Military Officer Stopped with BAC Limit Below DUI Status – Challenges Search & Seizure

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By Susana Jurado

FRESNO, C.A. – A military officer, charged with running a stop sign while possibly being under the influence, pleaded not guilty and his attorney is filing a suppression motion claiming he may be a victim of illegal search and seizure.

According to the District Attorney’s Office, Austin Daniel Flowers, known to have no criminal history besides the incident that occurred, was driving back to the military base at Lemoore, CA, and failed to stop for a sign.

When he was pulled over by police, officers claimed there was reasonable suspicion to check his blood alcohol concentration levels.

He was found to have a blood alcohol level of 0.7, under the driving-under-the-influence limit of 0.8. However, prosecutors can charge a DUI, no matter what the blood alcohol content (BAC) may be, if there is subjective evidence of driving dangerously or in an unusual manner.

Assistant Public Defender Denette Glenn Boeve noted, “My client currently lives on the base in Lemoore, and is currently active in the military. I actually believe he could be a candidate for military diversion.”

Military diversion is a pretrial program offered to former or current military criminal offenders who suffer from mental illness, symptoms of PTSD, substance abuse, and any sort of trauma. They will often join a rehabilitation program, which will help remedy the behavior leading to the original arrest. 

The public defender asked the court to allow Flowers to remain out of custody on his own recognizance, pending the next hearing.

Judge William Terrence asked the prosecutor, “Is there any criminal history for the court to consider? What are the facts and circumstances of the allegation?”

Deputy District Attorney Brian Exline replied, “No criminal history, your Honor. The reasonable suspicion for the stop was failure to stop at a stop sign. He was driving back to the base. His BAC was 0.7.”

Judge Terrence ruled that the defendant remain out of custody on his own recognizance, meaning no bail needs to be posted. He told Flowers all laws must be obeyed, and an order was placed on Flowers, where under no circumstances he is allowed to drive a vehicle with any amount of alcohol in his system.

The public defender informed the judge that she will write a “suppression” motion  asking the court to exclude evidence in the next hearing based on illegal search and seizure. She says she will base her motion on the probable cause for the arrest, and confirmed with the court that she will look into her client’s candidacy for the military diversion program.

Based on the claims made by the public defender, Flowers entered a general time waiver where he waived his right to a speedy jury trial and, as a result, only set a date for the preliminary hearing.

Judge Terrence set the date for a pretrial hearing on Oct. 26 at 8:30 a.m.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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