Advocacy & Safety - Carlos' BAL was .122

From the Miami New Times: (http://blogs.miaminewtimes.com/riptide/2010/02/carlos_bertonattis_blood_alcoh.php)

"Blood tests have been completed on Carlos Bertonatti, the aspiring musician accused of drunkenly killing a cyclist on the Rickenbacker Causeway last month and then speeding away.

​"The verdict: Bertonatti was drunk. The 28-year-old's BAC came back at .122, Riptide's sources say. In Florida, anyone who blows over a .08 is liable for drunk driving.
How bad is .122? According to this widely used blood alcohol content chart, an average, 180-pound adult would need to slam down six drinks in an hour to match that reading.

"Considering that Bertonatti hit Christophe Le Canne, the 44-year-old cyclist, a little after 8 a.m. on a Sunday morning, the reading would imply the singer had done some serious drinking before the accident."

An important point about this result: The cops got him within minutes after the crash. He drove past a Key Biscayne police officer dragging the bike under his bumper, and the officer stopped him very soon thereafter. From the police report, it seems blood was drawn within about 30 minutes of the crash.

.122 is high, but I've seen a lot higher. The six drinks in an hour stat cited above is misleading, because the BAL depends on the amount drunk over time and is affected by the amount and type of food eaten. It really doesn't matter though, because a blood draw taken so close to the crash is going to be very hard to attack. I think Carlos is cooked.

From the Miami New Times: (http://blogs.miaminewtimes.com/riptide/2010/02/carlos_bertonattis_blood_alcoh.php)

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.122 is high, but I've seen a lot higher. The six drinks in an hour stat cited above is misleading, because the BAL depends on the amount drunk over time and is affected by the amount and type of food eaten. It really doesn't matter though, because a blood draw taken so close to the crash is going to be very hard to attack. I think Carlos is cooked.

Do they know yet where he was partying? Or how long he'd been on the road? Is there a formula that they can use to determine what his BAL would have been when he first got behind the wheel?

I mean if he had a .122 when he hit Christophe Le Canne, what was it an hour before that, and what was it when if first climbed behind his car.

I don't know the answers to those questions, but I'll bet the police and prosecutors know most of it. As for a formula for figuring his BAL sometime in the past, it depends on when he stopped drinking and what he had had to eat. Those things are the heart of a DUI defense when the test is done a long time (hours) after an accident. But because the blood was drawn so soon after the crash, it really doesn't matter much in this case. There is almost no plausible set of facts I can imagine that helps him. If he stopped drinking hours before the crash (occurring about 8:00 a.m. Sunday morning), his BAL would have been much higher at its peak (at, say 2:00 or 3:00 a.m), meaning he was really blitzed. About the only good set of facts for him would be if he had had a lot to drink on an empty stomach very soon before the crash (a six-pack from 7:00 a.m. to 7:45 a.m.), followed by a crash at 8:00, followed by a blood draw at 8:30. On those facts, which would be pretty hard to believe, he might be able to claim that at the time of the crash he was under .08.

But even if he convinced a jury of those facts, he might be not guilty of DUI manslaughter but he would be convicted of vehicular homicide and leaving the scene of an accident involving a death, both of which are 1st degree felonies. Because there are solid witnesses to him dragging the bike several miles from the crash scene, with severe damage to his windshield, he is really boxed in on those charges.

I don't know the answers to those questions, but I'll bet the police and prosecutors know most of it. As for a formula for figuring his BAL sometime in the past, it depends on when he stopped drinking and what he had had to eat. Those things are the heart of a DUI defense when the test is done a long time (hours) after an accident. But because the blood was drawn so soon after the crash, it really doesn't matter much in this case. There is almost no plausible set of facts I can imagine that helps him. If he stopped drinking hours before the crash (occurring about 8:00 a.m. Sunday morning), his BAL would have been much higher at its peak (at, say 2:00 or 3:00 a.m), meaning he was really blitzed. About the only good set of facts for him would be if he had had a lot to drink on an empty stomach very soon before the crash (a six-pack from 7:00 a.m. to 7:45 a.m.), followed by a crash at 8:00, followed by a blood draw at 8:30. On those facts, which would be pretty hard to believe, he might be able to claim that at the time of the crash he was under .08.

But even if he convinced a jury of those facts, he might be not guilty of DUI manslaughter but he would be convicted of vehicular homicide and leaving the scene of an accident involving a death, both of which are 1st degree felonies. Because there are solid witnesses to him dragging the bike several miles from the crash scene, with severe damage to his windshield, he is really boxed in on those charges.

It would be interesting to know how long he'd been drinking, if he took any breaks in his drinking, how much and what foods he ate while drinking. True, I've always heard that starches absorb alcohol which allows people to drink more. True, and as you've said given how short the time-frame was between his arrest and his blood being drawn for testing showing him to have a BAC of .122 there really is now positive way that his lawyer can spin it in a positive way. Even though one of his trolls is trying to claim that he doesn't drink and that he was "drugged" without his knowledge. And I guess therefore shouldn't be held responsible for his actions.

Which raises the question if a person is at a party, club, restaurant or what have you and someone slips him a "micky" and drugs him/her and they get behind the wheel of a car and gets into a collision who's fault is it? The person who was driving or the person who slipped them the "micky?" Or they're served one of the alcoholic drinks in which one doesn't really taste the alcohol, like say a Long Island Iced Tea, or a Lynchburg Lemonaide, which trust me if it's made right you don't taste the Jack.

I'm sure that most if not all of us here agree that having a BAC of .122 at 0830 doesn't look good for him.

Yep, that is one of the good things in this case, there are plenty of solid witnesses to identify him and his car, and the damage done to his car.

The defense of "involuntary intoxication" in Florida arises only when a person becomes intoxicated by taking legal medication in the prescribed amount. I have seen no case (and I have read and written about every reported criminal appellate decision in Florida since 1984) in which a person was allowed to claim involuntary intoxication as a result of alcohol intoxication - all the reported cases deal with drug intoxication. The New Times story does not discuss finding any other intoxicant in Carlos' blood, so I assume he had none. Thus, the "slipping a mickey" defense is gone. And another thing - "voluntary intoxication" was eliminated as a defense in Florida several years ago. It was often tried and almost never successful because the standard was so high. To get a juror to believe that Carlos was so involuntarily intoxicated that he did not intend to drive the car and did not know he hit something when his windshield smashed and thereby did not intend to leave the scene, will require feats of legal legerdemain (and prosecutorial screwups) well beyond the ability of mere mortals. Even a Miami jury will not buy it.

The defense of "involuntary intoxication" in Florida arises only when a person becomes intoxicated by taking legal medication in the prescribed amount. I have seen no case (and I have read and written about every reported criminal appellate decision in Florida since 1984) in which a person was allowed to claim involuntary intoxication as a result of alcohol intoxication - all the reported cases deal with drug intoxication. The New Times story does not discuss finding any other intoxicant in Carlos' blood, so I assume he had none. Thus, the "slipping a mickey" defense is gone. And another thing - "voluntary intoxication" was eliminated as a defense in Florida several years ago. It was often tried and almost never successful because the standard was so high. To get a juror to believe that Carlos was so involuntarily intoxicated that he did not intend to drive the car and did not know he hit something when his windshield smashed and thereby did not intend to leave the scene, will require feats of legal legerdemain (and prosecutorial screw-ups) well beyond the ability of mere mortals. Even a Miami jury will not buy it.

Yeah, it was all I could do to keep from bursting out laughing when I read that from the troll. Carlos' family is NOT getting their money's worth out of their PR company.

I've gotta agree with you that there isn't any reasonable or even unreasonable 'shine loven' redneck who could look at the physical evidence and think that Carlos didn't know what he was doing or who or what he had hit.

Unless his family is able to spend some big bucks buying the entire jury and the judge I really don't see him being acquitted. And the only real question would be how much time is "poor, misunderstood" lil Carlito is going to do. Hopefully he gets the maximum sentence, does the full sentence.

Was he also driving on a suspended drivers license? Does this factor in as well? If his drivers license was suspended, then legally he should not have been driving any car in the first place.

Was he also driving on a suspended drivers license? Does this factor in as well? If his drivers license was suspended, then legally he should not have been driving any car in the first place.

I'm not 100% as I have heard some accounts that say it was expired and some that say it was suspended because of an earlier traffic infraction. Either way at the time of the collision he did not have a valid drivers license and as you say he should not have been driving any car.

But looking at his history, it is obvious that he has little regards for the law.

I'm not 100% as I have heard some accounts that say it was expired and some that say it was suspended because of an earlier traffic infraction. Either way at the time of the collision he did not have a valid drivers license and as you say he should not have been driving any car.

But looking at his history, it is obvious that he has little regards for the law.

I wonder if this was the reason for the "mandatory" blood test? Otherwise, I would suspect that the blood test taken in the manner it was could be thrown out of court due to illegal search and seizure. But on a suspended license, he may be giving up that "right."

I don't know the actual situation, or the laws involved... so I am not sure.

You know, back in my heavy drinking days when I was younger, I bet I went way over 0.122 many times. That's really not that drunk. Heck, it wasn't too long ago that 0.122 might even have been legal to drive with in many states.

What's the significance of that?

It means Carlos was a lot more in control of himself than a non-drinker would think from the sensationalist reporting. "OMG! He was over 1.5 times the legal limit!!!"

Ergo, he's an even bigger jackass than you thought.

It's one thing to be so drunk you have no idea what you're doing. Killing a person while you're in that state is bad enough. But to be just a little drunk and kill someone then drive off then try to evade police than resist arrest? That's a whole lot worse - there's a lot more volition and a lot more downright nastiness and evil involved at that point.

You know, back in my heavy drinking days when I was younger, I bet I went way over 0.122 many times. That's really not that drunk. Heck, it wasn't too long ago that 0.122 might even have been legal to drive with in many states.

What's the significance of that?

It means Carlos was a lot more in control of himself than a non-drinker would think from the sensationalist reporting. "OMG! He was over 1.5 times the legal limit!!!"

Ergo, he's an even bigger jackass than you thought.

It's one thing to be so drunk you have no idea what you're doing. Killing a person while you're in that state is bad enough. But to be just a little drunk and kill someone then drive off then try to evade police than resist arrest? That's a whole lot worse - there's a lot more volition and a lot more downright nastiness and evil involved at that point.

I think .12 was a limit somewhere at some point but I haven't heard of anything higher than .12 (and .122 is higher).

As a drinker, .12 can be anything from "wow, I feel buzzed" to "I'm completely plastered." It depends on your metabolism, blood flow, etc. The more aerobically fit you are, the drunker you'll be on .12.
Also, you may *think* you were okay at .08 or .12, but you probably weren't. It's very common for people to think they're different when it comes to ability to drive while intoxicated. But they end up with the same slow reflexes.

Does anyone have any idea as to what the civil law is in Florida on third party liability if it were found that the driver was at a club or persons house or similar?

I'm just thinking that there may be more preventative impact to the cyclists family winning a large settlment from not only the driver, but also from responsible third parties, than any length of sentence the driver were to receive if found guiilty.

gene - the reason the blood test was mandatory is because the police had probable cause to believe Carlos was DUI based on his appearance and performance on the roadside tests right after the crash, plus the fact that there was probable cause to believe he had seriously injured a person while DUI. Under Florida law, that allows the police to take a forced blood draw. From all I've read, the legal basis for the blood draw is very solid.

It's correct that in some places .12 used to be the limit for DUI, and the limit in Florida was .10 until the 90s when federal law required every state to set their limit at .08. In Florida there are two way to prove DUI - one is by showing that the BAL was over .08 when the defendant was driving, and the other is to show that the driver was under the influence to the extent his normal faculties were impaired. The impairment standard is used when the BAL is under .08 and the driving is erratic, or there are drugs in the system (there is no easy, reliable way to test for drugs is a person's system to show that they are impaired by the drugs while they were driving) but no alcohol, or when a driver refuses a breath test (Carlos had blood forcibly taken because of the crash - in a regular DUI with no accident if the driver refuses a breath test he gets an administrative DL suspension for a year (or more if he has a prior refusal), and the state has to prove the DUI by impairment, not by BAL.)

squirt - a bar in Florida can be held liable if they knowingly served alcohol to a person whom they knew was intoxicated and they knew was going to drive. I don't know anything about what Carlos was doing before the accident, and since the crash happened at 8:00 a.m. Sunday morning, it seems likely he had not been drinking in a bar for at least a few hours before, but I could be wrong. It's tough to hold a bar liable under the best of facts, and I'm pretty sure these are not the best of facts. I suspect Mr. LeCanne's family will settle for the maximum available under Carlos' liability policy (Florida does not require drivers to have PI liability coverage, so it's possible there is nothing there - because his driving record was so bad, liability insurance would have been very expensive), plus the maximum available under his own uninsured/underinsured driver policy. Because Carlos is an adult, his family likely is not liable for the damages. All this points up the benefits of having high limits on your own UM policy. You cannot count on the person who hits you being able to pay much or even anything toward your claim

I checked Carlos' driving record back when the accident happened, and I think his DL was merely expired and not suspended. That's the reason he originally was charged with no valid DL, rather than driving with a suspended DL. Having no valid DL is a non-criminal infraction wile driving with a suspended license can be a misdemeanor (not always). The driver's license issue is a non-issue, I think.

I wonder if this was the reason for the "mandatory" blood test? Otherwise, I would suspect that the blood test taken in the manner it was could be thrown out of court due to illegal search and seizure. But on a suspended license, he may be giving up that "right."

I don't know the actual situation, or the laws involved... so I am not sure.

No. Under Fl law, if you are involved in a collission in which their is bodily injury, and the cops have cause to believe you were drinking, they can force a blood draw. This will definitely hold up in court. The guy is toast.

gene - the reason the blood test was mandatory is because the police had probable cause to believe Carlos was DUI based on his appearance and performance on the roadside tests right after the crash, plus the fact that there was probable cause to believe he had seriously injured a person while DUI. Under Florida law, that allows the police to take a forced blood draw. From all I've read, the legal basis for the blood draw is very solid.

It's correct that in some places .12 used to be the limit for DUI, and the limit in Florida was .10 until the 90s when federal law required every state to set their limit at .08. In Florida there are two way to prove DUI - one is by showing that the BAL was over .08 when the defendant was driving, and the other is to show that the driver was under the influence to the extent his normal faculties were impaired. The impairment standard is used when the BAL is under .08 and the driving is erratic, or there are drugs in the system (there is no easy, reliable way to test for drugs is a person's system to show that they are impaired by the drugs while they were driving) but no alcohol, or when a driver refuses a breath test (Carlos had blood forcibly taken because of the crash - in a regular DUI with no accident if the driver refuses a breath test he gets an administrative DL suspension for a year (or more if he has a prior refusal), and the state has to prove the DUI by impairment, not by BAL.)

squirt - a bar in Florida can be held liable if they knowingly served alcohol to a person whom they knew was intoxicated and they knew was going to drive. I don't know anything about what Carlos was doing before the accident, and since the crash happened at 8:00 a.m. Sunday morning, it seems likely he had not been drinking in a bar for at least a few hours before, but I could be wrong. It's tough to hold a bar liable under the best of facts, and I'm pretty sure these are not the best of facts. I suspect Mr. LeCanne's family will settle for the maximum available under Carlos' liability policy (Florida does not require drivers to have PI liability coverage, so it's possible there is nothing there - because his driving record was so bad, liability insurance would have been very expensive), plus the maximum available under his own uninsured/underinsured driver policy. Because Carlos is an adult, his family likely is not liable for the damages. All this points up the benefits of having high limits on your own UM policy. You cannot count on the person who hits you being able to pay much or even anything toward your claim

Does that third party law apply to package stores, supermarkets, and liquor stores?

I think .12 was a limit somewhere at some point but I haven't heard of anything higher than .12 (and .122 is higher).

As a drinker, .12 can be anything from "wow, I feel buzzed" to "I'm completely plastered." It depends on your metabolism, blood flow, etc. The more aerobically fit you are, the drunker you'll be on .12.
Also, you may *think* you were okay at .08 or .12, but you probably weren't. It's very common for people to think they're different when it comes to ability to drive while intoxicated. But they end up with the same slow reflexes.

I'm not talking about reflexes - I'm talking about awareness of what you're doing. I'm saying that even at 0.122, I'd bet Carlos was as fully aware of what he was doing as he ever could be.

Alcohol didn't make Carlos drive like a maniac, probably while fiddling with a cell phone. As his driving record indicates, he already done that many, many times when he's sober.

Alcohol didn't make Carlos flee even though he KNEW he'd hit a male cyclist. He would have done that sober.

So he's no victim of his own drinking. He's nothing but an evil bastard who selfishly killed someone.