responding to the rising ba defense g. stewart hicks traffic safety resource prosecutor 2220 tulare...
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RESPONDING TO THE RESPONDING TO THE RISING BA DEFENSERISING BA DEFENSE
G. Stewart HicksTraffic Safety Resource Prosecutor
2220 Tulare Street, Suite 1000Fresno, CA 93721*(559) 999-2162*
Funding for this program was provided by a grant from the California Office of Traffic Safety, through the
National Highway Traffic Safety Administration.
QUANTITY OF ALCOHOL QUANTITY OF ALCOHOL CONSUMEDCONSUMED
IN MOST RISING BA CASES, THE IN MOST RISING BA CASES, THE DEFENDANT HAS NOT HAD ENOUGH DEFENDANT HAS NOT HAD ENOUGH TO DRINKTO DRINK
HOW MUCH HAS THE DEFENDANT HOW MUCH HAS THE DEFENDANT HAD TO DRINK?HAD TO DRINK?
WHEN DID HE START?WHEN DID HE START?
WHEN DID HE STOP?WHEN DID HE STOP?
NOT ENOUGH TO DRINKNOT ENOUGH TO DRINK
USUAL SCENARIO: 2-3 QUICK USUAL SCENARIO: 2-3 QUICK DRINKS, GET IN THE CAR, DRIVE, DRINKS, GET IN THE CAR, DRIVE, STOPPED, SFST’s, PAS, ARRESTSTOPPED, SFST’s, PAS, ARREST
BLOWS A .12BLOWS A .12
NOT ENOUGH TO DRINK---EVEN NOT ENOUGH TO DRINK---EVEN FOR HIS OWN SCENARIOFOR HIS OWN SCENARIO
DRINKING PATTERNDRINKING PATTERN
3 QUICK DRINKS & DRIVE3 QUICK DRINKS & DRIVE
PEOPLE DON’T DO THISPEOPLE DON’T DO THIS
NOT WITHIN THE EXPERIENCE OF NOT WITHIN THE EXPERIENCE OF YOUR AVERAGE JURORYOUR AVERAGE JUROR
AN ABSURD CONTENTIONAN ABSURD CONTENTION
DRINKING PATTERN . . . DRINKING PATTERN . . . REBUTTALREBUTTAL
HAVE FUNHAVE FUN
– the defendant is saying, and wants the defendant is saying, and wants you to believe . . . you to believe . . .
– ““If not for the officer, I would have If not for the officer, I would have made it home safely. It’s his fault I made it home safely. It’s his fault I was DUI. Not mine. He made me was DUI. Not mine. He made me do it!” do it!”
YOUR EXPERTYOUR EXPERT
DISCUSS ABSORPTION RATESDISCUSS ABSORPTION RATES
DISCUSS YOUR DRINKING PATTERNDISCUSS YOUR DRINKING PATTERN
DISCUSS YOUR BA LEVELDISCUSS YOUR BA LEVEL
DISCUSS SFST’sDISCUSS SFST’s
ASK: WHAT ABOUT MY FACTS COULD ASK: WHAT ABOUT MY FACTS COULD TURN MY CASE INTO A “RISING BA” TURN MY CASE INTO A “RISING BA” CASE?CASE?
YOUR EXPERT . . .YOUR EXPERT . . . GENERALLY, THE FASTER YOU DRINK, GENERALLY, THE FASTER YOU DRINK,
THE FASTER YOU ABSORBTHE FASTER YOU ABSORB
DEF: POOL OF ALCOHOL DEF: POOL OF ALCOHOL
DEF: SUDDEN ABSORBTIONDEF: SUDDEN ABSORBTION
DOESN’T WORK THAT WAYDOESN’T WORK THAT WAY
CONSTANT ABSORBTION AND CONSTANT ABSORBTION AND CONSTANT ELIMINATIONCONSTANT ELIMINATION
YOUR OFFICERYOUR OFFICER
LENGTH OF OBSERVATIONLENGTH OF OBSERVATION
INCREASING “IMPAIRMENT”?INCREASING “IMPAIRMENT”?
PUT IN CONTEXT WITH QUICK PUT IN CONTEXT WITH QUICK DRINKS, SHORT DRIVE, SUDDEN DRINKS, SHORT DRIVE, SUDDEN ABSORBTION, SUDDEN ABSORBTION, SUDDEN IMPAIRMENTIMPAIRMENT
SYMPTOMSSYMPTOMS
WHY DID THE OFFICER ARREST WHY DID THE OFFICER ARREST THE DEFENDANT?THE DEFENDANT?
A SPECIFIC NUMBER?A SPECIFIC NUMBER? NONO TOTALITY OF THE CIRCUMSTANCESTOTALITY OF THE CIRCUMSTANCES
– DRIVING, EYES, ODOR, SPEECH, DRIVING, EYES, ODOR, SPEECH, COORDINATION, SFST’sCOORDINATION, SFST’s
DID DEFENDANT GET MORE DID DEFENDANT GET MORE “IMPAIRED?” or “INTOXICATED”“IMPAIRED?” or “INTOXICATED”
OFFICER’S EXPERIENCEOFFICER’S EXPERIENCE NUMBER OF DUI INVESTIGATIONSNUMBER OF DUI INVESTIGATIONS
LEVEL OR DEGREE OF IMPAIRMENT LEVEL OR DEGREE OF IMPAIRMENT DEMONSTRATED AT DIFFERENT BA DEMONSTRATED AT DIFFERENT BA LEVELS (.07, .08, .09)LEVELS (.07, .08, .09)
IMPAIRMENTIMPAIRMENT
NOT BANOT BA
DEFENSE EXPERTDEFENSE EXPERT
FROM WHERE DID THE DEFENSE FROM WHERE DID THE DEFENSE EXPERT OBTAIN HIS FACTS?EXPERT OBTAIN HIS FACTS?– THE DEFENDANT!THE DEFENDANT!
HOW HAVE THOSE FACTS HOW HAVE THOSE FACTS CHANGED SINCE THE ARREST?CHANGED SINCE THE ARREST?
WHEN DID DEFENDANT FIRST WHEN DID DEFENDANT FIRST SPEAK WITH THE EXPERT?SPEAK WITH THE EXPERT?
WHEN DID THE EXPERT FORM WHEN DID THE EXPERT FORM THE OPINION THAT DEF’S BA THE OPINION THAT DEF’S BA WAS RISING?WAS RISING?
CROSS OF DEFENSE EXPERT . . CROSS OF DEFENSE EXPERT . . ..
HOLD THE EXPERT TO YOUR FACTS!HOLD THE EXPERT TO YOUR FACTS!
WHERE DID EXPERT OBTAIN HIS FACTS?WHERE DID EXPERT OBTAIN HIS FACTS?
FINAL QUESTION:FINAL QUESTION:
– ASK THE SAME HYPOTHETICAL YOU ASK THE SAME HYPOTHETICAL YOU ASKED YOUR EXPERTASKED YOUR EXPERT
– DEF. EXPERT SHOULD COME UP WITH DEF. EXPERT SHOULD COME UP WITH SAME OR VERY SIMILAR ANSWERSAME OR VERY SIMILAR ANSWER
CONCLUSIONCONCLUSION
DISCOVERYDISCOVERY
– RETAINER AGREEMENTRETAINER AGREEMENT– DATESDATES– WRITINGSWRITINGS– OPINIONSOPINIONS– ETC.ETC.
MOTIONS IN LIMINEMOTIONS IN LIMINE
RESPONDING TO THE RESPONDING TO THE RISING BA DEFENSERISING BA DEFENSE
G. Stewart HicksTraffic Safety Resource Prosecutor
2220 Tulare Street, Suite 1000Fresno, CA 93721*(559) 999-2162*
Funding for this program was provided by a grant from the California Office of Traffic Safety, through the
National Highway Traffic Safety Administration.