Orange County Drunk Driving
In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California and Orange County.)
It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.
Alcohol Metabolism
Ethanol, or ethyl alcohol (grain alcohol), is one of the earliest and most widely used drugs in existence. It is a clear fluid whose low molecular weight and high solubility in water cause it to diffuse rapidly through body tissue membranes and reach equilibrium in tissues at levels proportional to water content. Blood, for example, will hold proportionately more alcohol than will muscle tissue.
The concentration of alcohol in a DUI suspect's body depends on the amount of water contained in that body. The more water present in the body, the more diluted the alcohol will become as it is absorbed into the system. And the simple fact is that individuals vary according to the percentage of water that exists in their bodies.
In a study entitled Pharmacokinetics of Ethanol in Plasma and Whole Blood: Estimation of Total Body Water by the Dilution Principle, Jones, Hahn, and Stalberg, 42 European Journal of Clinical Pharmacology 445 (1992), researchers confirmed that the body water content varies from person to person. The content in men, interestingly, decreases with age - that is, the blood-alcohol concentration will become higher. Further, where an individual has experienced trauma, as in an automobile accident, the body's percentage of water will decrease. The same can also happen due to pathological conditions, as in persons with diarrhea, heart failure, or impaired renal function.
For alcohol to produce its effect, it must reach the brain. To accomplish this, it first passes into the bloodstream after absorption through the walls of the stomach and small intestines. This is a simple biochemical process of diffusion, which will continue as long as the concentration of alcohol in the stomach and intestines is higher than that in the blood.
In contrast to ordinary foods and many drugs, alcohol is absorbed rapidly from the stomach and even more rapidly from the small intestine just beyond the stomach. In fact, the presence of alcohol is initially detectable about five minutes after consumption, and its maximum concentration within the body tissues is achieved in somewhere between 1/2 hour and 1 1/2 hours. This rate of absorption in DUI cases can be accelerated if the subject has ingested significant amounts of water or materials containing water, and it can be slowed down if he has eaten food. The type of alcoholic beverage can also be a factor: beer will cause a slower increase in blood-alcohol concentration than distilled spirits, as well as a lower peak level and faster decline. Absorption is complete when the entire gastrointestinal tract reaches equilibrium with the remainder of the body; this can take as long as 21/2 hours but commonly occurs within 30 to 90 minutes. In any event, the rate of absorption of alcohol in a DUI case - and, as a result, the effect on the nervous system - varies according to the individual.
Blood-Alcohol Levels
The results of the breath, blood or urine test will largely determine the charges brought and the possible sentences. The so-called "per se" offense (driving over .08%) is defined by the blood-alcohol level; the "DUI" offense (driving under the influence) is partially proven with a rebuttable presumption of intoxication if the result is over .08%.
It is important to realize that the DUI laws relate to the blood-alcohol level AT THE TIME OF DRIVING — not at the time of the test; there may be a significant difference, not to mention difficulties of proof. It is also important to understand that tests — particularly breath tests — are unreliable and susceptible to attack by an attorney who is knowledgeable in the science of blood-alcohol analysis (PDF Download). Also, individual tolerance should not be overlooked; although not an issue with the "per se" offense, tolerance is very relevant to the DUI offense.
Felony DUI in Orange County
As the national crackdown on drunk driving continues, prosecutors, legislators, and the courts are increasingly looking toward expansion of the limits on a driver's criminal and civil liability. One method that has seen much recent favor is to drastically increase the punishment by simply interpreting the conduct as fitting a more serious type of crime: felony drunk driving, or felony DUI. Thus under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony punishable by incarceration in state prison. The most ominous manifestation of this trend is the growing use of murder statutes where drunk driving results in a death.
Drunk driving can have felony status when the driving results in an injury to another party. Where there is "bodily injury" or "substantial bodily harm," depending on the jurisdiction's statutory language, the charge in most states will be what is commonly referred to as "felony drunk driving." California's felony drunk driving statute is fairly typical:
Any person in Orange County who, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself, is guilty of a felony. [California Vehicle Code Section 23153.]
Thus three further elements have been added to the corpus delicti:
- Violation of a Statute
- Bodily Injury
- Proximate Causation
As to these three additional elements, counsel should be aware of two possible sources of error in the prosecution's pleading or in his proof. First, the prosecution cannot ''bootstrap'' the first of the new requirements: The violation of law must be of a statute other than the drunk driving statute. Commonly, the violation will consist of some traffic offense such as speeding or running a traffic light. Second, the bodily injury must be proximately caused by the client's violation of the statute. If there is an independent source of causation, the elements of the corpus are not satisfied. For an extreme application of this requirement, see People v. Weems, 54 Cal. App. 4th 854 (1997), where the defendant's passengers were not wearing seat belts — sufficient, according to the court, to satisfy the neglect of duty requirement of the felony DUI statute: The injuries were proximately caused by the failure of the defendant to ensure that they were belted in.
As an example of a prosecutorial "over-filing" of a drunk driving case, there is the situation in which the client was driving his vehicle while under the influence and rammed into another vehicle proceeding more slowly in front of him, causing the driver of that vehicle to be hospitalized. The inexperienced or overly zealous prosecutor may automatically think of the equation, "drunk driving plus injury equals felony drunk driving." However, absent additional facts, there are two essential elements missing in this situation: There is no evidence of an independent violation of a statute, nor, therefore, is there any evidence that the injuries were caused by a violation.
Can a driver be charged with assault with a deadly weapon where there was no intent and the "weapon" was his vehicle? Apparently so, at least according to one appellate decision in Texas. In Roberts v. State, 766 S.W.2d 578 (Tex. App. 1989), the defendant caused an accident while fleeing police, resulting in the death of one person and injury to two others. He was charged with and convicted of aggravated assault with a deadly weapon and aggravated assault resulting in serious bodily injury. On appeal, the court found that the car qualified as a "deadly weapon," and that the defendant's conduct amounted to an assault even though it was reckless rather than intentional.
Pre-Screened Orange County Drunk Driving Attorneys
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