Things Everyone Should Know About DUI Law

The following is written for the purpose of providing a simple guide that will allow everyone  to evaluate the strengths and weaknesses of a Driving Under the Influence charge.  Hopefully this article can serve as a framework that will allow the layman to analyze the circumstances and  apply the analysis to the legal situation that has arisen within this area of practice.

I. The Three Theories of Liability in a DUI Prosecution.

When an individual defendant receives a criminal complaint charging him/her with driving under the influence, three theories of liability are alleged.  It is important to note that the prosecution is not required to prove all theories; merely one will suffice for the conviction of the defendant.

The first theory is known as the “A” theory of liability, or commonly referred to the “Under the Influence Theory.”  The complaint will state that on a certain date that the defendant was “driving, or in actual physical control, while under the influence of an intoxicant to any degree, however slight, which rendered him unable to safely operate a motor vehicle on a road or premise to which the public has access.”

In practice to be convicted under such a theory, the State must demonstrate some indicia of intoxicant use combined with a really egregious driving pattern, usually involving some form of accident.  While at first glance this may appear to the prosecution bears the burden of establishing the case beyond a reasonable doubt, and the issues relating to the driving pattern could equally be a result of a mechanical failure or simply road conditions at the time.  Certain driving patterns, such as speeding, are not deemed the type of pattern that is associated with intoxicated drivers, as non-intoxicated drivers routinely speed.  There is also the matter of what constitutes being under the influence of the intoxicant. In Long v. State, 109 Nev. 523, 853 P.2d 112 (1993) the Nevada Supreme Court outlined the theories of liabilities for DUI convictions, to include the under the influence theory.  There analysis was based upon a statute that was subsequently appealed and has not been replaced with any other statutory mechanism.  See Whisler v. State, 121 Nev. 401, 116 P.3d 59 (2005); Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002).  A definition that one may find useful is in Cotter v. State, 103 Nev. 303, 738 P.2d 506 (1987), the Court defined under the influence by stating “its meaning embraces only those individuals who ingest substances mentioned in the statute to a degree that renders them ‘incapable of safely driving or exercising actual physical control of the vehicle.’ Whether a driver has been so influenced by the ingested substance will always be a question of fact, to be considered in the light of such variable circumstances as the individual's resistance to the substance, the amount ingested and the type and time of ingestion” (Citations omitted) As the next theory is known as the “B” theory, and that requires the prosecution to establish the defendant had  .08 or more blood alcohol content (BAC) at the time of driving.  This too has become a difficult area for prosecutors to establish.

Seldom, if ever, is an evidentiary test taken within minutes of the defendant driving.  This is critical as alcohol in an individuals body generally under goes three stages: absorption, equilibrium, and elimination.  The absorption rate is a ratio of the amount of alcohol consumed into how quickly it enters the blood stream.  Many factors affect this ratio, such as food in the stomach; individual metabolism;  body weight; and the pace at which the alcohol was consumed to name a few.  Equilibrium is the final state of alcohol consumed and distributed through the body.  Finally elimination is the reduction of alcohol from the body and is largely a factor of how well an individual’s liver is performing.

In certain instances the statute allows for more than one evidentiary sample to be taken; however these usually involve felony circumstances such as death or serious bodily injury.  In misdemeanors there is usually just one sample taken.  In the past prosecutors have tried to take the single sample and the stated BAC and extrapolate back using an average formula to estimate what the defendant’s BAC was at the time of driving.  This method has recently been brought into question as track from there.  . See State v. Armstrong, 127 Nev. Adv Op. 84 (2011)

The theory most prosecutors hang their hats on is the “C” theory, also known as the “presumption theory.”  Under this theory the prosecution must merely show that the defendant was driving or in actual physical control within two hours of the evidentiary sample taken.  Poor driving is not a factor in the prosecution, with most observants believing you could have won the Indy 500 but if the BAC was .08 or more you have committed a crime.  This theory is not without its defenses which will be elaborated below but at this stage it is important to define the status the defendant was in,  i.e. was he driving or was he in actual physical control of a motor vehicle.
The driving is simple and obvious, was the vehicle in motion when contact with law enforcement was made and was the defendant behind the steering wheel.  Physical control presents its own issues.  The first is where was the driver when the officers made contact.  It is not unusual for people to be out of there respective vehicles when law enforcement arrives.  It is important to examine what evidence the prosecution intends to introduce to establish driving by the defendant.

Other physical control issues concern the driver found sleeping in a parked vehicle.  This creates a two hour issue for the prosecution as there is generally no way of knowing how long the vehicle was parked.  Also important is the public driving and seek a safe area to park the vehicle.  What factors constitute criminal conduct are best outlined in Rogers v. State 105 Nev 230, 773 P.2d 1226 (1989).

2. Legality of the Stop and Subsequent Detention.

The Fourth Amendment of the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The courts have held that law enforcement must have legal grounds to encounter and begin any type of official discourse that impedes on a persons freedom of movement.  In order for law enforcement to stop a vehicle the officer must have “reasonable suspicion.”  Reasonable suspicion is a legal standard of in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'; t must be based on "specific and articulable facts", "taken together with rational inferences from those facts". See Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868 (1968) and its progeny.   Under a traffic scenario, a violation of a moving vehicle statute or an administrative requirement (i.e. valid license plate) is required if the officer’s interference is legally authorized.  It is important that under Nevada law that the merely a pretext to investigate other activity.  See Gama v. State, 920 P.2d 1010 (1996)

In order to arrest an individual, probable cause for the arrest must be established. Probable cause to arrest exists when police have reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed by the person to be arrested. State v. McKellips,; 118 Nev. 465, 49 P.3d 655 (2002).  In general it is the use of Field Sobriety Tests (FST) that are used to establish probable cause to arrest.  The standardize field sobriety tests include the Horizontal Gaze Nystagmus (HGN) test; the Walk and Turn Test; and the One Legged Stand test.

The Standard Field Sobriety Tests are promulgated by the National Highway Traffic Safety Administration (NHTSA).  The HGN test is an observation of the eyes by the officer to see if there is any involuntary twitching during eye movement from side to side.  While many ailments other than alcohol may attribute to the twitching, a person should first examine the environment in which the test was conducted.  The eye is a light receptor and it is important to determine if any other factor, such as the officer’s emergency lights may have influenced the results.

The Walk and Turn and One-legged Stand are divided attention and balance tests.  They can be highly subjective and it is important to again look at the a straight line heel to toe but be deemed a failure because he started the test before the officer said go.  Many times in the one-legged stand the officer is unable to articulate when certain failing behaviors occurred.  The test is not suppose to be performed longer than thirty (30) seconds, and many times the officer notes failures after this time frame

3. Evidentiary Testing.

Under the law, if an officer has established probable cause that the driver is under the influence he may seek and evidentiary test of breath, blood or urine to determine the level of intoxication.  When a driver accepts a driver’s license, part of the acceptance is an agreement to submit to the test.

When consent is given by the driver, the major issue for the practitioner is whether the tests were validly conducted.  For example a breath machine must be calibrated by a certified forensic scientist every ninety days.  The officer conducting the test must also be certified to operate the machine.  The practitioner should review the paper work to ensure that all personnel and equipment are properly certified.

The blood test is required to be taken in a medically acceptable manner and tested by a expert who was qualified in a proper court. (Note: the expert qualification goes mainly to the admission of affidavits, any witness may come to court and as a result of questioning and review of qualifications be deemed an expert.)  Issues to handled it (chain of custody) and where there any anomalies during the testing process.

4. Department of Motor Vehicles Hearing

While the Department of Motor Vehicle (DMV) is not considered an criminal proceeding and merely administrative and therefore civil, many pertinent elements may be gleamed from this action.
The standard of proof and what is sought to be prove at a DMV hearing is far from what is at play in a criminal trial.  The DMV seeks only to revoke an individuals driver’s license.  The standard is by “clear and convincing evidence, did the officer have reasonable grounds to believe that the driver of the vehicle was .08 BAC or more within two hours of driving or being in actual physical control of a motor vehicle.” (This also goes to controlled substances)
Obviously the two keys are the standard of proof “clear and convincing evidence” and what is to be proven “reasonable grounds to believe” not that the driver actually was intoxicated within two hours of driving or being in physical control.  Needles to say this leads to a vast majority of driver’s licenses being revoked.
The advantage of a DMV hearing is that it can be used as a mini preliminary hearing in that you can verify the Government’s evidence and gain a sworn statement arrest of the defendant.  This often serves well is analyzing potential defenses at the criminal proceeding.

5. Major Changes in Constitutional Criminal Procedure

The practice of DUI defense is largely based upon principles of criminal procedure.  There are very few contexts where police officers are going to come into contact will all levels of society.  As a result  a special emphasis is in placed to ensure the Constitutional guarantees of privacy and due process are met.

In the last few years two United States Supreme Court decisions have had a tremendous impact upon the how prosecutors and defense attorneys conduct DUI cases.  The first was Crawford v. Washington, 541 U.S. 36,  124 S.Ct. 1354 (2004). Prior to the Crawford decision the prosecutor would routinely used sworn reports or affidavits of the nurses and chemists involved in the withdrawal and testing of the blood samples as opposed to live testimony where both would be subject to cross-examination.  There used to exist a question regarding the nurse who withdrew the blood, but it is now undisputed that unless stipulated, all parties, including the chemist must testify in open court to their findings and methods for testing.
The second key case was decided in 2013.  McNeely v. Missouri, 133 S.Ct. 832 (2013), the Supreme Court had a dramatic impact, and particularly Nevada’s implied consent laws.  Prior to McNeely, when a driver refused to consent to an officer’s request for an evidentiary test, a blood test was forcibly conducted.  The Court now requires that a search warrant be obtained prior to a forced blood draw being conducted, or that the prosecutor demonstrate exigent circumstances as to why a warrant was not obtained.  The natural dissipation of alcohol is not deemed such a circumstance.
Those are the five areas that everyone should know regarding DUI prosecutions and defenses.  The issues regarding a successful prosecution or defense are generally attributable to these areas, of course in much greater depth. Hopefully this will sever as a helpful roadmap in selecting representation.







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