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I agree that the driver *probably* would have been exonerated *eventually* had he decided to return fire, but the fact that he didn't made everything so much simpler, because the issue never had to be addressed at all.
I've written a few "line of duty/misconduct" investigations in the Navy, and alcohol consumption is the same way. If there's even a trace of alcohol in the member's system, there are a whole bunch of questions that have to be asked and answered, and the investigation is suddenly a dozen pages longer.
Just as there's a world of paperwork difference between a BAC of 0.00 and 0.01, there's a big difference between an investigation where the victim returns fire (however justified), and one where the victim didn't.
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