Suppose I am driving my car under the influence and lose control and kill somebody.
As I am waiting for the police to arrive, I go to the corner store, grab a six-pack and start downing the beers one after the other, while at the same time I make sure there are several witnesses who see me.
When the police eventually comes and tests me, inevitably their breathalyzer will go off the scale.
Can I then claim that I was sober when the accident occured and the breathalyzer indication is due to the six-pack I drank afterwards?
Nope.
Your weight will be known. The amount of alcohol in a six pack is known. The rate the human body metabolizes alcohol is known. Your blood alcohol is known. If the numbers don’t match up it does not take a genius to figure out you were drunk before the accident.
A death buys a lot of police attention.
I think you lost your chance at reasonable doubt when your immediate action after killing someone is to go shopping for booze. If I was on that jury I’d certainly want you in prison for the good of society.
Your approach is valid, but your execution is poor. Based on your facts, it would be easy to determine how much you drank and the alcohol content of what you drank, so you would lose as per Rick’s analysis.
If, however, the circumstances were such that it could be proven that you had been drinking after the crash, but could not be determined how much and the alcohol content, then you might succeed (although there may be other non-alcohol related charges that could catch you). Note that boytyperanma’s “beyond reasonable doubt” would be the be big hurdle.
Here is a case where it succeeded: *[R. v. Benjamin Montgomery Robinson *2012 BCSC 430](2012 BCSC 430). The officer killed a motorcycylist in a collision (the motorcyclist had alcohol in his blood too), walked home and had a couple of shots, and then returned to the scene. The prosecutor could not prove the alcohol content of the couple or shots, and therefore could not use the charts to determine Robinson’s blood alcohol content at the time of the collision. Robinson ended up being prosecuted and convicted for obstruction of justice, and was given a sentence of one year.
Stress does weird things to people, and self-medicating to come down from an adrenaline high isn’t exactly unheard of. It’s a strike against the defendant, but it’s within the realm of possibility for me. Rick’s numbers are what I would be looking for as a juror.
I was on a jury once for a case where the guy’s explanation for being drunk was that he “slammed down a couple of beers” out of his grocery bags after his accident. We convicted him.
Based upon an episode of Quincy, M.E., from my memory, there are parts of the body that absorb booze slower than the blood stream. If tested upon arrest, that particular body part could be tested to see if the booze had been in the system before the accident.
In the case of the Quincy episode, the perp committed first degree murder by intentionally hitting the victim with his car. Then, the perp got drunk before the police arrived in order to get a drunk-driving sentence of a year or two. Quincy’s test showed that at the time of the “accident”, the driver was not drunk.
Whether this is based upon some fact is unknown to me.
On an episode of (I think) The Practice (or possibly LA Law), a regular client of one of the firm’s lawyers was DUI and hit someone. He called his attorney and was told to take a drink of an unopened can of beer (or whatever) in the car while being watched. He did, and, IIRC, got away with it.
Ironically, the victim of the accident was another attorney in the same firm. Made for some awkwardness around the water cooler, as you can imagine.
And there is no way someone is shoving a needle into my eye to collect vitreous humor. They can make their best guess as to my actual alcohol consumption.
A defense like that was attempted in this case. “I wasn’t drunk when I hit and killed those two people, but after fleeing the scene I decided to get loaded.” It didn’t work, and the defendant was given the maximum sentence of 36 years. From this article, it isn’t clear if any witnesses saw the defendant drinking after the accident, which would make it somewhat different than the OP’s scenario.
It’s probably very fact specific. As others have said, if a person is killed, there will be a stronger investigation than for a simple DUI. If your BAC is .27, good luck convincing a jury that the two beers you had at the convenience store put you from .07 to .27 in 10 minutes.
If you are .11? Meh…maybe. How long did it take for the cops to get there? Did you give a reasonable and believable excuse for leaving the scene and drinking?
I remember an episode of cops where a crashed car was found alongside the road near a bar. The police responded and were trying to find the driver when he came stumbling back with blood all over his face. Claimed that he was perfectly sober when he crashed, walked up to the bar and found a pay phone to call a ride home, but was so shook up, he downed about 8 shots. After discussion, they let the guy go home with a lecture that they couldn’t prove it but he probably got away with it this night, and the next time he might not be so lucky.
More to the point: if you’re drunk enough to run somebody down, the convenience store clerk isn’t legally able to sell you more alcohol. (At least in my State; I’m not sure if that holds true in all States.)
They do the math for the entire 40. If you are drunker than the entire 40 would have gotten you then the technical term is you are fucked.
I mean good luck trying to explain how a full 40 would take you from 0.0 to 0.04 but 1/2 a 40 took you to 0.13.
Let me know how that works for you.
I remember that Quincy episode - the driver wasn’t drunk before the crash, he deliberately ran down the victim, and then downed the better part of a fifth, figuring that the penalty for DUI death resulting would be trivial compared to the penalty for murder. That was true in the '70s, but nowadays I think you’d get more for DUI than for first-degree murder…
I can certainly see the law progressing in the future to the point where if your ass is found drunk AFTER the accident, they will assume you were drunk DURING the accident. And if you are stupid enough to get drunk after it, knowing such a law exists, then it is your own fault.
