DWI Cop Defense: Vionique Valnord, Victim, Was Drunk

[meegbear]

The attorney for a New York City police officer accused of killing a preacher's daughter while driving drunk has taken up a "blame the victim" defense.

Officer Andrew Kelly was allegedly intoxicated and "reeked" of alcohol when he hit Vionique Valnord in the early hours of September 27th.

Despite refusing to take a Breathalyzer test at the scene of the crime, police did not conduct a blood alcohol level test on Kelly until seven hours later, at which point results showed no booze in his system.

Now toxicology reports show that Valnord had a BAC of .22, almost three times the legal limit if she were driving.

Kelly's lawyer has seized on this information, saying, "It appears that she was drunk and she wandered into traffic" and that it was "probably her judgment" that "contributed to this accident."

Sanford Rubenstein, lawyer for the victim's family, responded that Valnord was a victim "irrespective of what her blood-alcohol level was" and again questioned why the officer wasn't given his own blood test.

http://www.huffingtonpost.com/2010/01/20/dwi-cop-defense-vionique_n_429886.html

[T Wolf]

1. Pigs get away with murder by gun all the time. What makes murder by DUI any different? nt

[RaleighNCDUer]

2. That's a defense?

"If she hadn't been drunk she'd have gotten out of the way of my drunken driving."

[Robb]

5. It's actually a pretty good one, IMO

Who the victim and drunk driver are notwithstanding, this is a pretty good one from the lawyer.

No one, drunk or sober, could reasonably be expected to avoid a drunk who stumbles unpredictably into traffic, or however he's going for it to sound.

There was a kid (16? hazy memory) in my old (small) town years back who was hit on the highway by a couple who were, frankly, pretty notorious town drunks. They were of course over the legal limit at the time. Town pretty much was ready to hang them both. Then the coroner comes back and tells us the kid who was hit was so drunk he was likely as not to be dead by morning from alcohol poisoning, and was by his injuries judged to have been lying in the middle of the road.

So, it can happen.

[Lance_Boyle]

3. This is why you refuse the field breathalyzer and opt for the blood test downtown

although I doubt that a mere non-cop citizen would get 7 friggin' hours to clear out the system before the blood test was done.

[Jersey Devil]

4. Here's how to extrapolate those test results

On average (can vary with body weight over or under the average person's weight), the body can rid itself of alcohol in the blood at the rate of .015% per hour.

So if the Defendant's blood was 0.0% blood alcohol at the time the test was given the most he could have been 7 hours earlier was 7x.015 = .105%. That is above the legal limit of .08%, but keep in mind that would only be true if he was at his maximum at the time of the accident. If he stopped drinking more than 20 minutes before the accident (average time it takes for the body to completely absorb alcohol in the bloodstream), he would have a lower BAC by .015 per hour. But you can't assume that because he had booze on his breath that those maximum figures apply. How much a person's breath smells means nothing except that he was drinking, so whether he "reeked" or not would not prove the case.

They will have to prove the case the old fashioned way, with testimony by cops (and or other witnesses) that his eyes were watery and bloodshot, strong odor of alcohol on his breath, movements when walking or standing that indicted he was swaying or rocking, etc., failure to pass field sobriety tests, etc. Some jurisdictions videotape Defendants at the station house (but recently they stopped doing that at most places because, especially with experienced drinkers, they can appear completely sober even though they are way above the limit).

The same math applies to the victim, though since she died the body would have almost immediately stop metabolizing the alcohol upon death so I don't think it matters when the test was given after death.

But whether the victim was intoxicated or not is no defense to DWI and should not be considered by the court. Fault of a pedestrian plays no part in whether someone is driving under the influence or not. I don't care if she jumped off the top of the George Washington Bridge and landed on the hood of the Defendant's car. If the Defendant was over the limit he'd be found guilty.

[Robb]

6. I don't think he can dodge the DWI

...but this is probably a solid defense against manslaughter.

[Jersey Devil]

7. Depends on the oral testimony of the arresting officers - edited

I am a lawyer and have beaten many cases where there was no blood alcohol reading over the limit but lost many more cases where there was no test because the cop was experienced and knew exactly what kind of testimony was necessary for a conviction. Here you have cops tesifying against a cop, so unless there is a civilian witness at the scene to keep them honest there is a good possibility that the "brother" could walk altogether.

edit - yes, I agree that the victim's intoxication might be relevant in a manslaughter case (depending on other factors - for instance, was she in a crosswalk and if so how could it matter how drunk she may have been?) but certainly not in a DWI.