Case Study: Felony Drug DUI Accident Charges Dismissed
This Case Study involves an accident DUI case which was not only initially charged as a felony DUI but involved a client which was also charged with both a DUI involving alcohol and a driving under the influence of drugs (DUID) charge. The driver was also charged as with refusal to submit to a breath or blood test. As you can tell, this case had particularly bad facts and resulted in felony Drug DUI charges dismissed in Orange County.
It also shows how a prepared DUI Defense Lawyer (in Orange County or anywhere) can look at every possible issue and use their education and experience to obtain a win for a client by having all of the original charges in the DUI case completely dismissed. Note that we have redacted the names of our client in this case study. In this particular case, our client was not completely cleared of all charges, but all of the original charges against him were dismissed.
The Client’s DUI Accident:
The client contacted our law firm as a personal referral from another lawyer. We were the second attorney to handle the case after the first DUI lawyer could not dismiss the case, or get a plea bargain which was acceptable to the client, as initially promised.
The client was driving a Ferrari convertible and was traveling at a high rate of speed. Unfortunately, the accident was bad, as you can tell from the blood left on the road in the photo below).
The accident involved a Ferrari sports car and no other vehicles. The sports car had overturned, leaving both the driver and the passenger injured.
A DUI with injury can be filed as a felony, and after being taken to the hospital, this client was booked and arrested on Felony DUI charges.
The police also alleged that he had refused a blood test, and a warrant had to be issued to draw his blood. As a felony, this client had to post bail to be released from jail and was given a court date.
To sum up, this client was facing all of the following:
- A felony DUI arrest
- Allegations of serious injury
- Allegations of speeding while DUI;
- Allegations of refusing a breath or blood test.
Substitution of attorney for this DUI case
Because this client was represented by an another private attorney previously, the court requested that we file a substitution of attorney, showing the client’s consent to do so, in accordance with the client’s wishes. After that, we started work defending this DUI case.
Exhibit 1: Court Substitution of Attorney. (Click on an image to make an image on this page larger and more readable)
The DUI Police Report
We obtained the police report that had been prepared by the Santa Ana Police Department regarding the DUI accident and arrest.
Exhibit 2: A portion of the police report showing the reason for the DUI stop and the officer’s observations. (Click on an image to make an image on this page larger and more readable).
The investigating officer stated in the report that he “was dispatched to the area… reference a traffic collision of an overturned vehicle with the driver trapped inside.” The officer states in the report “See DUI report/investigation under same case number for further.”
Exhibit 3: A portion of the police report showing the admission to drinking alcohol and detailing the accident to the officer. (Click on an image to make an image on this page larger and more readable).
The DUI report stated that at the hospital, the driver, our client, had admitted “he consumed three vodka mixed cocktails“, and that he had driven the Ferrari.
He further admitted to driving about 80 mph when he lost control of the vehicle and crashed. The vehicle rolled over, and he managed to exit the vehicle. The police report again states that both he and the passenger had been drinking alcohol earlier.
The police also identified an anonymous witness, who saw the Ferrari drive, lose control, and crash.
The DUI Police Statement of Probable Cause
Exhibit 4: The officer’s sworn probable cause statement for the legal reason for the DUI arrest. (Click on an image to make an image on this page larger and more readable).
As the officer’s two-sentence probable cause statement shows, the officer noted the following facts as the probable cause for the arrest:
“On 8/15/15, 0155 hours, the driver admitted to driving and consuming alcohol. Driver was involved in a traffic collision.”
The DUI Refusal and the Warrant for Forced Blood to be Drawn
As noted in the police report, our client was taken to the hospital, and while being treated for his injuries, the police asked for him to consent to a blood test. The police reports indicate he refused, and so the police obtained a warrant to force blood to be drawn. That warrant was granted. Because of that, the police forcibly took our client’s blood for testing.
Exhibit 5: The search warrant probable cause statement under oath and order authorizing blood to be taken by force for the DUI arrest. (Click on an image to make an image on this page larger and more readable).
The DUI Blood Testing Results
The tests repeatedly came up as a 0.0% for alcohol.
Exhibit 6: The DUI blood alcohol results, showing a 0.0% alcohol result for both tests. (Click on an image to make any image on this page larger and more readable).
The policy of the Orange County Crime Lab is, whenever a test is taken in a DUI case that results in a no alcohol result, the blood is sent back for screening and testing for a variety of drug and narcotic substances. As you can see in Exhibit 7, below, screening was done for “Benzodiazepines, Cocaine, Opiates, Oxycodone and Oxymorphone, and Cannabinoids, including THC.”
The test revealed and confirmed the presence of drugs. The lab report stated as follows:
“Drugs Confirmed: Benzoylecgonine.”
What is Benzoylegonine?
Benzoylecgonine (BZE) is a metabolite of cocaine. If someone consumes cocaine, then benzoylecgonine will be the result long after the effects of ingesting cocaine have disappeared. In fact, some testing shows that this substance can be detected even five days after cocaine use.
“Further study is necessary to explore the mechanisms of the neurotoxic effects of benzoylecgonine and ecgonine methyl ester in subjects exposed to cocaine for long periods because the elimination half-lives of benzoylecgonine and ecgonine methyl ester are significantly longer than that of cocaine”. (From a paper at http://anesthesiology.pubs.
“Concentrations of BZE were always higher than the parent drug; mean BZE/cocaine ratio 14.2 (median 10.9) range 1-55. Typical signs of drug influence noted by the arresting police officers included bloodshot and glossy eyes, agitation, difficulty in sitting still and incoherent speech.” — A.W. Jones, Concentrations of cocaine and its major metabolite benzoylecgonine. https://www.ncbi.nlm.nih.gov/pubmed/18164886
“Whether benzoylecgonine and ecgonine methyl ester are also pharmacologically active has not been shown. An early report suggested that these metabolites were significantly less toxic than cocaine or norcocaine.  In contrast, recent in vitro studies showed that benzoylecgonine and cocaine constrict isolated cerebral arteries in animals, whereas ecgonine methyl ester caused mild vasodilatation. [7,10]Further study is necessary to explore the mechanisms of the neurotoxic effects of benzoylecgonine and ecgonine methyl ester in subjects exposed to cocaine for long periods because the elimination half-lives of benzoylecgonine and ecgonine methyl ester are significantly longer than that of cocaine. [23,24] “ From : http://anesthesiology.pubs.
The client’s situation was not necessary gone with the 0.0% alcohol result in his DUI, as he was facing Driving Under the Influence of Drugs (DUID) charges in Orange County court.
DUI charges filed in Orange County court
As you can see by the filed charges, the DA’s office chose to file the following four charges and enhancements against our client:
- Count 1: Driving Under the Influence of Alcohol causing bodily injury;
- Count 2: Driving with a blood alcohol level of a .08% or above, causing bodily injury;
- Count 3: Driving at an unsafe speed; and
- Count 4: Making an unsafe turning movement
- Enhancement: The prosecutor’s office also alleged that our client Refused to submit to a blood or breath test, making this case a DUI with refusal.
- Enhancement: The prosecutor’s office also alleged that this case involved a collision, and a DUI with an Accident is a sentencing enhancement.
Exhibit 8: The Orange County District Attorney’s complaint, showing the criminal charges alleging DUI and being above a .08%. (Click on an image to make an image on this page larger and more readable).
Case Study: Orange County Felony Drug DUI charges dismissed
Curiously, no charges for driving under the influence of drugs (DUID) or drug DUI charges were filed, despite the cocaine metabolite found.
The Retesting of the Client’s DUI Blood sample.
Exhibit 9: The order allowing release, and re-test, of our client’s blood. (Click on an image to make an image on this page larger and more readable).
As we do in most DUI cases, we have an independent laboratory analyze the blood and have our expert witness in a DUI look for potential issues in the testing methods, and the testing results and cross check the sample test with the new lab’s equipment and a bacterial growth sample.
DUI Blood Retest Results
Exhibit 10: The laboratory report on our client’s Drug DUI testing results. (Click on an image to make an image on this page larger and more readable).
As you can see, the blood testing came back positive for the cocaine metabolite, not the cocaine itself. In the expert opinion of the forensic expert witness testifying in our client’s DUI case, that was a non-issue as to impairment:
Exhibit 11: The expert opinion as to impairment. (Click on an image to make an image on this page larger and more readable).
As you can see, our expert witness stated as follows:
“Results are a low level of non impairing cocaine metabolite.”
As we had suspected, there was no evidence of active cocaine in our client’s blood at the time of the accident. Even better, those levels helped explain to the prosecution their own blood test.
However, even that was not enough to dismiss the case.
DUI Plea Bargain Offers from the Prosecution
The case had an offer early on in our involvement, which had been improved upon from the offer made to the previous attorney. Plea bargains in an Orange County DUI case depend on a number of factors, and there is no “one size fits all” for DUI, especially with factors like a DUI with an accident.
The DA was concerned about the injuries to the defendant but was not able to get a hold of the alleged victim. Since the victim knew the defendant, I decided to help make that interview with the prosecutor’s office happen.
Pending that, the DA gave our client the following offer: If he pled guilty to all charges as filed, including Driving Under the Influence, and the enhancement for refusal, he would have the choice between two different offers:
- If our client pled guilty to all counts filed, including both charges of DUI, they would give him 90 days of Orange County jail, which he could serve as electronic confinement monitoring (ECM), which is house arrest, along with 3 years probation, search and seizure terms, DNA, and payment of restitution.
- Or, he could choose to serve 30 days of CalTrans physical labor, plus 60 days of Orange County Jail stayed, along with 3 years probation, search and seizure terms, DNA, and payment of restitution.
- Under either offer, since he was pleading to a refusal, the DMV would suspend his license for one year based upon that finding.
Exhibit 12: Court plea bargain offer notes. (Click on an image to make an image on this page larger and more readable).
Our client did not feel that either offer was acceptable. Both offers were rejected. The judge asked us to set the case for trial based on the age of the court case.
Attacking the DUI refusal
In our preparation for trial, we were able to show the prosecutor, using the police’s evidence, that at the time of the alleged refusal, our client had actually been unconscious in the hospital. There could not have been a willful “refusal” without a knowing rejection of the blood testing in the case.
Another tactic for dismissing the DUI – reviewing medical records.
We also attacked the case from a different angle – whether there was proof supporting the allegation of a DUI with injury (Vehicle Code 23153). The prosecution must prove in a VC 23153 case that the driver was not only under the influence of alcohol, or a drug, or both, but that:
Our office requested medical records via third-party subpoena from the treating medical center, and from the prosecutor as part of a discovery request.
Exhibit 13: The subpoena for medical records from the alleged victim. (Click on an image to make an image on this page larger and more readable).
Those records revealed that the medical trauma center had initially suspected brain injuries, but after scans, and treatment, including a follow-up visit, the patient and alleged victim only had scraped skin on the scalp from the accident.
That information was shared with the prosecution during plea bargain negotiations towards the client’s goal of having the DUI with injury dismissed.
Whether the injury was “caused” by the DUI or vehicular mechanical failure
In this particular case, it was suggested if not established that a key stability part of the Ferrari frame may have failed and that mechanical failure might be the cause of the accident, and that it may have failed to protect the occupants. That claim is part of separate civil litigation, and our client has a separate civil personal injury lawyer to assert that claim. But, as you can see above, the law as stated in the jury instructions requires that the prosecutor establish that the “the injury would not have happened without the act”, in this case, the alleged act of drinking or consuming drugs, and being under the influence.
Making a plea bargain offer from the defense
In this case, as in most DUI drugs cases in Orange County, there is a special DUI drugs prosecutor assigned to the case. Unfortunately, who that specific assigned Deputy District Attorney was changed a few times during this case, and the last prosecutor assigned to the case had been in trial, and was due to begin work on this case, shortly before trial.
So that she could have time to review the case, and also so that she would clearly know the defense’s position regarding all the issues, including whether or not there was proof of being “under the influence”, or proof of the alleged injuries naturally occurring from illegal conduct, we took the unusual move of sending settlement discussions via written correspondence, which was delivered to the prosecutor at her office. (In almost all cases, plea bargain discussions take place in court, during a pretrial as scheduled with the court).
That letter led to a conversation, and after seeing our client’s position, and the state of the evidence leading up to the trial, we had a new, and substantially better plea bargain offer. The prosecutor decided to dismiss all original charges against our client, including the refusal allegation, if the client would plead to a newly added code section, Vehicle Code 23152(f) – California’s new drugged driving law.
Because the prosecutor agreed to dismiss not only the DUI charges but dismiss all of the original charges, there was no need for a trial.
Exhibit 13: The court records showing dismissal of counts 1-4, and what happened to each count, showing dismissal of all original charges. (Click on an image to make an image on this page larger and more readable).
That means that all of the charges involved in the case were handled as follows:
- Felony DUI charges – reduced to a misdemeanor at filing
- Driving Under the Influence Charges with Injury (VC 23153(a)) – Dismissed
- Driving Above a .08% Charges with Injury (VC 23153(b)) – Dismissed
- Driving at Unsafe Speeds for the Conditions (VC 23550) – Dismissed
- Driving while Making an Unsafe Change or Lane Change – (VC 22107) – Dismissed
- Refusal to submit to a test in a DUI case (as to count 1) (VC 23577(a)(1)) – Dismissed
- Refusal to submit to a test in a DUI case (as to count 1) (VC 23577(a)(1)) – Dismissed
- Newly filed charges of Vehicle Code 23152(f) – drugged driving – guilty.
Exhibit 14: The court’s records the terms of the sentence. (Click on an image to ane any image on this page larger and more readable).
The client’s sentence, as shown in Exhibit 14 above, went from 90 days jail under the original offer, to the following:
- Three years probation;
- A base fine of $265;
- Attendance at a three-month alcohol class;
- Victim Impact Counseling (VIP) in Orange County; and
- Payment of restitution for damages, if any.
And, in this case, our client was very happy that they hired our services.
Contact our DUI defense firm if you need us.
This Case Study: Orange County Felony Drug DUI charges dismissed, where we show how the proper handling of felony Drug DUI charges can end up in a dismissal in Orange County court, is only one of a long list of DUI dismissals we have obtained in Orange County.
Contact our firm if you are interested in discussing with us what is possible in your case.