Ferrari Mailing List: Re: Matt Rolloff's DUI

(continued)

I one had an attorney tell me the best defense was to keep an on  
opened bottle of Scotch in the glove compartment. When the officer  
arrives and you roll down the window, hand him the keys and say  
"excuse me I'm really nervous", then grab the Scotch, flip off the cap  
and chug-a-lug. Now tell him you want to call home for someone to come  
get you now that you had a drink.

On Mar 11, 2008, at 12:07 PM, Ferrarisimo [at] Comcast.net wrote:
As far as refusing to BLOW - - You CAN - and BTW if you KNOW that you
are intoxicated (and you should have a pretty good idea) DON'T!
In most states it is an automatic license suspension to refuse but -
keep in mind - you are getting your license suspended when you get
convicted of the DUI anyway.
So, if you are the way home from tossing back a few - Just Say NO!
Eventually, the officer will contact a judge and get a court order to
have blood drawn - but a lot can happen as time passes.  At the least,
it puts your defense counsel in a position where they can set up a
battle between the experts (the State's and yours) over retrograde
analysis of the sample.  The State arguing that you were intoxicated
and that the BAC level was actually higher at the time of the stop vs.
your expert arguing that there was fresh alcohol in your stomach that
was still being absorbed and that your BAC was going up (also know as
the 3 shot defense - - "my client had three shots on his way out the
door - but was still 'sober' at the time of the stop").  It may not
always be a winner but it is better than nothing.
While I am at it:
NEVER admit you were drinking - not even "I only had one."  When an
officer asks the answer is NO.  Remember, you are not under oath at
the side of the road and the officer does not  need your help to
convict you.  Think of it as you versus him - let him testify about
slurred speech, bloodshot eyes, poor driving, etc. - - don't hand it
to him on a platter.
NEVER do roadside tests (I call that crap the Hokey-Pokey).  They
almost NEVER get you a 'get out of jail free card' and almost always
make you look like a drunken fool in court.  Not much looks worse to a
jury than that you couldn't say the alphabet, or walk a straight line,
or touch your nose with your finger tip.  Not to mention that it give
the officer lots of time and ammunition with which to sway the jury's
opinion.
Most important of the hokey-pokey tests is the HGN - Horizontal Gaze
Nystagmus Test - otherwise known as "follow the tip of my pen with
your eyes."  Under the influence of alcohol your eyes "ratchet or
jump" rather than following smoothly.  In some jurisdictions it is
presumptive for a BAC >.01.
Finally, if you do all of the aforementioned, than time is your
friend.  Delay, Delay, Delay - - if they take do you in (and they
probably will - in fact, they will probably be really pissed off but -
remember - it is you vs them and the prize is not getting a DUI).
Once you are at the station, act like you are happy to blow ... right
until you are in front of the machine.  Then change your mind, refuse,
and ask for your attorney.  At that point, it is better to refuse and
let the officer start the process of getting the warrant to draw
blood.  See notes above.
SO, to answer the original question - "what is reasonable doubt" -
from one of the "standard" jury instructions:
"If you entertain a reasonable doubt as to any fact or element
necessary to constitute the defendant's guilt, it is your duty to give
him the benefit of that doubt and return a verdict of not guilty. Even
where the evidence demonstrates a probability of guilt, if it does not
establish such guilt beyond a reasonable doubt, you must acquit the
accused. This doubt, however, must be a reasonable one; that is one
that is founded upon a real tangible substantial basis and not upon
mere caprice and conjecture. It must be such doubt as would give rise
to a grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof. A reasonable
doubt is not a mere possible doubt. It is an actual substantial doubt.
It is a doubt that a reasonable man can seriously entertain. What is
required is not an absolute or mathematical certainty, but a moral
certainty."
I am sure that is not much more helpful than the definition in the
dictionary, it does not seem to help juries much.
Perhaps, by means of an example, in the DUI context:
If you never ADMITTED you were drinking; refused to do the Hokey-
Pokey; didn't "fail" the HGN; and, have BAC results that two experts
disagree about (spending a bunch of time spewing all kinds of "science
stuff") - than there is likely to be a reasonable doubt in the mind of
at least one juror.
To the contrary, if you say "I had a couple of beers" (and for the
record EVERYONE says I had a couple of drinks), did the Hokey-Pokey
BADLY: forgot that H comes after G and skipped from LMNO to T; tripped
off the line 5 times and enhanced your turn with a Rockettes kick;
poked yourself in the eye when going for your nose; failed the HGN;
and then, proceeded to immediately blow a .02 - - the only reasonable
doubt in any juror's mind is whether you present a clear and present
danger to yourself and others if they don't convict you and get your
ass off the road.
Scottie
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Re: Matt Rolloff's DUI - any lawyers around?	<– Date –> <– Thread –>
From: Ken Rentiers (rentiersmac.com)
Date: Tue, 11 Mar 2008 11:05:12 -0700 (PDT)