Presumption of Intoxication

[rhh]

What is the name of your state (only U.S. law)? CA

I need to find case(s) where there was a DUI convection without a BAC taken. I've heard of case(s) where witness and forensic testimony was enough to convict a DUI offense. Any case of any sate of reference would be great! This is important to a hit and run resulting in death case.

Thanks in advance...

[RatPackLar]

Your best bet, is to find a CA DUI Lawyer, and go from there. They know more about case law, then anybody here, on this site.

[CdwJava]

Originally Posted by rhh

What is the name of your state (only U.S. law)? CA

I need to find case(s) where there was a DUI convection without a BAC taken. I've heard of case(s) where witness and forensic testimony was enough to convict a DUI offense. Any case of any sate of reference would be great! This is important to a hit and run resulting in death case.

Thanks in advance...

Any such case must be made on a totality of the circumstances. There is no specific bright line rule in this regard. If the state can show beyond a reasonable doubt that the driver was impaired at the time he was operating the motor vehicle, then a conviction for DUI can be made. In CA CVC 23152(a) requires demonstrated impairment ... CVC 23152(b) would require a specific BAC of .08 or higher. So, in this case a conviction for the (b) section could not be made without a number, but a conviction for the (a) section could.

- Carl

[rhh]

What does this mean....In CA CVC 23152(a) requires demonstrated impairment ...

please eloborate...

thanks in advance....

[CdwJava]

Originally Posted by rhh

What does this mean....In CA CVC 23152(a) requires demonstrated impairment ...

please eloborate...

thanks in advance....

In short, CVC 23152(a) is the charge for driving while impaired by either alcohol or drugs. CVC 23152(b) is the section used for driving with a blood alcohol content of .08 or higher. Under 23152(a) the state has to show that the driver was impaired ... under 23152(b) the state only has to show that the driver had a BAC of .08 or higher.

- Carl

[rhh]

Thanks for the clarification.... This statue sounds like a presumption of intoxication without a BAC as evidendce. So.....CVC 23152(a) can this charge be brought and convicted in California. Any cases for refeernce...even non-California cases.

Again, thanks in advance....

[CavemanLawyer]

Originally Posted by rhh

Thanks for the clarification.... This statue sounds like a presumption of intoxication without a BAC as evidendce. So.....CVC 23152(a) can this charge be brought and convicted in California. Any cases for refeernce...even non-California cases.

Again, thanks in advance....

Of course it can be charged and result in conviction, that's the point of the statute.

There is no presumption of intoxication. The State has to prove that the person was operating while intoxicated, but there are multiple ways to prove intoxication. The legal definition of intoxication is that you have lost the normal use of your mental faculties, OR you've lost the normal use of your physical faculties, OR you have a BAC of .08 or greater.

If the State has a breath test showing a BAC over the per se limit, than the only question for the jury is whether the test was valid and whether the person's BAC was .08 at the time they were driving, not just at the time they submit the breath sample. If the jury believes this is so, than it doesn't matter whether they believe the person's mental or physical faculties were impaired or not.

Now if there is no breath or blood test than the State is incapable of proving intoxication through that part of the definition of intoxication. They must instead prove impairment, and yes it can absolutely be done. Such cases are tried every day in California.

I'm not really sure what caselaw is going to show you. The statute lays out what the State has to prove whenever there is no breath or blood test.

[CdwJava]

As Caveman Lawyer mentioned, case law is not going to show you much on this.

Here is what must be proven for 23152(a) From the 2008 Jury Instructions:

To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was under the influence
of (an alcoholic beverage/ [or] a drug) [or under the
combined influence of an alcoholic beverage and a drug].

This can be done through observations, field sobriety tests, objective symptoms of impairment, admissions, etc. I can testify that I smelled the odor of alcohol, that you admitted to having "a couple of beers" and that you performed poorly on the SFSTs and obtain a conviction. The testimony would hinge a great deal on my training and experience in such a case, but with a properly trained officer, it is NOT difficult.

I have personally made numerous such cases as when I was in San Diego County we were not permitted to force a blood draw for non felonies, so we made many cases on observations alone when the defendant refused to take a test. Fortunately, I was well-trained and had a great deal of experience (and am now a DRE, but I wasn't when I was working general patrol).

- Carl

[ModelCitizenNJ]

So how does the state 'prove' someone was driving a car when the person is already out of the car, or sitting in a parked car with the keys not even in the ignition? I still don't get that.

[CdwJava]

Originally Posted by ModelCitizenNJ

So how does the state 'prove' someone was driving a car when the person is already out of the car, or sitting in a parked car with the keys not even in the ignition? I still don't get that.

The state can show it by the totality of circumstances, statements of the offender, etc.

For instance, if we come to a car in a ditch on the side of the road and the only person standing around is the intoxicated registered owner of the vehicle, he's likely to get charged.

As for the parked car, whether sitting in the car is enough for DUI or not depends on the state's law. In my state, it would not be sufficient ... in other states, it might be sufficient so long as the sleeping/passed out driver were in possession or within reach of the keys.

- Carl

[rhh]

Again, thanks for the discussion!

The facts are:

Driver admits to having 5,6,7 beers prior to the accident

Witness says, the driver was having difficulty walking and driver admitted to being "F" up prior to gettting behind the wheel.

Driver admits to the accident

The driver is charged with:
Vehicular homicide
Leaving the scene of an acciident
Burning the van that was involved in th accident

So, when the DA tells us that without a BAC he can't charge him with DUI...it is simply a self serving comment to save time and resources?

Thanks in advance....

[CdwJava]

I think the DA is being lazy ... but, is he trying for some sort of lesser offense? One does not need to go for DUI to charge vehicular manslaughter.

The problem is, the admission - by oitself - is not sufficient to prove impairment. An observation that someone appeared F'd up also does not prove impairment. Having a witness that saw him down a half dozen beers and then stagger about, now THAT would be good.

- Carl

[rhh]

Charges are:

HIT AND RUN, DEATH OR PERMANENT SERIOUS INJURY
OWN ARSON OF ONE'S OWN PROPERTY
VEHICLE MANSLAUGHTER-NON ALCOHOL-NON GROSS NEG.-UNLAWFUL ACT

What I don't understan is, that he did not confess to buring his van, no witnesses to the act, but has been charged.

He has confessed to drinking 5,6,7 beers prior to the accident...admission by a member of his group of four upon leaving a party that they were all "f" up and witnessed staggering to the van from the party...again all prior to the accident.

Seems to me that there should be a charge....and let the jury decide.

[CdwJava]

WHY should they waste time pursing a case that might be impossible to prove? The state MIGHT be able to INFER impairment at the time of the driving, but they cannot PROVE it. Since they cannot effectively charge both types of manslaughter, the state is better off pursuing the lesser form which they CAN prove rather than the one they probably can NOT prove.

A good defense attorney will be able to cast reasonable doubt on any admission of drinking (since he apparently did not know how many drinks, that's a problem), he will challenge the expertise of any witnesses who believed him to be impaired, etc. And, the whole thing might distract from the matter at hand.

I suspect the state is making the case that they can rather than shooting for a shot in the dark.


- Carl

[rhh]

Thank you to those of you that have responded! I now have a better understanding of the charges and case. I'll fyi after the trial!