Archive for October 28th, 2012

DUI: A Deceptively Complex Crime

Sunday, October 28th, 2012

Driving under the influence of alcohol, or "DUI" as it is usually called, is one of the most commonly committed crimes in the United States. Yet it is almost always committed by a noncriminal – that is, by an otherwise respectable citizen who has never been in trouble with the law. Consequently, representation of the DUI defendant often is attempted by attorneys not versed in drunk driving defense. Typically, the defendant's business or family lawyer will undertake to represent him "as a favor". Drunk driving, the lawyer tells himself, is merely a glorified traffic offense. Certainly, it is not as serious or complex as a "real" crime, and therefore cannot call for any particular expertise.

As experienced DUI defense attorneys will agree, this is invariably a tragic mistake.  Any lawyer representing a client charged with DUI should be aware of certain preliminary facts:

1. Though the most common of all offenses, DUI is one of the most complex to understand and defend properly.

2. The stakes in a drunk driving case are high – higher in the long run than for many felonies.

3. A unique system of legal standards and procedures exists in DUI cases, a system geared to facilitate a conviction.

4.  Constitutional protections have been extensively eroded in the DUI field. 

Common though DUI is in our courts, it represents one of the most difficult criminal offenses to understand and to litigate. Consider first the nature of other crimes: If the client is charged with petty theft, for example, the issue is usually simply a question of whether he was really seen taking something; if burglary is the charge, perhaps fingerprints represent the most esoteric area involved (if even that); and, in a rape charge, semen analysis may be the only subject requiring any special expertise. In fact, in the majority of crimes, the trial hinges solely on one issue: Did the eyewitness see what he testified he saw? Even in circumstantial evidence cases, rarely is anything more exotic than DNA, handwriting analysis or ballistics evidence involved.

Now, consider only superficially what the primary issues are in a DUI case: What was the blood alcohol concentration in the defendant an hour or so prior to the analysis of a breath or blood sample? To what extent was alcohol chemically affecting the brain tissue of the defendant in such away as to "appreciably" impair his judgment, perceptions, motor reactions and coordination?

In other words, the basic issue is to define chemically what was going on in the driver's brain and body at the time of earlier driving. Even brain surgeons do not yet fully understand how the human brain functions. Yet, in an attempt to determine the biochemical conditions within a suspect's body at an earlier point in time, the DUI lawyer must be knowledgeable in physiology, biochemistry, biophysics, infrared analysis, gas chromatography, etc.  

And what is meant by "appreciably" impaired? How does one define "judgment"? How is individual tolerance to alcohol measured? What effects do various foods, drugs and medical conditions have on the individual's metabolism of alcohol? What is the inherent error of a particular breathalyzer? Are interferents (chemicals in the breath or air which can be falsely registered as "alcohol") present?  Has there been radio frequency interference ("RFI") with the breath machine from police transmitters, etc.?  Did the measured alcohol come from the lungs, as required, or could it be falsely high because it is from the suspect's mouth or stomach (which can be far higher)? These issues can continue seemingly without end….

Make no mistake: DUI is one of the most complex of all criminal charges, and attorneys undertaking to defend a client on such a charge without extensive preparation constitutes nothing short of malpractice.
 

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