Phoenix DUI Abogados

Tampa Attorney Arrested for DUI

Attorney Arrested for DUI

Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year.

“The Tampa Police Department’s DUI Unit consists of 12 Officers, 2 Corporals and a Sergeant. The unit provides coverage seven days a week operating primarily at night and in the early morning hours.” says the Tampa Police Department on the web.

The Denver Post reported that on Tuesday the Colorado Supreme Court abolished the “accident emergency rule.”  While this is technically true, it is important for motorists to understand that the court did not change the substantive law applicable to negligence.  Rather, it abandoned a long-standing, and arguably confusing rule, concerning how juries should be instructed about the law.

The case in question is Bedor v. Johnson, __P.3d__ (Colo. no. 10SC65, Jan. 22, 2013) (pending publication).  This case involved a civil lawsuit for negligence, arising out of an auto accident near Telluride in January, 2004.  An accident reconstruction showed that Mr. Johnson lost control of his vehicle when he hit an icy patch of snow on the road, and that his vehicle then slid sideways into Mr. Bedor’s oncoming vehicle in the opposite lane.

Colorado, like most states, defines “negligence” in very broad terms.  The question is whether or not the defendant exercised a degree of care which a reasonably careful person would use under the same or similar circumstances.  The terms “reasonably careful person” and “same or similar circumstances” are intentionally broad, since there is no way that legislation could possibly anticipate every possible situation that could ever arise.  However, since at least 1953, Colorado has recognized the so-called “emergency doctrine,” which essentially recognizes that a person who, due to no fault of his own, is confronted with sudden or unexpected circumstances calling for immediate attention, is not expected to exercise the same judgment that would be required if he was acting under normal conditions.

Many cases since then have held that this rule is not an “addition” to the definition of negligence, since the definition already includes “the circumstances” as something the jury must consider. Rather, the “emergency doctrine” was considered a “reminder” and nothing more than a point of clarification on the existing law.  Nothing in the Bedor case changes that.

The issue is whether a defendant is entitled to a special jury instruction on that point.  Historically, Colorado courts have answered that question in the affirmative, despite a growing number of states that have held otherwise. (For example: Alaska, Arkansas, Hawaii, Nebraska, New Mexico and Montana).  In yesterday’s 5-2 decision, Colorado now joins these states.

The court’s reason for the change is that it found that the instruction tends to be more confusing than clarifying.  The danger perceived by the majority is that the jury will conclude that the trial court had already decided that a qualifying emergency actually existed (which is actually the jury’s job), and focus exclusively on the “sudden emergency” as a complete excuse for the conduct rather than upon all the circumstances.  For example, in this case, there was some evidence, which, if believed, showed that the defendant knew ahead of time of the danger of icy spots on the road, but had been speeding and may have even been intoxicated at the time he encountered this one.

While the issue of negligence does not come up muh in Driving Under the Influence cases, an accident caused as a result of a DUI could include issues of causation. The bottom line is that while some defendants may still be free to argue the doctrine to the jury, they no longer get a special jury instruction on it.

If you were recently arrested for driving under the influence in downtown Los Angeles or USC, you may relate to the travails of 50-year old Thomas Gibson, a local actor famous for his roles in Dharma & Greg and Criminal Minds.

On January 6, Gibson steered his Audi SUV onto a race course sectioned off from traffic. Witnesses told news sources that Gibson scared several runners in the half-marathon.

Fortunately, no one was hit or injured.

When police asked Gibson to take a different route, he failed to heed their warnings and drove off. Ultimately, the police stopped him under suspicion of Los Angeles DUI at 1:37 a.m. Police noticed that Gibson had the odor of alcohol on his breath. The actor refused to take a breathalyzer test. The police took him into custody and held him on a bail of $15,000.

It’s understandable why Gibson might have refused the breathalyzer test.

As we’ve discussed multiple times before, breathalyzers yield surprisingly inaccurate results, given their ubiquity both in real life and “in the movies.” Breathalyzer tests, for instance, do not discriminate between men and women. They can yield artificially false positives if you blow into them too hard. In other words, let’s say you’ve had a few drinks, but you’re not technically over the legal limit for Los Angeles DUI, as defined by California Vehicle Code Section 23152(b), of 0.08% BAC.

Perhaps your “real” BAC is more along lines of 0.06% — borderline, but not over the limit.

A police officer, however, may ask you to blow as hard as you can into the breathalyzer. So you do, but because you blow so hard, you force the machine to give you a reading of, say, 0.09% BAC. Now you’re considered technically “over the limit,” and you could be prosecuted and convicted of a misdemeanor – or a felony under certain circumstances – and subject to all sorts of horrific punishments, such as jail time, the stripping of your CA license, fines and fees, and other inconveniences.

Breathalyzers can also be thrown off if you’re on a special weight loss diet.

When the body goes into so-called “fat burning mode” – and/or if you’re a type II diabetic – your body produces metabolic compounds known as ketone bodies. When you have enough of these ketone bodies floating around in your system, they can influence a breathalyzer test and fool the test into thinking that you’re under the influence, even when you’re stone-cold sober or just borderline. For instance, a ketogenic dieter who has a real BAC of 0.06% might end up tripping a positive for DUI because of her metabolic byproducts.

If you or somebody you know has experienced a legal crisis that’s similar to Thomas Gibson’s, consider getting in touch with the team here at the Kraut Law Group. Michael Kraut is an ex-prosecutor who is well-known and respected for his insight and successes with DUI cases. News sources like the Los Angeles Times, the New York Times, KTLA and CBS all routinely ask Mr. Kraut for his opinions on important DUI stories, and he has won respect not only from clients, but also from judges and prosecutors.