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Asker
Posted over 1 year ago.

I heard it the judge say it.
the car was out of gas. I stayed with the car with the keys in my pocket. the driver went to go get gas. There was a witness that saw the driver 45 min prior to my arrest driving my car and me in the passenger seat. there was another witness that picked up the stranded driver 45 min after they took me and gave him a ride to where his car was 5 miles away from the scene.

It was also proven that the cop lied in his report stating and describing ( in great detail) field sobriety test he claimed i did but when we saw the dash cam the test were not there. He also claimed I made statements that were not on the dash cam. the jury had to have misunderstood the judges answer.

Neil James Fraser
Neil James Fraser, Criminal Defense Attorney - Beverly Hills, CA
Posted over 1 year ago.

Obviously I only know what you have told me about this case, but I would bet the reason the jury asked the question they did is because some of them were having problems with the concept a refusal in a DUI case creates a presumption of driving while intoxicated.

Factually, I am wondering why, if all the information you relate was competently presented at trial, the jury decided there was sufficient other evidence that, to them, was more reliable. Some questions spring to mind like;
1. Whose car keys did you have in your pocket? (If they were your car keys and the car was yours too, that would have been problematic.)
2. Why do you think the fact someone else was seen driving the car 45 minutes before your contact with law enforcement proves anything? That alone does not constitute evidence that person was the driver at any other time. I'm surprised the judge allowed such testimony in.
3. Sam question as to picking up the stranded driver. In and of itself, it has no evidentiary value and is certainly not an affirmative defense.
4. Were you able to present evidence the dash cam video was either incomplete or altered? Did the cop explain the discrepancy?
5. The statements - verbalization is not always picked up by such cams. They are not installed for that purpose, but more for a visual record. You say the cop lied and this was proved .... in what manner was it proved? Or was the evidence merely conflicting?

Furthermore, none of what you write has anything to do with the question sent out to the judge. If I understand your summary of events, the jury wanted to know if a refusal was a crime in and of itself. It's not. It merely raises the presumption of DUI. So the judge's answer was entirely proper.

BTW, I am a defense attorney and have seen and heard many a tale in courtrooms. Evidence, whether direct or circumstantial, has to be considered and presented carefully and that which is of little or no consequence or relevance can actually backfire on you if the jury thinks you're trying to pull the wool over their eyes. I'm not suggesting you were but who was driving the car in question at other times really means nothing.

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Asker
Posted over 1 year ago.

Circumstantially why would a sober designated driver switch places with a drunk person within a 45 min drive from malibu? there are no places to stop from Malibu to the Valley. I mean the car did run out of gas so obviously there was no stop for gas.

Neil James Fraser
Neil James Fraser, Criminal Defense Attorney - Beverly Hills, CA
Posted over 1 year ago.

There can be many reasons why people do things and every person might do things differently, which doesn't really mean much as a basic proposition. However it is about as relevant as the question you pose is to guilt or innocence in your case. The jury would not have to answer that question to reach a verdict. Undoubtedly the prosecution disputed your version of events and, after deliberation, the jury decided their evidence was sufficiently strong to carry the burden of proof incumbent on them. There is nothing "circumstantial" about that why question from an evidentiary point of view. The jury only had to decide, from the evidence presented, who was the driver, not why.

What about the other issues I was interested in getting your answers to?

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Asker
Posted over 1 year ago.

Im switching to email.

Neil James Fraser
Neil James Fraser, Criminal Defense Attorney - Beverly Hills, CA
Posted over 1 year ago.

OK

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Asker
Posted over 1 year ago.

did u get my email?