Q: What circumstances would allow the DA to file Intoxication Manslaughter when the accused blew under the legal limit in T
To my knowledge there was no traffic violations in the accident. While on a narrow country road, my brother over-reacted to an on-coming vehicle that appeared to be acrossing the middle line. His wheel jerk back and forth caused the vehicle to flip and the front seat passenger without a seat belt was thrown and died. The two other occupants were not injured at all and were wearing seat belts. My brother was on Parole for drug charges and had a spotfree parole record.
A: Intoxication manslaughter could definitely be charged. The state must prove he was intoxicated during that time, and the intoxication caused the death.
I'm surprised the police would offer him a breath test, rather than blood. Nonetheless, even a test under .08 does not necessarily mean the state will not charge him because .08 is only one way of proving intoxication, and it is known as "per se" intoxication. Another definition of intoxication is not having the normal use of his mental or physical faculties, which most people consider "impaired".
Therefore, the circumstances and other evidence the state may have collected could substantiate a charge. A seasoned DWI attorney would best be able to use the <.08 result to your brother's advantage. I recommend you find and hire the absolute best DWI defense lawyer you can find. A good place to start looking is the National College for DUI Defense. He will very likely need an attorney for his parole matters, as he is especially vulnerable now.
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