DWI in North Carolina... (LONG!)

[SkyHog]

Last night, my wife and I were on our way out to go buy some speaker wire to install our surround sound, and we pulled up the end of the road and were almost nailed by a car driving at least 75mph in a 35mph zone. He was swerving so much he actually came onto my road, and missed my front end by about a foot. I think my presence scared him, because he overcorrected, hit the side of the road (which was covered in ice), lost control, went flying off the side of the road, hit a road sign, a mailbox, and a power pole, and came to rest, upright, at the bottom of the pole.

We immediately drove over to make sure he was alright, and he was very slow to respond. The people that lived at the house with the pole in their yard came out as well to see how he was doing.

The man got out of the car and stumbled around, so I figured he was messed up from the accident. I offered to call the police, and the man started getting belligerent, telling me that he didn't need some "Out of towner" trying to ruin his life.

Perplexed, I put down my phone and helped the guy away from the car, reached in, and turned the car off in case anything was leaking. As I helped him down, I could smell it....this guy was loaded to the gills, and was in condition to have been driving. Every time I tried to pull out my phone, the man got mad at me and I thought there might be an issue.

I walked over to the family that lived there and relayed what was going on. The man and woman of the house said something along the lines of "Look, I don't want to see anyone get in trouble, lets just let him sober up, and we'll call in the morning."

Luckily, the next door neighbor, who was described as "crotchety" insisted we call the police, and the police said they'd be by in a few hours to investigate (we are at the far edge of the county, it wasn't laziness, it was just a really long drive). The drunk man heard the commotion and started walking.

We gave our information and then proceeded to the store to finish our shopping. As we returned, we saw the police cars out front of the house, doing their investigation. I stopped and explained to the police officer what I saw, and what happened. He asked me for a description of the guy, and when I gave it, he said "Yep, that's the guy. He lives right down the street, I tried to get him to come out, but he refused. Looks like since he got home first, he's gonna get away with this one, there's not much I can do."

I was flabbergasted. In New Mexico, they'd have called the judge in the middle of the night to get a warrant for this one, considering they had the following evidence:

1. His car, with his plates, at the scene of the accident
2. Three sets of families giving eye witness descriptions of the man
3. Two eyewitnesses to the accident

Is DWI less of an issue out here? It blew my mind that both the police and the family who owned the property weren't too concerned with busting a drunk driver. I tried to explain to my wife that this is probably because we don't have people dying left and right from DWI out here like we did in New Mexico, but is that true?

Moreover, can you really get away with DWI because you got home before the police could find you?

 

[poadeleted20]

...can you really get away with DWI because you got home before the police could find you?

It's not guaranteed, but it's possible. All the guy has to do is claim he did the drinking at home after he got there. Then the cops have to prove "beyond reasonable doubt" that he was over the limit when he was driving, even if the witnesses can testify he had alcohol on his breath, because that can happen well below the legal limit.

Only thing you could do (in some states, depending on the law there) is hold the man for the police to arrive, but that has physical if not legal risks.

 

[ScottM]

I think Nick is more flabbergasted that people were so casual with a drunk driver. Given Nick's experiences with drunk drivers I think Nick showed remarkable restraint by not kicking that guys ass.

Nick I know when I lived in Florida that DWI was not covered up like that, nor is it in Illinois where there are hotlines to call if you see a suspected drunk driver. That guy could have killed or injured you or another, the neighborhood people covering for him tells me they have little regard for the law and probably are friends with the guy.

And yes Nick, if people do get home before the cops they can get away with DWI and that is not just here in the USA it is true in the UK. When I was in England our squadron's chief of maintenance, a Capt, put his 280Z into the ditch after hitting a wall on the other side of the road. He was less than a mile from his house so he left a note on his car, went home and when the cops showed up he answered the door with a drink in his hand. He claimed in court that he had had a few cocktails once he got home because he was so dazed by the accident. He got off. The USAF suddenly had no reason to promote him and more and he get a few additional crappy duties, but basically he walked on the off base charges.

 

[Obi Heed Kenobi]

...
Moreover, can you really get away with DWI because you got home before the police could find you?

In the right situation, yes.

Here, this is an almost guaranteed conviction of an alcohol-related offense, and probably even a full-blow DUI/DWI.

Keep in mind that, when you've got good enough evidence, it's not necessary to have a BAC number (via breathalyzer or blood test).

Here, you've got incredibly erratic driving, an actual accident, your observations can only be of a person that was trashed, who left the scene of an accident (itself a crime pretty much everywhere) after becoming agitated re: calling of the authorities.

You put that in front of a jury, and I'd say it's a 90% chance of a conviction. When it comes to "numberless" evidence, that's as good as it gets; and I don't think there are too many people out there who would say that this guy wasn't absolutely trashed.

Keep in mind that a DUI doesn't actually require above a .08 or whatever the limit is. It just requires an inability to properly operate the car due to intoxication. You could be at a .02, but if you're a lightweight, that could still be DUI. Erratic driving, coupled with an accident, couple with clear intoxication, would be enough to get him on DUI.

There's a separate charge called "DUI per se" when you blow above a .08 -- it's presumed that you're incapable of operating a car properly above that level. Here, you couldn't get him on the "per se" charge because there won't be a number; but the penalties are exactly the same so it doesn't matter.

The situation where you get off if you get home first is where the police eventually show up to your door and you meet them, handle-in-hand, and say "prove I drank before I got home."

 

[steingar]

Nick, you are amazing. Just amazing. I have never in my life witnessed the sorts of things you seem to find all the time. Good for you for stopping and lending a hand. Lots of folks would just keep going.

 

[tonycondon]

Nick, you are amazing. Just amazing. I have never in my life witnessed the sorts of things you seem to find all the time. Good for you for stopping and lending a hand. Lots of folks would just keep going.

+1...

 

[SCCutler]

Nick Nitro - Superhero!

 

[SkyHog]

Meh. No hero, not amazing, just saw something bad happened and offered to help, as anyone here would have done.

Drunk drivers don't **** me off, they just make me feel bad and reminisce.

This guy was probably only ok because he was drunk. He sure hit that pole hard.

 

[nddons]

I offered to call the police, and the man started getting belligerent, telling me that he didn't need some "Out of towner" trying to ruin his life.

That attitude is why we moved back to the Midwest. NC is a beautiful state, but that attitude is prevelant, and once they go down the "damn Yankee" route, there's no winning. I couldn't see myself living out the rest of my working years forever being the "out of towner" just because my daddy and my granddaddy and my great granddaddy weren't from the south. 6 years was long enough.

I did get my private pilot certificate there, however. It's a great place to fly.

 

[Everskyward]

Isn't this the way it used to be in the "old days" which I sometimes hear people longing for? No harm, no foul as long as someone isn't hurt? Just let the guy dry out. I'm not saying this is good or bad but I don't think it would be that unexpected in a rural area of North Carolina where everyone knows everyone else.

 

[bdlarkin]

In the right situation, yes.
Here, this is an almost guaranteed conviction of an alcohol-related offense, and probably even a full-blow DUI/DWI.

Gosh I hope not. There is no actual evidence of alcohol-related offense. The witnesses are not qualified to testify to level of intoxication (based on the description of the event).

Erratic driving, coupled with an accident, couple with clear intoxication, would be enough to get him on DUI.

Really? Where is the evidence of clear intoxication? What is the chain of custody? Hearsay must not exist where you live.

What if the accident was caused by SkyHog? Fearing for his safety, the driver fled to his (nearby) home. Scared of almost losing his life in a car accident he quickly downs a bottle of Jack Daniels, as he "tries to calm his nerves".

Slurring speech? Difficulty walking? He was just in a car accident! That's not evidence of intoxication. He could have neurological damage, etc.

I'm not saying that's what happened in this case, he sure sounds drunk to me, but SkyHog will never make it on the stand to testify as to the driver's level of intoxication. He has no expertise in determining the drivers intoxication (unless SkyHog is a doctor? EMT? police officer?)

Next time, ask him how much he's had to drink when you get him out of the car. He's drunk, he'll admit it anyway. Then you can testify as to what he told you.

You can probably get him for leaving the scene of an accident, but since its single car, no injuries, he'll just get a ticket.

And your right, my understanding is that you don't need to blow a .08 to be convicted of a DUI, but it helps.

I'm not excusing drunken driving. I was almost killed by a drunk driver. Spent a week in the hospital. It's not something I would wish on anyone.

 

[AdamZ]

Meh. No hero, not amazing, just saw something bad happened and offered to help, as anyone here would have done.

Drunk drivers don't **** me off, they just make me feel bad and reminisce.

This guy was probably only ok because he was drunk. He sure hit that pole hard.

That attitude is why we moved back to the Midwest. NC is a beautiful state, but that attitude is prevelant, and once they go down the "damn Yankee" route, there's no winning. I couldn't see myself living out the rest of my working years forever being the "out of towner" just because my daddy and my granddaddy and my great granddaddy weren't from the south. 6 years was long enough.

I did get my private pilot certificate there, however. It's a great place to fly.

Its all great until Billy Bobby Tbones a family and kills someone. Sad commentary.

its a tough conviction with the guy answering the door with a beer in his hand or refusing to open the door.

 

[Obi Heed Kenobi]

Gosh I hope not. There is no actual evidence of alcohol-related offense. The witnesses are not qualified to testify to level of intoxication (based on the description of the event).

For a DUI, "level of intoxication" is irrelevant. All it takes is testimony of an eyewitness, saying "he looked, smelled, and acted like he was trashed" to establish intoxication - beyond that, it's a matter of credibility for the jury to resolve.

Keep in mind that there are actually two separate charges for what we normally think of as "DUI."

First, there's a DUI for "driving with excessive BAC" - that's where the actual numerical level of intoxication comes in. If you exceed, you're automatically guilty of this charge.

Second, there's just "normal" DUI. This is based exclusively on your ability to control a car, and it doesn't matter what your numerical BAC is. What that means is that if you're a person who's fall-down drunk at .05, you'll be convicted of DUI, even though you weren't over the "legal limit." At the same time, if you're a person who's stone sober at .10, you won't be convicted of this crime.

Really? Where is the evidence of clear intoxication?

Nick smelling it, observing his conduct, etc. His credibility - including the strength of both his testimony and that kind of evidence in general - would be for the jury to decide.

From having seen multiple instances of this exact situation, I've yet to see someone be acquitted. The most that's happened is that they've gotten a "baby DUI" instead of the full-blown DUI.

What is the chain of custody?

Chain of custody only matters when there's evidence to be in custody. Here, there's the wrecked car, and that's about it. So, there aren't any chain of custody issues.

What you're think about is when there's a breath/blood sample - if there is, there has to be a clear record of who's had it in their possession; and if there's not, you can have the evidence suppressed, thrown out, attack its credibility, etc.

[qiote]Hearsay must not exist where you live.[/quote]

Hearsay only applies to what someone else tells you, and is so riddled with exceptions that it's practically useless as a rule of evidence. It doesn't prevent something like saying, "well, he sounded drunk."

Something's not hearsay simply because someone else is speaking. While what is said might be excluded, your own observations - aside from what words are said - aren't hearsay. So, you can testify about, for instance, what the voice sounded like (deep voice, singing, slurred, speaking fast, etc.).

What if the accident was caused by SkyHog? Fearing for his safety, the driver fled to his (nearby) home. Scared of almost losing his life in a car accident he quickly downs a bottle of Jack Daniels, as he "tries to calm his nerves".

Slurring speech? Difficulty walking? He was just in a car accident! That's not evidence of intoxication. He could have neurological damage, etc.

The only time I know of that working is when a friend got stopped while trashed (for speeding and nothing else). He had half a bottle of JD on the passenger's seat. Before the officer got up to the car, he turned it off and threw his keys as far as he could, and downed the the bottle right in front of the cop.

He got an underage ticket and something like an open container charge.

Now, if he'd have been weaving, if the cop had smelled the booze on him before he could drink that bottle, etc., that's a prima facie DUI case.

By the way, if you're ever drunk and decide to sleep in your car, put your keys on the ground outside. You don't actually have to be driving to get a DUI - you just have to have "control" of the car, and if you don't have ready access to the keys, you don't have "control."

I'm not saying that's what happened in this case, he sure sounds drunk to me, but SkyHog will never make it on the stand to testify as to the driver's level of intoxication. He has no expertise in determining the drivers intoxication (unless SkyHog is a doctor? EMT? police officer?)
....

There aren't any special qualifications needed for him to testify. The best you could do would be to object for foundation, which would be followed by a question of "Nick, ever been drunk before? Ever been around someone who's drunk?" And that would get it in.

Now, if he were to testify to something requiring specialized knowledge, there'd need to be more foundation, but it doesn't take too much specialized knowledge to recognize someone who's drunk!

For a relatively "minor" crime (in terms of the spectrum of possible crimes), DUI's can be absurdly complicated in terms of evidentiary law.

 

[SkyHog]

Really wasn't trying to start another north vs. south debate, more just wondering (after reading the long story), if my takeaway is correct:

Does North Carolina (or perhaps, by extension, the south) not have the same stigma against DWI that New Mexico did....

In New Mexico, it was pretty much a no holds barred, do what you gotta do, but catch the damn drunk drivers. Is that not how it is here?

 

[jesse]

Nowhere I've lived would that have been pushed under the rug.

 

[tonycondon]

pete and matt and i watched a drunk guy wipe out his motorcycle in Wichita Fall, TX one night. That was pretty bizarre. He was about 3 blocks from the police station and all by himself.

 

[flyersfan31]

Sometimes it's a pain in the rear for the cops.

We had a guy crash into our yard, toss a bottle into the bushes. He was definitely wacked, plus several pill bottles in front seat. The EMT practically begged the trooper to book him for DUI, but the trooper would have had to go with him to the hospital to get blood drawn, and the trooper didn't feel like dealing with the hassle. No surprise. I was shocked when I heard that requirement. Crazy.

 

[Obi Heed Kenobi]

...
its a tough conviction with the guy answering the door with a beer in his hand or refusing to open the door.

I think that it'd be a little bit harder, but not significantly. The lack of a BAC number in this case works to the defendant's disadvantage - as a prosecutor, I'd be salivating over the defense attorney asking "you never got a BAC, did you officer?"

I wouldn't hesitate to take it to trial.

And, considering both that there was both an accident and fleeing, the offer I'd make would be "plead to straight DUI and careless, and I'll drop the leaving the scene charge; or you can take your chances on this evidence with a jury - I at least win on careless and leaving, and I'll ask for the max penalty on both, and get them, even if you're acquitted on the DUI."

 

[Obi Heed Kenobi]

...
In New Mexico, it was pretty much a no holds barred, do what you gotta do, but catch the damn drunk drivers. Is that not how it is here?

From my experience in school, ironically in Winston-Vegas, I never even saw a police car after midnight. Seriously.

 

[nddons]

Really wasn't trying to start another north vs. south debate, more just wondering (after reading the long story), if my takeaway is correct:

Does North Carolina (or perhaps, by extension, the south) not have the same stigma against DWI that New Mexico did....

In New Mexico, it was pretty much a no holds barred, do what you gotta do, but catch the damn drunk drivers. Is that not how it is here?

Sorry, didn't mean to hijack your thread.

I couldn't say about the rest of NC, but in and around Charlotte it was a serious issue. There was also an influx of (largely illegal) hispanics due to the ease of getting a NC drivers license, and the incidents of drunk driving seemed unusually high to me.

But it was taken seriously. When I moved there, the Charlotte Chamber of Commerce had a 10-week program for professionals to get to know more about the community, including a visit to the Airport Commission, Planning Commission, and even the Mecklenburg County Jail (Charlotte consumes nearly all of that county.) That was when Rae Carruth was the jail's star inmate. Anyway, we learned that every drunk driving arrest in the county is processed through that jail, and saw how they were processed. Yikes. I think every high school kid should go there and see what happens when you are processed in that manner. It was enough to make me think about it, and avoid any chance of it happening to me.

 

[AdamZ]

I think that it'd be a little bit harder, but not significantly. The lack of a BAC number in this case works to the defendant's disadvantage - as a prosecutor, I'd be salivating over the defense attorney asking "you never got a BAC, did you officer?"

I wouldn't hesitate to take it to trial.

And, considering both that there was both an accident and fleeing, the offer I'd make would be "plead to straight DUI and careless, and I'll drop the leaving the scene charge; or you can take your chances on this evidence with a jury - I at least win on careless and leaving, and I'll ask for the max penalty on both, and get them, even if you're acquitted on the DUI."

You Prosecute it and I'll defend it and win. Seriously it all depends on the venue and what the laws are. It can be spun very easily.

Witness states he was stumbling and had slurred speach. Defendant explains he hit his head in the accident was dizzy and had a concussion was very confused.

Witness states he smell alcohol on his breath. Defendant states nah that was the anitfreeze from the ruptured radiator or admits that he had one beer and thats what the odor was from. In several courts a lay person will not be able to testify that the person was intoxicated to such a degree as to render him incapable of safe driving. He can't say that slow motor responses were due to booze or concussion. Now if Nick were say a bar tender or a Drug and Alchol Counselor well thats a different story then they he may be able to testify.

Regardless what is disturbing is the response that the police would be there in a few hours. I thoght Winston Salem was a somewhat populated town. Also disturbing was the first families response. Here the police would have been called before anyone walked out of a house or got out of a car.

 

[poadeleted20]

Gosh I hope not. There is no actual evidence of alcohol-related offense. The witnesses are not qualified to testify to level of intoxication (based on the description of the event).

Legally incorrect on a couple of points. First, the witnesses can testify to the odor of alcohol, which a jury could find persuasive as to the fact of intake of alcohol. Second, the witnesses would not be testifying to the "level of intoxication" (i.e., BAC level, per se), but rather to their observations of the driver's actions and behavior. The jury would be within its authority to conclude from that evidence that the driver was sufficiently under the influence of alcohol to have been violating the state's drunk driving laws -- even without a BAC test at all.

Whether a jury would actually be persuaded of that by the evidence described by Nick is another story, and one that would be debated before them by the attorneys for the state and the driver, but it is legally possible for them to do that, and I'm pretty sure the judge would instruct them accordingly.

 

[bdlarkin]

There aren't any special qualifications needed for him to testify. The best you could do would be to object for foundation, which would be followed by a question of "Nick, ever been drunk before? Ever been around someone who's drunk?" And that would get it in.

That would lead to a fun cross examination wouldn't it?
* How many times have you been drunk Nick?
* How many times per day/per week do you drink?
* How many people have you seen drunk?
* Who were they? Did you see them drive? What was their BAC?
* What is your medical experience? Are you an MD?
* Are there any other causes for slurred speech, difficulty walking?
* What were you doing on the road that night?
* Were you drinking? How much? Have any cold medicine?
* Is it possible you forced my client off the road and caused the accident?
* If you did cause the accident you could be liable for a lot of damages couldn't you?

Slurred speech, difficulty walking, etc, provide probable cause. Unfortunately Nick can't do anything with probable cause now can he? And by the time the officers arrive to interview the driver, to much time has passed.

Now, if he were to testify to something requiring specialized knowledge, there'd need to be more foundation, but it doesn't take too much specialized knowledge to recognize someone who's drunk!

Says you. Nick doesn't know the driver, his only interaction with the driver has been AFTER AN ACCIDENT!. The driver will have statements from a doctor stating that its possible that the driver was affected by the accident perhaps in ways that could seem like drunken behavior.

This case would never see a courtroom (as evidenced by the fact the police didn't charge him that night). Even if charged with DUI it would only be to get an easy conviction on something less. Leaving the scene of an accident. Paying restitution for the pole, etc.

For a relatively "minor" crime (in terms of the spectrum of possible crimes), DUI's can be absurdly complicated in terms of evidentiary law.

Agreed. I love the line I had heard from a defense attorney. "Why are they calling them field sobriety tests? They aren't field sobriety tests, they are dexterity tests. There is no control subject They weren't around to give the test before pulling the subject over over."

 

[Steve Foley]

You Prosecute it and I'll defend it and win.

I wanna sit in the gallery and watch.

 

[poadeleted20]

And, considering both that there was both an accident and fleeing, the offer I'd make would be "plead to straight DUI and careless, and I'll drop the leaving the scene charge; or you can take your chances on this evidence with a jury - I at least win on careless and leaving, and I'll ask for the max penalty on both, and get them, even if you're acquitted on the DUI."

Honest opinion, now -- based on Nick's story being the evidence at hand (corroborated by the other witnesses), what advice do you think that driver's attorney would give him about taking your offer?

 

[Gary]

You Prosecute it and I'll defend it and win.

I'd hire you as my lawyer!

Witness states he was stumbling and had slurred speach. Defendant explains he hit his head in the accident was dizzy and had a concussion was very confused.

Witness states he smell alcohol on his breath. Defendant states nah that was the anitfreeze from the ruptured radiator or admits that he had one beer and thats what the odor was from. In several courts a lay person will not be able to testify that the person was intoxicated to such a degree as to render him incapable of safe driving. He can't say that slow motor responses were due to booze or concussion. Now if Nick were say a bar tender or a Drug and Alchol Counselor well thats a different story then they he may be able to testify.

Didn't we have a discussion on how unreliable witness can be? Seems to me it's a weak case.

Gary

 

[AdamZ]

Honest opinion, now -- based on Nick's story being the evidence at hand (corroborated by the other witnesses), what advice do you think that driver's attorney would give him about taking your offer?

Davids advice could be spot on in Colorado in Pennsylvania I'd try that case. The laws are different inevery state as is the evidence that is admissable. Some states make it very easy to prosecute DUIs some very difficult

I'd hire you as my lawyer!



Didn't we have a discussion on how unreliable witness can be? Seems to me it's a weak case.

Gary

Well first off you are a wise man. Seriously yes we did have that conversation. The worst eyewitness testimony is to identification

Also remember

- You can be in an accident and it not be because your DUI
- You can have had a drink and drive and its not DUI
- You could have had a drink and drive and get in an accident and its because you were drinking and is not DUI.

So even if you add them all up it may not = DUI

 

[Obi Heed Kenobi]

Honest opinion, now -- based on Nick's story being the evidence at hand (corroborated by the other witnesses), what advice do you think that driver's attorney would give him about taking your offer?

If it were me, my advice would be "you're going to lose on all three charges if you go to trial, but if you plead guilty, chances are you'll only get the minimum jail time, and the judge might allow you to have an interlock on a restricted license."

 

[Obi Heed Kenobi]

...

Didn't we have a discussion on how unreliable witness can be? Seems to me it's a weak case.

Gary

If all you had was an eyewitness who "smelled booze and saw stumbling," I'd agree.

The car wrapped around the tree, however, coupled with leaving scene, says otherwise.

 

[Gary]

If all you had was an eyewitness who "smelled booze and saw stumbling," I'd agree.

The car wrapped around the tree, however, coupled with leaving scene, says otherwise.

See your point, however such an accident and the resulting stress and dis-orientation would logically lead to someone being seemingly drunk when they are not.

Gary

 

[Obi Heed Kenobi]

That would lead to a fun cross examination wouldn't it?
* How many times have you been drunk Nick?
* How many times per day/per week do you drink?
* How many people have you seen drunk?
* Who were they? Did you see them drive? What was their BAC?
* What is your medical experience? Are you an MD?
* Are there any other causes for slurred speech, difficulty walking?
* What were you doing on the road that night?
* Were you drinking? How much? Have any cold medicine?
* Is it possible you forced my client off the road and caused the accident?
* If you did cause the accident you could be liable for a lot of damages couldn't you?

If you've got a halfway-competent prosecutor, you're not going to get past the line I inserted, for a variety of reasons (with the exception of the "were you drinking") - relevancy, speculation, lack of qualification, and a few others.

The one I italicized, you don't want to ask, because the answer is "going to be no," and if I'm the prosecutor, on redirect, I'm going to go back to that and ask the traditional "are you 100% sure you didn't" question.

Slurred speech, difficulty walking, etc, provide probable cause. Unfortunately Nick can't do anything with probable cause now can he? And by the time the officers arrive to interview the driver, to much time has passed.

It adds up to conviction, if the jury buys it.

Says you. Nick doesn't know the driver, his only interaction with the driver has been AFTER AN ACCIDENT!. The driver will have statements from a doctor stating that its possible that the driver was affected by the accident perhaps in ways that could seem like drunken behavior.

That doesn't explain the near-miss, the odor of alcohol, becoming combative when the police were called, etc.

This case would never see a courtroom (as evidenced by the fact the police didn't charge him that night). Even if charged with DUI it would only be to get an easy conviction on something less. Leaving the scene of an accident. Paying restitution for the pole, etc.

Had it been charged - it might still, police not writing a ticket doesn't matter - it would for sure make it to trial unless another offer were made.

Agreed. I love the line I had heard from a defense attorney. "Why are they calling them field sobriety tests? They aren't field sobriety tests, they are dexterity tests. There is no control subject They weren't around to give the test before pulling the subject over over."

Field sobriety tests...don't get me started unless you want to hear a rant.

 

[Obi Heed Kenobi]

See your point, however such an accident and the resulting stress and dis-orientation would logically lead to someone being seemingly drunk when they are not.

Gary

Sure, but it doesn't explain either the strong odor of booze, or the pre-accident driving.

I'm telling ya, I would have zero trouble going to trial, and only slightly more getting a conviction. Juries - here and in Maryland, at least - don't seem to take kindly to smoke being blown up their keishters.

 

[Keith Lane]

Ya'll ever stop to consider he just wasn't feelin' too perky 'cuz he ate some undercooked possum?
Mebbe he just had a fight with his sister after their date at the monster truck show?
Maybe he found out she likes Jeff Gordon more than Dale Jr. and went off the deep end with a bottle of Southern Comfort.

I got hit by a drunk driver one night here in Atlanta, and it took 3 continuances by his attorney before the judge got his shot at throwing the book at him. Pretty good shot with that book, too.

• 6 Months at the county farm.
• 1 year supervised probation with weelky drug/alcohol tests.
• fail a test, serve the full year in the pokey.

I was concussed during the accident and don't remember the 48 hour period around the accident. I wanted to see this guy to try to regain my memory of the night, so I went to court. Never even saw him. Still don't remember the night.

 

[poadeleted20]

The worst eyewitness testimony is to identification

In this case, that's probably not hard, given it was his car and the neighbors know him.

 

[AdamZ]

Sure, but it doesn't explain either the strong odor of booze, or the pre-accident driving.

I'm telling ya, I would have zero trouble going to trial, and only slightly more getting a conviction. Juries - here and in Maryland, at least - don't seem to take kindly to smoke being blown up their keishters.

But you know as well as I .....well perhaps not as well as I that the odor of booze cannot be linked to any level of BAC nor to and inability to drive.


Anyway getting back on point. The true lesson here is Do not let Nick walk you home if your a pretty girl or take ride with Nick to Radio Shack to get speaker wire.

 

[bdlarkin]

I think that it'd be a little bit harder, but not significantly. The lack of a BAC number in this case works to the defendant's disadvantage - as a prosecutor, I'd be salivating over the defense attorney asking "you never got a BAC, did you officer?"

I wouldn't hesitate to take it to trial.

Interesting Hypo:

I see my neighbor leaving a house. He's having difficulty walking, slurring his speech, etc. I think he's drunk. I yell at him to not get in the car. I see him drive off.

I call the police and tell him that my neighbor just drove drunk. They find him at his house, a cocktail in hand. They are supposed to arrest him at his house for DUI? Based only on the evidence that I thought and said he was drunk?

I'm just as qualified as Nick at ascertaining how drunk he was, right?

How about I say he stole a stereo? They go to his house and don't find the stereo, so he must have fenced it already. Send him to jail for burglary!

Officer I saw him selling drugs! Arrest him for trafficking!

 

[Obi Heed Kenobi]

But you know as well as I .....well perhaps not as well as I that the odor of booze cannot be linked to any level of BAC nor to and inability to drive.

Oh, for sure, and that's absolutely the correct argument to make. I'm just saying that, well, at least for the law here, BAC level doesn't actually matter - if you've got even the slightest degree of booze in your system, you can still be convicted of a full-blown DUI.

You couple the smell, with the pre-crash driving, with the crash itself, with the the post-crash conduct (which you can try to explain away, but your average juror is going to say, "sure, Mr. Slick Pennsylvania Lawyer, sure" ), and you've got a prima facie case.

I'm not saying it's not triable - just that it's an uphill battle for the defendant.

Anyway getting back on point. The true lesson here is Do not let Nick walk you home if your a pretty girl or take ride with Nick to Radio Shack to get speaker wire.

Funny 'cuz it's true.

 

[Obi Heed Kenobi]

Interesting Hypo:

I see my neighbor leaving a house. He's having difficulty walking, slurring his speech, etc. I think he's drunk. I yell at him to not get in the car. I see him drive off.

I call the police and tell him that my neighbor just drove drunk. They find him at his house, a cocktail in hand. They are supposed to arrest him at his house for DUI? Based only on the evidence that I thought and said he was drunk?

I'm just as qualified as Nick at ascertaining how drunk he was, right?

On those facts, no way. There's not even reasonable suspicion there.

But, here's an interesting thing to keep an eye on: the Supreme Court has just heard a case out of Ky. where the police broke the door down, sans warrant, because they smelled reefer and heard noises inside. The argument to the Supremes is apparently that "reefer, coupled with noises inside, means the evidence might be destroyed, so the police were justified in not only acting without a warrant, but breaking the door down."

I hope the court doesn't buy that, but if it does - in Nick's situation, maybe the police will break the door down because the evidence (the BAC) is being "destroyed" as more time goes by.

How about I say he stole a stereo? They go to his house and don't find the stereo, so he must have fenced it already. Send him to jail for burglary!

Officer I saw him selling drugs! Arrest him for trafficking!

Again, the distinction that can be drawn is that there is no evidence independent of your statements indicating anything. Corroboration is key.

 

[bdlarkin]

Whether a jury would actually be persuaded of that by the evidence described by Nick is another story, and one that would be debated before them by the attorneys for the state and the driver, but it is legally possible for them to do that, and I'm pretty sure the judge would instruct them accordingly.

Agreed, but the testimony of a police officer would make a stronger case than "just" an eyewitness. Especially one that was "involved" in the accident.

 

[AdamZ]

Oh, for sure, and that's absolutely the correct argument to make. I'm just saying that, well, at least for the law here, BAC level doesn't actually matter - if you've got even the slightest degree of booze in your system, you can still be convicted of a full-blown DUI.

You couple the smell, with the pre-crash driving, with the crash itself, with the the post-crash conduct (which you can try to explain away, but your average juror is going to say, "sure, Mr. Slick Pennsylvania Lawyer, sure" ), and you've got a prima facie case.

I'm not saying it's not triable - just that it's an uphill battle for the defendant.

Funny 'cuz it's true.

yeah I guess it depends on the Jurisdiction. In PA we have a general impariment section of the statute that does not require a BAC but they still need the right testimony.

If I were in Boulder I'd indtroduce the Defendnat's Rekki therapist who would testify that his engery field did not radiate an aura of intoxication and tell the jury that I consulted with his Quiaji board who said he was not guilty .