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  • would you cite

    Would you cite for DUI, or at least put alcohol as a contributing factor? would you put medical reason as cause or factor? cite for OUI?

    It is around 0230, roads are dry, and weather is partly cloudy with full moon, temperature is around 50. Vehicle is exiting a parking lot and headed South down a drive way to the main street, about 1/16 mile long, it has a slight slope but no more than 4 degrees (estimate) speed limit is 15mph for the parking lot and “road” the “road” is well lit and there are no other vehicles on it. Vehicle exits the road, crosses a field (about 100 feet) and strikes a tree; driver is able to get out of vehicle and is walking around after accident waiting for the police. He seems fine at the time minor cuts to face, hands, and arms, no other visible injuries does not have major blood loss, but there is some bleeding from the injuries. upon arrival of police driver states he was going about 30-35 mph at the time of collision, and had just left the bar, drank 3 jack and cokes over the course of 4 hours (bartender confirms that is all she served him) upon arrival of EMS, subject is treated as EMS is treating subject passes out and is rushed to hospital, subsequently it is determined that subject has major head injury and is life flighted to another hospital for advanced treatment he is unable to talk as he is in a coma, possibly the kind you never wake from. His wife during a later interview states that subject has a history of seizures, is on medicine for that and some other for bipolar and anxiety. BAC from first hospital is .075 blood was taken for DUI (state test) just before he was taken to other hospital, but about 35 minutes from first test, results were .079.
    Instigation of the scene confirms that minimum speed was 33MPH at time of impact; further tests revealed all medicines subject’s wife stated he was on were in system at time of accident consistent with normal prescribed usage, it is not know if subject had a seizure then crashed, crashed then had seizure, or if it was caused by the alcohol, medication, or head injury. Medical opinions vary as to what led to what, so would you charge?
    This is a case I worked on a while back and was wondering what you all would do, I’ll post what I did later but I just wanted something different then will this hurt me, do I have to take the lights off my used CV blah blah blah crap.
    It could be that the purpose of your life is only to serve as a warning to others.

  • #2
    In Arizona even though he was under .08 he could still be charged with DUI impared to the slightest degree...he can also be charged with DUI drugs/alcohol...I wouldnt cite him right then .... I'd wait...if the Hospital took blood we can retain a sample for LE purposes...so I'd write the report, send it to the prosecutors office with the lab results and they can make a decision at that time.

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    • #3
      Well, if you do cite him, the DUI gets thrown out b/c you have a low BAC, a bartender that confirms 3 drinks in four hours (very minimal), no observations on driving, no FST's, no witnesses etc...not to mention the history of seizures.

      Any marginal defense attorney will rip that case apart.
      Walking the line...all give some...some give all!

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      • #4
        For me thats a tough question. Yea he has been drinking but as you stated it was below the limit. I know you can cite for DUI under .08. The only reason why its a tough one for me is the seizures. If he had one at that moment thats the reason for the accident. If he didnt have the seizure he probably would have made it home fine. On the other hand you could say the same thing about the alcohol maybe that was the reason of the accident. Since he was the only one involved I probably would not cite unless my Sgt told me I had to. I might think differently if I was actually there and saw him and the car.

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        • #5
          The seizures will be a legitimate defense, even for a DWAI charge...especially since no officer can say they actually saw the guy driving. All the officer can say is he found the guy waling around his crashed car when he got there. The suspect says he had a seziure...prove beyond a RD that he didn't!
          Walking the line...all give some...some give all!

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          • #6
            I would go for it. "Impairment to any degree" will suffice for a charge. Whether the judge throws it out is not up to me.
            summer - winter - work

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            • #7
              I would do the investigation like normal and put contributing circumstances of alcohol use and whatever else was appropriate. I would subpoena the hospital blood results as soon as possible and consult the DA's office on how to proceed.

              If I had a chance to do SFST's, there might be something there such as nystagmus that could help me make that determination. Nystagmus and alco-sensor readings would be important IMO, even if I can't use the alco-sensor reading in court other than to say it showed a positive result.

              That's a tough one. It might get ripped apart here too. I'd also be talking to my Sgt.

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              • #8
                Originally posted by Outshined
                Sometimes we lose, but we do our best to take the bad guys off the street. Seizure or not he was DRINKING, and taking MEDICATION, he should not have been driving. And, the bottom line is if he has seizures he would not have a license to drive here.



                Exactly.....I could care less if he doesn't end up getting convicted, so long as he didn't kill anyone that night and he got to spend a few hours behind bars. Plus all of the costs that are involved for him should be a big deterrent not to do it again (car impound, bail, attorney, etc)

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                • #9
                  He would get a DUI. Even though he wasn't over the limit, he was still clearly impaired and was obviously mixing meds with alcohol.

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                  • #10
                    In California you don't cite under those circumstances. Instead, you present the matter to the district attorney's office and they determine whether to file charges. In all likelihood, they would not give you a filing.

                    If you were to base it on alcohol alone, the blood alcohol level is below the presumptive level of .08 and is rising rather than falling at a time well after the accident. This indicates the driver was well below the presumptive level at the time of the accident. While anything between .04 and .08 can be a rebuttable (rather than presumptive) DUI in California, most DAs, do not file on anything below .08 as a matter of course.

                    If you were to look at DUI based on his meds, or a combination of his meds and alcohol, again, I doubt any of our DAs would give you a filing if you included info about the seizures and head injuries and statements from the doctor's indicating they could have caused the accident.

                    In short, I would have written the report as a misdemeanor DUI on private property, submitted it to the DA and not have been surprised if it was rejected for prosecution.

                    At the same time, you have to remember that we have more crimes out here than our courts can handle and than our DAs can prosecute. In many counties, a filing DA's performance report is based (in part) on the percentage of complaints he files that actually wind up in convictions. Under the circumstances, if there is a potential for a reasonable doubt loss, you won't get a filing, even if it's obvious the bad guy is guilty.
                    Going too far is half the pleasure of not getting anywhere

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                    • #11
                      Remember, this is a long form arrest days or weeks after the incident, not a respond to the hospital and cite the guy one hour after the collission type report. You are not taking this guy off the streets...he's already in a coma. Now you have to build a case on him and file it with the DA's office. I'm looking at this more from an investigations view, not necessarily a patrol view.
                      Walking the line...all give some...some give all!

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                      • #12
                        Outshined is right on here. In NY DWI is squarely on the driver......you're supposed to know if your meds alone or in combo with alchohol can affect your ability to drive. Absolutely possible to blow 0 and still be charged with DWI. And the officer makes the collar....DA has little to do with case untilit gets to court.

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                        • #13
                          no, I wouldnt. I usually dont do anyone below .10 but if accident and above .08 i will. this case no cause he was below .08% the dudes in a coma already.

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                          • #14
                            Originally posted by Outshined
                            Well then you can join the ranks of the new officers we are getting. NYS is .08%, you are not doing your job if you don't arrest someone at a .08%. Who cares if the "dudes" in a coma already, you are to arrest people who break the law NYS sets forth. If you do not, you should work at burger king.
                            So you get a guy with 4-6 clues on HGN but he passes W+T, OLS, and any other test you choose to give him. You don't feel comfortable letting him drive because you know by his eyes he is up there and he either tells you he has had a significant amount of alcohol, so you put him on the Alcosensor and he blows a .11%. What do you do?

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                            • #15
                              Originally posted by Outshined
                              The NYS Troopers around here arrest him, I am not sure what you do.
                              This was our guy last night. He passed everything but for his HGN.
                              If this went to court I would go on the stand and explain what the divided attention tests were and that he was capable of doing them perfectly yet I still arrested him... Park the car and a lecture is all I will give him.

                              I had a guy tell me he had ten beers one time. I am thinking I have a gimme. He passes everything but the HGN. If a person passes their SFSTs I sometimes still put them on the box just to check if my HGN reading is close to the box, which is normally is. Anyway, this guy blew a .10%. I am not bringing him in because I know he will blow over if he can pass my tests...

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