# ...charged with two counts of DUI. Two counts? **URL:** \ **Category:** Factual Questions\ **Created:** [May 20, 2009, 8:43pm UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111 "2009-05-20T20:43:06Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 21, 2009, 1:23am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/21 "2009-05-21T01:23:41Z")
> [@ParentalAdvisory](#): > > You’re serious? To have a defense based on, “I just drank a ton of alcohol, but it hadn’t hit me to the full extent yet, maybe I’ll drive because my BAC hasn’t reached the limit yet”. > > To have a defense based on your BAC _going up_? > > Yeah, that’s sheesh-worthy. :rolleyes: You certainly wouldn’t win the good citizen of the year award, but I would think that it meets the spirit and the letter of the law: “I will run to the store real quick before my BAC gets too high”. I don’t think that is half as crazy as the “within two hours” law. Hell, you could drive home without having had a single drop of booze, start drinking, and then be charged with DUI if you are drunk before two hours are up.. ---
**Author:** ![ivn1188](https://avatars.discourse-cdn.com/v4/letter/i/e480ec/32.png) [@ivn1188](https://boards.straightdope.com/u/ivn1188)\ **Post date:** [May 21, 2009, 1:27am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/22 "2009-05-21T01:27:06Z")
> [@ParentalAdvisory](#): > > You’re serious? To have a defense based on, “I just drank a ton of alcohol, but it hadn’t hit me to the full extent yet, maybe I’ll drive because my BAC hasn’t reached the limit yet”. > > To have a defense based on your BAC _going up_? > > Yeah, that’s sheesh-worthy. :rolleyes: I still don’t understand the problem you have. The crime here is basically driving while impaired. The BAC laws are just a workaround because “impaired” is a tough concept to define, let alone prove. Let me present a scenario: You get home from a long day at work. You step out of your car into your driveway, and pound a fifth of Glenlivet 12. Officer Officious happens to see this. He comes over and arrests you for DUI. He drives very carefully (ie: slowly) to the station, and tests your BAC, which is now .2. Do you think that it’s relevant to your defense that your BAC had increased between arrest and test? Do you think you should be convicted of DUI? After all, it is the government’s job to _prove beyond a reasonable doubt_ that you committed the crime, and it’s certainly a defense to point out that you weren’t violating the law in the first place. If I have a shot at the bar, stand up, and then drive the four blocks to my house, it’s the same thing. I’m not doing anything illegal. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [May 21, 2009, 1:32am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/23 "2009-05-21T01:32:30Z")
> [@Blake](#): > > You clearly have no idea how the British style justice system works. > > You recieve a summons to appear before a magistrate (county judge basically). This apperance is essentially an indictment hearing. After hearing evidence, if the magistrate decides you have a case to answer you then have two options. You can _elect_ to plead guitly and have the matter dealt with by the magsitrate provided the prosecutor also agrees, or you can elect to proceed to a full jury trial. Note that in theory either prosecutor or accused can elect to proceed to full jury trial. In practice I have never heard of the DPP refusing to allow a DUI matter to be dealt with by the magistrate. > > How is this in any way lacking in full and fair judicial process? It is, in practical terms, no different to the US system of plea bargaining, which also allows the state to penalize you (for something that is treated seriously) without a full and fair judicial process, provided that both agree to it. > > The only diference is that _you_ get to avoid the expense of a jury trial if _you_ want it. Not just when the state wants it. You still have the right to that trial, you just get to waive it even when you have nothing to bargain with. That prevents the state from using the cost of a jury trail as a threat/punishment in its own right. > Oh, and of course taxpayers get to avoid having to pay tens of thosuands of dollars to issue a $500 fine and suspend someone’s licence for 12 months. > If you can point out any practical way in which the US system is superior then by all mean enlighten us. But to suggest their is any less full and fair judicial process under this system displays gross ignorance. The post I responded to was interpreted as disallowing a jury trial for this offense, not giving you the incentivied option to waive it. ---
**Author:** ![ParentalAdvisory](https://avatars.discourse-cdn.com/v4/letter/p/53a042/32.png) [@ParentalAdvisory](https://boards.straightdope.com/u/ParentalAdvisory)\ **Post date:** [May 21, 2009, 1:46am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/24 "2009-05-21T01:46:21Z")
> [@ivn1188](#): > > I still don’t understand the problem you have. The crime here is basically driving while impaired. The BAC laws are just a workaround because “impaired” is a tough concept to define, let alone prove. > > Let me present a scenario: > You get home from a long day at work. You step out of your car into your driveway, and pound a fifth of Glenlivet 12. Officer Officious happens to see this. He comes over and arrests you for DUI. He drives very carefully (ie: slowly) to the station, and tests your BAC, which is now .2. > > Do you think that it’s relevant to your defense that your BAC had increased between arrest and test? Do you think you should be convicted of DUI? After all, it is the government’s job to _prove beyond a reasonable doubt_ that you committed the crime, and it’s certainly a defense to point out that you weren’t violating the law in the first place. > > If I have a shot at the bar, stand up, and then drive the four blocks to my house, it’s the same thing. I’m not doing anything illegal. So many holes here, and I don’t have enough corks to plug them. The scenario you laid out is basically a whole 'nother case. In which the driver hadn’t begun to drink until out of the car, except that the officer didn’t know that. In that case, yes, I agree that it would be relevent. But you do see how it’s different than starting to drink heavily, and then drive? And then use the BAC as a defense? Correct me if I’m wrong, but everybody metabolizes alcohol differently, and nobody can be certain how safe you really are to drive. The solution? Don’t drink heavily and drive, and then say that your BAC didn’t reach critical levels yet. And if a court honestly listens to that kind of defense, allows it, and passes judgement in the defenses favor, well, that’s just the system at work. Nothing I can do about it. But you know what I can do about it, and the whole reason for me saying it’s Sheesh-worthy? Because I’m rolling my eyes at the hole defense, process, and the asshole who employed the tactic. It doesn’t mean that I’ll get what I want, but it does mean I can roll my eyes at the whole thing and say, “Sheesh!”. That’s what makes the case sheesh-worthy. And that’s all I’m really saying, when **Rumor\_Watkins** questioned why it would be. Because it’s a shitty situation all around and I’m saying “sheesh!”. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [May 21, 2009, 1:47am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/25 "2009-05-21T01:47:14Z")
> [@Rumor\_Watkins](#): > > Yeah, it’s _great_ that the state can penalize you (for something that is treated seriously) without a full and fair judicial process. just great. A summary trial is not a kangaroo court. It involves a judicial officer making findings of fact instead of a jury, but otherwise all the procedures of a jury trial are adopted (with necessary adaptation). The absence of a jury does not preclude trials from being “full and fair”. Obviously, there are problems with relying on an offence defined as “driving under the influence”. Thus, practically everywhere there are offences defined around the idea of being above a certain measurable BAC. But that has problems too, as observed above with the case of the person who claims his BAC was rising. The US workaround of the problems of criminalising a measured BAC is to fall back on the statutory offence of driving under the influence. Our workaround is to tinker with the BAC offence details. For all practical purposes the same result is achieved. Generally, a fine of the order of a few hundred dollars (depending on BAC) is the outcome, with loss of licence for a period. I can’t imagine that you insist on full jury trials for every traffic offence, like speeding. If you do, I am startled. Drink driving is a traffic offence, albeit with potentially serious consequences to other road users, but just a traffic offence nonetheless. ---
**Author:** ![kitemaker\_chuck](https://avatars.discourse-cdn.com/v4/letter/k/a88e4f/32.png) [@kitemaker\_chuck](https://boards.straightdope.com/u/kitemaker_chuck)\ **Post date:** [May 21, 2009, 1:56am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/26 "2009-05-21T01:56:08Z")
It sounds to me kinda’ like when you have a wrong answer on a quiz and they take two points off: One point is taken off for having the wrong answer. Another point is taken off for not having the right answer. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [May 21, 2009, 2:46am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/27 "2009-05-21T02:46:30Z")
> [@ivn1188](#): > > Let me present a scenario: > You get home from a long day at work. You step out of your car into your driveway, and pound a fifth of Glenlivet 12. Officer Officious happens to see this. He comes over and arrests you for DUI. He drives very carefully (ie: slowly) to the station, and tests your BAC, which is now .2. Note how easily this language (from post #10) avoids the problem (emphasis added): “If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle **and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle**.” > [@](#): > > If I have a shot at the bar, stand up, and then drive the four blocks to my house, it’s the same thing. I’m not doing anything illegal. It’s at least reckless behavior, since circumstances (e.g. an accident that temporarily blocks the road) can easily arise that prolong your time behind the wheel to the point where the alcohol impairs your driving. ---
**Author:** ![FoieGrasIsEvil](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foiegrasisevil/32/16638_2.png) [@FoieGrasIsEvil](https://boards.straightdope.com/u/FoieGrasIsEvil)\ **Post date:** [May 21, 2009, 2:53am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/28 "2009-05-21T02:53:17Z")
> [@Rumor\_Watkins](#): > > So, it’s 8:00. I haven’t imbibed anything all day. I drink 2 beers. It’s now 8:30. I pound 2 shots of vodka. I get in a car, and drive. I weave a bit (because of the beer) I am stopped by the cops at 8:35. I were to breathe into a breathalyzer right now, I would blow, say a .025 (I’m sure the BAC math is off, but no matter, the point is that I don’t blow anything close to a .08 as the vodka hasn’t started to metabolize yet). I refuse the breathalyzer (as they are kind of imprecise). I am arrested and hauled off to jail for impaired driving. It takes me 45 minutes to get to the station and get processed. At the station, I consent to a blood screening. Blood is taken. Results indicate a .09 BAC. > > On what planet am I guilty of operating a motor vehicle with a BAC of .08 or higher? > > (edit: yes I realize it is in the statute i listed above, but > > G. In a trial, action or proceeding for a violation of this section or section 28-1383 other than a trial, action or proceeding involving driving or being in actual physical control of a commercial vehicle, the defendant’s alcohol concentration within two hours of the time of driving or being in actual physical control as shown by analysis of the defendant’s blood, breath or other bodily substance gives rise to the following presumptions: > > 1. If there was at that time 0.05 or less alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was not under the influence of intoxicating liquor. > > 2. If there was at that time in excess of 0.05 but less than 0.08 alcohol concentration in the defendant’s blood, breath or other bodily substance, that fact shall not give rise to a presumption that the defendant was or was not under the influence of intoxicating liquor, but that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant. > > 3. If there was at that time 0.08 or more alcohol concentration in the defendant’s blood, breath or other bodily substance, it may be presumed that the defendant was under the influence of intoxicating liquor. > > ) Four drinks in an hour? Are you going to seriously contend that you aren’t impaired at that point? You’re blowing WAY over a .09 BAC at that point, pal. Unless you are 300 plus pounds of man, in which case I forgive you. ---
**Author:** ![ivn1188](https://avatars.discourse-cdn.com/v4/letter/i/e480ec/32.png) [@ivn1188](https://boards.straightdope.com/u/ivn1188)\ **Post date:** [May 21, 2009, 3:31am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/29 "2009-05-21T03:31:13Z")
> [@Xema](#): > > (re: drinking a shot then driving home real fast) > > It’s at least reckless behavior, since circumstances (e.g. an accident that temporarily blocks the road) can easily arise that prolong your time behind the wheel to the point where the alcohol impairs your driving. > [@ParentalAdvisory](#): > > The scenario you laid out is basically a whole 'nother case. In which the driver hadn’t begun to drink until out of the car, except that the officer didn’t know that. In that case, yes, I agree that it would be relevent. > > But you do see how it’s different than starting to drink heavily, and then drive? And then use the BAC as a defense? Correct me if I’m wrong, but everybody metabolizes alcohol differently, and nobody can be certain how safe you really are to drive. The solution? Don’t drink heavily and drive, and then say that your BAC didn’t reach critical levels yet. And if a court honestly listens to that kind of defense, allows it, and passes judgement in the defenses favor, well, that’s just the system at work. Nothing I can do about it. But you know what I can do about it, and the whole reason for me saying it’s Sheesh-worthy? Because I’m rolling my eyes at the hole defense, process, and the asshole who employed the tactic. It doesn’t mean that I’ll get what I want, but it does mean I can roll my eyes at the whole thing and say, “Sheesh!”. > [@Xema](#): > > Note how easily this language (from post #10) avoids the problem (emphasis added): > “If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle **and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle**.” Why do you think that language is there? The state cannot prosecute you on a whim, they can only prosecute you for violation of the laws as written. The state must also prove beyond a reasonable doubt _each element_ of a crime. Any defense that disproves an element of the crime is acceptable and should be encouraged. The **only** defense I would say was ethically questionable is bringing in character evidence against the victim in a rape case, and then only because character evidence like that tends to be more powerful than it should be. You might find the person’s behavior undesirable, which is fine. You might even be a teetotaler and think people shouldn’t drink at all. You might think the law is badly written (and you are probably right). But the blame lies with the legislature. No defendant is going to stand up and say “My fault, I’ll plead guilty even though you didn’t prove your case” except chumps, given the power of a DUI conviction to follow you around and make your life worse. The other alternative is to have vague laws that get enforced based on how much the cop and the DA think you are “reckless” or “a bad guy” (or how “black” you are, or if you are “one of those troublemaker kids with the makeup”). By the way, it wasn’t clear if the cop in my scenario knew the guy wasn’t driving drunk or not – which was on purpose. Think of how you would feel if you knew the cop was just abusing his authority. I am not saying the driver was reasonable or doing the right thing or free of blame. I am saying that the idea of rolling your eyes at a defense is questionable simply because it’s antithetical to our system to disallow defenses, even by stigmatizing them. > [@FoieGrasIsEvil](#): > > Four drinks in an hour? Are you going to seriously contend that you aren’t impaired at that point? You’re blowing WAY over a .09 BAC at that point, pal. Unless you are 300 plus pounds of man, in which case I forgive you. I can drink four shots in an hour and not be detectably impaired. Not sure what my BAC would be, but I have actually tested this, on a bet, by driving laps on a racing sim. My lap times stayed pretty consistent. And yes, as I continued drinking, my times tumbled as I kept running into things, thus demonstrating “impaired”. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [May 21, 2009, 7:11am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/30 "2009-05-21T07:11:56Z")
> [@Noel\_Prosequi](#): > > I struggle with the idea that you have jury trials for DUI offences. It must choke the system. Here in OZ and elsewhere, these matters are summary charges, not indictable ones. It’s treated seriously, but the process is much less operatic than a full jury trial. And there are statutory provisions that rule out defences based on claims that you drank just before getting behind the wheel, etc. > > If you drive will hammered and kill or injure someone, that’s another matter. You’re off to a jury trial for that. And serious gaol time. > > But vanilla DUI offences? There must be squillions! In New Jersey it is treated like any other motor vehicle violation that goes to trial. Judge, no jury. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [May 21, 2009, 8:26am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/31 "2009-05-21T08:26:28Z")
Thanks, **Loach**. It obviously can’t be some constitutional thing that forces American DUI cases to jury trial. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 21, 2009, 11:56am UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/32 "2009-05-21T11:56:01Z")
I’m surprised by the idea that you can get convicted on both the DUI and the blood alcohol offence. Here in Canada, we have both offences and the police routinely charge with both, but you can’t get convicted of both since they’re so closely related - just different ways of describing the same conduct. What typically happens is that if the Crown proves both offences, the Court will convict on the .08 offence, and stay the impaired offence. That way, the accused only has the one conviction on his record. And, like **Noel** , I’m surprised at this type of offence being a jury trial. In our system, it would be a summary conviction trial in front of a judge alone. ---
**Author:** ![Xema](https://avatars.discourse-cdn.com/v4/letter/x/9de053/32.png) [@Xema](https://boards.straightdope.com/u/Xema)\ **Post date:** [May 21, 2009, 1:03pm UTC](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111/33 "2009-05-21T13:03:36Z")
> [@ivn1188](#): > > The state must also prove beyond a reasonable doubt _each element_ of a crime. Any defense that disproves an element of the crime is acceptable and should be encouraged. Saying that you are guilty of drunk driving if you test above 0.08 BAC within X hours of driving can be seen as discouraging one type of defense. It can also be seen simply as declaring illegal a behavior that’s demonstrably reckless. I see it as analogous to the idea of setting BAC limits in the first place. There surely are people who in some circumstances can drive safely at 0.08 (indeed, a great many do every day). Why not allow a defense that says “So what if I was driving after drinking - I caused no accident and no harm.”? The simple answer to this question is that such an approach would be far less effective at controlling drunk driving. [Previous page](https://boards.straightdope.com/t/charged-with-two-counts-of-dui-two-counts/497111.md?page=1)