This movie, "Out of the Furnace" contains a DWI. The main character (Christian Bale) drinks some beers and then a shot. Many of the stories I hear also contain that extra shot, a potentiator adding booze to beer, so that part is true to life.
He leaves the bar to drive home, then fumbles with his radio, get distracted, and totals a car containing a woman and child. His airbag goes off, and then he exits his pick up truck to check on these people. We never learn if he killed them but he does wind up in State prison.
Assumption one, Vehicular homicide?
Assumption two, Felony level offense?
Assumption three, NO DWI defense?
The movie skipped over a lot of material. The first thing I thought was, no one witnessed the accident?
He could have been just negligent without any drunk driving? Second, the woman was backing into a moving highway, he had the right of way in this instance. She was at fault comparatively. The last thing I thought was that his airbag went off, has face and mouth had dust on them, what about the Tyndall Defense?
|from shutter stock.com|
Airbag deployment powder can be massive
Why can't I watch a movie without being a lawyer???
What is the Tyndall Defense?
Airbags contain little particles of dust (really preservative), and when they deploy you can breathe in those particles. People may be coughing up this powder from their lungs for many hours after the bag deploys. If you later blow into a breathalyzer some of those particles in your lung may get into the machine and block the infrared light in the unit. This may lead to an erroneous (wrong) and high BAC (blood alcohol concentration) reading.
The accuracy and reliability of any breath test is assuming we are measuring ONLY "breath" alcohol and not having the sample contaminated by powder. The number the machine spits out is only as good as what is going in, as they say "garbage in, garbage out."
The Tyndall effect was discovered by scientist John Tyndall. Light reflects off dust particles, this is seen when your car headlights hit an early morning fog.
So I can suspend disbelief, leave it all alone, or we can write a new movie. One where the lead character doesn't go to prison? One where he gets a fresh start and rehabilitation of some type?
Maybe one where he receives straight probation or even the local county jail?
Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.
Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.
I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.