Ferrari Mailing List: Re: Matt Rolloff's DUI - any lawyers around?

[red5hilser (red5hilser]

Doug: A 'close friend' of mine got popped in Laughlin, NV. about 10 years ago. 
He got his car towed,?went to jail for?6 hours, and was released on $1,500 
bond, $150 out of pocket. Got the car back and drove back?to his home in an 
adjoining state. 

Later, In court, he pleaded guilty, didn't have a big $$$$ lawyer, threw 
himself at the mercy of the court, and was fined $350. He almost used the old 
'Diminished Capacity Defense,' "Your Honor, I'm just CRAZY about booze," but he 
decided not to stretch his luck. His license was suspeneded for 6 months IN 
NEVADA ONLY. On his next trip to Las Vegas, he flew. <g>

Net result? Back in his home state, there was no difference. His insurance was 
never notified, nor the DMV. The only change was that he learned his lesson and 
NEVER drove drunk again.

Yer 'scared straight' pal, Ferrari Bubba


-----Original Message-----
From: Doug and Terri Anderson 
Subject: Re: [Ferrari] Matt Rolloff's DUI - any lawyers around?



Um, while we are delaying delaying delaying - whose watching the Fazaaz?  Do 
they call a tow company and put it in their care custody and control?  Yikes
DOUG

----- Original Message ----- 
From: "Ferrarisimo [at] Comcast.net"
Subject: Re: [Ferrari] Matt Rolloff's DUI - any lawyers around?


> 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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