Arrested for DUI in Connecticut?

Arrested for DUI in Connecticut? (Useful Info Revealed That May Help You Defend Your Charges) By Steven Tomeo, Esq.

DISCLAIMER: This publication is intended to be informational only. No legal advice is being given, and no attorney-client relationship is intended to be created by reading this material. If you are facing legal issues, whether criminal or civil, seek professional legal counsel to get your questions answered. The Law Offices of Steven Tomeo 57 Pratt Street, Suite 805 Hartford, CT 06103 Phone: (800) 608-6636 Website: www.ctduiattorney.com 2013 The Law Offices of Steven Tomeo Page 2

Client Testimonials Steve represented me in a tough case. He tried to get the charges dismissed due to a bad stop and a lack of probable cause. We had to make the argument but knew that our position was weak. A full DMV hearing was held where we tried to develop evidence from the arresting officer to help my case. The prosecutor would not reduce the charges or dismiss it. In the end, Steve applied me for the Alcohol Education Program. He did not just walk me down the aisle. He went all out for me. The case was dismissed and I did not have to pay for the AEP. Mark T... I was in the Alcohol Education Program and picked up another DUI with some other charges in another court. Steve persuaded the authorities to let me remain in the AEP and that case was dismissed. Then he settled the other DUI for me. I was able to save my job. I would have lost everything if I had to go to jail for 30 days like others in my position told me they had to do. Robert G... I picked up several DUIs back to back. The prosecution had strong cases. However, Steve was able to put together a plea bargain agreement that called for no jail time. While waiting for the final court date I picked up a driving under suspension, alcohol related offense. The result looked like a year without a license; however, Steve was able to structure another plea bargain agreement that in the end resulted in a 45 day license suspension agreement rather than a much longer one. This enabled me to save my new job. John B. 2013 The Law Offices of Steven Tomeo Page 3

TABLE OF CONTENTS Introducing Attorney Steven Tomeo... 6 Why Does Experience Count in the Area of DUI Defense?... 8 An Attorney s Reputation Is Important: Good Working Relationships with the Judges and Prosecutors in the State Is Always Beneficial for Clients... 9 Have DUI Laws Evolved Over Time?... 12 Connecticut Offers an Alcohol Education Program for First Ever Offense DUI Charges... 15 If You Are Arrested, You Will Have to Go through the Criminal Justice System... 21 Common Misconceptions about Being Charged with a DUI... 26 Is Self-Representation or a Court-Appointed Public Defender Viable Options to Defend Your DUI Charge?... 28 What Will Transpire after You Have Been Arrested and Charged with DUI?... 31 Entering a Pro Forma Plea... 35 Is Your DUI Case Likely to Be Resolved at the Judicial Pretrial?... 37 What to Avoid if You Have Been Charged with a DUI... 39 A DUI Charge and Your Driver s License and Driving Privileges in Connecticut... 44 How Long Might Your Driver s License Be Subject to Suspension?... 46 2013 The Law Offices of Steven Tomeo Page 4

The Administrative Per Se Hearing at the Connecticut DMV... 47 If Your License Is Suspended, Is It Possible to Apply for Limited Driving Privileges?... 49 Are Drug-Related DUI Charges becoming More Prevalent?... 51 Information about Breath Tests and Their Accuracy. Is Breath Testing For Ethanol Accurate?... 55 The Penalties for Criminal Convictions... 59 CT DMV License Suspension and Administrative Per Se Hearing... 60 Common Concerns and Questions after a DUI Arrest... 61 What Defense Work with a DUI Charge?... 62 Connecticut s Alcohol Education Program... 66 Do Severe Penalties Deter Drunk Drivers?... 67 What Issues Prevent People from Retaining an Attorney to Defend a DUI Charge?... 68 Will the Cost of a DUI Conviction Outweigh the Cost of Retaining an Attorney to Defend the Charge?... 70 What Is Reasonable to Expect from Your Attorney?... 73 2013 The Law Offices of Steven Tomeo Page 5

INTRODUCING ATTORNEY STEVEN TOMEO Steven A. Tomeo is a graduate of Farleigh Dickinson University in Teaneck, New Jersey and the Ohio Northern College of Law, Ada, Ohio. He began practicing law in Ohio where he was a special counsel to the Ohio Attorney General, worked as a Police Prosecutor and was engaged in the private practice of law. Steve was admitted to the Ohio Bar in 1969 and was engaged in the private practice of law in Ohio for a number of years. He moved to Connecticut and was admitted to the Connecticut Bar in 1978 where he was engaged in the general practice of law in Danielson, Connecticut for over twenty (20) years. In 2002, he moved his practice to New London, Connecticut and limited it to DUI law. Since then, he has opened several other offices in the State of Connecticut. His other offices are in Pomfret Center, Norwich, and Hartford, Waterbury and Westport Connecticut. He continues to limit his practice to DUI defense and only represents clients in drunk driving cases in the Connecticut Superior Courts. 2013 The Law Offices of Steven Tomeo Page 6

In addition, he represents clients in their appeals of their Administrative Per Se Decisions to the Superior Court in New Britain, Connecticut and to the Connecticut Court of Appeals. Steve is a member of the Connecticut Bar Association, the National College for DUI Defense and has completed the LaPiere Course for the Standard Field Sobriety Tests, the C.E.S. Consulting Breath Testing course and the Mastering Scientific Evidence course in Atlanta, Georgia & Dallas, Texas. Mr. Tomeo s practice takes him into most of the Superior / Geographic Area Courts, in the State of Connecticut. He has access to experts involved in every aspect of DUI Law. These experts enable him to analyze and research every aspect of a client s drunk driving case in order to provide the client with the best defense possible. These experts include medical doctors, investigators and forensic experts, all of whom work with him for your benefit. 2013 The Law Offices of Steven Tomeo Page 7

WHY DOES EXPERIENCE COUNT IN THE AREA OF DUI DEFENSE? Interviewer: Yes, but tell me who would you hire if you were in trouble on a DUI? Steven: I would hire the more experienced person. Interviewer: Why is that? What have you learned through all these years of experience that you believe that makes you a better choice than someone that's inexperienced? An Experienced Attorney Is Well Acquainted with the Prosecutors and Judges and Knows What Juries Will and Won t Accept Steven: Of course, over time, you learn more of the law each year, and you learn basically what prosecutors will accept and won't accept, what a judge will accept, and what a jury will and won't accept. I think you learn all of that, but there are other useful skills I think you develop, such as learning patience. An Experienced Attorney Will Have Developed Patience, Good Listening and Excellent People Skills You learn how to listen to your clients. You learn how to have a better handle on your people skills, especially with prosecutors. I think some prosecutors are over 2013 The Law Offices of Steven Tomeo Page 8

anxious, and you learn how to just be patient with them and to talk with them and get your point across. AN ATTORNEY S REPUTATION IS IMPORTANT: GOOD WORKING RELATIONSHIPS WITH THE JUDGES AND PROSECUTORS IN THE STATE IS ALWAYS BENEFICIAL FOR CLIENTS Interviewer: How well do you know the people in the court system, such as the judges and the prosecutors? Have you developed a pretty good relationship with most of them over the years? Steven: Yes, I have a good relationship with them. Over time I have developed good working relationships with the judges and prosecutors. In Connecticut, there are a couple of courts that I've been going to for some time and that I've known the prosecutors there basically ever since they started, and the same with the court personnel. I've known them since they were much younger and started in the business. I have a familiarity with the people and how they work. Interviewer: Do you feel like because they know you there's a level of respect they have for you that benefits your client? Steven: Yes, I think so. I think they know how you handle your clients and their cases. I think the 2013 The Law Offices of Steven Tomeo Page 9

prosecutors know that if I'm representing this individual that they can expect that I'll be respectful and my clients will be respectful. Interviewer: In terms of DUI, in Connecticut is the charge called DUI or DWI? I know there are a number of acronyms. Steven: I think it's pretty interchangeable between DUI and DWI. Interviewer: I'm in New York. Here it's DWI mostly. In some states, it's OWI and OUI. The Statute in Connecticut for Drunk Driving Is Known as Operating under the Influence and Is Most Commonly Referred to as DUI Steven: Actually, the statute is titled operating under the influence, but most everybody refers to it by the acronyms, either DUI or DWI. Is There a Segment of the Population that Are Prone to DUI Charges? Interviewer: Is there a typical type of person that is usually arrested for DUI that you have encountered? Steven: I ve been trying to think of that situation. I think the person that gets picked up for DUI is generally the person that's out between the hours of 9PM and 3AM is generally driving fairly late at night 2013 The Law Offices of Steven Tomeo Page 10

and, oftentimes, there are not a lot of other drivers on the road. Are You on the Roadways after Midnight? Attorney Tomeo Believes That the Time of Day of the Police Stop Is the Most Common Factor among People Arrested for DUI With arrests generated by the state police in our area, they often are initiated by a traffic infraction, such as seeing the motorist cross the center line. Quite often, the police stop starts when the police notice some maintenance factor with the car, maybe the car s taillight is out. DUI Charges Do Not Discriminate: Any Driver Is Subject to a DUI Charge I do think that the time, the hour of the day is important. No matter who you are, no matter what your background is, there's a high risk of being pulled over if you're driving in any way erratically during certain hours. Interviewer: Is there anything about DUI that you have seen change over the years? Are people today different? Is the law very different? 2013 The Law Offices of Steven Tomeo Page 11

HAVE DUI LAWS EVOLVED OVER TIME? Steven: Yes, I think the law is different. I think the way the prosecutors treat the law is different. I think the way the judges treat the law is different and I think there are more groups out there that are concerned about drunk driving; a good example would be Mothers Against Drunk Driving. The Legal Blood Alcohol Limit Has Been Reduced by Almost Half Since the 1960 s I can remember back in the late 60s, early 70s, when you had a DUI case, I think in some states it was.15. Then it went to.10, and it stayed there for a while. Now it is 0.08. NHTSA wants it lowered to 0.05! California Tests Were Used to Measure Impairment Prior to the Advent of Breath Tests Then some of the states didn't have a breath test, so they really relied on what they called the California Test. The police would arrest you and bring you into the police station, and one of the tests was comprised of checking your eyes. 2013 The Law Offices of Steven Tomeo Page 12

The California Tests Were the Origin of the Standard Field Sobriety Tests That Are Currently in Use They would test your coordination and have you walk and do a few tests along those lines. Then, they would put several different coins down on a counter and then they would say, "Pick up the penny," and some people would pick up the dime. Or if they picked up the penny, maybe they were having a difficult time picking up the penny. They would say that their dexterity was really off. Then later on the police really started relying on the breath tests. Then they started incorporating the field sobriety tests when checking for impairment and those tests had their genesis out in the California area. Decades Ago, DUI Offenses Were Treated Very Leniently If it was your first offense, they might lower the charge, and just give you a slap on the wrist. If a jail term was required, you could serve your term in the county courthouse. You could serve the term on weekends, because you could just walk there and do it. A lot of people received suspended sentences years ago. They used to say that a day's worth of jail was eight hours. Then the courts and the commissioner of corrections got on them for that, and you had to go in 2013 The Law Offices of Steven Tomeo Page 13

for 24 hours. They would offer all sorts of leeway. If you had a 30-day jail sentence, you could serve it on weekends. Drinking and Driving Was Socially Acceptable Decades Ago; However, Penalties Were in Place That Had Significant Consequences for Car Accidents Causing Injury or Death It was a lot different. It was really part of the culture that people drank. It was more socially accepted. But even decades ago, there were laws that, if you drank and drove and you killed somebody or you caused a bad injury, there were substantial consequences. Then the penalties were more severe. Current Laws Changing Multiple DUIs to Felony Charges Have Penalties with Significant Long-Term Consequences I don't recall there being too many states that had felony DUIs. Now, you know, DUI is classified as first offense, second offense, and third offense. A second offense in Connecticut is considered a felony, and a conviction really has long-term consequences. Interviewer: So a second offense is a felony. That's pretty serious. That tells me that on a first offense you shouldn't treat it lightly at all because, if you are convicted or you plea out, you're setting yourself up for a major problem if you ever are arrested again. 2013 The Law Offices of Steven Tomeo Page 14

CONNECTICUT OFFERS AN ALCOHOL EDUCATION PROGRAM FOR FIRST EVER OFFENSE DUI CHARGES Steven: Here s where Connecticut is more compassionate on first offense DUIs than most states. If you never had a conviction for a DUI and you are charged with a DUI in Connecticut, and are found eligible for the Alcohol Education Program. You can be granted the AEP, which results in the case being dismissed NO criminal records. The Alcohol Education Program (AEP) Is an Alternate to Traditional Penalties for a First Offense DUI That's a program where you do not enter a plea, but you make application for the program. You go for an evaluation which will determine how many classes you are required to attend of this program. Connecticut usually stipulates a 10 class or 15 class series. After a Year s Probation and As Long As You Do Not Receive Any Additional Charges, Your Criminal Record Will Be Expunged Steven: Then there's a year's probationary period. You attend the classes. You stay out of trouble. If you stay out of trouble at the end of the year, your case will be 2013 The Law Offices of Steven Tomeo Page 15

automatically dismissed and your criminal history expunged. Then, if you receive another DUI in Connecticut within a 10-year period, then that will be considered your first offense. Then that's when jail is a possibility. In Connecticut, DUI First Offenders Would Typically Be Sentenced to a Suspended Sentence, Probation and Community Service Generally, the standard penalty for the first offense is six months in jail, of which 48 hours may not be suspended, unless the prosecutor offers you 100 hours of community service in lieu of jail. The typical first offender offer in Connecticut is six months execution suspended, either a year or 18 months of probation and 100 hours of community service. Then there are fines, fees and costs totaling $798. Then, if you pick up another DUI, then that would be your second offense, which would then be charged at a felony level. Why Should You Retain an Attorney for Admittance into the AEP? Interviewer: Is it possible to gain admittance into the AEP without being represented by legal counsel? 2013 The Law Offices of Steven Tomeo Page 16

Without an Attorney, You Would Have to Speak with the Prosecutor, Who Will Note Your Answers in Writing Steven: I believe Abe Lincoln, the famous Trial attorney said, a person who represents himself has a fool for a client. So, while you can I do not understand why you would want to because in the criminal justice system it is the Prosecutor s duty to prosecute you. He is not your friend. If you incriminate yourself you may hurt your case. The prosecutor will ask, "Have you ever had a DUI before?" Generally, the person says, "No." He'll say, "Well, there's a program called the Alcohol Education Program and if you complete it successfully, the case will be dismissed. He may ask you other questions that are more intrusive. It Is Advisable to Always Consult an Attorney after Being Charged with DUI Generally the people say, "Okay," and they fill out the form, go in front of the judge. Now, in that case, what won t occur is what an attorney could do, for example, if he or she reviewed the arrest report. It could be a situation in which it was an unjustified police stop and your attorney could have argued successfully to get the case thrown out. 2013 The Law Offices of Steven Tomeo Page 17

In Connecticut, There Are Two Components to a DUI Charge, One Is Criminal and the Other Is Civil Also, there's a second part to a DUI in Connecticut, an Administrative Per Se suspension hearing at the Department of Motor Vehicles. This hearing is separate and distinct from the criminal hearing. One has nothing to do with the other, but oftentimes, if you win at the DMV, you might cause the prosecutor to rethink his situation. Having Legal Representation Might Increase the Chance of Prevailing at the DMV Hearing and May Benefit Your Criminal Case When I attend the DMV Hearing for my client I advise the Prosecutor. It might cause him to rethink his position in the hopes of reducing the charge to reckless driving. You never know. It may be persuasive enough for him to nolle or dismiss the case. Interviewer: What happens if you just take the AEP program? Will you still have your license suspended? Will the Motor Vehicle Department still do that? Interviewer: The AEP does not result in a license suspension; Losing the DMV Administrative Per Se Hearing does. Interviewer: So people may think, "Oh, I'll just go into this program. I don't have to worry about anything," 2013 The Law Offices of Steven Tomeo Page 18

but it's not true. You could still end up with no license and problems. The Length of Your Driver s License Suspension Issued by the DMV Is Dependent on Your Breath Test Results Steven: Right, and the length of the DMV suspension is, if your breath test is.08 to.15, a 90-day suspension. And.16, and above it's a 120-day suspension. If you refuse to take the breath test, it's a six month suspension. However, if you went through the Alcohol Education Program and you lost the DMV hearing, you may qualify for a work permit to restore limited driving privileges a special permit to drive to and from and during the course of your employment. Interviewer: Do you typically see that clients are truly drunk at the time of arrest or are they close to the.08 limit and they are arrested anyway? Is the Average Blood Alcohol Level of People That Are Arrested for DUI Generally High? Steven: It depends upon what you mean by High. I find most people to be in the 0.1500% range. Their balance is off and they appear to be slightly impaired than drunk. But these words have meaning in the law. 2013 The Law Offices of Steven Tomeo Page 19

Interviewer: That's what I mean. Is drunk driving a misnomer and a lot of people aren't really drunk. They're just maybe impaired a bit? Below the Legal Limit: Some States Still Maintain an Impairment Statute Steven: Yes, that's how I would say it. Some states have an impairment statute. New York State has an impairment statute so that, if you're at a certain level below.08, it's driving while impaired and not legally a DUI. Connecticut used to have an impaired statute. If you were below.08, you got charged with impaired, and so you didn't suffer the rigid consequences of a DUI. If You Are Pulled over by the Police and Fail the Sobriety Tests, You Will Probably Be Charged, Regardless of your Breath Test Result Interviewer: What happens now if you blow below a.08? Will they let you go? Or they'll charge with something else? Steven: No, they'll charge you with a DUI. Even if you don't have anything in your system. Once they've pulled you over, and they say you've failed the field sobriety test you will be arrested. I've had people with zero alcohol on the breath test, and they've still arrested them based on SFST and some other issues. 2013 The Law Offices of Steven Tomeo Page 20

IF YOU ARE ARRESTED, YOU WILL HAVE TO GO THROUGH THE CRIMINAL JUSTICE SYSTEM They'll say that they've developed probable cause, because the individual failed the field sobriety test, or they slurred their words, or their eyes looked red and watery, or they smelled an odor of an alcoholic beverage on their breath. I've had officers testify that they've smelled an odor of an alcoholic beverage on their breath or coming from the car or on their person, and when they got the breath test result, there was zero alcohol present. Interviewer: Are those cases pretty defensible, or is it still a problem? A Negative Breath Test Result Will Oftentimes Result in a Request for a Urine Test for the Presence of Drugs Steven: Yeah, for the most part, they're defensible, but even though you have a defense the DUI charge, you still have to go through the criminal justice system, sometimes even through trial. In Connecticut, if you test zero on the breath test, they'll ask for a urine test, because then they think that you have ingested some drugs. 2013 The Law Offices of Steven Tomeo Page 21

Will Connecticut Police Request a Blood Sample from a Suspected Drunk Driver? Interviewer: Is it pretty rare that Connecticut police will ask for a blood test? If You Are Taken to the Hospital, the Police Will Request a Blood Sample Steven: Generally, when they ask for a blood test there's an accident, and the police office calls an ambulance to take you to the hospital, he'll follow you to the hospital, and request a blood draw As a general rule, if you get taken to the hospital, generally the emergency room physician requires some blood work. Then what happens is, if they don't make an arrest. The Police will get a search warrant for the results of the blood work and then arrest you by warrant at some later date if the results show an elevated blood alcohol concentration or presence of drugs. Are There Commonalties among DUI Arrests in Connecticut? Interviewer: Is there any typical backstory you hear from people who have been arrested, such as, "Oh, I didn't feel drunk," or "I only had two beers"? 2013 The Law Offices of Steven Tomeo Page 22

Steven: Most people are willing to admit that they've had something to drink. I would say the majority of people say that they did not feel as if they were impaired and not able to drive. The Most Common Reason for a DUI Arrest Begins with a Police Stop for a Traffic Violation Typically what occurs is a cop sees someone cross the center line while driving. I mean, who hasn t crossed the center line when driving? Or if you're out at one o'clock in the morning, and you're driving home, and you're on a four-lane highway, two lanes going your way, a lot of times you cross over into the other lane, or maybe you weave a little bit in your lane. Maybe you re driving erratically! The Field Sobriety Tests Are Designed to Be Difficult to Perform At that hour, the police can get away calling it erratic driving and pull you over. God forbid you had anything to drink because when they get you out of the car, those field sobriety tests are hard for anybody to do well on. The odds are completely stacked against you. It is not like you're taking a test in school where you can get 100 or 85 or 95. It's really a negative test where the highest grade you can get is zero. I mean, if you get them all right, you don't get any points. 2013 The Law Offices of Steven Tomeo Page 23

No Margin for Error: In Order to Pass the Field Sobriety Tests, You Perform All of Them Satisfactorily Interviewer: Right. It's like a pass/fail where the pass is a 99% or so? Steven: In other words, you're supposed to do them all perfectly. The officer doesn't say, "Oh, wow. You did these fantastic. I'm not going to arrest you." No, no, they don't do that. What happens is, they give you these tests, and they say, "Well, you didn't walk heel to toe, and you didn't do this or that." Connecticut Does Not Always Videotape the Field Sobriety Tests Also, Connecticut doesn't require the performance of the sobriety tests to be on video. I think the state would help itself, and maybe we'd even get many more cases dismissed, if they would require the police officers to video record the SFST. Corroborating Evidence: Videotape Can Support a Driver s Claim Interviewer: Yes, because the video doesn't lie. Steven: How do you corroborate? It's the officer s word against your word. Who do most people believe? Even though they have a hard time with the police most of 2013 The Law Offices of Steven Tomeo Page 24

the time, most people are going to say, "Well, I believe the police officer." Interviewer: In other states where there's legal evidence that magically disappears sometimes, too, so that doesn't really solve it. Steven: I had a tape here that disappeared, and I went to pretrial, and the judge said, "What do you want me to do, throw out the case because there's not a video?" I said, "Yes." He said, "I'm not going to do that." He laughed. He said, "I'm not going to do that, because at trial you'd have the testimony of the police officer and the ability to cross-examine him." Interviewer: Well, that's true. It Is Human Nature to Alter Testimony to Support a Particular Viewpoint Steven: I mean, far be it for me to say that police get up on the witness stand and lie but I'll bet you there are a ton of lawyers, a ton of criminal lawyers with vast experience in New York City or throughout the United States that would say they do. If you read any of the criminal mystery stories that are written, you'll see that the testimony is tailored to suit their own needs. Interviewer: Well, the police are human, just like anyone else, so they're subject to the same foibles as everyone else. 2013 The Law Offices of Steven Tomeo Page 25

Steven: Yes, absolutely. I think it's not the best system, but it beats whatever else is out there, so we have to do what we have to do within the frameworks of it. I'm happy with the system, but I've seen some of the police departments use creative writing in their arrest reports, and so, that's that. COMMON MISCONCEPTIONS ABOUT BEING CHARGED WITH A DUI Interviewer: What are the top misconceptions clients have about the whole DUI process when they come to see you that you have to explain to them? People Are Commonly Mistaken about the Penalties for Multiple DUI Charges Steven: I think that when people come in to see a lawyer, there can be a few factors about the charge that they are confused or either misinformed about. Many times, one of the misconceptions is when you hear, "I work with a man, and he had five DUIs, and he never saw a day in jail. Here, this is only my second DUI, and you're saying the prosecutor wants me to go to jail." 2013 The Law Offices of Steven Tomeo Page 26

People Misinterpret the Written Statute Or they go on the Internet and they read the statute, and they come back and tell you what the law is. You say to yourself, "What did they do? Just change it or something like that? I'm not aware of that." They misinterpret what the statute actually specifies. Or, if they're just an out-and-out alcoholic, even though they're functional, and you have to deal with the ancillary issues. Truthfully, that's probably the worst thing to have to deal with. "I wasn t' drunk. I only had six or seven beers and I drank over a seven-hour period." You re DUI Case Is Not the Same as Your Acquaintance s or Your Co-Worker s The biggest misconception is they always have an acquaintance that's had six or seven DUIs that's never been in jail. I say to them, "Not in this day and age, but I have had clients that have had six or seven DUIs and have not gone to jail." It wasn't through any expertise of me as a lawyer, it was, the year they had them, where they had them and other factors. The DUIs that they had maybe were out of state, and their record didn't follow them to Connecticut, so that when the prosecutor ran their record, nothing turned up. 2013 The Law Offices of Steven Tomeo Page 27

Are Financial Issues the Major Obstacle in Hiring an Attorney to Defend Your DUI Case? Interviewer: What have you encountered through your practice that makes people afraid or hesitant to even get legal help, to hire a lawyer when they have a DUI arrest? Steven: I think money is the biggest issue. I think most people want to have representation, but money is the major issue. Then I think a growing part of not having a lawyer represent you or review things for you is that, when they go in to see the prosecutors now if this is their first offense, the prosecutor tells them about the Alcohol Education Program. So, instead of consulting with a defense attorney, they listen to the Prosecutor and take the Alcohol Education Program based on what he tells them. IS SELF-REPRESENTATION OR A COURT- APPOINTED PUBLIC DEFENDER VIABLE OPTIONS TO DEFEND YOUR DUI CHARGE? Interviewer: Yes, and do you have people that say, "Oh, well, maybe I'll just represent myself or I ll get a public defender."what are the pros and cons of those options versus a private attorney? 2013 The Law Offices of Steven Tomeo Page 28

Steven: I think years ago, people used to say, "I don't want to go to a public defender, because they're not very good," but I think they're pretty good. I think they're very smart and very bright. I think a private attorney might handle things differently. In other words, if you hire a private attorney, he's going do both matters for you DUI and DMV. Private Attorneys Can Devote More Time to Your Case I think the private attorney might tend to investigate the matter a little more. I think the private attorney might be willing to stay with the case a little longer in order to have continued negotiations with the prosecutor and judicial pretrial. I would say that most people that can afford it do get themselves an attorney, at least in my experience. A Public Defender Will Not Represent You at the DMV Hearing Interviewer: Well, if you have a public defender or you choose to defend yourself, I think you mentioned that you'll get an incomplete defense, because the MVD part of it can't be addressed by a public defender or by you alone. 2013 The Law Offices of Steven Tomeo Page 29

Your Attorney Can Investigate Your Case during the DMV Hearing by Cross-Examining the Arresting Officer Steven: The Public Defender will not represent you at the DMV hearing. Here's one thing about the DMV that's important. If you're charged with a criminal offense, you normally don't see attorneys in the criminal bar taking a deposition of the police officer. I can't think of any time that I have done that, although if you call a police officer and set up an appointment and he meets with you, generally, he'll talk with you whether you're a prosecutor or a defense attorney. Sometimes the prosecutors will tell him not to talk, but that's not legal. With the DMV hearings, say I have a felony DUI case or one where there was a serious accident, I can have a full hearing and subpoena the police officer. I can put him on the stand and cross-examine him with regard to how he determined probable cause and why he did what he did, and where he stopped, and why he stopped the person. I can get a sense of how he's going to be on the witness stand, and all of the questions that he says he asked the person in his report, and all the other reports that he generated, I am able to go over all of that with him. I can be a little bit ahead of the game at the point, later on, a year later, when I go to trial. If my client wants to 2013 The Law Offices of Steven Tomeo Page 30

go to trial, I can say, "You know, you have a really sharp officer here who's not going to be flustered under cross-examination, because I cross-examined him before. He comes across as a pretty honest guy the jury will like him." Your Defense Attorney Can Subpoena Other Witnesses at the DMV Hearing to Help Prepare for Your Criminal Trial It gives you a little more insight. You can subpoena other witnesses at this DMV hearing. Suppose you had a passenger in the car or a passenger that saw the police officer give the field sobriety test and they say, 'The driver did what he was asked to do." Coming back to self-representation, if you just go to the prosecutor and get the case dismissed through the AEP, that aspect isn't handled. Generally, the public defender won't do that. I've seen them do it on a few occasions where they decided to do it, but that's rare. WHAT WILL TRANSPIRE AFTER YOU HAVE BEEN ARRESTED AND CHARGED WITH DUI? Interviewer: When someone s arrested for DUI and charged what ll happen to them? What's the sequence of events and what s the time scale and what do they have to start getting a 2013 The Law Offices of Steven Tomeo Page 31

handle on defending themselves? You Will Be Issued a Bond to Procure Your Release at the Police Station Steve Tomeo: Once, they're arrested and they're taken to the police station then somebody there at the police station is going to set bond. Sometimes it ll be the patrol officer himself or the officer in charge, the desk officer or the bail commissioner. Typically, You Will Also Receive a Summons That Indicates Your First Court Date They ll set a bond and more often than not it's a nonsurety bond so they ll say $500 non-surety bond. A non-surety bond is generally a promise to appear. Then, they ll have the individual sign the bond form and on that bond notice form they give them their court date. Sometimes they ll give them a misdemeanor summons, which is like the standard traffic ticket that indicates the first court date. Some People Do Not Hire an Attorney until after Their First Court Appearance Then, if the individual says, Well, I don t really know what to do. I want to get my bearings here. A lot of times they ll go in the court themselves and they ll say to the prosecutor, Well, I think I'd rather have an attorney. 2013 The Law Offices of Steven Tomeo Page 32

Then, the prosecutor or the judge will continue the case to give them sufficient time to hire an attorney. It depends on what court you are in at the time. Sometimes the prosecutor will say, Go ask the judge and sometimes the prosecutor will say, Okay I ll give you an administrative continuance for 30 days and when you come back the next time you come back with your attorney. Once You Retain an Attorney, He or She Will Sign the Fee Agreement and File a Written Appearance Then, when you come back with your attorney and in Connecticut, the attorney is required to sign fee agreement. Once the fee agreement is signed and all those details are worked out then the attorney will file a written appearance. He ll send the appearance to the clerk of the court where you have to appear and a copy of the appearance to the prosecutor. You Are Assigned a New Court Date, Which You Are Required to Attend with Your Attorney Then, after you ve had the appearance, you have an attorney, and you have received your court date, the attorney goes with the client on that day and the client has to be there. If he's not there he or she is subject to re-arrest. 2013 The Law Offices of Steven Tomeo Page 33

Some courts are really sticklers about that; with others, if you tell the prosecutor my client isn't here, the Prosecutor may say, Okay I ll continue it. Interviewer: What s the first court date called? Steve Tomeo: The arraignment date. Interviewer: So that is the first court date they're looking at after a DUI arrest. The Attorney Needs Time to Prepare a Defense and Will Request a Copy of the Prosecutors File or Other Discovery Information Steve Tomeo: What occurs is many times, you don t know how to plead your client and you want more time to prepare. In order to get a copy of the prosecutor s file, you have to give them a request for the production of documents or some form of discovery request. Some prosecutors have an open file policy. Then, the prosecutor has a certain amount of time in order to give you the documents. In most Connecticut Courts on the arraignment date, you will receive the file and you can go in the clerk s office or in the prosecutor s office and copy it, or they ll have a copy waiting for you. 2013 The Law Offices of Steven Tomeo Page 34

After Reviewing the Requested Information, the Attorney and the Client Attend the Next Court Date and Enter a Plea You obtain a copy of the arrest report and generally you are able to have a continuance. Then, you go over the documents with your client and you come back the next scheduled date and you enter a plea. ENTERING A PRO FORMA PLEA You advise the Court that your client is entering a Pro Forma Not Guilty Plea with a Jury Election. You waive a reading of the information, which spells out the charges. The Next Date Is a Pretrial Conference with the Prosecutor The court will give you another date and then the next court date will be a pretrial date. When you come back on that time you ll sit down and have a meaningful discussion with the prosecutor. The prosecutors are pretty liberal on granting continuances as are the judges. When you start getting past 90 or 120 days then they start putting some pressure on you to move the case. 2013 The Law Offices of Steven Tomeo Page 35

If the Attorney and the Prosecutor Cannot Resolve Issues during the Pretrial Conference, the Attorney Will Request a Judicial Pretrial If you can't resolve anything with the prosecutor at the pretrial then you can request a judicial pretrial. This is a conference with a pretrial Judge who has had no involvement in your case and who may suggest a way to resolve the issues. It is attended by the prosecutor and defense attorney. The client is not at the conference but is usually required to be at Court to confer with. The Judge Attending the Judicial Pretrial Is Not the Judge Who Will Hear the Case but He or She Will Offer Opinions on the Facts of the Case The judge might put his or her input in or might say I can't do anything on this one. He or she could say to the prosecutor, I don t think you can win this case. I think you ought to reduce the charge or This is my feeling on the case. Nevertheless, it is the prosecutor who controls the charges. Interviewer: The judge will put forth an opinion right there? Steve Tomeo: Yes, but the Judicial Pre Trial Judge is not the Judge who will try the case. The judge attending the judicial pretrial is an independent judge that's not going to try the case. He or she doesn t have 2013 The Law Offices of Steven Tomeo Page 36

anything to do with the case; at this pretrial they are just going to try to get the parties to resolve the issues. If the Issues Are Resolved during the Judicial Pretrial, the Case May Be Resolved That Day If you can resolve the issues and there s a judge sitting on the bench, you can go into the courtroom and resolve the matter. If you can't resolve the issue, then you can go in the court and you can put the case on the jury list. Then, we wait for a trial to be scheduled. IS YOUR DUI CASE LIKELY TO BE RESOLVED AT THE JUDICIAL PRETRIAL? Interviewer: How many cases are resolved at this pretrial conference stage? Ninety Percent of Cases Are Resolved during the Judicial Pretrial Steve Tomeo: I would say probably if you go to a judicial pretrial, as a result of that judicial pretrial, probably 90% of the cases are resolved. 2013 The Law Offices of Steven Tomeo Page 37

Interviewer: Typically, how long after an individual is arrested and charged with DUI will they get to this judicial pretrial phase and meeting? Steve Tomeo: Here is an example: I had a client that just was arrested so I was in court with him today. It was his arraignment date, but I don t did not have any details about the case. I know what he tells me, but I don t know how the police officer perceived the situation. The prosecutor let me copy the file, and the prosecutor continued the case for 30 days. I will meet with my client and go over the arrest report between now and the next 30 days. Then, I ll go in a try to see if the prosecutor will reduce the charge or dismiss it circumstances of the arrest have some Constitutional issues that are favorable to my client. Many DUI Cases Are Resolved in the Pretrial Stage within 90 to 120 Days Interviewer: How long does it take until you get to this stage where 90% of the cases are resolved on average? Steve Tomeo: I would say with DUI cases probably an average would be 90 to 120 days. 2013 The Law Offices of Steven Tomeo Page 38

WHAT TO AVOID IF YOU HAVE BEEN CHARGED WITH A DUI Interviewer: What are the most common mistakes you see people make that hurts their case? Should You Exercise Your Fifth Amendment Rights after a Police Stop? Steven: Well, if you look at all of the Internet sites and other information, they are all instructing readers that when you get stopped, you shouldn't talk with the police officer. You should refuse and take your Fifth Amendment right. Don't do the breath test. Don't do this. Don't do that. When you cooperate with the officer, you are giving more evidence to the officer to develop a case of probable cause to arrest you. It Is Human Nature to Be Cooperative, Especially during a Situation with an Uncertain Outcome Most people who are pulled over do not have the presence of mind to not talk with the officer or answer his questions. I think, most people feel they have to. Most people want to be cooperative. Most people, if they're very impaired, know they are and want to cooperate, so I don't think people are thinking on their 2013 The Law Offices of Steven Tomeo Page 39

feet and trying to get out from under the situation then. Attorney Tomeo Advises to Always Remain Polite and Respectful When Talking to the Police Officer I suppose there are a lot of issues that one might say in hindsight you shouldn't have done, or if you get stopped, you shouldn't do. I think one thing a person shouldn't do and that's, you should not be disrespectful to the officer. I think you should be respectful. If you don't want to say anything, just tell the police officer that, "You know, I appreciate the job you're doing, or thank you very much, but I'm not going to answer any of your questions and, if you want to arrest me, take me into the police station now," and not answer any questions and do not do the field sobriety test if you want to be that way. In Current Times, There Is an Increased Sensitivity toward DUI Issues I believe most state courts are very sensitive to DUI issues. They feel that a police officer can make a judgment that a person is operating under the influence even if they don't give them the field sobriety test, just by looking and talking and seeing how an individual walks and talks after they have been pulled over. I think there are a lot of things people tell us that we shouldn't do, but I think it's difficult for the average 2013 The Law Offices of Steven Tomeo Page 40

person not to do it, even if it is their best interest at the time. Remember, public policy arguments make for public policy decisions by courts. It Is Imperative to Avoid a Second DUI Charge While Your First One Is Still Pending Interviewer: How about once they've been arrested and they are going through the process, do people commonly make any errors at that stage that hurts their case? In Attorney Tomeo s Practice, Statistically, Women Are More Likely than Men to Receive a Second Charge While the First Case Is Pending Steven: I hesitate to stereotype or characterize one of the sexes but women in my opinion have a higher tendency than men to pick up subsequent DUI charges while their first case is ongoing. Among the women that I have as a first offender, better than 50 or 60% of them pick up another DUI while we are handling the first one. It Is Common for Many People to Turn to Alcohol during Times of Stress I attribute this statistic to stress. For example, take a mother. She operates under a great deal of stress every day. She has children. She has a husband. She is working full time. What do we typically do to self- 2013 The Law Offices of Steven Tomeo Page 41

medicate? Many of us self-medicate with alcohol, thinking that it calms us down. How many people do you hear say that when they get home from work, the first thing they do is grab a beer or grab a couple glasses of wine just to relax? To take the edge off, they say. Many people do that all the time, and I have a concern about that. A lot of men pick up second ones while they're going through their first. They pick them up very soon after the first charge. Attorney Tomeo Encourages Clients Who Have Multiple DUI Charges to Seek Counseling to Better Understand the Pattern of Their Alcohol Consumption It is almost as if they can't help themselves. I think that's a big issue, and I think a lot of people are reluctant to themselves. I like my clients to undergo counseling, just to see where they're at in their drinking patterns. I don't think it's coincidental that they picked up a second DUI. They're doing something that is just not right. Why be out at two o'clock in the morning? At 2 AM, the Police Will Most Likely Assume You Are Returning from a Drinking Establishment Of course, you've got the right to be out at two o'clock in the morning, but the police officers are going to presume, if you're by yourself and you're out, there's 2013 The Law Offices of Steven Tomeo Page 42

only a handful of reasons you're coming home at two o'clock in the morning. One of them, and probably the predominant one, is that you're coming home from a bar. Interviewer: Or you could be working at that time, delivering bread or milk? Steven: I understand, but generally if you were, you'd be in a bread truck. Drinkers, instead of going out and having somebody else drive them calling a cab, they get in their car and drive. Here where I live, even though it's pretty rural, you have new cab companies and they could call a cab. However, most drinkers do not do that. While Alternate Modes of Transportation Are Available, Many People Make the Choice to Drink and then Drive I think there are a lot of easy things a person could do to help themselves, but they make mistakes and end up facing a DUI charge. Or once they've been convicted and they're in a license-suspension period, they drive. They don't get picked up and violated for driving under suspension because the officer just saw their car and thought they were drinking. Most likely, the officer observes their taillight out or not driving with the headlights on when it is dark. 2013 The Law Offices of Steven Tomeo Page 43

You have to be aware of all the chances you take when you drive after drinking. You're told when you learn how to drive you have to be conscious of the dangers that exist, but as we get older, we forget about the headlights and taillights. All of a sudden the officer says, "I just stopped you because your taillight was out and, by the way, have you had anything to drink?" Now you are on your way to your second DUI charge. A DUI CHARGE AND YOUR DRIVER S LICENSE AND DRIVING PRIVILEGES IN CONNECTICUT Interviewer: How about the driver s license issues in a case? What s the timeframe on that from the moment that you ve been arrested? After a DUI Arrest, You Can Opt to Have a Hearing at the Connecticut Department of Motor Vehicles to Contest a License Suspension Steve Tomeo: If are arrested for a DUI, you can elect to have a corresponding administrative hearing at DMV. Interviewer: How long do they have to choose that hearing? 2013 The Law Offices of Steven Tomeo Page 44

You Must Request the Hearing within Seven Days of Receiving a Letter from the State Steve Tomeo: Individuals arrested for DUI will receive a letter from the State. They have seven days from the date of the letter to request the hearing and the hearing will take place within 30 days of the arrest. Your license is suspended on the 30 th day after your arrest. If you receive a continuance, you can continue the administrative hearing one time for 15 additional days which puts your suspension date out at 45 days and then you have the hearing within 45 days. If you continue the hearing beyond 45 days the suspension date is not continued. Interviewer: In general that's a shorter timeline than the criminal side of the charge? Steve Tomeo: Yes and its mandatory. There s no discretion; there's limited discretion at the administrative hearing. If You Do Not Request the Hearing within the Specified Time Limit, Your License Is Automatically Suspended Interviewer: Do people have to request this hearing or they don t have to if they don t want to? 2013 The Law Offices of Steven Tomeo Page 45

Steve Tomeo: If they want a hearing they have to request it. If they don t challenge the suspension and if they don t request the hearing they receive an automatic suspension. If You Prevail at the DMV Hearing, Your License Is Not Subject to Suspension Your driver s license will go under suspension the 30 th day after your arrest. This is unless you request the hearing and you have your hearing and you win the hearing. If you win the hearing, your driver s license is restored and there is no suspension. HOW LONG MIGHT YOUR DRIVER S LICENSE BE SUBJECT TO SUSPENSION? Interviewer: How long is the typical suspension individuals are looking at for a first time DUI? As long as the charge is not aggravated or enhanced? Your License Can Be Subject to a Suspension of 90 Days to 6 Months Steve Tomeo: If any of your breath tests are under 0.16 your suspension is 90 days. The suspensions are firm; they're written in granite. Ninety days is the normal suspension. If the results of both of your breath tests are 0.16 or above, the suspension is 120 days. If you 2013 The Law Offices of Steven Tomeo Page 46

refuse to take a breath test or a blood test or a urine test then the suspension is six months. THE ADMINISTRATIVE PER SE HEARING AT THE CONNECTICUT DMV Interviewer: What is this hearing at the DMV called? Steve Tomeo: It is known as an Administrative per se hearing. Interviewer: At that hearing, you are in front of the motor vehicle division essentially? Steve Tomeo: Yes, it's an administrative hearing governed by the Administrative Procedures Act. It's not criminal at all. Interviewer: People are probably confused by that, is that right? The DMV Hearing Is Not a Criminal Proceeding and Has No Bearing on the Court Case for the DUI Charge Steve Tomeo: Yes, I think they believe the hearing is another criminal proceeding. It's separate and distinct from court, so you can win at court and lose at the DMV or win at the DMV and lose at court. One has nothing to do with the other. 2013 The Law Offices of Steven Tomeo Page 47

Interviewer: At this administrative hearing is it possible to win and keep your license or is that really rare? It Is Difficult but Not Impossible to Prevail at the DMV Hearing Steve Tomeo: I'd say it's tough. That is where an experienced attorney comes in. There are issues only an experienced attorney would be aware of: how the breath machine operates, the repair history of the machine, how the machine should be maintained and what to review to determine if the breath tests were administered properly. Changing Public Perception of Drunk Driving Has Influenced the Results of the DMV Hearing Interviewer: Why is it so difficult at this hearing to get any good results? Steve Tomeo: The law is tough and so are the hearing officers. Interviewer: So even the hearing officers hands are tied? Steve Tomeo: It s a legal issue. You have public policy arguments by a lot of groups who want strict enforcement of the motor vehicle laws. These are civil 2013 The Law Offices of Steven Tomeo Page 48

and not criminal matters and the hearing officers have broad discretion in deciding these cases. IF YOUR LICENSE IS SUSPENDED, IS IT POSSIBLE TO APPLY FOR LIMITED DRIVING PRIVILEGES? Interviewer: Can you help people get a license if they need to drive to work or need to take their children to school or the doctors? In Connecticut, You Can Apply for a Work or School Permit that Has Limited Driving Privileges Steve Tomeo: Yes, there is a special permit to drive to and from work and during the course of employment. There s a special permit to drive for higher education or private occupational school. You have to be found eligible for these special permits. There is no special permit to drive your children to school or the doctors. To qualify for a special operator s permit, you must not have a current suspension for failure to appear or pay a citation; not have on your driving history more than 2 moving violations as defined in CGSA Sec. 14-111g(a); not have a prior alcohol related offense; not have a current CGSA Sec. 14-215 violation; not have a prior Reckless Driving, Evading or CGSA Sec. 14-224; not have a violation of vehicular manslaughter (53a-56b) or 2013 The Law Offices of Steven Tomeo Page 49

vehicular assault (53a-60d); not operate a commercial or public service motor vehicle. In Connecticut, There Is a 30-Day Jail Sentence for Being Caught Driving While Your License Is under Suspension Interviewer: Do you find that many of your clients try to drive anyway while their licenses are under suspension and they get caught? Steve Tomeo: I do not know because I do not ask them. However, I do advise them that driving under suspension alcohol related is a serious offense punishable by a 30 day mandatory jail sentence. It's a tough penalty and if you're caught driving without your work permit or you don t have a work permit the penalty is 30 days in jail. A lot of judges strictly enforce that; some judges will listen to mitigating circumstances to reduce the jail sentence to less than 30 days. Also, there is a year s loss of license plus a stiff fine. Is Driving While under a Suspension a Defensible Offense? Interviewer: Is there any way to defend this you know you have someone that s under suspension and they drive? 2013 The Law Offices of Steven Tomeo Page 50

Steve Tomeo: The facts determine the defense as applied to the law ARE DRUG-RELATED DUI CHARGES BECOMING MORE PREVALENT? Interviewer: On the DUI cases you encounter, are they mostly attributed to alcohol, or are you seeing prescription drug and illegal drug cases instead of alcohol-related cases? The Number of Drug-Related Offenses Are Increasing in the Connecticut Area Steven: Well, we're seeing more and more prescription drug DUIs, and we're seeing more and more drugrelated arrests and police stops. Some of the police departments now, or at least most of them, have DRUG ENFORCEMENT specialists. If a person is kind of acting like they are under the influence of something, the police officer brings them in. They call in the drug specialist to make a determination whether they're under the influence of drugs. We're seeing a lot of marijuana-related cases. Now, I understand that they're developing a test that will measure marijuana. They're going to come up with a measurement to say at what point a person is under the 2013 The Law Offices of Steven Tomeo Page 51

influence of marijuana. The confusing aspect about marijuana-related cases now is that they can detect the drug is in your system, but you could have smoked it a week ago, and it's still in your system. Are Drug-Related DUIs Defensible? Interviewer: Well, are the drug-related cases harder or easier to defend? Attorney Tomeo Has Found That the Prosecutors Are Likely to Offer a Favorable Plea for Drug-Related Cases, More So than with Alcohol-Related Cases Steven: I think they're harder. They're harder to prosecute, but I think you can do better with the drug cases than you can with the DUI cases. It seems like the prosecutors are just like tired of the DUI cases. Many prosecutors say, "Well, you can accept my offer or go to trial." A large number of attorneys don't want to try them. I think we'd do better if more attorneys would try the cases, but people want to get paid for trying the case. There Are Many Attorneys that Look for Plea Bargains Rather than Taking a Case to Trial Interviewer: Well, why don't attorneys want to try cases do you think? Or why are they not trying them? 2013 The Law Offices of Steven Tomeo Page 52

Steven: Well, I think a lot of attorneys haven't tried a case in their lifetime, so they'd rather negotiate it than try it, so they put their efforts into negotiating a resolution. Going to trial is expensive and unaffordable for many. So, negotiating a resolution is more cost effective. Will You Face Penalties for Wanting to Take your DUI Case to Trial? Interviewer: Is there any punishment from the courts for going to trial? Does the court come down harder on people for taking their time up or forcing a trial? Steven: Yes, but not in all cases The Judges are Likely, However, to Impose Harsh Sentences on Defendants Who Act in a Disrespectful Manner I think where it comes into effect is that, if you have a client that really acted in a poor manner up until the point of his arrest or subsequent to his arrest and didn't learn or try to learn from the error of his ways, I think a judge at the trial might say to himself, "You know, I'm going to use my discretion here and give you a little kicker here on the penalty, because you're clearly guilty, and you didn't learn anything by the experience, and I'm hoping that this type of punishment will cause you to stop drinking and driving." 2013 The Law Offices of Steven Tomeo Page 53

You do hear other attorneys saying that they think there is a penalty if you go to trial. There are really some pretty good attorneys that have told me that. I'd defer to them. I wouldn't say that occurs with all jurists, but I would say with some that there is a chance for that to happen. It Is Advisable Not to Give up While Your DUI Case Is Pending, Even If It Is a Frustrating Process Interviewer: What do you say to people that complain, "I can't take it anymore. I just want to give up and get this over with," while you're representing them, once they've been charged? They just kind of want to throw in the towel. Steven: I try to tell them to just let me try and do my job. I'm not a magician, but just let me try and do my job. I say, "If that's all you wanted to do, you really didn't need me to do that. You could have just gone in on your own. I really have to be able to function and do my job and try and do things my way to get you out from under this or at least to get some remediation here." You Must Let Your Attorney Do His or Her Job For the most part, I can convince them to do that, because they're not really talking a lot of time. What is occurring is pretty much they're just upset with 2013 The Law Offices of Steven Tomeo Page 54

themselves, and they're nervous about what will happen next. Interviewer: I think the point is, "Don't give into them. Let you do your job." Consequences from a Conviction for DUI Can Be Costly, Long-Term and Detrimental Steven: Yes, because why hire a lawyer and then spend all that money to give up and not let him try to do his job properly. There are a many issues attached to a DUI charge. There is the possibility of jail. There is probation. There's victim impact panels that courts want you do that are given by the Mothers Against Drunk Driving. There's community service. There are fines, fees and costs. There could be long-term employment and financial consequences for a conviction. INFORMATION ABOUT BREATH TESTS AND THEIR ACCURACY. IS BREATH TESTING FOR ETHANOL ACCURATE? Like any machine-computerized or mechanical-errors occur. I attended a demonstration of a breath testing machine where the expert giving the demonstration had beakers of different hydrocarbon liquids-acetate, methanol, isopropyl alcohol and ethanol. When each was tested the machine treated all of them as ethanol. 2013 The Law Offices of Steven Tomeo Page 55

The machine did not filter out the non-ethanol solutions as it should have. There are times when people have interfereants in their mouth, i.e. mouthwash and the machine does not register that, which means the test score was higher than it should have been. In these examples the filter did not work to separate out the non-ethanol hydrocarbon. Another example is where noise-sound waves-can affect the motor that spins the filters-noises like the police walkie talkies can affect the results. There is supposed to be a mechanism that should have filtered out the sound waves at certain frequencies. On some machines there is an escape valve on the back of the machine when if covered does not allow the chambered breath alcohol to be fully exhausted and thus contaminates a test with alcohol that does not belong to the person being tested or the newly tested sample, which brings on a higher reading. The breath machine has a computer chip and when it malfunctions the test results are inaccurate. Many individuals and scientists who are experts in this type of testing steadfastly indicate that body temperature affects the testing process, which is not accounted for by the machine. To counter this, the manufacturers say that the tube through which you blow is kept at a certain temperature. However, it is the person s body temperature that is important and what 2013 The Law Offices of Steven Tomeo Page 56

if his normal temp is above the average or he has a fever. These factors could raise your breath test scores. There are instances when the machine itself does not self- calibrate accurately. The machine before and after each test must self-calibrate against the machine s known quantity sample. If it fails to do so accurately then the machine that analyzed your sample could be inaccurate and invalid. But what if the self- calibration is within the margin of error-connecticut allows 5% either way-does this mean the machine was accurate? No. If you get the machine s repair history you may pick up a machine with a long repair history of various kinds of problems that can affect the accuracy of the sample or at least bring into question the issue of accuracy. Dr. Michael Hlastala claims that Alcohol Breath Testing does not allow for racial and gender bias. He claims that small or larger lung volume has an effect on the test results. He goes on to say that, Inherent in the justification of the Alcohol Breath Test (ABT) is the presumed equality between end-exhaled alcohol concentration and alveolar alcohol concentration that is directly related to the blood alcohol concentration (BAC). Thus the ABT (Alcohol Breath Test) has been viewed as an accurate indirect measure of BAC. 2013 The Law Offices of Steven Tomeo Page 57

However, recent literature has shown that such a relationship between breath and blood is not necessarily identical for all individuals. An assumption used in the development of the ABT is that the last part of the exhaled breath has a concentration that is equal to that in the alveolar gas. This long-held assumption is the basis for justifying the ABT as an accurate measure of BAC. However, it has recently been shown that endexhaled alcohol concentration (EEAC) is less than alveolar alcohol concentration (AAC) due to the exchange of alcohol in the airways with the bronchial circulation during both inspiration and expiration 2-4. The relative difference between AAC and EEAC varies with alterations in the breathing pattern. Dr. Hlastala is indicating that you just cannot say that the breath machine takes into consideration all people because weights of individuals are different as is the size of lungs in each person and race and gender and lung volume. The testing that he refers to indicates that in cases where lung volume is lower the BAC could be higher. He believes that the old assumptions do not hold up in view of these more recent studies. Many lawyers believe that the breath machine is not the most accurate method and that it is fraught with numerous mechanical breakdowns as well and many other types of problems some of which I have tried to explain in the preceding paragraphs. Then there is the computer program the processes the results and what 2013 The Law Offices of Steven Tomeo Page 58

that program consists of and the argument that it does not take into consideration the issues of lung volume, race and gender. THE PENALTIES FOR CRIMINAL CONVICTIONS Under Connecticut s criminal law, a driver arrested for DUI will receive both a summons and a court date. If the court proceedings result in a conviction, the following penalties must be imposed: Operating Under the Influence of Alcohol or Drugs, C.G.S 14-227a, 14-227g or 14-111n conviction on or after January 1, 2012 Third or First Conviction Second Conviction Subsequent Conviction Fine $500 to $1,000 $1,000 to $4,000 $2,000 to $8,000 OUI convictions after January 1, 2012. 45 days license suspension. All other terms of suspensions must be served except 14-227b. One year IID requirement from restoration date. If previously convicted of 53a-56b or 53a 60d, it s considered the 2nd offense. 45 days license suspension or until 21st birthday, whichever is longer. All other terms of suspensions must be served except 14-227b. Three years IID requirement from restoration date. Permanent Revocation. If you serve less than May a one year suspension, request a you are restricted to hearing drive to and from after at least work or school, an 2 years after alcohol or drug abuse date of treatment program, revocation. probation appointments or an ignition interlock device service center for the first year. (You must carry the appropriate schedule at all times.) 2013 The Law Offices of Steven Tomeo Page 59

You may petition, in writing, to the Commissioner of the Department of Motor Vehicles for the option to participate in the IID program. After serving more than 45 days of your suspension but less than one year under C.G.S 14-227a, 14-227g and 14-111n, you will be required to have an IID for the remainder of the suspension on a first conviction or for a second conviction, the remainder of your suspension plus an additional two years. Vehicular Manslaughter, C.G.S. 53a-56b or Vehicular Assault, C.G.S. 53a-60d First Conviction Second or subsequent Conviction Vehicular Manslaughter conviction 1 year license suspension. Two years IID requirement from restoration date. 1 year license suspension. Two years IID requirement from restoration date. Vehicle Assault conviction 1 year license suspension. Two years IID requirement from restoration date. 1 year license suspension. Two years IID requirement from restoration date. CT DMV LICENSE SUSPENSION AND ADMINISTRATIVE PER SE HEARING Administrative Per Se through DMV The driver s license sanctions (license suspension periods) outlined below have been revised recently and will be imposed in addition to criminal penalties. In 2013 The Law Offices of Steven Tomeo Page 60

most cases, the driver s license sanctions will be imposed much earlier. In all cases, they will be imposed in addition to criminal penalties and will appear on your driving record. Driver s 16 and 17-Years-Old Blood Alcohol Level 1st Offense 2nd Offense 3rd Offense Refusal to submit to a blood, breath or urine test. 18 months 2 years 6 years Test results of.02 or higher; up to, but not including,.16. 1 year 2 years 4 years Test results of.16 or higher. 1 year 30 months 5 years Driver s Between the Ages 18 to 20 Blood Alcohol Level 1st Offense 2nd Offense 3rd Offense Refusal to submit to a blood, breath or urine 1 year test. 2 years 6 years Test results of.02 or higher; up to, but not including,.16. 6 months 18 months 4 years Test results of.16 or higher. 240 days 20 months 5 years Drivers 21 Years Old and Older Blood Alcohol Level 1st Offense 2nd Offense 3rd Offense Refusal to submit to a blood, breath or urine test. 6 months 1 year 3 years Test results of.08 or higher; up to, but not 90 days including,.16. 9 months 2 years Test results of.16 or higher. 120 days 10 months 2.5 years COMMON CONCERNS AND QUESTIONS AFTER A DUI ARREST Interviewer: What are the top concerns that you get from people that have been arrested for DUI? What worries them most? Steve Tomeo: They're worried that they ll have to do time in jail and what will arise as a result of this time in 2013 The Law Offices of Steven Tomeo Page 61

jail. If it s a situation where they have to do time in jail they're concerned about their marriage, their mortgage and providing for their family along with being able to keep their job, and the rest of their life. If they have to serve a jail sentence for a DUI, especially if you drive a car for work or a truck for work, most companies won't give you the time off to serve the jail time. They ll fire you because a DUI offense increases their insurance rates. It's a big social issue. WHAT DEFENSE WORK WITH A DUI CHARGE? Interviewer: I know every case is different, but what strategies are you using most successfully against DUI cases? Steve Tomeo: The defenses to a lot of these cases oftentimes have to deal with Constitutional issues. They include whether the stop was proper and whether there was probable cause to make the arrest. Attorney Tomeo Works to Prove That His Client s Constitutional Rights Had Been Violated during a DUI Police Stop; However, Police Officers Are Receiving Additional Training to Thwart These Challenges 2013 The Law Offices of Steven Tomeo Page 62

Today, police officers are better trained and educated as to when they can stop a motor vehicle driver and the probable cause they need for the arrest. degrees and have undergone additional training. Representatives from the Department of Motor Vehicles hold seminars with police departments. The officers are trained to make sure that they cross every t and dot every i on the arrest reports so that there are no mistakes discovered at the administrative hearings. Of course, this training also helps the police officers in writing up their arrest reports in criminal court. When it comes to pulling an individual over most courts will not second guess the police officer. They're just not going to do it. Sometimes you get a case and the reason was a bad stop so they will dismiss the case, but that s not oftentimes the case. Attorney Tomeo Has a Great Deal of Experience Looking for Holes in the Police Report and Therefore, the Prosecutor s Case Interviewer: How have you really had a good effect on someone s outcome because they ve hired you? Steve Tomeo: By doing my job in advocating for my client's rights. You just can't go to the prosecutor and 2013 The Law Offices of Steven Tomeo Page 63

say, Well, I don t think it's a good stop and I don t think you have probable cause. They want to know why and they want to know what past cases you're relying on to back up that claim. You have to advocate on your client s behalf why you believe your argument is the better one along with the weaknesses in the prosecutor s case while understanding the weaknesses in your own case. It is never a one way street for either side. I try and prepare a memorandum of law for the prosecutor to better articulate my argument. The prosecutor wants to know why and they usually ask what cases I am relying on. I put forth my argument. Hopefully, the prosecutor will review my memorandum of law and decide. If he disagrees then he must have come to his own conclusion through his own experience or individual research---he checked his own sources and he feels that I'm wrong in my interpretation of the law or the my fact situation doesn t fit the case law I cited. Sometimes you have to file a motion to suppress evidence or a motion to dismiss a case for various reasons and let a judge decide these issues. 2013 The Law Offices of Steven Tomeo Page 64

Attorney Tomeo Urges Clients Not to Underestimate the Ramifications of a DUI Charge The ramifications are severe. Do not minimize or discount the DUI charges against you. Job loss is often the case. Attorney Tomeo Oftentimes Finds Evidence in His Client s Favor When Cross-Examining the Arresting Officer at the DMV Hearing Sometimes there are factual disputes and the only way you can resolve it is by having a trial. Additionally, if there are factual disputes, you can subpoena the police officers to the DMV hearing and cross-examine them there. Sometimes you can uncover new evidence in your client s favor that might not even be in the police report or you can clarify issues. Interviewer: How often are you able to get a substantial positive result in a case? Maybe it is not possible to have the whole case dismissed but can you work to mitigate the charge significantly? DUIs and Penalties in This Current Climate: With No Prior Offenses, You Are Likely to Be Eligible to Enroll in a Program and Your Charge May Eventually Be Dismissed 2013 The Law Offices of Steven Tomeo Page 65

Steve Tomeo: I would say if I looked at all of the DUIs, first time offenders, we re able to significantly help our clients most of the time. With the current laws, if you have no prior offenses you can be admitted into these programs that can result in getting the case dismissed. More recently, we have encountered prosecutors objecting to these programs. In the Stamford Court, there is a policy of objecting to the granting of the alcohol education program. We have to argue to get our client into the AEP even when they ve been found eligible for the program and it's discretionary with the trial court judge. CONNECTICUT S ALCOHOL EDUCATION PROGRAM Interviewer: Let s talk about the AEP program right? AEP is an acronym for the Alcohol Education Program? You mentioned this program is becoming more difficult to qualify for. Are most people under the assumption that they can just apply for it and be admitted with little difficulty? Steve Tomeo: The vast majority of people are admitted but what about if you're not that person? An example would be a person picked up in the State of NY for driving while impaired and convicted of it. This is not a DUI. But this might not bode well for the person 2013 The Law Offices of Steven Tomeo Page 66

charged with DUI who has a NY impaired conviction on his record. While eligible for the AEP the Judge may not grant the AEP based upon Judicial Discretion. Prior Offenses, Even Out-of-State, Can Discount Your Chance for Entry into the Alcohol Education Program Connecticut doesn t consider driving impaired a conviction for DUI. If you have a driving while impaired in New York and you get picked up in Connecticut for driving under the influence and that shows up on your record search, the judge may think, Why should I give him the Alcohol Education Program when he's already been caught once before and now he's been caught again? DO SEVERE PENALTIES DETER DRUNK DRIVERS? MADD is a large organization and they make an issue of actions they feel are not in the public s best interest. They write letters. They organize their members, they get newspaper articles written and they are very proactive. Truthfully, I believe the number of drunk driving arrests are way down in Connecticut because of the severe penalties, alcohol education and the fear of arrest and jail Interviewer: Why do you think that is? 2013 The Law Offices of Steven Tomeo Page 67

Attorney Tomeo Believes That Better Knowledge about the Penalties for DUI Has Led to the Decline of DUI Arrests Steve Tomeo: Probably education and I think everybody knows somebody that has one or two DUIs in his background and knows the severity of the penalties. I think especially in city areas, people are more willing to take a cab. I think its education and severity of the penalties and knowledge about what they stand to lose. If you have a CDL license and you get picked up in Connecticut for drunk driving you are finished with that line of work. You lose your CDL license for a year and you're not eligible for the Alcohol Education Program. So, there goes your livelihood. WHAT ISSUES PREVENT PEOPLE FROM RETAINING AN ATTORNEY TO DEFEND A DUI CHARGE? Interviewer: What holds people back from hiring an attorney to fight their DUI case? What have you seen that scares people or makes them reconsider pleading not guilty? 2013 The Law Offices of Steven Tomeo Page 68

Financial Considerations Can Cause People to Delay in Retaining an Attorney for Their DUI Case Steve Tomeo: I'd say money is the foremost reason people delay or do not even consider hiring an attorney for a DUI charge. Interviewer: Do they think without knowing what the cost is that a lawyer is too expensive or they're just after they hear the price they think it's too expensive? Steve Tomeo: I think both. I think they think it s too expensive when they hear the price. I think some people just say, I can't possibly afford an attorney. I don t make much money at all. I don t have any savings. Without Knowing the Merits of Their Case, Many People agree to the Prosecutor s Suggestion of Accepting the Alcohol Education Program I think another reason is if you ve never had a DUI and you go to your first appearance without an attorney the prosecutors say, Well, why don t you just apply for the Alcohol Education Program? and they just do. And I'd say there are probably 20 or 30% of those people that have some issue in their favor that could help them get the DUI thrown out or reduced. The prosecutors talk them into taking the Alcohol Education program with the promise that their case 2013 The Law Offices of Steven Tomeo Page 69

will ultimately get dismissed. Additionally, all of them don t request the administrative hearing at the DMV. They're losing their opportunity to defend themselves and they're losing their opportunity to save their license. To me, that s proceeding without hope. Hope is when you have the opportunity to defend yourself. The Constitution gives you that right and gives you that hope. The facts are what they are. WILL THE COST OF A DUI CONVICTION OUTWEIGH THE COST OF RETAINING AN ATTORNEY TO DEFEND THE CHARGE? Interviewer: In terms of the cost. You said that it's a big sticking point. What do you estimate the cost is to being convicted of a DUI, even a first time one, with all the insurance and fees and loss of work and all that stuff? The Cost of Lost Time in Jail, Losing Your Job and Your Home Is Immeasurable Steve Tomeo: I routinely see people that are second and third time offenders and have to serve some serious time in jail. They lose everything, so they lose their home; they lose their families; they lose their car; they lose their job. For some of those people the cost to 2013 The Law Offices of Steven Tomeo Page 70

them is in the hundreds of thousands of dollars if not more. There Are Significant Costs Associated with the License Suspension Including Restoration Fees and Increased Insurance Premiums Steve Tomeo: A person that is arrested and loses his license is first of all going to have legal fees. He's going to have court costs. He's going to have DMV restoration fee costs. He's going to have probably increased insurance costs. I've seen estimates in Connecticut and other states around $7,500 to $10,000 for a first offender when you factor in everything. I think it s more! The question is, do you want to try and get out from underneath the DUI or do you just want to give into it and accept it? Interviewer: It's like saying do you want a guarantee that you ll lose at least ten thousand dollars or do you want to have the possibility that you may not lose or have to spend less than half of that to hire an attorney? Even though it looks like hiring an attorney is an expensive proposition, in reality it's almost always cheaper than the alternative. 2013 The Law Offices of Steven Tomeo Page 71

Self-Representation or a Private Attorney: Is It Better to Have an Attorney So You Have a Chance of Fighting This Charge? Steve Tomeo: If you don t have an attorney you have absolutely no chance, so I think there s a misperception of how you use an attorney. I mean primarily they want you to get them out of the jam that they're in. They want to be found not guilty. There are many people that do not want to go to court by themselves. They're afraid that they might be taken advantage of. A client told me, I don t think I have a real good case, but I want an attorney. I want you to go over everything and see if I do. He continued, I just went through a divorce where I represented myself and I lost everything, so I'm not going to court anymore without an attorney. When You Do Not Retain an Attorney to Defend Your DUI Charge, You Lose the Opportunity to Fight an Arrest That Later Could Be Found to Be Unjust Attorney Tomeo Is Experienced in Applying His Skills to Uncover Facts about a DUI Case That Become Beneficial to His Client I think the attorney can apply his skills to see whether or not there was there probable cause to make the arrest. If the stop was proper, the attorney can conduct an investigation and in doing so, find out facts or 2013 The Law Offices of Steven Tomeo Page 72

events that weren t in the report that are helpful to your client. I would say, in the majority of DUI cases, there is the opportunity to have the case dismissed or the right argument about the facts of the case exists to negotiate with the prosecutor in order to mitigate the consequences. WHAT IS REASONABLE TO EXPECT FROM YOUR ATTORNEY? Interviewer: What is a reasonable expectation that a client should have when they retain you, and what's an unreasonable one in terms of the outcome of the case? I know every case is different. It Is the Attorney s Job to Represent the Client to the Best of His or Her Ability and To Protect the Client s Constitutional Rights Steven: I would like to emphasize that the first thing is a client should not think that an attorney is a magician, and he's going to get me off scot-free. I think what the client has to understand is that the attorney's job is to represent him in court to the best of his ability. That means protecting his constitutional rights and, understanding that. 2013 The Law Offices of Steven Tomeo Page 73

By Retaining an Attorney, You Are Providing Yourself with the First Opportunity for a Favorable Outcome in Your DUI Case When you retain counsel, you are calling on an attorney to go over everything, to make sure that the prosecutor, whose job it is to enforce the laws, does so fairly and correctly. If that means that when you hire an attorney he finds out that you weren't stopped properly and there was a lack of probable cause, that's what the attorney's job is, and then to advise the client accordingly. Attorney Tomeo Does Not Make Promises in Haste to Clients; Instead, He Investigates All Aspects of the Case before Advising the Client on Which Course to Take I mean, you could tell the client when he comes in, "Oh, you may have this defense. You may have that defense." You don't know, because you haven't seen how the arrest report is written up. I can tell most of the time when a client tells me the facts of their case, I see a number of issues having to do with the stop and probable cause. The question is whether or not I can convince the prosecutor that the arrest report is really contrary to what actually happened. That's really quite a job! 2013 The Law Offices of Steven Tomeo Page 74

Just to be blunt, suppose you were of minority origin in Hartford and you got picked up by the police and then hired an attorney. Most people want to hire an attorney because they don't want to be falsely played by the police or by the prosecutor. It's as simple as that. Same Sides of the Battle: Attorney Tomeo Believes that When He Is Retained, the Client Is Hiring Him to Help Fight This DUI Charge As Strongly As the Client Wants to Fight It To put it plain and simple, an individual coming in to me generally just doesn't want to be falsely played; he wants to be protected from that occurring. He knows that he could get convicted, but he just wants, if he is convicted, to go down with a fight. 2013 The Law Offices of Steven Tomeo Page 75

DISCLAIMER: This publication is intended to be informational only. No legal advice is being given, and no attorney-client relationship is intended to be created by reading this material. If you are facing legal issues, whether criminal or civil, seek professional legal counsel to get your questions answered. The Law Offices of Steven Tomeo 57 Pratt Street, Suite 805 Hartford, CT 06103 Phone: (800) 608-6636 Website: www.ctduiattorney.com 2013 The Law Offices of Steven Tomeo Page 76