Defending driving under the influence cases
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Transcript of Defending driving under the influence cases
DEFENDING DRIVING UNDER THE
INFLUENCE CASESDREW CARROLL, ESQ.
www.CarrollLawFirm.net
THE STATUTORY LAW DUI DUAC FDUI IMPLIED CONSENT COMPULSORY
PROCESS VIDEO RECORDING IGNITION
INTERLOCK RECORD KEEPING
56-5-2930 56-5-2933 56-5-2945 56-5-2950 56-5-2934
56-5-2953 56-5-2941 56-5-2954
DUI It is unlawful for a person to drive a motor
vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment…
DUIIMPAIRMENT CAUSES MATERIAL OR
SIGNIFICANT APPRECIABLE OR
MEASURABLE VOLUNTARY
ALCOHOL DRUGS OR
SUBSTANCES ALCOHOL AND
DRUGS OF SUBSTANCES
THE DUI DELIMA THE UNDERLYING CONDUCT IS NOT
ILLEGAL THE ACCUSATION IS FOUNDED ON
OPINION CULPABILITY IS THE RESULT OF
KNOWLEDGE AND VOLUNTARY CONSUMPTION
INFERENCES = PROOF
THE CAMPAIGNS
THE COMMON CASE BAD DRIVING ODOR OF ALCOHOL EVIDENCE OF IMPAIRMENT
OBSERVATIONS ADMISSIONS FIELD TEST PERFORMANCE BREATH TEST RESULT INFERENCE FROM A REFUSAL
DUI ALCOHOL
VOLUNTARY CONSUMPTION KNOWLEDGE OF THE EFFECT PREDICTABILITY
DUI DRUGS PRESCRIPTION
OVER THE COUNTER
ILLICITE
THE INVESTIGATION
ARREST & JAIL
DEFENDING THE CASE
START WITH THE RIGHT TOOLS HAVE A SYSTEM
KNOW THE RULES
KNOW THE SCIENCE
KNOW WHERE TO START
KNOW THE LAW
THE SYSTEM INTAKE FORMS VIDEO OVERVIEW CLIENT PHOTO FILE OPENING INSTRUCTION FORM CLIENT INFORMATION LETTER QUESTIONAIRRE CLIENT COPIES CLIENT INSTRUCTION FORM
DUI CLIENT INTAKE SHEET LEGAL NAME:_______________________________ NICKNAME:_____________________ HOME PHONE:______________ CELL:_______________ WORK:_______________ PHYSICAL ADDRESS:__________________________________________________________ MAILING ADDRESS:___________________________________________________________ E-MAIL:______________________________________________________________________ AGE:_____ DOB:_____/______/______ WEIGHT:________ HEIGHT:___________ DRIVER’S LICENSE NUMBER:__________________________________ STATE:_________ DO YOU HAVE A CDL (COMMERCIAL DRIVER’S LICENSE)? YES/NO (Circle One) SINGLE/MARRIED/SEPARATED/DIVORCED/WIDOWED? (Circle One) ACCIDENT? YES/NO (Circle One) HOW MANY CARS INVOLVED? ________ IF YES, WHAT IS THE NAME OF YOUR INSURANCE COMPANY? __________________ AGENT:_______________ PHONE #:_________________ POLICY#:___________________ FIELD SOBRIETY TESTS GIVEN? YES/NO (Circle One) IF YES, CHECK WHICH ONES: Finger to Nose _______ One Leg Stand _______ Heel to Toe _______ Follow Pen/HGN _______ Count Backwards _______ Alphabet _______ Finger Counting _______ Stand Still-Look Up/Rhomberg _______ Other: ___________________ DID YOU HAVE ANYONE IN YOUR CAR WITH YOU? Y/N (Circle one) NAME OF PERSON:_________________________RELATIONSHIP:___________________ WERE THERE OTHER OFFICERS ON THE ROADSIDE? YES/NO (Circle One) DID YOU TAKE THE BREATH TEST? YES/NO (Circle One) DID YOU TAKE A BLOOD TEST? YES/NO (Circle One) DID YOU TAKE A URINE TEST? YES/NO (Circle One) DID YOU RECEIVE ANY OTHER TICKETS? (i.e. speeding, no seat belt, open container) IF YES, LIST HERE:________________________________________________________ WERE YOU VIDEO RECORDED ON ROADSIDE? Y/N? AT THE JAIL? Y/N (Circle One)
OPENING THE FILE EVERYTHING HAS IT’S PLACE CALENDAR EVENTS MEET DEADLINES DOWNLOAD SLED VIDEO SERVE SUBPOENA FOR ROADSIDE VIDEO FILE DISCOVERY MOTION
THE RULES THE OMVH RULES
ALC RULES
SLED POLICY
THE SCIENCE AND THE LAW
VIDEO MANDATED INCIDENT SITE
BEGIN NO LATER THAN ACTIVATION OF LIGHTS
INCLUDE FIELD TESTS INCLUDE ARREST
BREATH TEST SITE INCLUDE ENTIRE PROCEDURE INCLUDE TAKING OR REFUSING ACTIONS OF TEST OPERATOR INCLUDE SUBJECT’S CONDUCT DURING 20
MINUTE OBSERVATION PERIOD
CITY OF ROCKHILL V.
SUCHENSKI
DISMISSAL OF THE CHARGE IS AN APPROPRIATE REMEDY PROVIDED BY § 56-5-2953 WHERE A VIOLATION OF SUBSECTION (A) IS NOT MITIGATED BY SUBSECTION (B) EXCEPTIONS.
CHEMICAL TEST BREATH
BLOOD
URINE
STATE V. PARKER THE MACHINE WAS IN PROPER WORKING
ORDER AT THE TIME OF THE TEST THE CORRECT CHEMICALS HAD BEEN
USED THE ACCUSED WAS NOT ALLOWED TO
PUT ANYTHING IN HIS MOUTH FOR TWENTY MINUTES PRIOR TO THE TEST
THE TEST WAS ADMINISTERED BY A QUALIFIED PERSON IN THE PROPER MANNER
STATE V. LANDON DETAILED RECORDS OF SPECIFIC
PROBLEMS WITH THE BREATH TESTING MACHINE MUST BE KEPT AT THE BREATH TESTING SITE
ONCE A D MAKES A PRIMA FACIE SHOWING OF PREJUDICE, THE BURDEN MUST SHIFT TO THE STATE TO PROVE THE D WAS NOT PREJUDICED
“SOFT” EVIDENCE FIELD SOBRITY EXERCISES
DRUG RECOGNITION “EXPERTS”
STATE V. SULLIVAN EVIDENCE RESULTING FROM THE HGN
TEST, AS FROM OTHER FIELD TESTS, IS ADMISSIBLE WHEN THE TEST WAS USED TO ELICIT OBJECTIVE MANIFESTITIONS OF SOBERNESS OR INSOBRIETY.
THE HGN SHALL NOT BE USED TO ESTABLISH A SPECIFIC DEGREE OF BLOOD ALCOHOL CONTENT.
QUALIFICATIONS
EXPERTS FIELS SOBRIETY ADMINISTRATION BREATH SAMPLE ANALYSIS BLOOD SAMPLE ANALYSIS PHARMACOLOGIST ACCIDENT RECONSTRUCTION
KNOW THE CONSEQUENCES
Penalty Section Incorporated and Expanded
Driving Under the Influence1ST 2ND 3RD 4TH & ABOVE
REFUSAL OR .09 OR LESS
$400 FINE ($992) OR 48 HOURS TO 30 DAYS IN
JAILPSE OPTION
$2100-$5100 AND 5 DAYS TO 1 YEAR
IN JAILNO PSE
$3800-$6300 AND 60
DAYS TO 3 YEARS IN
JAILNO PSE
1 -5 YEARS IN JAILNO PSE
BAC OF .10-.15
$500 OR 72 HOURS TO 30 DAYS IN
JAILPSE OPTION
$2500-$5500 AND 30
DAYS TO 2 YEARS IN
JAILNO PSE
$5000-$7500 AND 90
DAYS TO 4 YEARS IN
JAILNO PSE
2-6 YEARS IN JAIL
NO PSE
BAC OF .16 & ABOVE
$1000 OR 30 -90 DAYS IN
JAILPSE OPTION
$3500-$6500AND 90
DAYS TO 3 YEARSIN JAILNO PSE
$7500-$10,000 AND 6
MONTHS – 5 YEARS IN
JAILNO PSE
3-7 YEARS IN JAIL
NO PSE
REFUSAL SUSPENSION 1ST 6 MONTHS
2ND 9 MONTHS
3RD 12 MONTHS
4TH OR MORE 15 MONTHS
.15 OR GREATER SUSPENSION
1ST 1 MONTH
2ND 2 MONTHS
3RD 3 MONTHS
4TH OR MORE 4 MONTHS
ADDITIONAL CONSEQUENCES
LIFE TIME RECORD ENHANCEMENT IF PRIOR DUI OR DUAC
WITHIN 10 YEARS ONLY 1 RR DL EVER IGNITION INTERLOCK IF 2ND OR
SUBSEQUENT CONVICTION SUSPENSION OF REGISTRATION AND PLATES MUST PAY FOR TEST IF CONVICTED ADVERSE IMPACT ON PROFESSIONAL
LICENSES ADVERS IMPACT ON EDUCATIONAL
OPPORTUNITY
CASE CITES ROCKHILL V. SUCHENSKI, 374 S.C. 12,
646 S.E. 2D 879 (S.C. 2007) STATE V. SULLIVAN, 426 S.E. 2D 766 (S.C.
1993) STATE V. PARKER, 271 S.C. 159, 245 S.E.
2D 904 ( S.C. 1978) STATE V. LANDON, 370 S.C. 103, 634 S.E.
2D 660 (S.C. 2006)