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Category Archives: Your Defense

Techniques Your Attorney May Use to Deal with Evidence

If you have been charged with drunk driving because you performed poorly on a field sobriety test, your skilled Orange County drunk driving defense attorney may be able to diminish its bad affect by drawing a contrast with something far more harmful that did not actually happen. For instance, if you stumbled while you were attempting to “walk the line,” your attorney might make inquiry of the officer with questions such as, “Did Mr. Smith grab you for support?” or “Mr. Smith simply had a misstep, right?” These reduction methods give your attorney a means by which he or she can approach unfavorable or bad evidence.

Another technique that your attorney may choose to utilize involves the use of impeachment evidence. If your lawyer has such evidence, he or she may decide to introduce it early on when cross-examining of the arresting officer. Doing so will decrease the officer’s credibility for the rest of his questioning.

Additionally, your attorney may propose to the jury that there is possibly police officer bias; he or she will question the officer about whether or not he gets paid overtime for his testimony. If the particular officer at your trial has a track record of arresting DUI suspects in questionable cases, it is highly likely that those cases will be asked about in court, which means more overtime for the officer.

Keep in mind, though, that convincing a jury of officer bias will be a difficult task; thus, your attorney will most likely only hint at this. Still, even if the jury does not believe that the officer is possibly biased, making the inquiry about the officer’s overtime pay will at least reduce some of the impact when your expert is asked the predictable question about his or her fee.

If you need an experienced Orange County drunk driving defense attorney, please call Chad Maddox today for a free consultation.

Juror’s Alcohol Use

Many people have deep-seated and intense anti-alcohol feelings. As a general rule, you do not want people with these feelings on your DUI jury. Your Orange County DUI defense lawyer can effectively determine whether potential jurors have these feelings by asking them whether they serve alcohol at home. For example:

Q: Mr. Juror, do you serve alcohol in your house?
A: Yes.
Q: What type of alcohol do you serve, where do you keep it, etc?

The answer will disclose a lot about this potential juror’s feelings about alcohol. For example, a juror who maintains a full bar at home may have quite different opinions about alcohol consumption than a juror who opens a bottle of beer or wine now and then.

Q: When was the last time you served alcohol in your home?
A: Last Sunday. Some friends came over to watch the Super Bowl.
Q: After the game, did you let your guests drive their cars?
A: Yes.
Q: Have you ever driven a car after drinking alcohol?
A: Yes.
Q: And you arrived home safely?
A: Yes.

Note that a person is not necessarily biased against DUI defendants just because he or she does not drink alcohol. An effective Orange County DUI defense lawyer will ask additional questions to find out why a prospective juror does not drink. For example, he or she may be allergic to alcohol and not have a particular bias against people who drink.

If you or someone you love has been arrested for DUI, contact Orange County DUI defense lawyer Chad Maddox.

How to Testify if You Have a SODDI Defense

A defense often used in criminal case is “SODDI,” which stands for “some other dude did it.” However, it may be difficult to use the SODDI defense in DUI cases, which are usually based on the basic premise that a police officer actually saw you driving improperly.

However, in certain types of cases, such as crashes, hit and runs, and witness reports, you may not have actually been driving when the police officer arrested you, and the officer cannot truthfully testify that he or she saw you driving. If that’s your case, it would behoove you to testify. Otherwise, the jury will wonder what you’re hiding if you weren’t even driving. Sometimes the actual driver can present the SODDI defense. However, your testimony will also usually be required.

An SODDI case is effective because there isn’t any confrontational evidence to deal with. If no one actually witnessed you driving the car, your Orange County drunk driving defense attorney’s task will be to diminish any circumstantial evidence connecting you to the crime and any purported admission you made.

To maintain an effective defense, you must be able to truthfully and unfailingly testify that you were not driving. Even in the face of a strong cross-examination about your blood alcohol level and your poor performance on a field sobriety test, you must consistently assert that you were not driving.

If you’ve been arrested for DUI, contact experienced Orange County drunk driving defense attorney Chad Maddox today for a free initial consultation.

Closing Argument

Credibility is a vital component to a successful closing argument in defending a DUI charge. An experienced Orange County DUI defense attorney can cultivate the credibility and illustrate the gravitas necessary to convince the jury of a client’s innocence in the following ways:

Memorable Evidence

Focusing closing arguments on defense-oriented, memorable evidence from the trial is useful in helping the jury recall important information. Discerning the evidence in the defendant’s favor that the jury is most likely to remember, and focusing on this evidence, can work to ensure the jurors remain aware of exculpatory evidence.
Jury Instructions:

Most courts use standard-form jury instructions in criminal cases. It is therefore important to marry key words from these instructions into the closing argument, creating a link between how the judge instructs the jury to think about the case, and how you define the “story” of the case to the jury.

Confronting pro-prosecution evidence and reasonable doubt

One cannot will away evidence the prosecution puts forth to make its case. This evidence must be addressed head-on, with vigor and persuasion. It should be explained in a manner that is commensurate with what the jury heard and with the requirement that the State prove each element of the offense beyond a reasonable doubt. For example, presume the jurors were presented with evidence of a chemical test result that was above the legal limit. One promising defense route could be the presentation of evidence that appears inconsistent with the chemical test result. This could come in the form of lay witness testimony that the defendant was not intoxicated, video evidence of sobriety, or other evidence that casts doubt on the chemical test. Illustrating to the jury evidence that contradicts the pro-prosecution evidence, as well as reminding the jury that they must find all elements as true beyond a reasonable doubt, can be used to convince jurors that the test results suffer from serious legitimacy issues and cannot be wholly reliable.

Respect

Treat your client with the respect and dignity he/she deserves at all times. It is important that the jury identifies with your client. Should you de-humanize your client, the jury will notice and take note.

For more information on how you can be best represented in defending your DUI charge, contact an Orange County DUI defense attorney today.

Alcohol Influence Reports

An Orange County DUI defense attorney can tell you that most arresting officers make notes about how you appeared when you were stopped. They may say that your eyes were bloodshot, you were combative or that you appeared very lethargic and unable to respond to simple verbal commands. These comments are made to try and further support your BAC (Blood Alcohol Content) test results, especially if they barely qualified you for an arrest.

Even when those notes aren’t very unflattering, an Orange County DUI defense attorney can find a number of ways to undermine them. If a videotape was made of your arrest and it doesn’t support some of the written descriptions of your behavior or demeanor, a lawyer can point out those inconsistencies in court.

How Cases Are Frequently Won

It’s a lawyer’s job to point out all inconsistencies between the videotape, the officer’s comments in the Alcohol Influence Report and your BAC. By doing so, he or she can create doubt as to the accuracy of the BAC or the officer’s impressions of your physical or mental state at the time of the arrest. If the officer failed to record your arrest or the videotape of it has been lost, your attorney can argue that those events invalidate your arrest. Counsel may also question how recently the machine that produced your BAC level was last recalibrated. Should you decide to fight the validity of your recent arrest, call Orange County DUI defense attorney Chad Maddox for a free evaluation of your case.

DUI with Injury

Felony Or Misdemeanor?

CVC §23153 may be charged as a felony or a misdemeanor under  CVC §23554.  The prosecutor’s decision whether to charge a §23153 offense as a felony or a misdemeanor is generally based on the seriousness of the injury involved and the number of prior convictions.   They consider whether or not the victim was hospitalized, or whether or not the victim suffered a permanent injury.

This crime is more difficult to prove than an ordinary DUI.  The prosecutor must prove that the driver did an act forbidden by law, or neglected a duty imposed by law, and that act or neglect proximately caused bodily injury to someone other than the driver.  The forbidden act or neglected duty, is known as the supporting offense. Basically, the supporting offense is some wrongful act, usually a Vehicle Code infraction, that is alleged to be the cause of the victim’s injuries. It must be proved beyond a reaonable doubt just like it would have to be proved at a trial on that charge alone.

The driver’s act must be the legally responsible cause of the injury. The Prosecution has the burden of proving proximate cause, and may satisfy that burden by producing “evidence from which it may be reasonably inferred that the defendant’s act was a substantial factor in producing” the harm.

DUI With Great Bodily Injury

If the injury is serious enough, the felony DUI under CVC §23153 constitutes a strike with a consecutive three year enhancement. See Penal Code §12022.7.

Pen. C. §12022.7, subd. (e) defines great bodily injury as  “a significant or substantial physical injury.”  It is an injury that is greater than minor or moderate harm. The question of what constitutes “great bodily injury” is a question for the jury, not the judge.

A defendant sentenced to state prison following a conviction of CVC §23153 with an allegation pursuant to P.C. §12022.7 found to be true must serve 85 percent of the sentence because such a conviction qualifies as a violent felony pursuant to P.C. §2933.1 and §667.5. P.C. §667.5 (c) (8) classifies a violent felony as:  “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in section 12022.7.”

Women vs. Men

Just as a given amount of alcohol effects people differently, men and women absorb alcohol differently. Women reach a higher BAC faster because they have less water in their bodies and more adipose tissue (fat), which is not easily penetrated by alcohol. Because of their lower proportion of lean body mass, women absorb alcohol more rapidly than men. Women also have lower total body water content than men of comparable size. After alcohol is consumed, it diffuses uniformly into all body water, both inside and outside cells. Because alcohol mixes with body water, a given amount of alcohol becomes more highly concentrated in a woman’s body than in a man’s.

Alcohol also affects women differently than men due to the fact that women metabolize alcohol more slowly. Women have less of the ADH enzyme. This causes a larger proportion of the ingested alcohol to reach the blood system prior to being converted to acetate. Women experience fluctuations in hormone levels during their menstrual cycle that may affect the rate of alcohol metabolism. This makes a woman more susceptible to elevated blood alcohol concentrations at different points in the cycle. They will experience their highest BAC during their premenstrual stage. Since body temperature is also elevated at this time, and during menopause, a women’s true blood alcohol level may be overstated because breath testing in California assumes that the temperature of expired breath is 34 degree Celsius (convert to Fahrenheit)- every degree above average will result in a 6.9% false high. In addition, there is also evidence that a woman taking birth control pills will absorb alcohol faster, resulting in higher BAC levels.

It does not help that field sobriety testing and chemical testing are not developed for women. Breath testing machines are not designed to accurately test a woman’s blood alcohol level. The breathalyzer was designed for an average man’s lung capacity, which is obviously much different than that of a woman’s. This could cause a breathalyzer to read at a higher level.

Medical Defenses

The defense of a DUI case requires specialized knowledge about physics, chemistry, biology, anatomy, toxicology, pharmacology and how these scientific disciplines interrelate. Chemical testing for blood alcohol levels assumes that the subject is a normal, healthy average person. There are countless medical conditions which can effect the accuracy of chemical testing and the appropriateness of field sobriety exercises. The following are examples:

  • Periodontal (Gum) Disease
  • Dentures
  • Faulty Bridge Work
  • Gastric Reflux Disease (Heartburn) GERD by Jones AW and Breath tests and GERD
  • Flu
  • Fever
  • Pre-Menstrual/Menstrual
  • Diseases of the Lungs
  • Heart Disease
  • Accidents With Air Bags
  • Diabetes
  • Inner Ear Conditions
  • Attention Deficit Disorder
  • Pre-Existing Injuries To Back, Legs, Etc.

Drug Related DUI

DUI Drugs involve complex scientific issues dealing with the identification of the active ingredients of drugs in both urine and blood testing and whether or not the substance revealed was an active or an inactive metabolite.

Correlating levels of blood and urine to impairment has also been extremely difficult in the past because of the absence of reliable studies linking specific levels of drugs in the blood or urine to impairment. The absence of published medical studies on the subject has caused prosecutors to turn to the opinions of Drug Recognition Experts who are very willing to render opinions about impairment, based on thier “training” which does not include medical training, or education of specific scientific literature.

These Drug Recognition Experts frequently attempt to correlate symptoms they observe or were told about with what the person would exhibit when “normal.” Since the officer has had no prior contact with the individual, it is impossible for him to determine what the person would exhibit when drug-free.

The National Highway Traffic Safety Administration has published Drug and Human Performance Fact Sheets. Please click on the links below for further information.

The chart below references some prescription drugs that are often used as a basis for alleging DUI. This information has been provided by National Medical Services (3701 Welsh Road, Post Office Box: 433A, Willow Grove, Pennsylvania 19090-0437). National Medical Services is well-known laboratory for blood retesting.

PRESCRIPTION DRUG THERAPEUTIC RANGES
Carisoprodol (Soma) Up to 25 mcg/ml
Meprobamate 10-to-30 mcg/ml
Codeine 30-to-120 ng/ml
Hydrocodone (Vicodin) Up To 39 ng/ml Following 10 mg Oral Dose
Oxycodone 18-to-27 ng/ml (Following Single 4.5 mg Dose)
Morphine 10-to-70 ng/ml (Following Therapeutic Doses)
Lorezepam (Ativan) 50-to-240 ng/ml
Diazepam (Valium) 100-to-1000 ng/ml
Temazepam (Restoril) 190-to-570 ng/ml (Between 2-to-5 Hours Post Dose)Up to 30 ng/ml (At 24-Hours Post Dose)
Alprazolam (Xanax) 10-to-50 ng/mlIMPORTANT: Potentially Toxic At 75 ng/ml

The lab may also run Drug Screens, such as an Opiate Screen, which will pick-up drugs like Hydrocodone.  The lab may run a Benzodiazepine Screen, which will pick-up drugs like Xanax or Valium. Additional Drug Screens include: Alkaline Drugs; and Weakly Acidic and Neutral Drugs.

Here are some articles you may find useful or interesting:

Zolpidem and Driving Impairment

Therapeutic and Toxic Drug Levels