Defending driving under the influence cases

1. Defending driving under the influence cases DREW CARROLL, ESQ. www.CarrollLawFirm.net

2. THE STATUTORY LAW • DUI • DUAC • FDUI • IMPLIED CONSENT • COMPULSORY PROCESS • VIDEO RECORDING • IGNITION INTERLOCK • RECORD KEEPING • 56-5-2930 • 56-5-2933 • 56-5-2945 • 56-5-2950 • 56-5-2934 • 56-5-2953 • 56-5-2941 • 56-5-2954

3. DUI • It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment…

4. DUI IMPAIRMENT CAUSES • MATERIAL OR SIGNIFICANT • APPRECIABLE OR MEASURABLE • VOLUNTARY • ALCOHOL • DRUGS OR SUBSTANCES • ALCOHOL AND DRUGS OF SUBSTANCES

5. THE DUI DELIMA • THE UNDERLYING CONDUCT IS NOT ILLEGAL • THE ACCUSATION IS FOUNDED ON OPINION • CULPABILITY IS THE RESULT OF KNOWLEDGE AND VOLUNTARY CONSUMPTION • INFERENCES = PROOF

6. THE CAMPAIGNS

7. THE COMMON CASE • BAD DRIVING • ODOR OF ALCOHOL • EVIDENCE OF IMPAIRMENT • OBSERVATIONS • ADMISSIONS • FIELD TEST PERFORMANCE • BREATH TEST RESULT • INFERENCE FROM A REFUSAL

8. DUI ALCOHOL • VOLUNTARY CONSUMPTION • KNOWLEDGE OF THE EFFECT • PREDICTABILITY

9. DUI DRUGS • PRESCRIPTION • OVER THE COUNTER • ILLICITE

10. THE INVESTIGATION

11. ARREST & JAIL

12. DEFENDING THE CASE

13. START WITH THE RIGHT TOOLS • HAVE A SYSTEM • KNOW THE RULES • KNOW THE SCIENCE • KNOW WHERE TO START • KNOW THE LAW

14. THE SYSTEM • INTAKE FORMS • VIDEO OVERVIEW • CLIENT PHOTO • FILE OPENING INSTRUCTION FORM • CLIENT INFORMATION LETTER • QUESTIONAIRRE • CLIENT COPIES • CLIENT INSTRUCTION FORM

16. DUI CLIENT INTAKE SHEET LEGAL NAME:_______________________________ NICKNAME:_____________________ HOME PHONE:______________ CELL:_______________ WORK:_______________ PHYSICAL ADDRESS:__________________________________________________________ MAILING ADDRESS:___________________________________________________________ E-MAIL:______________________________________________________________________ AGE:_____ DOB:_____/______/______ WEIGHT:________ HEIGHT:___________ DRIVER’S LICENSE NUMBER:__________________________________ STATE:_________ DO YOU HAVE A CDL (COMMERCIAL DRIVER’S LICENSE)? YES/NO (Circle One) SINGLE/MARRIED/SEPARATED/DIVORCED/WIDOWED? (Circle One) ACCIDENT? YES/NO (Circle One) HOW MANY CARS INVOLVED? ________ IF YES, WHAT IS THE NAME OF YOUR INSURANCE COMPANY? __________________ AGENT:_______________ PHONE #:_________________ POLICY#:___________________ FIELD SOBRIETY TESTS GIVEN? YES/NO (Circle One) IF YES, CHECK WHICH ONES: Finger to Nose _______ One Leg Stand _______ Heel to Toe _______ Follow Pen/HGN _______ Count Backwards _______ Alphabet _______ Finger Counting _______ Stand Still-Look Up/Rhomberg _______ Other: ___________________ DID YOU HAVE ANYONE IN YOUR CAR WITH YOU? Y/N (Circle one) NAME OF PERSON:_________________________RELATIONSHIP:___________________ WERE THERE OTHER OFFICERS ON THE ROADSIDE? YES/NO (Circle One) DID YOU TAKE THE BREATH TEST? YES/NO (Circle One) DID YOU TAKE A BLOOD TEST? YES/NO (Circle One) DID YOU TAKE A URINE TEST? YES/NO (Circle One) DID YOU RECEIVE ANY OTHER TICKETS? (i.e. speeding, no seat belt, open container) IF YES, LIST HERE:________________________________________________________ WERE YOU VIDEO RECORDED ON ROADSIDE? Y/N? AT THE JAIL? Y/N (Circle One)

17. OPENING THE FILE • EVERYTHING HAS IT’S PLACE • CALENDAR EVENTS • MEET DEADLINES • DOWNLOAD SLED VIDEO • SERVE SUBPOENA FOR ROADSIDE VIDEO • FILE DISCOVERY MOTION

18. THE RULES • THE OMVH RULES • ALC RULES • SLED POLICY

19. THE SCIENCE AND THE LAW

20. VIDEO • MANDATED • INCIDENT SITE • BEGIN NO LATER THAN ACTIVATION OF LIGHTS • INCLUDE FIELD TESTS • INCLUDE ARREST • BREATH TEST SITE • INCLUDE ENTIRE PROCEDURE • INCLUDE TAKING OR REFUSING • ACTIONS OF TEST OPERATOR • INCLUDE SUBJECT’S CONDUCT DURING 20 MINUTE OBSERVATION PERIOD

21. CITY OF ROCKHILL V. SUCHENSKI • DISMISSAL OF THE CHARGE IS AN APPROPRIATE REMEDY PROVIDED BY § 56-5-2953 WHERE A VIOLATION OF SUBSECTION (A) IS NOT MITIGATED BY SUBSECTION (B) EXCEPTIONS.

22. CHEMICAL TEST • BREATH • BLOOD • URINE

23. STATE V. PARKER • THE MACHINE WAS IN PROPER WORKING ORDER AT THE TIME OF THE TEST • THE CORRECT CHEMICALS HAD BEEN USED • THE ACCUSED WAS NOT ALLOWED TO PUT ANYTHING IN HIS MOUTH FOR TWENTY MINUTES PRIOR TO THE TEST • THE TEST WAS ADMINISTERED BY A QUALIFIED PERSON IN THE PROPER MANNER

24. STATE V. LANDON • DETAILED RECORDS OF SPECIFIC PROBLEMS WITH THE BREATH TESTING MACHINE MUST BE KEPT AT THE BREATH TESTING SITE • ONCE A D MAKES A PRIMA FACIE SHOWING OF PREJUDICE, THE BURDEN MUST SHIFT TO THE STATE TO PROVE THE D WAS NOT PREJUDICED

25. “SOFT” EVIDENCE • FIELD SOBRITY EXERCISES • DRUG RECOGNITION “EXPERTS”

26. STATE V. SULLIVAN • EVIDENCE RESULTING FROM THE HGN TEST, AS FROM OTHER FIELD TESTS, IS ADMISSIBLE WHEN THE TEST WAS USED TO ELICIT OBJECTIVE MANIFESTITIONS OF SOBERNESS OR INSOBRIETY. • THE HGN SHALL NOT BE USED TO ESTABLISH A SPECIFIC DEGREE OF BLOOD ALCOHOL CONTENT.

27. QUALIFICATIONS

28. EXPERTS • FIELS SOBRIETY ADMINISTRATION • BREATH SAMPLE ANALYSIS • BLOOD SAMPLE ANALYSIS • PHARMACOLOGIST • ACCIDENT RECONSTRUCTION

29. KNOW THE CONSEQUENCES

30. Penalty Section Incorporated and ExpandedDriving Under the Influence

31. REFUSAL SUSPENSION • 1ST 6 MONTHS • 2ND 9 MONTHS • 3RD 12 MONTHS • 4TH OR MORE 15 MONTHS

32. .15 OR GREATER SUSPENSION • 1ST 1 MONTH • 2ND 2 MONTHS • 3RD 3 MONTHS • 4TH OR MORE 4 MONTHS

33. ADDITIONAL CONSEQUENCES • LIFE TIME RECORD • ENHANCEMENT IF PRIOR DUI OR DUAC WITHIN 10 YEARS • ONLY 1 RR DL EVER • IGNITION INTERLOCK IF 2ND OR SUBSEQUENT CONVICTION • SUSPENSION OF REGISTRATION AND PLATES • MUST PAY FOR TEST IF CONVICTED • ADVERSE IMPACT ON PROFESSIONAL LICENSES • ADVERS IMPACT ON EDUCATIONAL OPPORTUNITY

34. CASE CITES • ROCKHILL V. SUCHENSKI, 374 S.C. 12, 646 S.E. 2D 879 (S.C. 2007) • STATE V. SULLIVAN, 426 S.E. 2D 766 (S.C. 1993) • STATE V. PARKER, 271 S.C. 159, 245 S.E. 2D 904 ( S.C. 1978) • STATE V. LANDON, 370 S.C. 103, 634 S.E. 2D 660 (S.C. 2006)