By Gracy Joslin and Rena Abdusalam
WOODLAND, CA – A man was convicted here in Yolo County Superior Court Wednesday after a two-day-plus jury trial on two misdemeanor charges for allegedly driving under the influence and drunk driving, along with two enhancements for excessive blood alcohol content and refusal to be tested for a DUI.
The Vanguard will not identify the accused because the charges are not felonies.
Earlier in the week, Deputy Public Defender Eric Arias asked the court to reconsider one of the objections made in court during the trial, regarding the accused’s silence upon waking up in the hospital.
“(He) has a right to remain silent. That is the Fifth Amendment protection. And so, his silence is being used as an adoptive admission,” argued PD Arias.
However, prosecutor Jose Gustaco Figueroa argued, since the accused failed to speak or reply, both the accusatory statement and the fact of silence may be offered as an adoptive admission of guilt. Judge Tom Dyer responded but didn’t announce a ruling.
Eventually, the jury was let in and a testifying officer (name not intelligible) said the accused’s eyes were “slightly pink-ish.”
The officer noted that he has witnessed or been a part of about 30 blood draws in his career and the man’s blood appeared like any other time the paramedic had drawn blood from somebody.
In response, PD Arias told the officer that yesterday he testified the accused’s eyes were red and bloodshot.
Afterwards, the second witness, Kimberly Sand, who works as a criminalist for the California Department of Justice, did a technical review on her colleague’s report and claimed she found the accused’s sample to be tested appropriately to the technical procedures and accurate.
It was found the man’s BAC level was 0.213 percent, said Sand, adding, “My opinion would be that if a person’s blood alcohol concentration is 0.213 percent at the time of operating a motor vehicle, they would be doing so in an unsafe manner.”
Then, prosecutor Figueroa asked Sand to calculate the BAC for hypothetical situations.
For the first hypothetical, Figueroa asked how many drinks it would take for a male, weighing 225 lbs., to register a BAC level of 0.213 percent, and Sand answered 13 drinks.
Figueroa then asked what would be the BAC level for a 225-lb. male at 12:40 a.m., that drank three drinks at 5 p.m. and stopped drinking at 8:30 p.m., and Sand said the level would be zero.
PD Arias asked Sand if she knew the person who drew the blood, witnessed the drawing, and who did it. She answered no to all. PD Arias also noted the hypotheticals are based on a fictional male, not the accused, and that she physically never touched the blood draw.
Sand insisted she was notified about the field sobriety test the accused underwent, learning he was stumbling and swaying. Knowing that, she said the accused was more likely to be drunk and not in a good condition to be driving.