The Raskolnikov Method
March 13, 2013 9:55 AM   Subscribe

I'm interested in the origin and propagation of this particular trope: Extremely drunk driver, with bottle of booze in the car, gets in a crash, possibly killing someone, with plenty of witnesses. The driver, either on his own initiative or after calling someone (perhaps a lawyer) for advice, gets out of the car and starts publicly drinking great volumes from the bottle.

The idea here is that they intend to use as a defense the story that they were sober at the time of the crash, but started drinking because of how stressful the situation was immediately afterwards, and that all the alcohol found in their system when the police eventually performed a breathalyzer had been consumed after exiting the vehicle.

I know that I have seen or read a variation of this in at least two works of fiction, and I've also heard very close cousins of it being passed of as something that actually happened/worked (see this snopes message board thread for examples).

So I'm interested in both specific examples of this trope appearing in fiction and, if they exist, real world examples of this being used as a defense in court.

Shouldn't need to be said, but : I am not looking for advice on how to get away with driving drunk, and neither should you. I am just curious about this weird story.
posted by 256 to Law & Government (13 answers total) 4 users marked this as a favorite
Best answer: I had a client once who was charged with leaving the scene of an accident. He, allegedly, hit a car and drove home, where he was arrested 45 minutes later. When the officers testified they claimed that he had clearly been drinking when they arrested him, but he was only charged with leaving the scene because even if you prove he was driving a car, got into the accident, and left, and was later drunk, there's no way to prove that he was drunk at time of the accident.

This works because it was 45 minutes later. If they had found him at the scene of the accident, bottle in hand, I'm sure they would have charged him with DUI.
posted by Bulgaroktonos at 10:09 AM on March 13, 2013 [1 favorite]

Best answer: Here is a story about Rick Sanchez, later of CNN, but at the time of the accident, with WSVN 7 in Miami.
posted by Ruthless Bunny at 10:12 AM on March 13, 2013

It was on an episode of The Practice/Boston Legal. I know that Cameron Manheim was the drunk driver's attorney.
posted by joelhunt at 10:14 AM on March 13, 2013

Real-world example: Got woken up in the middle of the night by a series of screeches and crashing noises; threw on clothes/shoes and ran outside to see that several cars parked on the street were badly damaged, alarms going off, etc. and could hear a vehicle driving away fast.

Cops showed up. Cops investigated. Cops found the guy who'd caused the damage, but told our downstairs neighbor (whose car was one of the ones that the guy smashed into) that while they guy would probably face some sort of negligence charge and maybe leaving the scene of an accident, they probably wouldn't be able to charge him with DUI because when they found him - a block away in his house, with his half-wrecked truck in his driveway - he came to his door with a bottle in his hand and said he'd been drinking since he got home because he was so freaked out. He told one cop he'd fallen asleep at the wheel; he told another cop his truck acted weird and accelerated unexpectedly. He categorically denied having had anything to drink before or during his drive.
posted by rtha at 10:16 AM on March 13, 2013

Best answer: Season 1 Episode 9 ("Threesome") of 'The Good Wife' has this basic premise.
posted by Bistle at 10:32 AM on March 13, 2013

A friend of mine (prosecutor) just lost a case with similar facts:

A concerned citizen called in eradic driving and gave the police the address the vehicle stopped. The cops showed up at the house, found the defendant drinking outside, and cited him for OUI. This went to (bench) trial and the verdict was for the defendant because the state couldn't prove that he was intoxicated at the time he was driving. It happens.
posted by unreasonable at 10:34 AM on March 13, 2013

Related real life story from jury duty. As confirmed by witnesses, the guy has a huge argument with his girlfriend just before closing time at the neighborhood bar. Last call comes and in his distress he downs several shots and leaves. Cops find him asleep in the driver's seat parked on the shoulder of an off-ramp about a hundred yards from the bar. The car is off and the keys are in the ignition. Breathalizer confirms that he's slightly over the legal limit.

The defendant maintains that he got in the car, left the parking lot and realized that the shots he'd just consumed would impair his driving ability once they hit his system, so he pulled over to sleep it off but had not actually driven drunk. The prosecution relies on the keys being in the ignition and, secondarily, on the guy being in the driver's seat, which together comprises "control of the vehicle." In their closing statement, the prosecution states that if the keys had been out of the ignition and/or he had been sleeping in the back seat, it would be a different matter. The judge essentially instructs the jury to convict.
posted by carmicha at 10:35 AM on March 13, 2013

Another jury duty story: guy left a friend's house on a wintry day and crashed into a tree. The first car to come by and see him was an off-duty police officer. The driver was quite drunk, but claimed that after the crash, while waiting for help to arrive, he started drinking the beers he had in the truck. Nobody on the jury bought his story.
posted by JanetLand at 10:56 AM on March 13, 2013

In some/many/all states there is a presumption that if you're drunk [x] hours after driving, you were driving drunk. It looks like in some/many/all of those states, this is a rebuttable presumption, but judging by JanetLand's and others' stories it seems the rebutting doesn't always work.

I might be oversimplifying what I am reading because IANAL.
posted by ftm at 11:36 AM on March 13, 2013

State law varies on how the jury is supposed to analyze intoxication and the results of the breath test. (I think it's a rebuttable presumption of intoxication in both California and Washington if the driving was within X hours of the failed breath test. I don't remember if it's 3 hours or 4).

In Oregon, where I practice, there's no presumption, the law is simply that the jury has to find beyond a reasonable doubt that the person was above a .08 at the time of DRIVING, or that the person was adversely impaired to a noticeable or perceptible degree. There's a jury instruction that says a jury can consider breath test evidence for what they deem it to be worth, but nothing that requires them to even take the breath test evidence at face value, or apply what it means in the context of earlier alcohol use.

In practice, this leads to a lot of "rising BAC" defenses, and claims of drinking after driving. I had a case where I thought we had a great shot of drinking after driving, but we were unable to find the empty bottles that my client drank out of, and other witnesses gave us conflicting stories.

So yeah, it's not a foolproof method by any means. It's also easily defeated by a jury who WANTS to convict someone, since they can give the breath test evidence whatever value they want to, regardless of the relationship between the time of the test and the intoxication at the time of driving.
posted by Happydaz at 11:50 AM on March 13, 2013

Is it not the case that some states have "per se" DUI laws, in which being below the legal limit is NOT necessarily a defense to DUI charges? How would that affect this kind of situation? It seems that this kind of law would diminish the importance of proving that the driver was drunk at the time of the accident. I'm not sure how I feel about a jury convicting someone because they did something that seems like a thing a drunk would do, but, on the other hand, anyone who pulls this stunt doesn't get my sympathy.
posted by thelonius at 12:17 PM on March 13, 2013

This is why MADD had the limits lowered. You catch the person, get a blood test and do the math to see how drunk they were in the past. The lower limit now pretty much means in PA at least you're not gonna get away with this.

Then again juries can be persuaded pretty easily at times.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 6:01 PM on March 14, 2013

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