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DUI Due to Alcohol vs. Drug Related DUI

Interviewer:  Are cases you see mostly due to alcohol, or drugs – prescriptions or legal?

Brian Geno: Oh, definitely alcohol. Alcohol is definitely the drug of choice for the people I see. I think it’s probably considered the safest drug, so I’m sure that’s why it’s mostly alcohol. It’s what most people do. Plus, it’s much harder to detect other drugs besides alcohol.

Interviewer:  Do you see cases due to illegal drugs, like marijuana, cocaine, and things like that?

Brian Geno: Yes. Not so much marijuana, because if it’s marijuana, the police would just charge them with possession of marijuana and maybe reckless driving; because it would be hard to prove that someone is out of control due to marijuana. However, cocaine and other drugs like that, I have definitely represented people with DWI due to those drugs. I’m guessing at this point, but I would think that if an officer had his choice, he wouldn’t be charging someone with DWI if he had the choice of doing both possession and driving with marijuana. If I were the officer, I would be doing that.

Interviewer:  How about prescription drugs? Do you see cases where people have taken prescription drugs and they’re still charged with DUI?

Brian Geno: Well, that’s definitely something that a person could do and get charged with DUI. It’s not like it happens as often as with alcohol, but it definitely does happen.

A lot of times, the courts will say that a person is driving while under the influence – not so much because the driving was poor but because of alcohol. If the police can show that the Defendant had alcohol in his system. Then the police stop him for anything, and it doesn’t necessarily have to be terrible driving. I don’t like that, and don’t think it meets the statutory level of DWI but people get convicted with that set of facts.

With prescription medication, it’s hard to detect the improper influence of drugs. From a defense attorney’s perspective, it is a nice case to have because it’s a little harder for the government to prove that a Defendant is in possession and is misusing prescription drugs. The government would definitely have to show reckless driving behavior. If DUI for prescription medication is on the rise, I don’t see it that much in this area. I mean, I haven’t seen the rise so much here, but it could be.

Blood Alcohol Content

Interviewer: How about the blood alcohol level of people that you help? Are they close to the 0.08 limit or are a lot of these guys truly drunk and have very high BACs?

Brian Geno: I think that they’re, for the most part, closer to 0.1 as opposed to 0.08, which for the longest time was presumed to be under the influence of alcohol. They don’t necessarily have that presumption anymore, but most of the time it is a little bit over. What you typically see is the person who’s 0.08 isn’t really quite so drunk (based on the way they act) as when they get closer to 0.1. It’s harder to prove the person with blood alcohol of 0.08% is affected by alcohol than someone with 0.1%. You can get 0.08 cases amended a little easier to something less than DWI.

Like, for example, today I had a case of 0.07 and the case was reduced all the way down to improper driving. However, last week I had one that was 0.15 and the guy clearly looked and appeared drunk when reviewing the video from police cruiser for purposes of the defense. He looked drunk. He sounded drunk. I see plenty of cases where they are really drunk. You have to be creative with the defense on those because the person looked drunk so it was harder to show he wasn’t affected by alcohol.

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