Recently, a defendant appealed a judgment of conviction for driving under the influence (DUI) of intoxicants. According to the defendant and his defense lawyer, the trial court erred by denying his motion to suppress evidence of his refusal to take a breath alcohol test. Due to the fact that the trial court declined to make a finding on a disputed fact and the resolution of that dispute would be dispositive, the case was subjected to reverse and remand.
Reverse and remand occurs when an appellate court finds that the trial court made a mistake by law. The conviction may then be reversed and remanded (sent back to the trial court). The lower court will then record the new judgment.
According to documents, the following facts were not disputed:
- The arresting officer, Officer Vollrath, arrested the defendant for DUI.
- Vollrath read the defendant his Miranda Rights, placed him in the patrol car and took him to a detox center.
- At the detox center, the defendant asked if he could speak with someone about his rights. He w given a phone and 15 minutes to speak with an attorney, but had poor eyesight and could not read any numbers in the directory he was provided with. So, he called no one.
At the defendant's motion to suppress hearing, the officer gave testimony that challenged the defendant's story. However, it was revealed that Vollrath would not assist the defendant in dialing phone numbers and asked him to submit to a breath test instead. When the defendant said he would take the test after speaking with a lawyer, Officer Vollrath took it as refusal to submit to a breath test.
The trial court denied defendant's motion to suppress evidence of his refusal to take a breath test. So, he filed an appeal of conviction with the appellate court.
If you have been charged with DUI and you believe there were issues surrounding your breath tests, contact the Law Offices of Virginia L. Landry and discuss your case with an Orange County DUI attorney.