If you are arrested for DUI and are not living in the area or even in Idaho, there are some things to be done to make it less stressful, costly and difficult for you to go through the court process. Since this is a misdemeanor, usually, we can appear as your attorney, enter a not guilty plea, request a trial by jury and ask for copies of all records, reports and evidence involving your case, all without you being here. Often, if you do enter into a plea agreement, your jail time can be served by community service, rather than actual jail time or even work release. You may never have to come back to Boise to complete sentencing or your probation. To learn more, please give us a call 208.343.3851

This Is A Typical Idaho DUI Stop And What You Should Expect

If This Is Your First DUI Offense

A first offense typically involves, the stop, the officer smelling alcohol in the car, observing “droopy” eyes, slurred speech, questions, an arrest, booking at jail and release upon bond after at least several hours at jail. You should then hire a Idaho DUI attorney who enters a not guilty plea, requests jury trial and “discovery” for production by the state of all police reports, documents and test results. We then scrutinize the discovery for defenses, such as there having been no “probable cause” or “reasonable suspicion” for the traffic stop, or an uncalibrated testing device for blood alcohol, or an untrained person giving the test, or you belched or burped, or no warrant for a blood test, or a number of other possible challenges to support a “motion to suppress evidence,” which could result in a dismissal. While such results are not usually obtained, we must know for sure that nothing is missed. This takes the careful review of an experienced attorney to be sure.


If you do refuse the breath test, the refusal is used against you in court as evidence, and you face a driver’s license suspension of one year without privileges and a fine, regardless of whether or not you are convicted of the DUI. If you refuse a blood draw, a warrant can be obtained by the officer, day or night, from a judge on standby assignment by the courts. And, you would then face the one year license suspension for the refusal. The refusal triggers a blood alcohol concentration (BAC) hearing and a possible suspension by the court, which is in addition to a suspension by the Idaho Transportation Department as an administrative license suspension (ALS).

If you know you are intoxicated to such a degree that your blood alcohol concentration that would show on a test may exceed 0.20, or if this is a second (enhanced penalties)or third (felony) DUI within 10 years, you might refuse a test and take your chances. The laws are crafted by the state to make the consequences of refusal very severe, and, in most cases, a refusal is not justified by a person suspected of DUI.


You do not have to drive a vehicle to be convicted. The law says that driving or being “in actual physical control,” defined as being in the “driver’s position” with the engine running or the vehicle moving gets you a DUI conviction. Of course, what is a “driver’s position”? Recently, in a case I had, the judge ruled that it means being in the driver’s seat, regardless of intention to drive or not, whether one could reach the controls, whether the seat was fully reclined or otherwise. The Idaho Supreme Court has said that intent is not required and that anything other than as a “passenger” gets you convicted. If you are in the back seat of the car asleep, unless the state can prove you were in the driver’s position with the motor running or the vehicle moving while intoxicated, you may be ok. Get a ride or call a cab.

Contact Brian Donesley Attorney At Law If You Need A Experienced Idaho DUI Lawyer

Call: 208.343.3851



This is part 2 of  FACTS OF A DUI COURT CASE IN IDAHO. The accused had to waive his right to speedy trial to give the State time to find the search warrant for the blood draw or go to trial without the evidence needed. As it turns out, in our hypothetical, the accused was not given the required rights and warnings before being offered a blood alcohol concentration test (BAC). He was never offered, nor did he refuse any test. The police policies state that the officer “should” offer a breath test and that the accused should be subject to an involuntary blood draw only after being advised of consequences of refusal (one year license suspension and a $250 fine plus the refusal used in evidence on the DUI), the test having been offered and actually refused. Despite no warning, no offer to take a breath test and no refusal (all shown in the written and recorded materials obtained from the police by these offices), the prosecutor called and told the judge that there had been a refusal and other questionable facts for probable cause. The judge appears to have signed a warrant (received in discovery from the prosecutor, with a wrong date). But, a search for the recording of the “probable cause hearing” with the judge in the early morning hours, which was supposed to be recorded by the judge and transferred to the court, was never provided by the prosecutor, despite 4 conferences with the judge and 2 court orders to produce. These offices searched the court records, reviewed all possible such recordings and confirmed that the court never received the recording. Meanwhile, the prosecutor simply told us that we could look for ourselves. This is in front of the judge on a motion to dismiss the case and for sanctions against the police and the state, including attorney fees.

This will be further supplemented for your interest as it moves forward. The purpose is to show you what a real DUI case can look like and how you need a good lawyer to represent you in what can be a life-changing experience.

Give Brian Donesley Attorney At Law Today: 208-343-3851

Read more about how Brian Donesley Can Help You In Your DUI Case 



Facts of a Hypothetical Case  

Client leaves bar after six hours. It is midnight. He is with two friends and is headed to his house two miles away down a four lane highway. After pulling off the main road, police vehicle overhead lights are flashing. He stops. Officer asks him where he has been, whether he has been drinking and orders him out of the car when told the name of the bar and that he had only had a few. Client asks if he is under arrest while remaining in the car. Officer says he is “investigating.” Client says does not have to get out of the car unless under arrest and refuses to exit the vehicle, stating that the officer may investigate and that he will cooperate otherwise. Officer and others physically drag Client out of the car, cuff him and put him on the ground face first.


1.  Did the officer have probable cause to believe that Client had been driving under the influence and to make the stop?

2.  Did the law require Client to get out of the car as long as he had not been arrested?

3.  What use of force was justified under what circumstances under these facts?

4.  Did Client resist arrest or obstruct the Officer unlawfully, so as to be charged with resisting and obstructing as well as DUI?

The Law  

1.  The Officer states in his reports, obtained by my offices from the Prosecuting Attorney, that he was driving down the main road, when he saw my Client’s vehicle pull out, proceed down the road, crossing the line on the right and left several times each. But, the road has a concrete center divider on the left side of the lane for all but a short distance along the route. Did Client swerve back and forth, crossing 7 to 8 times the lane lines on the right then the left? Did he run across the concrete barrier? Or, had the Officer actually been staking out the bar, knowing that Client’s vehicle had been parked in front of the bar for hours? What is the truthfulness of the police report as to what cause existed to stop Client’s vehicle? If none, any evidence must be thrown out, “suppressed” in the language of the law.  

2.  No. Until the Officer had a “reasonable, articulable (describable) suspicion” that Client had been driving under the influence, he could not detain for investigation, and refusal to get out of the car should not constitute a crime. What do the audio recordings and witness statements show as to what was said by the Client and the Officer? Again, this could be an unlawful arrest of Client and grounds for suppression of all evidence obtained after the unlawful arrest. The Officer does not have to say, “You are under arrest.” If the freedom of movement (cannot leave) of Client is substantially restricted without reasonable cause, it is an arrest. Were Miranda warnings given? If not, is that another basis for excluding statements?  

3.  If there was no lawful basis for removing Client from the vehicle in support of an investigation based upon a reasonable suspicion, there was no resisting or obstructing the Officer. There would be no basis for use of force or for arrest. If there was a basis for reasonable suspicion that a crime had been committed, the Officer could use reasonable force in support of the investigation. Without a strong concern for the safety of Client, the Officers or the public, restraint to the ground is use of excessive force.  

4.  The burden of proof in court is upon the state to prove a crime. The Officer almost always records the initial contact with a suspect, though often the later events are not recorded. This is a questionable procedure and one that opens the Officer to questions at trial as to why and what was missing from the recording carried on his person as well as by other Officers on the scene. All the circumstances must be reviewed carefully. The State often charges all possible crimes to compel Client to plead guilty to the DUI or any other underlying crime. This is the nature of “plea bargaining,” which gives great power and discretion to the Prosecutor, almost to the exclusion of even the Court. While this is a criticism of the system that is acknowledged by practitioners and policymakers, the practices involved in plea “negotiations” are weighted against the Client and his attorney. The best defense is a good offense.  

Next week:  

This fictitious case, based upon real events, will continue in the same manner, unfolding other facts, questions and explanations of the law.   For example, next time a passenger in Client’s car is charged with obstructing and assault on an officer though never being close to an officer. The witness is hit with the tazer, an electric shocking device and suffers a seizure, threatening his life. The other witness is questioned, cuffed and detained in the police car. At no time was anyone told that he or she was “under arrest.” No field sobriety tests were conducted of Client, nor a blood alcohol breath test offered at the scene. Rather, Client was taken to the hospital for injuries, treated and then taken to the police station for processing and where client was shown a “search warrant” for the drawing of blood. Months later, no blood test results have been produced. We await the State’s production of evidence for our analysis.   This case is hypothetical. It is not typical. But, it is a good example for potential clients looking for a good DUI attorney. This is how I will approach your case, bringing experience and assertiveness in your support. All persons are imperfect. All cases reflect that imperfection. My job is to find those flaws, mistakes, misunderstandings and sometimes overzealousness by law enforcement and insist on results in your case that give you the benefit of the doubt at each turn. This makes the State’s burden of proof beyond a reasonable doubt a much harder one.


Over 35 years practicing law, I have been a public defender, special criminal prosecutor, Chief Legal Counsel for Idaho State Police, Police Union Legal Counsel for the Boise Police as well as the Ada County Deputies. I have trained police officers at the Idaho State Police training academy. I was trained as a police attorney at the Federal Bureau of Investigations (FBI) Academy at Quantico, Virginia. I served as an Idaho State Senator for two terms, retiring undefeated. I bring this and more experience and strong advocacy to your case and in your defense.   Thank you for your call when you need my help. Continued Here.

Give Brian Donesley Attorney At Law Today: 208-343-3851

Read more about how Brian Donesley Can Help You In Your DUI Case