Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986. All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time. It is also human nature to not speak ill of the dead. However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question. However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road. Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence. The jury is looking to blame somebody and there is a good chance that it is going to be the defendant and also you could get a Dui Lawyer Orlando to help you rest your case, so everything is easier. Personally, I wouldn’t want to use this defense if it did not have a strong factual basis. The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state. Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst. The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery. Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated. Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that. There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

How to Hide Files in Office
Step 1) Create Mess;
Step 2) Tell people that you know where everything is.

Fort Lauderdale ASA Didn’t File 177 DUI Cases

On or about May 14, 2015, a long-term DUI case filing attorney for the Broward State Attorney’s Office was fired for “purposefully” not filing at least 177 DUI cases. The unfiled cases spanned a 14 year period of time from 1997 to 2011. When you average it out, it amounts to slightly more than 1 DUI per month over that 14 year period of time. To put this into perspective, there were 3,133 arrests in Broward County in April, 2015. Of those 3,133 arrests there were 139 arrests for DUI. So the failure to file DUI charges was not a frequent occurrence.

Was this purposeful? Who knows? What do they mean by the word “unfiled?” Did they have the evidence to secure a conviction? Did the State have the evidence necessary to ethically file charges? If the evidence wasn’t obtained, for whatever reason, there is no way to tell how many cases would have been filed. So this number may significantly over state the actual number of cases that would have been filed.

How Did This Happen?

These were not routine cases. It appears that all of the cases fit the same mold. The typical DUI scenario goes something like this:

Traffic stop for random traffic infraction;
Officer notices a distinct smell of alcohol, bloodshot glassy eyes and slurred speech;
Officer asks defendant to step out of the vehicle and perform standardized field sobriety exercises;
Suspect fails standardized field sobriety tests;
Suspect is arrested for DUI and asked to submit to a breath test;
Suspect submits to breath test with a result of a .08 or higher;
Officer provides suspect with a citation which acts as a temporary driving permit for the next 10 days;
Defendant posts $500 bond for a first DUI and goes home;
Officer submits probable cause affidavit with the breath test ticket to the State Attorney;
State Attorney files an “information” which is the document officially charging somebody with a crime.

This is how the “177 unfiled DUI cases” are different. At least this is how it appears to me based on the information I have.

All of the cases involved a car accident;
All of the suspects were injured and required medical treatment;
None of the suspects were able to provide a breath sample because they were receiving medical treatment;
None of the suspects were subjected to a forced blood draw. A forced blood draw can only be done in cases of death or serious bodily injury;
It is reasonable to assume that nobody was serious injured or killed in any of these accidents because there was never a forced blood draw;
None of the suspects were arrested.

A suspect can still be charged with a DUI even though the suspect was not arrested. When a suspect is not arrested, the officer submits a “presentment” to the State Attorney. The officer only submits the probable cause affidavit since there is no citation for the DUI. The filing attorney at the State Attorney’s office reviews the facts of the case and makes a determination of whether to move forward on the case.

Subpoena for Blood Test Results

Pursuant to Florida Statute 395.3025(4)(d), the State Attorney can request the court issue a subpoena for the suspect’s medical records that were generated as a result of being taken to the hospital. This includes any toxicology reports which were used for medical purposes. Prior to the court issuing a subpoena, a suspect must be given 15 days notice of the State’s intent to subpoena records from a 3rd party. The suspect can object to the production of the documents, including the toxicology reports, within the 15 days.

We Don’t Know What Happened

These “DUI” cases were presentments meaning that nobody had been arrested. I put the term DUI in quotation marks because we don’t know if the cases were solid DUI cases with blood alcohol levels over .08. We don’t know if the cases he didn’t file were garbage cases with .07’s and below. Personally, I believe that any case below a .10 is garbage and shouldn’t be filed. We don’t know if a subpoena was ever issued. If a subpoena wasn’t issued than we don’t know how many of these 177 cases should or shouldn’t have been filed because the toxicology reports are not available.

Assumptions

From what I have read so far, the State is claiming that 177 DUI cases were not filed. However, the news has not been very specific. In order for the number 177 to be correct, for these types of cases, you would need to assume that all 177 cases justified a subpoena being issued, that all 177 cases had subpoenas issued and that all 177 cases came back with .08 or higher BAC or a potentially impairing level of a narcotic scheduled under Chapter 893. After an Assistant State Attorney in the filing division has done all of that, the only thing left to do is sign a piece of paper. Literally, one signature. I simply find it hard to believe that a career prosecutor would go through all of the work of collecting the evidence, have a solid DUI case and simply not file it.