How to Blow a .08

The National Traffic Safety Board announced last week that it is recommending lower standards for drunk driving in all 50 states and requesting to move the threshold from .08% to .05%.

We've all seen the commercials and the billboards - .08 Don't Blow It. What does that mean though?

BAC is the Blood alcohol content of a person's blood, expressed in a percentage. If a person has a BAC of .10, then 10% of a person's blood, by volume, is alcohol. Obviously, the higher the number the higher the percentage of alcohol volume in a person's blood.

I'll post on the reasons behind the current law and the motives to change it later this week, but today I wanted to give you a glimpse into how BAC is calculated based on forensic toxicology.

Every alcoholic drink increases a person's blood alcohol. A drink is a regular size beer, shot, or glass of wine. The amount it increases blood alcohol depends on a number of factors like gender, body weight, food consumed, metabolic rate, and frequency of drinking. We'll look at a 180 pound man who is drinking normally and has not eaten.

I'm certain that I'll get some messages from people explaining how wrong the science behind all this, but so be it. Generally,one drink will increase a person's BAC .02 or 2%. Click here to see a chart.

How many drinks to get to a .08?

1 Hour:

.065

Four drinks in an hour will get a person to .08. But the moment you start hitting the bottle, your body begins processing and eliminating the alcohol from the blood. After this point, we have to start factoring in how much alcohol is eliminated in an hour. Generally, around .015, or 1.5% is eliminated an hour. Basically, one drink an hour is eliminated from your body.

A person is under the current legal limit.

2 Hours:

.07

You were at the .08 from the four drinks the first hour. But the body is still getting rid of the booze. Add in another .02 for the extra drink, but your body has gotten rid of a drink and a half at this point (.015 per hour or .3 for two hours).

At 5 drinks, a person is under the legal limit, but toeing the line.

.09

6 drinks takes the total to .09, above the legal limit.

3 Hours:

.095

Another beer for 7 total (.02) and another elimination (.015).

6 beers in 3 hours? .075

4 Hours:

.10

Another .02 added and another .015 subtracted.

7 Beers in four hours? .08

These are just rough calculations to show you how much a person needs to drink to get to the current legal limit. Remember a person can still be intoxicated at any number if the alcohol has impaired them enough that they shouldn't be driving a car.

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The Emotional Courtroom

The defendant had just turned 16. It's a milestone in every person's life - driver's license, proms, SATs. In the New York criminal world, it means graduation. A graduation from family court to adult court. The change from family court where the main goal is to address the needs of the juvenile to adult court where the main goal is deterrence of crime is often jarring.

And most kids just don't get the difference until it's too late.

The defendant had not appeared for the previous court date, but due to her age the judge agreed to allow her another chance to appear a month later. The date rolled around and again the defendant does not show. The judge issued the warrant, meaning the police would actively hunt for her.

She did show up that day, hours late and with her mother. The defendant claimed she did not really understand how serious the charges were. The judge had heard enough excuses in this case and probably her other cases and the situation warranted an increase in bail. In most of these teenage defendant cases, the parents take center stage when anything bad is about to happen to their children.

This mom made no exception. She arrived in jeans and a tight, teal tee shirt, with eye shadow to match. She stood in the front row as the judge increased bail, the tears dripping down her face and soaking her shirt. She made no efforts to stop the flow. She begged the judge not to take her baby away, because her other baby was already in jail. She was homeless right now and needed her daughter to sleep with at night.

The judge allowed mom to say whatever she needed, and then, calmly and rationally, explained why the bail was increasing. She kept emotion out of her decision and even left open the possibility of releasing the defendant if mom was able to pull her life together.

It's a difficult world and some lessons are learned the hard way.

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The Uncontrollable Witness

Let's call this Charles Ramsey week in America.

We've all watched the unfolding events in Cleveland this week with a mix of disgust and awe. The disgust is for Ariel Castro and his twisted actions. The awe is in the men who helped to free the girls. Many have written about one of the heroes of the drama, Charles Ramsey. As a prosecutor, I could not help but envision Ramsey on the witness stand in this case.

To analyze Ramsey as a witness, I have to tell you about my general rules for witnesses and preparation. The first time I meet with a witness, I let them know the outline of events in a criminal case in addition to discussing the crime. We don't go over the specifics of trial testimony because it is too early and the events are too fresh. I don't want courtroom testimony to come off scripted because it's been rehearsed so many times. I cannot tell a witness whether to speak to anyone or not, but I do tell them they have the right not to speak if they wish. I remind witnesses of this for two reasons: 1) the media, and 2) defendants.

It is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging.

A witness does not need to broadcast their involvement to their neighborhood either and begin to feel any pressure associated with testifying. Defendants, their family, their friends, and defense investigators will try to speak with a witness once the secret is out and a witness does not need this kind of attention.

As we get closer to trial, I sit down with a witness for trial prep. This consists of explaining how the courtroom is set up and the trial procedure. I then go over the general rules of testifying - only answer the question being asked, do not get combative, tell the truth, say "I don't know" if you don't know, say "I don't recall" if you don't remember. There are others and every trial is different, but this advice never changes.

Ramsey is fantastic. He does not shade the truth and does not try to hide who he is. He is the type of witness every attorney loves and fears. Put him on the stand and let the jury see how direct and credible he is. The only problem is he will be absolutely uncontrollable on the witness stand. He has already violated just about every rule by speaking to every media outlet. On the stand, he would expound and elaborate every question. A yes or no question would not necessarily get a yes or no response. He would be funny, combative, and sympathetic at the same time.

We attorneys crave control and he'd be everything an attorney is afraid of at trial, and the jury would love him for it. Sometimes rules need to get broken, though.

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Quarterly Stats - April 2013

The numbers went down overall this quarter because I was transferred to a new bureau that focuses on bigger investigations as opposed to single files. One of the biggest investigations I've ever worked on wrapped up last week. It will be fun to discuss - murder, robberies, juveniles, cell phone records, DNA, cell phone tower records and the coordination of about twenty different law enforcement personnel. The wrap-up means the beginning is over, but a trial is coming down the road.

On to the stats for the first quarter of 2013:

Total cases handled: 53 files - Higher than last. Not sure whether that is good or bad.

Number of pleas taken: 21

Number of cases closed after arrest but before indictment: 5

Main reason why: Insufficient evidence

Number of cases where guns were used: 30 

 

Type of gun in every one of those cases: Handgun

Saddest case: 4 girls jump out of a car and beat and rob a female who was just walking down the street, stealing her shoes and cell phones. The girls ages? 14 and 15.

Youngest defendant: 14 (robbery)

Types of cases handled: gun point robberies, burglaries, car thefts, shootings, gun possession, drug possession, attempted murders, murders, vehicular assault

Worst offender(s) of the quarter: Same as last - a group of young lads who spend three days robbing pizza delivery and taxi drivers. 10 that we know of. Like it's not hard enough to make some money.

Number of defendants given probation and a sealed record that were rearrested for the same charge: 2

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It's a Dangerous World

The penalties for assaults become more severe the more serious the injury and the more dangerous the weapon used.

For example, breaking someone's nose with a fist is a misdemeanor, while breaking someone's nose with a bat is a felony because a bat is considered a dangerous instrument. But what else is a dangerous instrument? New York Penal Law Section 10.00(13) says it could be anything. What matters is how it was used.

Some examples of dangerous instruments:

Handkerchief - People v. Cwikla, 46 NY2d 434 (1979) - The victim was gagged with one, which led to death by asphyxiation.

Sidewalk - People v. Galvin, 65 NY2d 761 (1985) - A bar fight where the defendant bounced the victim's head off the sidewalk, causing serious physical injuries.

Garbage bag - People v. Abreu, 283 AD2d 194 (1st Dept.) - Defendant used a garbage bag to choke the victim

Footwear - People v. Carter, 53 NY2d 113 (1981) - Defendant stomped the victim in the face with rubber boots. The boots caused more serious injuries than what we would expect with bare feet. People v. Lappard, 215 AD2d 245 (1st Dept.) and People v. Lev, 33 AD3d 362 (1st Dept. 2006) say sneakers are dangerous instruments. Work Boots? Yes under People v. Elijah B., 28 AD3d 312 (1st Dept.). Plastic sandals? Of course, People v. Byrd, 51 Ad3d 267 (1st Dept.).

Braided Belt - People v. Curtis, 222 AD2d 237 (1st Dept.)

Umbrella - People v. Dones, 279 AD2d 366 (1st Dept. 2001) 

Flyswatter Handle - When used to assault a five year old child - People v. Wade, 232 AD2d 290 (1st Dept. 1996)

TV Remote - People v. Krotoszynski,43 AD3d 450

 

What are not dangerous instruments?

Human teeth - People v. Owusu, 93 NY2d 398 (1999). Unless they are sharpened or altered by the defendant to make them more dangerous. 

Saliva containing HIV - People v. Plunkett, 19 NY3d 400 (2012) - Since the saliva is part of a person, it cannot be considered a dangerous instrument. Dangerous instruments are items that someone uses other than their body parts to cause injury.

 

Many thanks to a former boss for compiling this list!

 

 

 

 

 

 

 

 

         

 

 

 

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Just a Quick Pic

When I look out my office window, I stare across the street into the windows of the holding center, a temporary detention facility for defendants awaiting trial. The fact that I walk out of my building some days and come face to face with the family members of persons I am prosecuting is not lost on me.

But some days it provides amusement. I was crossing the street back to my office from the side with the holding center on it. A woman sat in her car, cell phone aimed at the holding center's windowed facade. I didn't think about it until I crossed between her and the building.

"Hey," she said.

I looked at her.

"Do you mind?"

"Mind what?"

"I'm taking a picture here."

I look at where the camera was facing and see a young male in the street, holding up a plastic bag with his name on it. I recognize it immediately as the personal property bag jailed defendant's possessions are housed in. He's holding it up towards his mother and smiling.

"It's his first time being locked up," she said.

I apologized for the intrusion and walked away, hoping that the single photograph is not the beginning of a lifelong album.

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