Don Hanni, a lawyer and politician in Youngstown, OH, got away with a variation of this. Not sure what year, but the police found Hanni in a bar right after his car ran into the Post Office. No DUI but the Post Office put up concrete barriers.
Cecil encourages his correspondent to “Give it a whirl”. Although he was joking, I’m still disappointed he’d encourage this behavior.
Powers &8^]
I was once on a jury for a guy who tried to use this defense. Claimed he was so upset after crashing his pickup that he “slammed down a couple of beers” on the spot.
We deliberated for maybe 5 minutes before convicting him…
Here’s a news story that discusses that case: http://news.google.com/newspapers?id=aoUNAAAAIBAJ&sjid=NW8DAAAAIBAJ&pg=1844,5904428&dq=don+hanni+post+office
Given the person in question, and the Youngstown area political workings in general, I would say that the result of the “defense” had more to do with the who, than the what happened, “visiting” judge or not. :rolleyes:
The key here is time. There are two elements to DWI that have to be proved.
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Operation: It must be proved that the defendent was the operator of the vehicle.
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Impairment: It must be proved that the defendent was impaired due to alcohol or drugs at the time of the incident.
The scenerio in the column does not negate either of the two elements. Someone who makes his way to a bar and is found sometime later may be able to get the judge or jury to feel there is a reasonable doubt. Each case is different. I have seen people get off by leaving the scene and I have received guilty verdicts against people I have tracked down afterwards.
But none of that means that having an “emergency” bottle in your car is going to help.
I’ve seen a prosecutor destroy this argument thusly:
Members of the jury, the accident happened at _ o’clock, and the defendant was given a breath test at _ o’clock, only _ minutes later, with a result of .xx alcohol reading.
Medical texts will show that given the normal rate of alcohol absorption, his breath test reading could only have increased by .xx during that time. So even if you believe defendant’s story, he would have still had a reading of .xx before ‘slamming down’ those beers, and that reading was already over the legal limit. Thus he was legally impaired already, before he allegedly ‘slammed down a couple of beers’, so you must convict him!
In the UK the roadside breath test is only an indicator and a further breath test for use in court is required to be taken at the Police station. If you suspect you maybe slightly over the legal limit for drink driving pretending to take a drink as soon as you are stopped or claiming to have done so would mean the Police would have to wait 15-20 minutes before giving you a roadside test. This may give you enough time to sobber up enough to pass the breath test used for evidence.
As I posted in the other thread that you posted to:
I saw a girl smack into another car at a red light. She ran into a close bar and ordered a couple doubles which she poured out. She told the cop she was so upset at harming her new car that she needed a drink. The bar tender gave a statement that she had a couple stiff drinks. She was a lawyer. I do not know if she got away with it. She was also very pretty. She had everything going for her.
You witnessed this? How did you get all of the details about what she drank and what she did with it? And did you report what you witnessed to the cops?
I’m thinking emptying out a container with a lethal amount of hard liquor in it would make the prosecutor’s argument a little bit weaker.
Of course, so would using an alcohol enema, but I ain’t trying that one…
Isn’t the deal that the breathalyzer gives a wrong BAC reading if you just had liquor in your mouth? It could spike to inhuman levels. That’s a bit different argument from what Cecil painted.
That is the purpose of the 20 minute wait period. Any alcohol in the mouth will be gone in less than 20 minutes. The breath test is given after 20 minutes. Probable cause for an arrest is due to observation of impairment. If you are in a jurisdiction that uses roadside breath tests I would bet that it is only used as one element in determining probable cause. Of course the laws in each state differ to some degree and I do not have knowledge of each one.
I lived 1 block from the bar and talked to the bartender a couple days later.
So this bartender told you she poured out the drinks but told the cops she drank them? Hmmm…
In Germany, while you interact with the police, or wait at the site of an accident, you are participating in motorized traffic. This is precisely so that any attempt of covering your DUI by drinking after driving is made pointless.
What about the delayed effect of alcohol? There’s a certain amount of time between consumption and when the alcohol enters the blood stream — a bit more time between entering the bloodstream and impairment…
could you argue that while you were intoxicated when you were tested, you were not yet under the influence when driving?
That’s sometimes called the “big gulp” defense. It works in some jurisdictions, but not in others.
Alaska, for example, revised it’s statute to exclude the defense:
Alaska Statutes: AS 28.35.030. Operating a Vehicle, Aircraft or Watercraft While Under the Influence of An Alcoholic Beverage, Inhalant, or Controlled Substance. (Emphasis added.)