UT-ex Cedric Benson arrested again

[Dodger12]

Texas has an implied consent law as well. You refuse to blow, you get your license suspended 90 days. But as you say, that's separate from the legal proceedings for DUI/DWI. If you refuse to blow, it's not supposed to be held against you in court.

90 days for refusing the test in Texas is pretty light. I wouldn't take it either if I had any doubt. But, as you know, in most DUI cases, unless there's an accident, you're better off taking the DUI hit and then ARD to clear your record. It'll cost you some money and you'll lose your license for 90 days but it's far better than the alternative (1 year loss of license automatically whether you're guilty or innocent) and the possibility of losing it for over 2 years. That's a heavy hit, at least in PA.

Again, not to debate the law with a lawyer, but not consenting to a chemical test will be held against you, since you can present the fact of refusal in court in an effort to prove or infer guilt. If it wasn't meant to be held against you (ie: 5th Ammendment), they could never use the refusal in the first place.

DUI cases have to be one of the most difficult to defend for a lawyer because the law is so heavily stacked against him/defendant.

Now, practically speaking, a juror may well believe that refusal to blow is an inference of guilt. But it's not a sure sign, and I guarantee you it's better to not blow and not give the cops/prosecution a number that says you were over the legal limit, than it is for there to be no number, and be able to plant doubt as to whether you were actually over the legal limit.
Remember, the State has to prove their case against the defendant beyond a reasonable doubt, and in DWI, that means prove that you had a BAC of .08 or higher. If there's no number, it's easier to plant doubt.

Dash cams and field sobriety tests have made the .08 figure almost obsolete, even if you refuse a chemical test. At the end of the day, even if you win in court (which you probably won't), the end result will be worse than having taken the breathalyzer and failed it in the first place. This is especially true for a first time offender.

 

[dargonking999]

I'm actually a big advocate of driving while you're drunk

I hear that there's about of Madd people coming for your house

 

[GimmeTheBall!]

And, so, it begins.
The downward spiral of a player who couldn't stay out of trouble with the man.
What stupidity doth he yearn to relive time and time again.
Goes waay back at UT when he was bursting into homes looking for his stolen property.
Poor Cedric, so stupid.

 

[Dodger12]

and automatically lose my license and look guilty in the judge's eyes?

Your question wasn't directed at me Bob but I feel for you anyway; you're caught between a rock and a hard place. DUI laws were meant to be a lose - lose situation for the driver. In my younger years, an officer would just confiscate your beer and drink it with his partners after work. Nowadays, your screwed, discretion for many officers is almost a thing of the past.

But I guess it's a matter of degrees in terms of what you can live with. Either way, you're going to lose your license. If you don't take the test, take a trial and lose, you'll lose your license for years. Again, probably moreso than if you had taken the breathalyzer (and failed) in the first place. Then there's also the chance that you won't fail the test.

Probably the best advice anyone could give you would be to quit debating certain posters here; that should drastically reduce your alcohol consumption. :laugh2:

 

[TNCowboy]

I'm actually a big advocate of driving while you're drunk

In some places, the suspension isn't just 90 days: it's 2 or 3 years.

 

[peplaw06]

90 days for refusing the test in Texas is pretty light. I wouldn't take it either if I had any doubt. But, as you know, in most DUI cases, unless there's an accident, you're better off taking the DUI hit and then ARD to clear your record. It'll cost you some money and you'll lose your license for 90 days but it's far better than the alternative (1 year loss of license automatically whether you're guilty or innocent) and the possibility of losing it for over 2 years. That's a heavy hit, at least in PA.

Well the difference in the laws seems to be very significant, and my advice might change depending on your states laws. But in Texas, if you refuse to blow, automatic 90 day suspension. Refusal to blow however is going to help you in court... assuming that you would blow over .08.

If you blow over .08, and get a conviction, your license is still suspended at least 90 days, you have to pay $3,000 to the DPS as a surcharge on your license, and your insurance is going sky high. Not to mention the fact that you then have a conviction on your record. If there's a next time, you've got an enhanced charge.

Again, not to debate the law with a lawyer, but not consenting to a chemical test will be held against you, since you can present the fact of refusal in court in an effort to prove or infer guilt. If it wasn't meant to be held against you (ie: 5th Ammendment), they could never use the refusal in the first place.

I admit that it "might" be used against you as an inference of guilt. But which is worse, an inference of guilt or near-irrefutable evidence of guilt?

DUI cases have to be one of the most difficult to defend for a lawyer because the law is so heavily stacked against him/defendant.

They are. A big reason for that is because the numbers mean so much. If I get a DWI defendant in my office, one of the first questions I ask is if they blew. If they blew and it was over .08, you're almost guaranteed a conviction in this county. It's always better to not get a conviction, and if there's no number, the odds of getting out without a conviction go up.

Dash cams and field sobriety tests have made the .08 figure almost obsolete, even if you refuse a chemical test.

Obviously if the dash cam shows the driver falling over on the ground drunk, that's not good either. But sometimes the dash cams are the best evidence, because the judge/jury gets to see for themselves how the driver was acting. If the driver is speaking coherently, not stumbling, not having many problems with the FSTs, then there's more doubt as to whether the driver was actually over .08.

At the end of the day, even if you win in court (which you probably won't), the end result will be worse than having taken the breathalyzer and failed it in the first place. This is especially true for a first time offender.

I don't get how it could be worse for you to win in court (i.e. get an acquittal), than to fail a breathalyzer test. Generally if you fail the breathalyzer, you're getting a conviction... a least in this county. How is a conviction better than an acquittal for the driver?

 

[jchap]

"Upon realizing he was going to be arrested, Benson fled for 2 yards and was tackled from behind."

 

[Dodger12]

Well the difference in the laws seems to be very significant, and my advice might change depending on your states laws. But in Texas, if you refuse to blow, automatic 90 day suspension. Refusal to blow however is going to help you in court... assuming that you would blow over .08.

Absolutely. Like I said, if I only get a 90 day suspension for refusing the test, I wouldn't blow either. I can only speak for PA, but the law has gotten extremely tough and it's an automatic 1 year suspension regardless of the outcome in court, which could make your suspension much worse if you lose.

I admit that it "might" be used against you as an inference of guilt. But which is worse, an inference of guilt or near-irrefutable evidence of guilt?

I was initially commenting with regard to your earlier post that your refusal to take the test was not admissible as inference of guilt, comparing it to your refusal to tesify relative to the 5th Ammendment. Speaking only for some states, there's no "might" about it; it'll be used and it'll be used against you. It might not be enough to convict you, but it'll be used as an evidence against you to help prove your guilt.

Obviously if the dash cam shows the driver falling over on the ground drunk, that's not good either. But sometimes the dash cams are the best evidence, because the judge/jury gets to see for themselves how the driver was acting. If the driver is speaking coherently, not stumbling, not having many problems with the FSTs, then there's more doubt as to whether the driver was actually over .08.

If the driver is speaking coherently, can answer the appropriate questions and isn't stumbling, it might never get to an FST. But many dash cams also loop when they record, meaning they'll have video for a couple of minutes prior to a cruiser actvating it's emergency lights. As a result, police will have a recording of the violation which resulted in the initial stop. That's pretty damning sometimes, even if you don't blow a .08, because a DUI doesn't necessarily mean you have to be under the influence of alcohol (ie: marijuana).

I don't get how it could be worse for you to win in court (i.e. get an acquittal), than to fail a breathalyzer test. Generally if you fail the breathalyzer, you're getting a conviction... a least in this county. How is a conviction better than an acquittal for the driver?

Even if you fail the breathalyzer, probably the worse that can happen to a first time offender (in PA) is to lose his/her license for 90 days, as oposed to the automatic one year suspension. Also, that offender would be eligible for the Accelerated Rehabilitative Disposition Program (ARD) which is designed for first time, non-violent offenders. If the offender complies with the conditions of the ARD program, the charges are legally dismissed. Some PA counties have an ARD Fast Track Program which can result in a PA license suspension of as little as one or two months.

So, in short, you'll get no jail time, a greatly reduced license suspension, and expungement of criminal charges where all the records of the arrest and disposition are destroyed from government agency files and databanks.

If you're a driver and an honest, hard working and average citizen who was unlucky enough to get caught DUI, which would you chose? Even if you "win" under your scenario, you still lose your license for at least one year in PA, no questions asked, no appeal.

Again Pep, I can only speak for how things are in my state but I'm pretty sure PA laws mirror many other states.

 

[jimmy40]

What a shame that a top 5 pick isn't even referred to as "Bears RB Cedric Benson".

Maybe because the story originated from Austin.

 

[peplaw06]

Again Pep, I can only speak for how things are in my state but I'm pretty sure PA laws mirror many other states.

We clearly have differing laws in Texas, and in my county.

I know in Texas, you can't get deferred adjudication for DWI offenses, which sounds like your ARD program.... That basically means you're either getting a conviction or taking it to trial, unless you get it outright dismissed, which is pretty rare.

But I appreciate you educating me on the differences in PA.

Funny how the Cedric Benson thread has played out.

 

[Kilyin]

Maybe because the story originated from Austin.

It's called the 'National' Football League for a reason. Or are you trying to say the Dallas Cowboys players are only acknowledged by their affiliation with the Cowboys in Dallas, Texas?

Scratch that, I'm pretty sure 99% of the time even you don't know what you're trying to say.

 

[Kilyin]

And since we're talking law here... I'll let you in on a personal bit of information... between the ages of 16-21 I 'acquired' a total of 4 DUI charges. That's right, FOUR. Two of them within a couple weeks of each other. I was only convicted of three. The first one got reduced to reckless driving even though I blew a .15 (What can I say, I had a good lawyer and it was juvenile court). His advice to me was to always refuse the test, regardless of the circumstances. I was an idiot and didn't listen to him in the following years and subsequent accumulated charges.

Keep in mind, my last DUI conviction was well over 12 years ago now and I've wisened with age and no longer drink and drive... just some food for thought from someone who's been through the ringer, so to speak.

 

[DanTanna]

 

[Dodger12]

We clearly have differing laws in Texas, and in my county.

I know in Texas, you can't get deferred adjudication for DWI offenses, which sounds like your ARD program.... That basically means you're either getting a conviction or taking it to trial, unless you get it outright dismissed, which is pretty rare.

But I appreciate you educating me on the differences in PA.

Funny how the Cedric Benson thread has played out.

Thanks for the dialogue.

It's interesting to see so few people defending Benson the second time around.....If anything, it raises questions about his claim of police misconduct the first time around.

 

[Bob Sacamano]

Texas has an implied consent law as well. You refuse to blow, you get your license suspended 90 days. But as you say, that's separate from the legal proceedings for DUI/DWI. If you refuse to blow, it's not supposed to be held against you in court.

Now, practically speaking, a juror may well believe that refusal to blow is an inference of guilt. But it's not a sure sign, and I guarantee you it's better to not blow and not give the cops/prosecution a number that says you were over the legal limit, than it is for there to be no number, and be able to plant doubt as to whether you were actually over the legal limit.

Remember, the State has to prove their case against the defendant beyond a reasonable doubt, and in DWI, that means prove that you had a BAC of .08 or higher. If there's no number, it's easier to plant doubt.

you're a lawyer, I've read that some lawyers in DUI cases challenge the accuracy of the breathalyzer

how does that work?

 

[Bob Sacamano]

Your question wasn't directed at me Bob but I feel for you anyway; you're caught between a rock and a hard place. DUI laws were meant to be a lose - lose situation for the driver. In my younger years, an officer would just confiscate your beer and drink it with his partners after work. Nowadays, your screwed, discretion for many officers is almost a thing of the past.

But I guess it's a matter of degrees in terms of what you can live with. Either way, you're going to lose your license. If you don't take the test, take a trial and lose, you'll lose your license for years. Again, probably moreso than if you had taken the breathalyzer (and failed) in the first place. Then there's also the chance that you won't fail the test.

oh, I'm not in trouble for DUI, but my 2 that I had, the last one was September, I got a PBJ, Probation Before Judgement

Probably the best advice anyone could give you would be to quit debating certain posters here; that should drastically reduce your alcohol consumption. :laugh2:

:laugh2: I'll drink to that

 

[peplaw06]

you're a lawyer, I've read that some lawyers in DUI cases challenge the accuracy of the breathalyzer

how does that work?

You can challenge the accuracy of the breathalyzer or the competency of the cop administering the breathalyzer.

I think that most cops, or at least the ones here make you blow twice. If the two numbers differ by a significant amount, that raises doubts about the accuracy. If your BAC is close to .08, and the change was significant, that helps your defense.

Then if the cop is a newbie or a young guy, maybe you can rattle em on the stand about their lack of experience in giving the breathalyzer or the FSTs.

Basically anything you can do to put doubt in the minds of the jury or the judge is helpful.

 

[FanSince61]

You can challenge the accuracy of the breathalyzer or the competency of the cop administering the breathalyzer.

I think that most cops, or at least the ones here make you blow twice. If the two numbers differ by a significant amount, that raises doubts about the accuracy. If your BAC is close to .08, and the change was significant, that helps your defense.

When I was on a jury, the defense lawyer challenged the accuracy of the breathalyzer. The county had the people who calibrated the breathalyzers testify the accuracy of it and frequency of the calibrations.

The guy did blow twice and the results were very close. In Dallas County a failed breathalyzer was all the evidence needed to convict.

 

[Biggems]

why do they have to say UT ex? that is stupid....he is a Bear now...so just say Chicago Bear RB.....

Its like when a player used to be a Cowboy and moves on to another team and gets into trouble...the article always reads Former Cowboy such and such...

it is annoying and pathetic journalism.

 

[Da Hammer]

im heading toward texas as i speak but when i was leaving the chicago area this morning most of what i heard on the radio was basically everyone wants him gone for being and idiot no talent bum. i cant even defend him he has been a disgrace to Longhorn football both on and off the field starting from the moment that he wouldnt sign with the bears until basically i believe the end of training camp before his rookie year. he has talent its a shame that he is a moron that loves to drink and drive. well that's probably most of us here lol but he's an athlete he should know much better...