The Role of Mitigation in DUI Per Se Cases

This is a writing sample from Scripted writer Xavier Galindo

DUI Per Se criminalizes the operation of a motor vehicle with a blood alcohol level (BAC) of 0.08 or higher. Careful readers will note that no mention is made here of actual intoxication. The number alone can be sufficient basis for conviction. This changes the rules of the game for defendants. While some DUI cases can be difficult for the prosecution to provide evidence of, such as when a motorist refuses to undergo field sobriety testing, the existence of DUI Per Se can create a presumption of guilt that's difficult for the defense to challenge. Per Se is Latin for "in itself," and it is indeed "in itself" enough evidence of intoxication. Undermining the validity of the tests used to obtain BAC is often the only viable means of defending against a Per Se charge — a challenging proposition if authorities maintain up-to-date records of their testing methods and maintenance procedures, as they often do. Emotional Appeals Sentencing guidelines often take into account the totality of a defendant's circumstances. If the only evidence of DUI against someone is numerical, that could leave the defense with significant freedom of maneuver with which to counter. 0.08 is an impersonal number, but courtrooms are conducted by human beings who have a natural tendency to resist depersonalized reasoning. The challenge is that these particular human beings see their fair share of DUI cases and will probably not be inclined toward sympathy. But sympathy isn't at issue here; the mitigation defense is premised upon understanding. "Sympathy" connotes an element of Misericordia that's counterproductive to the defense's purpose. Pathos is the lowest form of persuasion in the continuum of Aristotle's three rhetorical appeals, and the defense must count on the other side's knowledge of and aversion to this form of argument. Argument premised upon sympathy will likely be swept aside with little effort. Understanding v. Sympathy On the other hand, "understanding" parallels the object of mitigation. It logically supplements the defense' argument without undermining it with irrelevant emotional appeals. Consider the difference: • "My client deserves a less severe penalty because he'd been demoted at work and is getting a divorce." But many suffer in their personal lives without breaking the law as a consequence. Should all who suffer so be granted an exception? What distinguishes this defendant from any other? • "My client deserves a less severe penalty because no one was harmed by his action and the circumstances of his arrest were exceptional." This reasoning simultaneously strengthens the mitigation argument and anticipates a possible objection — that leniency now might encourage recidivism later. The line between fallacy and validity can be surprisingly nuanced, but those nuances are momentous. In a sense, Per Se laws introduce an element of automation to DUI convictions that's difficult to circumvent. Nevertheless, it may be possible to reduce the power of a damaging conviction. Effective mitigation requires strict focus on the conclusion of the defensive argument and supplementing it with as many logically valid premises as the circumstances allow. Strong argumentation can massively influence a client's outcome and well-being long after these proceedings close.

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Xavier Galindo
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