Have a friend that just had a felony DUI where the officers claim the other party was injured. I have spoken with witnesses that stated it is very hard to believe the other party was injured at all and judging but the damage to the cars is was highly unlikely. From what I understand, the officers that filed the charges may have already dropped that part of it. Also, my friend was not under the influence and submitted to a blood test. The only reason the officers charged him with this is because there was a bottle of pain pills in his car that were not his. They fell out of a friend's purse and the script is legal and not one pill was missing. The question is, this guy has two prior DUI's after a divorce in No. California three years ago. Will they attempt to go harder on him because of this? The only thing in his blood would be minor trace amounts of Valium because he takes them to help him sleep at times. From what I understand they can still charge him for that and the 11350 of the HS for the pills even if the woman they belong to testifies they were hers and filled the script ten minutes before he picked her up. Is this true? Lastly, this guy has had a drug problem in the past and as a result has a burglary offense 25 years ago that was a conviction and one 15 years ago that was also a conviction but he did CRC time on and is now showing as a dismissal. Can this be a third strike?
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Alcohol & Drugs: DUI, DWI Felony DUI
- Thread Starter agrieder
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CdwJava
Moderator
If the test comes back positive (i.e. above the accepted level for impairment for the particular substance) then he can be charged for DUI. Any prior DUI and/or related convictions in the last 10 years can be used as a prior for penalty enhancements. If he truly took only the minimal prescribed dose and he took them the previous evening, he should not come pack positive. If someone was injured - even slightly - than the DUI can be charged as a felony,
This is not a "third strike" based upon what you have written here.
Your friend needs to speak to an attorney immediately.
- Carl
This is not a "third strike" based upon what you have written here.
Your friend needs to speak to an attorney immediately.
- Carl
Thanks Carl for your response. I appreciate the time you took. I did look further into the injury part of the charge and found this:
"Notice that merely being DUI and having an accident in which someone is injured does not necessarily make you guilty of this offense. For example, you may be intoxicated, yet driving appropriately, while another party causes the collision. You may still be guilty of simple DUI, but not the more serious offense of "DUI with injury." The charge of "DUI with injury" requires that you either (a) violate a traffic law or (b) act with civil negligence, this violation or negligence being the cause of the accident. For example, speeding, tailgating or failing to stop at a red light, if one of these violations causes the accident and the injuries, would put an intoxicated driver in violation of Section 23153."
In this case he did nothing illegal and the person clipped the front of his car and was speeding. Proving that is another story...right?
Thanks again,
Andre
"Notice that merely being DUI and having an accident in which someone is injured does not necessarily make you guilty of this offense. For example, you may be intoxicated, yet driving appropriately, while another party causes the collision. You may still be guilty of simple DUI, but not the more serious offense of "DUI with injury." The charge of "DUI with injury" requires that you either (a) violate a traffic law or (b) act with civil negligence, this violation or negligence being the cause of the accident. For example, speeding, tailgating or failing to stop at a red light, if one of these violations causes the accident and the injuries, would put an intoxicated driver in violation of Section 23153."
In this case he did nothing illegal and the person clipped the front of his car and was speeding. Proving that is another story...right?
Thanks again,
Andre
CdwJava
Moderator
Who do the police have as being the party most responsible for the collision? If the driver listed as being responsible is also the driver who was DUI, then the PCF (primary collision factor) will be DUI. If they charged him with felony DUI, then I can only assume that they have decided he was at fault.
Here is what the state has to prove:
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant was under the influence
of (an alcoholic beverage/ [or] a drug) [or under the
combined influence of an alcoholic beverage and a drug];
3. While driving under the influence, the defendant also
(committed an illegal act/ [or] neglected to perform a legal
duty);
AND
4. The defendant's (illegal act/ [or] failure to perform a legal
duty) caused bodily injury to another person.
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant was under the influence
of (an alcoholic beverage/ [or] a drug) [or under the
combined influence of an alcoholic beverage and a drug];
3. While driving under the influence, the defendant also
(committed an illegal act/ [or] neglected to perform a legal
duty);
AND
4. The defendant's (illegal act/ [or] failure to perform a legal
duty) caused bodily injury to another person.
Is that what the police report indicated? Or, is that your assumption?
The other person clipping the front of the DUI driver's car does not mean the other party is at fault - that will depend on what actions were being taken by the respective parties.
Even if not charged with felony DUI, he is still liable for what appears to be his third DUI.
Here is a possibility of the penalties for a third offense:
THIRD OFFENSE:
120 days to 1 year in jail, $390 to $1000 fine, a 3-year license revocation, and an 18-month alcohol/drug program if you have not completed one before.
It can be bad.120 days to 1 year in jail, $390 to $1000 fine, a 3-year license revocation, and an 18-month alcohol/drug program if you have not completed one before.
- Carl
Thanks Carl,
I believe your third quote can't be proven 3.While driving under the influence, the defendant also (committed an illegal act/ [or] neglected to perform a legal
duty);
Apparently there was no illegal act performed. he was pulling into traffic slowly and the other driver clipped his front end. haven't seen a police report yet but I have a feeling they're going to make it his (the DUI drivers) fault.
I believe he as completed a six or nine month alcohol program. Can that be considered or must he start all over?
I believe your third quote can't be proven 3.While driving under the influence, the defendant also (committed an illegal act/ [or] neglected to perform a legal
duty);
Apparently there was no illegal act performed. he was pulling into traffic slowly and the other driver clipped his front end. haven't seen a police report yet but I have a feeling they're going to make it his (the DUI drivers) fault.
I believe he as completed a six or nine month alcohol program. Can that be considered or must he start all over?
CdwJava
Moderator
He was PULLING IN TO TRAFFIC?? From where?
Bad for him ... when pulling IN to traffic, that will almost certainly place him at fault. the vehicle that has the lane is generally in the right.
21804. (a) The driver of any vehicle about to enter or cross a
highway from any public or private property, or from an alley, shall
yield the right-of-way to all traffic, as defined in Section 620,
approaching on the highway close enough to constitute an immediate
hazard, and shall continue to yield the right-of-way to that traffic
until he or she can proceed with reasonable safety.
(b) A driver having yielded as prescribed in subdivision (a) may
proceed to enter or cross the highway, and the drivers of all other
vehicles approaching on the highway shall yield the right-of-way to
the vehicle entering or crossing the intersection.
He could be in trouble here.highway from any public or private property, or from an alley, shall
yield the right-of-way to all traffic, as defined in Section 620,
approaching on the highway close enough to constitute an immediate
hazard, and shall continue to yield the right-of-way to that traffic
until he or she can proceed with reasonable safety.
(b) A driver having yielded as prescribed in subdivision (a) may
proceed to enter or cross the highway, and the drivers of all other
vehicles approaching on the highway shall yield the right-of-way to
the vehicle entering or crossing the intersection.
If he was entering traffic, then it almost certainly will be his fault.
I honestly do not know the answer to that question. I believe subsequent programs require new programs because obviously the previous one did not take.
- Carl
CdwJava
Moderator
Okay, he should expect, then, to be assigned the PCF (primary collision factor - fault) for the collision. If the other fellow was not hurt, then the felony DUI would not apply. If he WAS hurt, then it will.
I do hope he has counsel already. He'll likely need it.
- Carl
It looks like a public defender is all he can afford after the bail he had to post. The one public defender he spoke to sounded good and he wants to try to win. You hear that public defenders aren't worth their weight but I've also heard they do actually want to win or get a good plea to strengthen their own records. Do you have any insight on this?
CdwJava
Moderator
Public defenders are very often very good litigators and negotiators. Their negative reputation comes from a perceived lack of activity by some. What a PD does NOT do is waste their time or the client's with pointless motions or activity. If they know something is a waste of time, they are not going to do it. Unlike a private attorney who can bill his client for busy work at the rate of $125+ per hour (more or less), the PD is not going to do this. He will tend to be a realist and will often give the facts "straight up" to his client.
Like ANY profession, there are some that are bad and some that are not. But, a good PD knows the local system, the prosecutors, and the judges, and can give a good idea of what can be expected at trial compared to a deal. if the PD wants to fight this, he is probably seeing the possibility of challenging those two previously mentioned elements - fault for the collision and/or the "injury" of the other party. If either one can be defeated, then all your friend can be charged with is the misdemeanor DUI. I suspect that is the best he can hope for. But, if the drug test comes back negative, then the whole DUI issue is moot.
- Carl
Thanks Carl,
The tests coming back negative is a concern. Like I said earlier, he does take Valium to sleep and I have been told that can come back and give him the DUI. He did say he has taken more than normal because of anxiety and sleep issues. He has not yet been able to get through to the crime lab and get results. From what I understand they have 100's if not 1000's of tests that come through. That actually concerns me. If they have so many that they do is it not possible that they can mix someones up? His should have been complete by now...?
The tests coming back negative is a concern. Like I said earlier, he does take Valium to sleep and I have been told that can come back and give him the DUI. He did say he has taken more than normal because of anxiety and sleep issues. He has not yet been able to get through to the crime lab and get results. From what I understand they have 100's if not 1000's of tests that come through. That actually concerns me. If they have so many that they do is it not possible that they can mix someones up? His should have been complete by now...?
CdwJava
Moderator
If he is taking ONLY the prescribed dosage, and that dosage was the previous night, then unless he is taking a massive prescribed dose (more than necessary as a sleep aid) it should come back negative. If he is concerned, he may well have been tasting the meds found in car or something else.
To come back positive, the concentration of the drug must be above a certain cutoff level. A typical prescription dosage (especially one from the previous night) is not likely to rise above this cutoff.
Those might be key words that he has a problem ... perhaps a prescription drug addiction, or some other issues. Giving narcotics to someone with a substance abuse problem is asinine ... he should have told his doctor about his past history.
That wouldn't matter. They are not likely to give him the result anyway.
There are numerous checks and counterchecks to prevent errors. DO they happen? Sure. But, they are so rare as to be an infinitesimal figure. When a lab has that problem, the state usually decertifies them.
Depending on the lab, the test could take up to 90 days. When I was in San Diego County we were lucky to get the results back from the county lab within 60 days. Where I work now we use the state DOJ labs and we can get results in about three weeks. He'll hopefully know the results at his preliminary hearing.
- Carl
raskalnikov
New Member
actually, you want the test to come back negative. In the parlance of drug testing, positive or "dirty" is something you don't want.
Good luck to you. DUI laws and trials are extremely complicated and complex things. From what I understand, OUID or drug-driving is even more difficult a case, but usually more difficult for the prosecutor, depending on the laws of the state. Due to the influx of Ambien "sleep driving" laws are becoming such that it's getting easier for prosecution than before.
Good luck to you. DUI laws and trials are extremely complicated and complex things. From what I understand, OUID or drug-driving is even more difficult a case, but usually more difficult for the prosecutor, depending on the laws of the state. Due to the influx of Ambien "sleep driving" laws are becoming such that it's getting easier for prosecution than before.
CdwJava
Moderator
It depends on the state and the nature of the drug laws. Fortunately, in CA, drugged driving is relatively easy to prove with a positive test. With a positive test, proving actual poor driving or observed impairment may not be necessary (depending on the drug).
- Carl
raskalnikov
New Member
That's true. Thanks for clarifying that!
Hi Carl,
I am totally shocked. He called into the crime lab to find out the results and they are saying .15% blood alcohol and nothing at all about drugs. It makes absolutely no sense whatsoever. The test must be screwed up or switched. Why no mention of drugs of there were the pills in the car and blood was drawn but there was no alcohol involved????
I am totally shocked. He called into the crime lab to find out the results and they are saying .15% blood alcohol and nothing at all about drugs. It makes absolutely no sense whatsoever. The test must be screwed up or switched. Why no mention of drugs of there were the pills in the car and blood was drawn but there was no alcohol involved????
CdwJava
Moderator
One guess comes to mind ... he lied to you about the alcohol.
As previously mentioned, prescription meds if taken as prescribed tend to fall below the cutoff levels - particularly when taken 12+ hours earlier. So, I am not too surprised about the lack of a positive drug test.
Of course, I'm surprised the lab told him the results.
- Carl
It is actually a call in number that he was given at the time of his arrest with a special six digit identifier that showed it was him. I honestly don't believe he would lie. He hates the taste of alcohol. I've been friends with him for years and he never drinks. Something does not make sense.
Thanks again for your time Carl.
Thanks again for your time Carl.
CdwJava
Moderator
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