A family member of mine was in a car accident after having fallen asleep at the wheel. It was at night, had no witnesses, there were no other passengers. The police want to charge him with:
- OUI: 90.24L
- operating to endanger: 90.24
- marked lanes violation: 89.4
I don't understand how any of these can stick. The police did not perform any field sobriety tests. He was not witnessed operating. For all they know, he drove his car safely and properly to the scene of the "accident", got out, and then took a sledgehammer to the car to make it look like a crash.
This person has no criminal record and a perfect driving record. Should this be able to be dismissed by any reasonable lawyer worth his salt, or am I otherwise completely deluded here?
You would be completely deluded. If lab tests show an alcohol level over the legal limit, all of those charges are likely. It doesn't make them indefensible, but it won't be an easy case? Was there alcohol present or on her breath? Were there other signs of intoxication present?
He could have driven under the influence of alcohol, operated to endanger and violated the marked lanes statute even though no one saw him. Evidence of a .08 blood alcohol level makes him PRESUMPTIVELY drunk. If he's in the driver's seat of a car he is PRESUMPTIVELY driving/operating it. That's enough for the prosecutor to charge him criminally. Further, just because he has no criminal record and does have a perfect driving record does not mean he could not have committed these crimes. Everybody has to start somewhere.
No, this case cannot be dismissed by any lawyer no matter what his salt worth is; only the prosecutor can dismiss a criminal case. And unless you are the prosecutor or his defense attorney, you don't know whether there are witnesses or not. Tell him to get a lawyer right away. These charges carry jail time and other registry consequences that can last a long time.
Attorneys Leary and Redmond, as usual, are giving you good advice. If matters were as you suggest, no one could ever be prosecuted under such circumstances when they crashed out of sight of direct eyewitnesses. Laypeople often think that circumstantial evidence = weak evidence, but it can be quite strong enough to support a conviction. Your family member needs to consult an attorney.
I agree with my fellow attorneys and their advice is excellent as usual so I do not mean this as an affront to their answers but I must tell you this: the most important issue that you and I and your family member and any other lawyer must consider at this moment is the question of what is written in the police report. Without reading the police report it is impossible to evalute this case. I say this becuase unlike other posts in which people ask us attorneys what a minimum sentence is for a particular crime or what exactly the prosecutor must prove for a given crime, your question asks us to evaluate the strenghts and weaknesses of the case. It is literally impossible without reading the police report. Have you read the police report? I can't tell you how many times a client has sat in my office and told me about his or her case only to find that the police report contains additional evidence that the client was not even aware the police had or was aware of but never thought to mention it to me or simply did nto understand that it was relevant. For example, your post does not indicate what your family member told the police when they asked him the simple questions, "What happened? How did this accident happen?" I have at least ten to twenty questions in mind right now that I can't answer just by reading your post. Of course, your family member needs to hire the best attorney he can afford and of course that attorney can't tell you whether this case is ripe for dismissal until he or she reads the police report. I have a slight disagreement with one of the answers posted in that motions to dismiss for lack of probable cause also called "Dibennedeto Motions" (I'm spelling that wrong) are designed to weed out cases that are so weak that they should not even be submitted to a jury. When the polcie report does not provide enough of a factual basis for each and every element of the charge, the Judge can and will dismiss the case. For an OUI that means the report must provide problable cause to believe your family member 1) operated a motor vehicle 2) on a public way 3) while under the influence. Depending on what exactly is written in the police report, there might very well be insufficient evidence on the third element. With no FST's why is he being charged with OUI? Did he go to the hospital? Did they test his blood? I need to read the police report.
Are you asking or.making a statement
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Didn't your friend have to go to the hospital? If he's not conscious, then the police can't perform field sobriety tests, but they can have the hospital take his blood alcohol level. I think that's what happened in this case.
Your theory that your friend drove the vehicle safely and properly, yet still fell asleep at the wheel, is a flawed and contradictory. If he fell asleep at the wheel and killed another driver, he'd be charged with criminally negligent homicide. It's the driver's responsibility not to drive if he's that tired.
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