weaktwos

Despite the fact that overall, I thought this case was boring, it was a good thing it was brief. I'm not sure why the defendant thought she had a case, here.

Here are the salient facts to the case:

Defendent was found in a ditch on the side of the road along South Watt at about 1am. A young man in his twenties pulls along the side of the road, after seeing her car bob up and down while she's trying to get it out of the ditch, to no avail. Her car is stuck in the ditch. Since there were no photos of the scene, we don't know for certain at what angle the car was in the ditch. The man walks up to her window with a cigarette in one hand, a cell phone in the other. She asks him, right away, if he can help her get her truck out of the ditch. The man tries to help her, he cannot, as a truck needs to pull it out. He suggests calling a tow truck, etc. She refuses and gets belligerant. The man doesn't have to put up with this and, under the guise of calling a friend for help, he calls 911.

Enter the Highway Patrol. He can tell the defendent is drunk. He states he asks if she has any injuries, etc, before putting her through field sobriety tests. She's definitely drunk. He puts her under arrest. At this point, the defendant says she wasn't driving, and that her boyfriend was going to get help. But meanwhile, while they wait for a tow truck to appear, and while the car is towed out of the ditch, no boyfriend materializes. This process takes over an hour to occur, and according to the sober witness who pulled up, no other person was in sight.

The boyfriend testifies, and says he got there after everyone was gone. Then the boyfriend made no attempt to find out what happened to her until she calls him the next night, after her thrilling night in jail. But, they say, they had been fighting that night. I suspect two fighting drunks.

The defendent was given a blood test at 4 in the morning. She had, at that time, a .27 BAC. Three times the legal definition of being drunk. Some say, that anything over .2 could be dangerous to the health of the drunk.

To be found guilty of a DUI, the following criteria must be met (at least, in California):

a) The defendent was driving
b) The BAC of the defendent was .08 or greater.

There is no dispute that she was drunk. Our issue was: was she driving?

All this stuff about the boyfriend was a little messed up. But, it's possible, given drunkeness is an irrational situation.

However, the real kicker is the definition of driving: The defendent must be in control of the vehicle (in drivers side, keys in ignition), and movement of the vehicle, however slight, is considered driving. So, if you're seen trying to get a car out of a ditch, that's driving!

And, regardless of whether there was a boyfriend or not, we felt beyond a resonable doubt that she tried to get her car out of a ditch.

Some of us weren't quite thrilled with that definition, but that's the law.

Now the final issue the defense threw at us: the defense claimed that the defendent was afraid for her life when the witness came to help her get her car out. It was dark, and that cell phone could have been a gun! So, they argued, her fear reaction at this time was to get in the driver's seat and try to get that car out of the ditch again!

Riiiight, we said, in deliberation. But, we put it through the 6 tiered test to determine of the defendent had necessity to commit the crime of DUI. Given the testimony, the witness made no threatening gestures while walking to the vehicle. Both their testimony is consistent with that. So, I don't care where you're coming from, you might be slightly concerned when someone approaches your car, but without a clear demonstration of harm, no one is going to be afraid for their life and try to race out of a ditch. Unless you're drunk. Which she was.

However, criteria #6 of the Necessity test states that the "defendent did not contribute significantly to the position he/she was in. Well, unfortunately she did.

So, guilty she was. During deliberation we requested read-back of both the defendant and the non-chp witness to compare stories and weed out the consistent testimony.

Also during deliberation, I asked my jurors, "Anyone want to take bets that this is one of the prosecuting attorney's first trials?"

Yes, we all agreed he was probably somewhat new at this. Mainly because of some hesitation here and there.

After the verdict was read, we were dismissed, and we chatted with the attornies afterward. It was the prosecuting attorney's second trial. Damn, I'm sharp.