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Assemblyman Roger Hernandez Not Guilty … Kinda

Tuesday, August 28, 2012 21:22

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(Before It's News)

In the vast majority of drunk driving prosecutions, the defendant is charged with two distinct yet alternate crimes: driving while under the influence of any alcohol or drug and driving with a blood alcohol content of 0.08 or more. One cannot be convicted of both, as the two crimes punish the same conduct.

The two charges allow the prosecutor to alternatively argue that the driver was dangerously impaired for the first charge and an illegally high blood alcohol content on the latter charge. The flexibility from the dual-charge arrangement allows for drugged driving convictions or convictions where a BAC reading was unavailable due to a testing error or refusal.

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State Assemblyman Roger Hernandez was charged with both offenses, reports the Sacramento Bee. He was pulled over after his state-owned Toyota Camry was seen swerving and changing lanes without signaling.

His initial trial ended today, with an acquittal on the impairment charge and a deadlocked jury on the second charge. The jury apparently felt that the evidence of his lane-swerving did not reach impairment beyond a reasonable doubt.

As for the 0.08 or higher charge, Hernandez’s BAC was measured at exactly 0.08. It is unclear what strategy that the defense utilized. Both blood and breath tests each have a margin of error. With a borderline reading, it’s possible that the Assemblyman’s BAC was actually below the legal limit and the reading simply came out a little high.

Another possible defense is the rising BAC theory. Hernandez admits that he consumed two glasses of wine before driving. At the time he was pulled over, it’s possible that he was not at the legal limit. By the time the test was administered, his body could have digested enough alcohol to put him at the legal limit.

These borderline BAC cases are a DUI defense attorney’s favorite cases, as there are many strategies they can take. These cases usually plead out quickly.

Due to the jury’s deadlocking on the 0.08 or higher charge, the case could continue. The prosecutor has the option to refile charges on deadlocked verdicts. Hernandez is officially not guilty of the other charge, however.

Roger Hernandez’s case drew increased scrutiny due to his introduction of a bill a month earlier that would allow those convicted of DUI and other misdemeanor offenses to avoid jail by obtaining credits for job training, life-skills classes, and other strategies to help them become productive members of society. The bill, nicknamed ‘Roger’s Law’ by opponents, passed in mid-June.

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