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Thread: The "I'm Feeling Sad" thread

  1. #311
    Senior Member sandydandy's Avatar
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    Quote Originally Posted by dodint View Post
    sandydany, I didn't want to cloud up the 'glad' thread with this as the vibe is pretty good in there.

    As someone that wants to practice auto related law I think about DUI cases and I don't understand the trial strategies. Other than dismissal through evidentiary technicalities I'm not sure what defendants dispute.

    If you don't mind sharing, what was the theory of your case?
    Glad you asked. There are many defenses, but it varies from country to country, and probably from state to state. DUI charges are very technical, therefore naturally the defenses have to be technical as well. I know it sounds shady to the average person, but if the charge itself is a technicality then the only way to get off is via a technicality. I can only speak for what I know about the Canadian system, but I would assume it's similar in the US. In Canada a DUI is typically two parts - Impaired Driving and Over 80. Impaired is when you're visibly impaired, and Over 80 is a technicality which just means you blew over .08, (80mg of alcohol in 100ml of blood).

    A little background...here when you're pulled over by the police you have to blow into a roadside screening device, which will measure your breath and spit out a pass, caution or fail message. This measures your mouth alcohol. If you fail, (like I did), you're immediately arrested for suspicion of driving Over 80. Then you're transported to the station where after some time you do two official blows, twenty minutes apart, into their Intoxilyzer machine, which will give actual readings of your blood alcohol. If your result is higher than 80 you get charged.

    Now the defenses...in Canada we have the Canadian Charter of Rights and Freedoms, (equivalent to the US Constitution), which has different sections and subsections, and if it's proven in court that your rights were violated by the police, then the breath test readings are excluded and defendant is acquitted. That's an example of Charter relief. I'm almost certain something similar would be available in the US. Of course these arguments are very slim, as most judges will allow a certain degree of violations to your rights. Really only the most egregious violations result in an acquittal. Ie. not being allowed to call a lawyer is a major one. Or not being tested at the station within two hours.

    In my case, my lawyer tried a Charter defense which I botched with my testimony. He was trying to get the breath results excluded from evidence, arguing that the officer should not have tested me at the roadside until 15 minutes had passed, because I was coming from a night club that was very close to where I was pulled over, which was something I remembered telling the cop. According to the operations manual of the roadside screening device, the officer is supposed to wait 15 minutes to administer the test, if it's known or suspected that the person had just recently been drinking. He didn't wait, even though he knew I had just consumed alcohol from somewhere close by. The lawyer grilled the cop in cross examination, (I actually felt sorry for him), and had the manual included into evidence. This was supposed to set the stage for me. All I had to do was testify on the stand what I told the cop, that I had just come from a nearby club. On the stand, for some fucked up reason, I omitted the word "just". That killed the argument, and my lawyer was irate with me. After testifying we went into another room where he berated me and said I had just murdered an argument he spent two weeks trying to build. The omission of that one word meant that Charter argument was useless, because how was the cop supposed to know I had just come from somewhere close by, and therefore why should he have had to wait 15 minutes to test me? So that argument was dead in the water, but after calming down my lawyer told me not to beat myself up over it, as it was a 50/50 argument anyway. We still had my main defense.

    My real trial proper defense was "bolus drinking" aka the "last drink" defense. This one is where you try to argue that your BAC was under the limit when you were actually driving. Because alcohol takes up to 30 minutes to be absorbed into the bloodstream, it opens the narrow defense that you were not Over 80 at the time of driving. For this to work you need to recall your drinking pattern of that evening, and establish that the majority of the drinks were consumed 15-30 minutes before you were driving. Then you need corroborating evidence. A witness helps, so does receipts if you were at a bar. I didn't have those things, even though I was with my friend who backed out of testifying, (because he was sick and died later. I didn't know he was sick at the time, I thought he'd just punked out). The most important piece is a toxicologist, who will go on the witness stand and go through your order of drinks to establish your BAC range when you were actually driving. My tox guy said my BAC was most likely under 50. He said my BAC was rising by the time I reached the station, something that was further corroborated through police notes, indicating my speech was slurred and eyes were red-rimmed at the time I blew into the Intoxilyzer. These symptoms were not present at the time of my arrest. I like to think my defense looked strong.

    In a nutshell that's the strategy of a bolus drinking defense. The only remaining factor is to convince the judge. The only way for it to be believable, is if you are believable. The prosecutor's job is to say you're full of shit and attack your credibility, and if the judge takes his side, then you're fucked. I think that's what happened to me. The judge said my drinking pattern didn't make sense, and said that because I lied to the arresting officer, (I initially told him I didn't have anything to drink), it reflected negatively on my credibility. I find you guilty. So that's that.

    A word or two about bolus drinking, in Canada this defense has been legislated out as of December of last year. So a person arrested for a DUI today wouldn't have that defense available anymore. Also legislated out last year was reasonable suspicion. So a cop doesn't even have to suspect you've been drinking in order to demand a roadside breath test. That's something I have to be cognizant of, seeing as how I have a record now. It's kind of scary that you can be pulled over at any time and for no reason. The best defense is to not drink and drive. Not sure if bolus drinking is still used in the US. It's a very difficult defense with a lot of moving parts, but if executed flawlessly it could result in an acquittal. Just didn't work out for me.

    So that's what I know about the technical Over 80 charge. Impaired Driving proper is different, and according to my lawyer is much more difficult to defend, as it's less technical. A long time ago there existed the "I don't feel drunk" defense, which was legislated out ages ago.

    Overall DUI charges in this country have an 80% conviction rate. Very difficult to defend, therefore very lucrative for defense lawyers who like to just throw shit on the wall, in the form of Charter defenses, and hope one sticks. They all talk a big game but are mostly full of hot air. My lawyer had over 40 years of experience, but that just led to a false sense of security. At the end of the day you have to create enough reasonable doubt to convince the judge to acquit you. You can probably tell I regret fighting it. Hindsight is 20/20, and I always wish I had just plead guilty in the first 90 days after getting arrested. I would've only faced a three month driving prohibition and nine months with the interlock. The whole shit would've been well into the rear-view by now, and my car insurance would've normalized. Every fiber of my being was telling me at the time to just plead guilty and get it over with, but I ended up listening to other people. I have a lot of affluent friends, and they all chimed in on what they would do if it happened to them, and they all shouted "fight it!" Of course none of them were paying the legal bill. So I took a chance and paid a hefty price. All the more reason to never do it again.

  2. #312
    Spiny beast TheBenior's Avatar
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    US states can vary pretty widely in their DUI laws and penalties.

    In Illinois at least, portable breath test devices aren't considered reliable enough to count as a violation of the .08 BAC per se law. Like standardized field sobriety tests, it's enough to bring people in for an investigation. With the calibrated breathalyzers in the station (IL state police check them on a regular basis for various IL departments), the police are supposed to follow a 30 minute observation period where the DUI suspect doesn't eat or drink.

    Here, generally, it's pretty tough to beat a DUI where you submit to a calibrated breath test provided everything is done technically correct. Refusing the test is a 1 year license suspension, but a lot of people get interlock devices so they can drive in that time.

  3. #313
    Senior Member sandydandy's Avatar
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    I forgot to mention, there are more DUI offenses. The worst of which are Impaired Driving Causing Death or Bodily Harm. These charges have heavy aggravating factors, and there really is no defense whatsoever. Most just plead guilty and hope a judge or jury will go easy on them at sentencing time. You really can’t play any breath or procedural games, as your blood is taken right at the scene of the crime so there’s no disputing your BAC.

    Google Marco Muzzo, Toronto’s most notorious drunk driving killer in recent years. Son of a billionaire. Fucker had an estimated BAC of .23 and killed four people on his way home from the airport after his bachelor party in Miami. Three kids and their grandfather were killed when he t-boned their minivan. He even pissed himself at the scene. The sad part about this for me was that it happened a few months before I got caught. Something so devastating had no impact or deterrence. I continued to drive drunk.

    Other charges are refusing to blow. The onus is on the defendant to prove he/she had a reasonable excuse. If you lose, the punishment is the same as Impaired or Over 80. Not sure how successful people are at defending against that.

    Another charge is Care and Control, this one is interesting. It’s where you get a DUI when you’re not even driving. Of all the charges, this one kind of stinks of a cash grab. For example, let’s say you’re out partying at a club and have the sense to realize you’ve had too much to drink and are not fit to drive, and decide to leave your car in the parking lot. You could still get charged if you go back to your vehicle for any reason including retrieving an item. Let’s say a woman goes to her car to get her purse and happens to have the keys on her, she will get charged. Ridiculous huh? Wait that’s not the worst. Let’s say you’ve been drinking at home and it’s snowing out and you decide to put on your coat and shovel your driveway behind your parked car. If the keys are in your pocket, because that’s where they usually are, and you’re near the vehicle - bam! Care and Control. Sounds fucked up to me. Let’s say you’re out somewhere and drunk and are waiting for an Uber and it’s cold out so you decide to wait in your car, if the keys are on you, (because where else would they be), guess what happens if a cop shows up?

    The only scenario in which a Care and Control charge makes sense is when you’re drunk and sleeping in your car for the purpose of trying to sober up so you can drive after. In most cases you wouldn’t have had enough rest for the alcohol to eliminate out of your system. Alcohol eliminates in a range of .01 to .02 an hour, assuming a healthy liver. Let’s say after a night of heavy drinking your BAC is .15. Sleeping for two hours in your car won’t bring you anywhere near under .08. You may feel refreshed and alert when you wake up, but your BAC would still be high. You’d need to sleep 4-8 hours at the minimum, and really who would sleep that long in their car? That’s the only instance of Care and Control that actually makes sense. The rest is a cash grab in my opinion.
    Last edited by sandydandy; December 6th, 2019 at 03:14 PM.

  4. #314
    Senior Member sandydandy's Avatar
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    Quote Originally Posted by TheBenior View Post
    US states can vary pretty widely in their DUI laws and penalties.

    In Illinois at least, portable breath test devices aren't considered reliable enough to count as a violation of the .08 BAC per se law. Like standardized field sobriety tests, it's enough to bring people in for an investigation. With the calibrated breathalyzers in the station (IL state police check them on a regular basis for various IL departments), the police are supposed to follow a 30 minute observation period where the DUI suspect doesn't eat or drink.

    Here, generally, it's pretty tough to beat a DUI where you submit to a calibrated breath test provided everything is done technically correct. Refusing the test is a 1 year license suspension, but a lot of people get interlock devices so they can drive in that time.
    Here I think it's one standard across the country, as opposed to different laws in each province.

    Keychain breathalyzers are not accepted as evidence either for or against you. It's all about calibration. Only "approved screening devices" (ASD) are used. That's the roadside breathalyzer and Intoxilyzer 8000 at the police station. DUIs are generally very tough, if not impossible, to beat here too. 80% conviction rate as I mentioned earlier.

    I heard a pretty funny story from my lawyer that a guy was acquitted on a technicality because the police documents referred to the machine as Intoxilyzer 5000 (the older model) when in fact they had switched to the modern 8000 machine. Another guy got acquitted because the Canadian versions of these machine have the letter C at the end, and the police documents didn't reflect that. They were supposed to write Intoxilyzer 8000C, but left out the C. Lucky bastard got acquitted.

    I heard a very fascinating story of a guy who brought in a whistleblower from the manufacturer of these machines, who stated under oath in a very long testimony that these machines are fraught with errors and are never calibrated properly, and generally unreliable. The judge believed him and acquitted the guy. The Crown (prosecuting attorney) appealed on technical grounds that the law did not require the machines to be perfect, or something like that. The appeal was accepted and a new trial was ordered. Guy was probably convicted in his second trial. It does give you pause to wonder why error filled machines are considered acceptable to obtain evidence to convict people. The whole system seems a little shady. I'm not saying it's pseudoscience, but it's far from perfect. There were fears that if the appeal was shot down it would have a ripple effect causing hundreds, if not thousands, of previous convictions to be reopened and questioned. Maybe that's part of the reason the appeal was allowed. The system was not ready for that big a paradigm shift...they're perfectly content with relying on imperfect technology, and drafting language in the law to support that notion. It's their bread and butter.

    This kind of stuff fucks with your mind and is fear-inducing. Of course the only way to not have to deal with any of it is to refrain from drinking and driving. That's really all you have to do.
    Last edited by sandydandy; December 9th, 2019 at 09:21 AM.

  5. #315
    Administrator dodint's Avatar
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    Ashie has cancer. We've suspected it since Thanksgiving and confirmed it a few days before Christmas. She was good for six year but it's back.

    Prognosis is good, it hasn't spread. She's having the lump removed in two weeks, then she'll do chemotherapy and radiation. Unsure yet how intrusive that will be.

    She's able to continue going to school but will likely have to reduce her work hours down.

    It makes me sad. She'll be fine, ultimately. But it is a lot of pain and stress, physically and mentally. She's strong and doesn't let this stuff defeat her, but she does lose a little of herself through the process. I wish things were easier for her in life; cancer took both her parents in the last three years. She could use a breather. Maybe next year.

  6. #316
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    Ouch! Last year my father in law was diagnosed with one of the most aggressive forms of liver cancer. The kind with super fast growth... and it was only accidentally discovered. Luckily it didn't spread to other organs. After removing the tumor, he's now undergoing some sort of cancer immunotherapy clinical trial... not sure if he's really getting the treatment or perhaps just a placebo. Anyway, at least during the time being, he will be closely monitored. He's currently doing fine now.

    We also have a close friend who passed away with ovarian cancer last year. She wasn't so lucky. By the time of the diagnosis, it has already spread to other organs. By the time we're able to visit her in the hospital in couple of weeks, she was already in a lot of pain and unable to speak clearly to us... few days later she fell into a coma and passed away within like a week... She's about my age, never married, served her whole life in the theological seminaries and various churches... I guess she really touched a lot of lives. Her funeral was one of the biggest I've ever been to...

    Anyway, cancer really sucks. Prayers won't always be answered with a yes, but I will keep praying for you guys anyway. Take care.

  7. #317
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    Fuck. Sorry Nate and Ash. You guys don't deserve this shit.

  8. #318
    Jedi Cam's Avatar
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    Damn. Sorry to hear. Best wishes.

  9. #319
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    Oh man, I'm so sorry to hear that. Glad to hear it hasn't spread though.

  10. #320
    Little one Ashie's Avatar
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    Thank you everyone and we appreciate your kind words. Hoping the surgery goes well and I can put this behind me. On that note....FUCK cancer.

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