The offense

AuthorPatrick T. Barone
§101 Law
§102 Science
§103 DWI Defense After the Millennium: A Look at Three Decades’ Changes
§121 Corpus Delicti of the Traditional Offense
§121.1 Drive, Actual Physical Control, Operate
§121.1.1 Cases Interpreting the Meaning of Drive
§121.1.2 Actual Physical Control of the Vehicle:
Bright Line or Totality of Circumstances Approach
§121.1.3 Cases Interpreting the Meaning of Actual Physical Control
§121.1.4 Cases Interpreting the Meaning of Operate
§121.1.5 Defendant’s Admissions
§121.1.6 How the Prosecution Can Prove Driving—And How It Often Fails to Do So
§121.1.7 Criminal Responsibility of Passengers
§121.2 A Motor Vehicle
§121.3 On a Public Road
§121.3.1 Jurisdiction and the Posse Comitatus Act
§121.3.2 Hobbs Act Jurisdiction
§121.3.3 Def‌inition of “Highway” in Drunk Driving
Statute Does Not Apply to Felonious Driving
§121.3.4 Campus Police Lacked Jurisdiction to Stop Off-Campus
§121.4 Under the Inf‌luence
§121.4.1 Breath Test Well Below Legal Limit Relevant to the
Question of Whether Individual Was Intoxicated
§121.4.2 The Prosecutor Need Only Prove that Driver’s Ability,
not Actual Driving, Was Impaired by Alcohol
§131 In General
§132 Per Se Statutes
§132.1 Irrebuttable Presumption of Guilt Challenged
§132.2 Statute Void for Vagueness
§132.2.1 Court Rulings
§132.2.2 Scientif‌ic Arguments Support Vagueness Challenge
Defending Drinking Drivers 1-2
§132.2.3 Practical and Scientif‌ic Arguments More Likely to Succeed in Per Se Challenge
§132.2.4 Evidence of Intoxication Warranted Reversal
When Offered to Sustain Per Se Charge
§132.2.5 Attack Jur y Instructions on Conclusive DWI Presumptions
§132.2.6 Pennsylvania Strikes Down Variation on “Per Se” DUI Law
§132.2.7 Delaware Courts Strike Down BAC Statute
§132.2.8 Statute Based Chemical Test Within Four Hours of Driving Not Unconstitutional
§132.2.9 Evidence that Defendant Possessed Medical
Marijuana Card Relevant in Impaired Driving Case
§141 Based on Elements of the Offense
§141.1 Driving Under the Inf‌luence
§142 Per Se Statutes
§143 Intent-Based Defenses to Drunk Driving
§143.1 Involuntary Intoxication
§143.2 Automatism
§144 Necessity
§145 Constitutionality of the Statute
§146 Habitual Offenders
§147 Using a PTSD Diagnosis to Defend a Drunk Driving Case
§148 Justif‌ication Defense
§151 Felony Drunk Driving
§151.1 Leaving Scene of Accident Charge Required
That Defendant’s Vehicle Caused Injury or Death
§151.2 Felony DUI Dismissed Where Previous Enhancement
Convictions Were Obtained Unconstitutionally
§152 Vehicular Homicide Involving Alcohol — DUI Where Death Occurs
§152.1 Aggravated Homicide
§152.2 Defense May Subpoena DOT Accident Investigation Studies in Vehicular Homicide Trial
§152.3 Evidence That Defendant Was Driving on Suspended License Irrelevant to
Charges of Reckless Driving, Manslaughter and Vehicular Homicide
§153 Manslaughter
§153.1 California Rejects Proof of Recklessness as a Requirement for Manslaughter Conviction
§153.2 Finding of Involuntary Manslaughter Unlikely in a Drunk Driving Case
§153.3 Drunk Driving Manslaughter as a Strict Liability Offense
§153.4 Hitting Dead Body Not Tantamount to Hit and Run
§154 Second Degree Murder
§154.1 Degree of Intoxication and Punishment
§154.2 Rebuttable Presumption of Intoxication Not Applied to Homicide Charge
§154.3 Dealing With Dual Charges: Defending Against Drunk Driving and Reckless Driving
§154.4 Court Erred in Giving Instruction in DUI Manslaughter Case
§154.5 “Extreme Indifference to Value of Human Life” Element of Second Degree Murder
Can Be Shown by Prior Convictions and Refusal to Abide by Terms of Probation
§154.5.1 MADD/MAAC Video Inadmissible to Show Awareness and Malice
§154.5.2 Bad Facts, Prior Conviction and STEPS Program Enough
to Show Awareness and Malice in Drunk Boating Case
§154.6 Unconsciousness Caused by Voluntary Intoxication as an Intent-Mitigating Factor
§154.7 Failure to Request Involuntary Manslaughter Instruction as Ineffective Assistance of Counsel
§155 Combating Prosecutorial Misconduct Before Trial
§155.1 Defendant’s Reliance on Prosecutor’s Promises
§155.2 Remedies for Breaches of Plea Agreements
1-3 The Offense
§156 “Forced” Tests
§156.1 “Forcible” Blood or Urine Tests and Fourth Amendment Violation
§156.2 Police Misconduct: Use of Do-Rite Sticks to Obtain Blood Draw
§156.3 Forced Catheterization Not Unreasonable
§156.4 Refusing to Cooperate with Search Warrant for Blood
Draw Suff‌icient to Sustain Resisting and Obstructing Charge
§157 Drunk Driving as Felony Child Neglect
§157.1 Possible Constitutional Challenges
§157.2 The Defense Strategy
§157.3 Conviction Reversed on Child Abuse by Driving
While in Impaired Condition With Children in Car
§158 A Blanket Strip Search Policy of All Arrestees Violates the Fourth Amendment
§159 Causation in Cases Involving Death or Serious Injury
§159.1 There Is No Individual Fault Unless First There Is Factual and Proximate Causation
§159.2 Lack of Proximate Cause Leads to Dismissal of Aggravated DUI
§159.3 Victim’s Comparative Negligence Not Relevant in Proximate Cause Determination
§159.4 Is There a Supervening/Intervening Event That Breaks the Chain of Causation?
§159.2.1 Medical Condition Not Sole Intervening Proximate Cause
§159.5 The Sticky Issue of the Victim’s Intoxication and Its Bearing on Proximate Cause
§159.6 The Causation Issue Is, at a Minimum, a Jury Question Requiring Specif‌ic Instructions
§161 History of the Offense
§161.1 Lack of Evidence of Impairment Leads to DUI “Less Safe” Dismissal for Lack of Evidence
§161.2 Requirement of Impairment
§161.3 Glazed Dilated Eyes Odor and Slow Driving Suff‌icient to Prove Impairment by Marijuana
§162 DRE and ARIDE Training Programs
§162.1 The DRE Training Course: An Overview
§162.2 Trial Court Rules DRE Testimony Not Admissible
§162.2.1 Evidence of Drug Use Inadmissible Unless Relevant to Intoxication
§162.3 Def‌inition of a Drug and the Seven Drug Categories
§162.4 The Drug Inf‌luence Evaluation Form
Form 1-1 Drug Inf‌luence Evaluation Form
§162.5 Advanced Roadside Impaired Driving Enforcement (ARIDE) Training
§163 Admissibility of DRE Evidence
§163.1 Drug Recognition Protocol in Visual Exam for Nystagmus Passes Frye Test
§163.2 The DRE Protocol and Frye
§163.3 Drug Recognition Protocol Satisf‌ies Frye Test for Admissibility
§163.3.1 Drug Recognition Testimony Is Suff‌iciently Reliable for Scientif‌ic
Evidence to be Admissible to Show Defendant Was Under the
Inf‌luence of Controlled Substance
§163.3.2 Evidence Insuff‌icient to Convict on DUI-Narcotics
Where Arresting Off‌icer Lacked DRE Training
§163.4 Miranda and DRE—Right to Consult with Attorney
§164 The Ambien Defense
§164.1 Ambien (Zolpidem) and Driving Impairment
§164.2 Driver May Assert Involuntary Intoxication Defense
§164.3 Defending the Driving Under the Inf‌luence of “Ecstasy” Case
§165 Aspirin, Ibuprofen and Alcohol
§166 Expert May Testify on Synergy of Cocaine and Alcohol
§167 Driving Under the Inf‌luence of Nonprescription Drugs
§168 Effects of Alcohol With Other Drugs
§168.1 Failure to Prove Connection Between Drug Use and Impaired Judgment/
Motor Skills Results in Reversal of Conviction

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