Our client was charged with misdemeanor DUI and Felony evading. Client was fireman and faced losing his job if he was convicted of a felony. The District Attorney wanted state prison. Our client would not do so and felt he had a defense for the evading. Our client admitted that he was driving under the influence. We advised the District Attorney that they were going to have a hard time showing specific intent to evade of a person whom had a .17 blood alcohol level at the time of driving. In addition, the officer that was pursuing my client didn’t actually site my client for the evading; he felt our client was truthful with him at the scene that he did not know he was behind him.
The District Attorney filed the formal evading charges against him. The matter was set for trial. At trial, we brought in pictures of the SUV showing the window tint and also our clients cell phone bill to help prove there was no specific intent to evade. We were able to prove that our client was on his cell phone for almost 45 minutes, which included before the pursuit started and during the pursuit. We called an expert to talk about a person who was under the influence and how impaired they are at .17. We asked the expert if being on a phone would add to that. The expert testified that being on a cell phone at any given time while a person is driving will place a driver at an equivalent to being a .08 blood alcohol level.
The expert further testified that at a .17 a person is not going to be able to perceive things around him and he will only be able to do one thing. It was brought out that our client was driving, changing lanes, talking on a cell phone and had the radio on in the back ground. The expert further testified that you add the .08 of being on the cell phone to the .17 and this was his true blood alcohol level while driving that evening. So our client was the equivalent to being a .25 blood alcohol level, over 3 times the legal limit. The District Attorney called their expert witness and we asked him the same questions and he confirmed everything that our expert had already testified about. The jury deliberated about 4 hours and came back with a NOT GUILTY on the felony evading charge.
