Driving and the breathalyzer test?

[Pilgrim]

I thought I might clear up just what BAC means in different situations depending on state law.

Up until 1989-90, California's DUI statute basically said that it was against the law to be driving after consuming alcohol and/or drugs to the point one's driving was impaired, hence Driving Under the Influence. A blood alcohol reading of .10% then was presumptive evidence that the defendant was intoxicated to the point his driving was impaired and he was under the influence. A defendant could argue if he wished that his driving was not impaired at say .10% and stand a chance of winning if he had a sympathetic jury.

After 1989-90, California changed the DUI statute considerably. The section in the Vehicle Code was split into two sections. The first said it was against the law to be driving under the influence of alcohol and or drugs to the point it impaired driving. The second section said it was illegal to be driving with one's blood alcohol at .08% or higher. What this did was made it possible to get a conviction even if the officer did not observe the defendant's driving, as in the driver was stopped for an equipment violation.

Pilgrim

 

[Quartus]

How's that saying go? "THere are more things in heaven and earth than are dreamt of in your philosophy.."


RR, the human response to alcohol consumption probably fits a bell curve. Even if not, one thing is certain - some people are very sensitive to alchohol. Some are not. Just because something doesn't exist in YOUR experience doesn't mean that thing doesn't exist.


Incoherent with two beers? I don't find that hard to believe at all. I can feel some dizzyness right now, just from about 3 ounces of white wine I had after a full dinner, and before two very good chocolate chip cookies. I wouldn't be convicted of DUI, but I wouldn't drive now.


Probably the most common mistake that is made in science (whatever branch) is throwing out data that doesn't fit our preconceptions.



Now, if you want to just come right out and call Lawdog a liar, do so. Your hinting at it is .... less than admirable.

 

[NBKUVS]

In skimming thru this thread, I am not sure that anyone addressed the original question, which is whether or not to submit to the breath test. The important thing to note is that the variables to consider when making this decision are very state specific, and also depend on your prior record.

For example in my state of Maryland, a refusal to blow results in an administrative suspension (120 days for a first offense) of your driver's license if a Maryland resident, or your privilege to drive in MD if not a resident. This is separate from, and in addition to, any sentence imposed as a result of the criminal proceeding in district or circuit court.

Maryland's law is such that if you blow into the machine, and the machine results in a reading of at least .08, then you are considered to be intoxicated "per se." In other words, logically, the offense essentially is that the gizmo says you are intoxicated. Now, in my opinion, the machine makes certain assumptions regarding the physiology of humans; i.e that a 95 lb African American woman is the same as a 300 pound Japanese Sumo champion, but that is another story. Even if there is no breath test, one can still be convicted in Maryland based on evidence of impairment, i.e. "failing" the so-called field sobriety tests, slurred speech, suspicious driving behavior, etc.

The advice I would give is to get a cab and don't worry about it; a $20 cab ride is a hell of a lot cheaper than a $1500 legal bill. Beyond that, I would recommend that one politely decline to perform any FSTs, (unless you have not had any alcohol) as all you are doing is conveniently providing evidence for the cop to use against you. Most importantly, do not perform any FSTs if you do not intend to provide a breath sample. This will constrain the state's case against you, because in general "an odor of alcohol about the breath and person" without more, is not sufficient to convict. Of course, the driving behavior and the cop's other observations will certainly be in play.

In Maryland, for a first offense, and assuming no aggravating factors (accident, children in the car, horrible driving record) on a first offense a defendant will typically get "probation before judgment" which is not a conviction, and has no adverse effects at the Motor Vehicle Administration. A refusal will result in a straight suspension at the MVA, or, if so granted, the possibility of a year's worth of ignition interlock installed on you vehicle. In most cases, on a first offense, the ramifications at the MVA of a refusal are more adverse that what will happen in court if there is a breath test result.

Finally, on second or subsequent offenses, depending on the county, it may be more advantageous to decline FSTs and refuse to blow. In many (but not all) MD counties a second offense is practically guarenteed jail time, and in that case, the jail time would typically be more of a concern than the suspension.

Anyway, remember, this decision is very state specific.

 

[roo_ster]

Beware Court-Sanctioned Technology

Just because some fellow in a black robe says someting is scientifically good-to-go does not make it so. They can meddle with the laws of man, but the laws of physics are a bit harder to bend, fold, & mutilate.
--
The textbook example of this is that trash technology called LADAR. What a crock.
--
I am truly thankful for two things:
1. Most folks arrested for serious crimes are guilty (still deserve fair treatments, due process, justice & all that. Just think about it if most were innocent...it's called "totalitarian police state" if you're wondering)
2. Most cops in most jurisdictions are, for the most part, decent folks. There are exceptions, however in both individuals and jurisdictions.
--

 

[Jeff White]

Then there are people who will never obey the law..no matter what...

Some people will drive drunk no matter what the law says or how it's enforced...If you can believe the article, the blood test in this latest case was ordered by the attending doctor...If the article is correct, does the state have a right to use the blood test results?

Jeff

http://www.stltoday.com/stltoday/ne...h+many+DUIs+is+due+in+court+on+latest+charge+
Driver with many DUIs is due in court on latest charge
By Robert Goodrich
Post-Dispatch
02/05/2004


Chronic drunken driver Ronald A. Chinn has been released from jail on bond but is due back in court Wednesday on his latest case.

In it, Chinn faces felony charges from a crash in East St. Louis on Dec. 25 that could result in up to 12 years in prison.

Chinn could request a trial, enter a plea or ask for a postponement. His attorney, Thomas M. Daley, waived Chinn's right to a preliminary hearing but so far has offered no defense.

St. Clair County State's Attorney Robert B. Haida added to the charges last month after confirming that at least one of the two people involved in the collision was hurt.

Sheriff's deputies said Chinn crashed his Cadillac into a Mitsubishi after running a red light at Illinois Route 157 and Vieux Carre Drive.

Latisha Stennis, 16, of East St. Louis, a passenger in the Mitsubishi, said Thursday that she suffered a bruised thigh and chest injury. "I still have chest pains now from the air bag," she said.

Latisha said she and close friend Shardae Butler, 17, who was driving, were on their way to open gifts at an aunt's house. Both were taken by ambulance to Memorial Hospital in Belleville. They were treated and released.

Chinn, 41, is free on $100,000 bond. Authorities said the required $10,000 in cash was provided by his mother, Betty Chinn, of Fairview Heights.

A test ordered by a physician at the hospital showed Chinn's blood alcohol at 0.194 percent, more than double the legal driving limit of .08 percent, according to sheriff's deputy Christopher Davis, who handled the crash.

Latisha said she and Shardae found out later about the charges - aggravated drunken driving and driving on a revoked license - and about Chinn's record. With his driving record, "There shouldn't even have been a bond for him," Latisha said.

Chinn has previously been sentenced to prison four times for drunken driving or driving on a revoked license. His license has been suspended eight times and was revoked in 1987 and 1992.

He has amassed nearly 100 traffic, misdemeanor and felony charges, including at least 15 for drunken driving, 11 of which resulted in convictions.

Chinn previously lived in Fairview Heights, but on Christmas Day he gave an apartment address on West Boulevard in Belleville. A phone number he gave has been disconnected.

Reporter Robert Goodrich
E-mail: [email protected]
Phone: 618-235-8919

 

[dustind]

If you're SOBER, just do the test.

What is next? If your not the sniper let us take your guns in for testing. If your not who we are looking for let us search your house, or car, take prints, or DNA.

I do not drink, and I will never surrender any rights just on an accusation.

 

[RR]

Quartus: Read the thread. Not just incoherent. I quote:

Lawdog posted:

"Folks, he didn't have an odor of an alcoholic beverage about his person, he flat stunk of booze and vomit. Not only could he not stand upright, he couldn't even lean against his car without falling over. He was to the stage where he couldn't even speak coherently.

Back at the jail, he managed to blow into the Breathalyzer twice, before passing out to the point that ammonia inhalants and sternal rubs couldn't wake him up."

Staggering, incoherent, and then rendered unconscious, with a BAC of .04 within a short time of being taken from behind the wheel and no medical, drug issues.

I am not inferring Lawdog is a liar. I have been reading his posts since I registered on TFL back in 1999. Four things Lawdog reported:

1. .04 BAC admissible at trial.
2. Accident.
3. Observed behavior inconsistent with .04 BAC.
4. A conviction.

Very interesting case as to how the trial proceeded, including how the test was conducted given the facts. To find out what happened in this case, more facts need to be revealed. Lawdog wasn't interested in discussing the matter further. Fine.

A trial on these facts, without the BAC admitted. Happens all the time. Accident, smell of alcohol, no breath/blood tests. Impaired-conviction.

What is interesting is that Lawdog stated the .04 BAC was admitted at trial. Combined with the driver being rendered unconscious spells acquittal acquittal acquittal. Why-the .04 BAC makes reasonable doubt nearly a certainty that the accident, i.e., the impaired driving, was caused by something other than alcohol due to the inconsistency between the .04 BAC and the observed behavior.

Quartus you state INCOHERENT. When the interesting thing about the tread was staggering, incoherent, and then rendered unconscious from BAC of .04 which is the equivalent of two beers. That does NOT fit the bell curve, at all, no way.

Your misstatement of the thread and your inferences toward me are less than honorable. If you do not understand the issue, then I accept your apology. Otherwise, please snipe at someone else. Thank you.

 

[LawDog]

*sigh*

Lord knows I've wanted supplemental information before.

Okay. Bear in mind that this trial took place almost a decade ago, and was held 'under the rule' (witnesses sequestered), so anything past my part in the trial is S.W.A.G.

I was first witness, and the County Attorney doing the examination me hit mainly on my observations of the defendant. The dash-cam footage was shown to the jury, and then shown a second time, with myself providing commentary the second time. Prosecution asked if I was the one to administer the Intoxylizer, then we went straight to my taking the defendant to the Emergency Room. The time-line of events was gone over. I don't recall if the County Attorney brought up the BAC at this time, but I have the impression that it was briefly mentioned.

During cross-examination defense counsel brought up the Intoxilyzer test and results. Defense hit hard on the low BAC, suggesting the possiblity of head trauma from the initial impact with the fence. The time spent in the Emergency Room was gone into in exhausting detail. We went back over the time-line. Twice, I believe.

Second witness was, I believe, the day deputy, concerning the pictures he took of the property damage, both to the garden and the car.

Third witness was the owner of the garden into which the defendant had crashed -- and maybe his wife was next, I forget if she got called.

Fourth witness was the ER doctor.

Fifth witness for the prosecution was the defendants own personal physician. A bit of a surprise there, I think.

Sixth witness was, I seem to recall, the area DPS officer in charge of testing and calibrating the Intoxylizer.

Defense then summoned the ER doctor, myself, the defendants personal physician, and the DPS trooper in that order ( I think).

During my examination by the Defense, he led off with a what I thought was a sardonic question regarding my medical training. My response that I was a trained and rather experienced EMT seemed to catch him a bit off-stride, but he seemed to recover nicely and he didn't ask any further questions concerning my medical training. We hit hard on basic intoxilyzer operation, with a bunch of rhetorical questions on his part, then went back over the ER time and the time-line. Again.

After the final examination of the DPS trooper, the trial was then recessed while the jury deliberated, during which time the County Attorney offered the defendant a plea bargain to Reckless Conduct (or Deadly Conduct, I forget which), which the Defendant turned down.

Upon the jury's return, the foreman announced the guilty verdict, and sentenced the defendant to a fine and 90 days County time, served on the Work Release program if memory serves.

There was no appeal of the case that I know of.

LawDog

 

[Erik]

You don't know if there was an appeal?

Preposterous or devious, I cannot decide which.



---

Folks, quit trying to get around the facts that on one hand you should not drink and drive while impaired and on the other your likely going down for it should you be discovered, regardless of your actual BAC.

 

[RR]

Lawdog, I see. The driver didn't spend the bucks to hire a toxicologist (who makes his/her living as a defense expert) to testify that to a reasonable degree of medical certainty the driver's behavior was not caused by the consumption of alcohol. An opinion that his personal doctor or the ER doctor were not qualified (or willing) to give.

Gambled and lost.

I'll stop pestering you. Thanks.