vehicular homicide defense

felony dui fatality accident

• proof of actual driver
• determining driver fault
• evidential witnesses
• expert dui witnesses
• jury trial exhibits

Defending a vehicular homicide with DUI charge is complex and more costly than most DWI related offenses. If you've been involved in a fatal collision involving alcohol or drugs, we urge you to inform yourself of the complexities, defense factors, and very importantly, what might be expected of the state's offensive strategy in prosecuting your case. This will better prepare you to make decisions in choosing a lawyer and planning your defense.

The involvement and influence of MADD victim advocates assisting survivors and next of kin should be anticipated, both in the courtroom and behind the scenes.

The information provided in this section is offered as a public information service to both defendants and lawyers seeking to gain a better understanding of defense and prosecution issues affecting vehicular homicide cases.

dui charges involving death or critical injury

Related Driving Under the Influence offenses resulting in fatality or great bodily harm include intoxicated vehicular manslaughter, elevated in severity when charged with gross negligence, first and second degree murder, assault with a deadly weapon (vehicle as the weapon), and hit & run DUI resulting in bodily harm or death, as defined in the California Vehicle and Penal Codes.

refuting proof defendant was driving

Actual case example lacking proof defendant was driver: A vehicular homicide case with DUI; defendant driving the car was the only occupant of his vehicle, registered in his name. There were no surviving eyewitnesses to the crash. When police arrived, the "driver" was being treated by paramedics, and the officers failed to approach the defendant at the scene. One officer did record the defendant's information from an ID provided by a medical attendant, but no officer could actually testify that they saw the defendant and verified his identity, nor that he was the driver, and no officer recorded the names and identities of the paramedics. There was no case for the prosecution, nor consequences for the driver. Discrepancies and improper procedure are key factors in the outcome of some cases.

It's a fact that without solid proof the defendant was the actual driver of the car, a case will be shortlived. It is crucial to carefully cross examine officers and care givers as to who verified the defendant's identity, how they concluded he or she was the driver, and who can give testimony to these facts, preparing cross-examination issues accordingly. The prosecution needs to establish proof beyond a reasonable doubt defendant was driving and caused the accident. Please see below section for at fault factors.

• As stated in the section below pertaining to credible eyewitnesses, the defendant may have been seen driving, occupying, or exiting the driver's area of the vehicle.
• Again, there may be eyewitnesses listed above who heard the defendant make a statement or admission to driving, or indirectly suggest he or she was responsible for the accident.
• Establishing the defendant as the registered owner of the vehicle is not sufficient to conclude he was driving. Was the driver trapped in the vehicle? Was the defendant the only occupant of his or her vehicle? Was anyone thrown from the car? Were seatbelts worn? How did the impact affect the shift of weight and resting position of occupants? A Key role of Accident Investigators and Reconstructionists as expert witnesses.
• In cases where there is doubt surrounding the driver's identity, the prosecution may employ a pathologist to determine if the injuries of the deceased are consistent with vehicle damage to rule out the victim. Blood and tissue samples will be taken from the vehicles to determine the driver, when necessary, and a DNA expert may testify accordingly. As your defense, we'll prepare the appropriate cross-examination and employ opposing expert witnesses, when applicable and ensure the proper warrants are secured for obtaining and matching blood or hair samples to the defendant. We file motions to rule out all evidence as inadmissible. The DNA laboratory process can take several months for each side to prepare.

clearing liability & refuting fault

If the prosecution and their expert witnesses fail to prove the defendant, NOT the defendant's drinking, caused the accident, he or she cannot be held liable, and the homicide charge must be dismissed. It's very important to not allow the prosecution to mesh or interrelate a positive BAC with accident causation, and we present this to Jury from the beginning of opening arguments, clearly and consistently throughout the trial proceedings. Not all drinking drivers involved in collisions have caused them and may be unjustifiably held liable. Sober drivers cause accidents every day but are rarely charged with homicide in the absence of drug or alcohol detection. The following factors affect the prosecutor's abiliy to prove fault, or causation:

• Proof of driving with a positive BAC does not constitute homicide, just DUI, regardless of the loss of life incurred or emotional intensity of the witnesses and advocates, if defendant did not cause the accident
• Eyewitnesses have seldom witnessed the accident from beginning to end, but are more likely to have seen it from the point of impact, or the from the inception of noise that captured their attention, such as braking, skidding, horn blowing, etc. Sometimes witnesses confuse what they actually with what they later learned transpired. This is especially likely in cases that go to trial several months or even years after the accident, as in cases where DNA and indepth research is involved. We rely on Accident Reconstructionists to corroborate witness accounts.
  
  *Note to lawyers: If you're not convinced by your expert witness' theory, your jurors won't be either. Be sure opposing testimony is credible or it will shed doubt on every other aspect of your case. We fortify our experts' reports with supporting testimony from physicians and pathologists who can concur conclusions based on injuries sustained, wound patterns, condition of the corpse,etc.
  
  Reconstructionists' research is crucial in establishing innocence, especially in cases where there are questions such as "which car crossed the double divider?", or in accidents involving traffic lights, the Accident Investigator will time the length of the light and measure his discovery with witness testimony, or statements made by the defendant. In certain cases, the Investigator will need to drive a similar make and model car and drive the same route to refute prosecution's claims as to what actually happened, the timing of events, travelling speed, time necessary to stop safely, obstructed vision, blind spots, etc.

defending the dui charge

The chemical test administered in fatality accidents is usually a blood sample, especially if the defendant suffered injuries and received medical care. Chain of custody discrepencacies or errors may have occurred if it is unknown which officer witness the blood draw, if any, who delivered the sample tube to police and which officer received it, method in which the blood sample reached the crime lab, who requested the analysis, and who did the actual testing, and the conditions in which these tasks occurred. Were steps taken in adherence with procedure, administered and documented correctly?

Did the officer who witnessed the blood draw, if any, record the name of the phlebotomist and document that betadine swab was used on the defendant?

defense & prosecution witnesses

As with many DUI cases, witnesses can be a key factor working in our favor or rendering damaging testimony we'll motion to prevent or attack, preparing our own witnesses for rigourous cross-examination by the prosecution. Essential to our case preparation:

• WITNESS IDENTIFICATION & INVESTIGATION:
  Interview, investigate, verify, and background check all potential witnesses and their relationship to the accident, defendant, and/or victim(s):
• Was particular witness a bystander? A driver or passenger in a vehicle struck by collision? Emergency personnel, ie, paramedics, firefighters, ambulance staff? Passengers of defendant or deceased? Other victims?
• WITNESS STATEMENTS AND OBSERVATIONS:
  What testimony can be established or predicted about the defendant's demeanor, behavior, state of mind, exculpating or self-incriminating actions?
• REASONABLE DOUBT OR PROOF DEFENDANT WAS DRIVING:
  Did any person witness the defendant in a state of driving, occupying the driver's seat, exiting from the driver side door, handling car keys, or any other indicating factor? Did the defendant suffer any visible injuries consistent with damage or blood on or near the driver's area of the vehicle? Read more on disproving defendant as driver
• OFFICERS AS WITNESSES:
  Who was the first peace officer to arrive on the scene? What statements or observations did the primary officer disclose or suggest in the written report or verbally to other officers, witnesses, next of kin, passengers, tow truck drivers, highway maintenance workers, clean up crews, emergency or medical personnel, victims, supervisors, investigators, coroner staff, or the defendant himself? Appropriate preparation of motions and cross-examination.
• DEPOSING MEDICAL & EMERGENCY PERSONNEL:
  A key area of special attention. In many cases prosecutors will either know, or seek to befriend hospital and medical care workers, setting the scenario for candid dialogue and opinions not otherwise disclosed. It is not uncommon for the prosecutor to have encountered and interviewed the same care providers in previous cases. Duties of police officers also call for frequent visits to emergency rooms. The prosecution will routinely follow up and seek updates on medical aspects of the case which can affect the climate of the case, as they are sometimes especially sympathetic to the victim(s) and prosecutor.
• CHAIN OF CUSTODY EVENTS:
  Determine, verify, and document all chain of custody events and addressing any evidential issues or motions that arise
• MIRANDIZING OFFICER:
  Collect statements and observation from mirandizing officer and/or any law enforcement personnel who spoke with or had contact with the defendant and/or witnesses, in addition to the officers' police report entries.
• PROPERTY OWNERS
  Any persons who suffered property damage resulting from collision, including the registered owners of vehicles involved
• APPRAISERS & ESTIMATORS:
  Any agent or related report generated by the insurance agencies' investigations of the accident
• AUTO BODY REPAIR, DISMANTLING & STORAGE PROVIDERS:
  Any related reports, estimates, comments, observations or material extracted from the vehicle after removal from the scene.

assignment & cross-examination of expert witnesses

• Accident Investigation Expert
• Accident Reconstruction Expert: Provides physics based analysis and testimony regarding physical evidence including gouges, vehicle and property damage, injuries, skid marks, rate of speed, etc. and demonstrates findings using photographs, diagrams, and other presentations
• Highway & Traffic Expert to analyze external conditions & factors that could have caused or contributed to accident, and exculpating testimony
• Pathologist
• Doctor on Great Bodily Harm cases (survivors)
• DNA expert, if applicable
• Ombudsman to mediate and provide support for emotional family members or survivors at trial
• Private Investigator(s)
• Toxicologist

defense documents & exhibits

• Officer's affidavit of Probable Cause
• Statistics Sheet on each Automobile Involved
• Photographs of the accident scene and topography
• Field Diagram, Measurements & Speed Report
• Crime Laboratory's BAC Report
• BAC Report from Independent Lab(s)
• Other lab reports, as applicable
• Evidence Reports
• Police Reports
• Accident Reports
• Driving record/history of all involved drivers
• Defendant's Driving Record
• Vehicle Manufacturer Reports
• Weather & External Condition Reports from Accident Date
• Defendant's Accomplishments & Societal Contributions
• Evidence of a Clean Criminal Background, if applicable
• Backgound Investigation Checks on all Witnesses and Victims
• Autopsy & Coroner Reports
• Accident Reconstruction Reports, Photographs & Exhibits
• Accident Investigation Reports, Photographs, Diagrams & Exhibits
• Private Investigator Documents & Findings
• All Applicable Medical Reports
• Defense Affidavits
• Defendant's Statement
• Witness Statements

obtaining additional information & support

Additional sections on this site, such as Vehicular Manslaughter, Felony DUI and DUI Penalty Enhancements contain further information pertaining to drunk driving with great bodily harm or death.

If you are a defendant facing fatality DWI charges, or an attorney seeking Trial services or support, please contact Darren Kavinoky's office at 619.231.7412 for a confidential, no cost consultation tailored to your individual needs, or simply eMail us with your concern or inquiry. We respect your privacy and are very effective at sheltering our clients from news media and exposure in high profile cases.