimum of one (1) year. All supervision costs are at your expense.

6. The provisions regarding disqualification of your commercial license apply, which results in a one year suspension of your commercial license.

If you have been cited with a second offense DUI in Pocatello, American Falls, Blackfoot, Preston, Soda Springs, Malad or Montpelier please contact Mark Petersen, a Pocatello Idaho DUI defense lawyer at Snake River Law PLLC. For other Idaho counties, contact an Idaho DUI Lawyer.

DUI Penalties - First Conviction

DUI: Penalties in Idaho

DUI: First Offense

If you plead guilty or are found guilty of a DUI and its your first offense in the last ten (10) years, you will be guilty of a misdemeanor.
 

1. Jail sentence: Up to six (6) months.
2. Fine: Up to one thousand dollars ($1,000.00).
3. Impact on Driving Privileges: A court-imposed driver’s license suspension for 90 to 180 days.  The first thirty (30) day period you will have absolutely no driving privileges of any kind. After the thirty (30) day period of absolute suspension of driving privileges has passed, you will have your driving privileges suspended by the court for an additional period of at least sixty (60) days with up to one hundred fifty (150) days, during which you can request restricted driving privileges if necessary for employment, school, or family health needs.  Note: this suspension is separate from any administrative suspension before the Idaho Department of Transportation, so you could potentially have two Idaho driving privilege suspensions.
4. Probation: The court will likely impose a period of probation, regardless of the type of sentence entered, for a minimum of six (6) months and up to one (1) year.  Depending on your prior record, BAC results, and likelihood to re-offend, probation could be unsupervised to the court or supervised by the Idaho Department of Probation and Parole.  All supervision costs are at your expense. The length and type of probation are at the judge's discretion.
   
5. Commercial Driver's License: The provisions regarding disqualification of your commercial license apply, which results in a one year suspension of your commercial license. If your license is suspended, you cannot get a restricted driver's license for commercial purposes (I.C. 18-8005(15)).
   
6. Alcohol Evaluation: You will be required to undergo an alcohol evaluation at your expense and will likely be ordered to comply with any recommendations for treatment issued by the alcohol evaluator.
   

If you have been cited with a second offense DUI in Pocatello, American Falls, Blackfoot, Preston, Soda Springs, Malad or Montpelier please contact Mark Petersen, a Pocatello Idaho DUI defense lawyer at Snake River Law PLLC. For other Idaho counties, contact an Idaho DUI Lawyer.

What Does the Prosecutor Have to Prove to Convict Me of DUI? - Probable Cause

PROBABLE CAUSE

Police officers must make a finding of probable cause to stop the driver of a motor vehicle in a DUI case.  If the officers lacked sufficient cause, any evidence obtained as a result of the stop, which would likely include all evidence except observations of driving, must be suppressed by the Court.  Any request for suppression must be made within 28 days of entering a plea of not guilty.  If probable cause for the stop existed, the prosecution still must justify the investigatory detention. Again, if there are insufficient facts to warrant detaining the driver beyond a temporary stop, then it may be possible to suppress the evidence. If successful, this will suppress all evidence but observations and statements made during the brief stop. Finally, if there existed probable cause to detain the individual for a field investigation, the officers still must show evidence of intoxication to warrant an arrest.   The prosecution’s failure to meet these standards of probable cause may result in a judge suppressing all evidence obtained after the driver establishes a failure to find probable cause.  Please consult an Idaho DUI attorney because there are also numerous Idaho and federal cases that interpret “probable cause”.

Idaho DUI: Elements of the Offense

Idaho DUI: Elements of the Offense

The prosecution has to prove in Idaho that:
 

1. You were under the influence of: (1) alcohol, drugs or any other intoxicating substances, or (2) any combination of alcohol, drugs and/or any other intoxicating substances, or (3) you have an alcohol concentration of 0.08 or greater; 
2. You were driving or were in actual physical control of a motor vehicle; Idaho defines “actual physical control” as being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving;
3. Within the State of Idaho; and  
4. Your driving or actual physical control of a motor vehicle occurred upon a highway, street or bridge of the State of Idaho, or upon public or private property open to the public (e.g. Walmart’s parking lot).

Should I Just Plead Guilty to the DUI Charge?

NO! And here’s why:

   1. Just because you were cited for DUI and the results of the breath test was over .08 blood alcohol content does not mean that you are guilty. Infrared breath analysis are not the most accurate devices and their accuracy may be subject to challenge. Also, all evidence collected by police officers through field sobriety tests and physical observation may be subject to challenge, depending on the procedure used by the officers.

   2. DUI charges are serious offenses with serious penalties. Your driving privileges could be suspended by
the Idaho Department of Transportation and by the judicial system for one (1) to five (5) years with no driving privileges. You may have to go to jail and if it is your second or third offense you will have a minimum ten (10) days in jail. You will be placed on some form of probation wherein in you lose certain civil rights and have to pay the costs of supervision. Fines and reinstatement fees can also range between $500.00 to $1,000.00. You may also be required to attend treatment or AA meetings. A DUI conviction has serious consequences on your life and your ability to maintain your employment.

   3. You may be able to win your DUI defense case. Winning your DUI case may include having the charge reduced to a different offense or obtaining a plea bargain that avoids a conviction (e.g. withheld judgments). Without consulting an Idaho DUI lawyer you may miss the opportunity to exhaust your investigation, conduct discovery, examine witnesses, and fully understand the consequences of pleading guilty to DUI.

   4. If you have a commercial driver’s license, you will lose that license. Idaho requires any driver with a commercial driver’s license (i.e. Class A, B, or C) that is convicted of DUI, even if they were driving their personal vehicle, to have their commercial driving privileges suspended for one (1) year with absolutely no commercial driving privileges.

What Should You do If Stopped for DUI in Idaho?

If you are stopped and detained for a DUI in Idaho, these are some things that you can do to better help your defense of any potential DUI charges:


1. Answering Questions. You do not have to answer any questions the police officers ask. You can politely decline to answer questions without an attorney. Why? The only answers that will be included in the police report will be answers that tend to show you were driving under the influence.

2. Attitude and Cooperation. Always be courteous and cooperative with the police officers and politely decline to answer questions or participate in testing. Your attitude during the stop may affect your ability to get the charge dismissed or reduced.

3. Field Sobriety Tests. Decline to take the field sobriety tests (i.e. gaze nystagmus, walk & turn, one-leg stand) because you are not required to perform the tests and regardless of your condition the officers will probably conclude that you have failed the tests and find probable cause to request further testing.

4. Evidentiary Testing. Agree to take the evidentiary breath test, if your are confident you are under .08 blood alcohol content (BAC). Remember that any refusal of the handheld testing could result in a 1 year absolute suspension of your driving privileges. Also, any refusal of handheld testing could result in the police officer requiring a blood draw to determine your BAC.

5. Driver's License Suspensions - Request a Hearing. If you are cited for DUI and your license is suspended (this includes when your license is taken and a temporary permit issued) make sure you or your attorney requests a hearing before the Idaho Department of Transportation within 7 days to contest your suspension.

6. Personal Blood Test. If you have the resources, immediately upon release from police custody go to an available medical facility and ask for a blood test to determine your blood alcohol content, as these test generally are more accurate.

7.  Contact an Idaho DUI Attorney. Before seven (7) days have passed from being cited with a DUI, contact an Idaho DUI Attorney.  For charges in Pocatello, Blackfoot, American Falls, Soda Springs, Malad, Preston, Montpelier and the surrounding communities contact www.snakeriverlaw.com. For charges originating in other communities in Idaho contact the Idaho State Bar.

Welcome

Welcome to this new blog dedicated to assisting individuals with Driving Under the Influence (DUI) charges in the State of Idaho. Although typically charged as a misdemeanor, a DUI can have significant impact on you, your family, and your employment. DUI charges are not to be taken lightly in Idaho especially where you can lose driving privileges that may impact your ability to provide for you and your family. This blog will present the background behind DUI charges, sentencing issues if you are convicted, dealing with the Idaho Transportation Department (IDOT), and will provide details regarding your court appearances.  If you have any questions, please contact Snake River Law PLLC at 208.406.9885. Snake River Law provides in court representation for charges in Pocatello, Blackfoot, American Falls, Soda Springs, Preston, Malad, Montpelier and the surrounding communities.