PREPARING YOUR DUI TRIAL

Transcription

1 PREPARING YOUR DUI TRIAL Lara Wallman

2 OVERVIEW Learning the Science How to Read the Police Report Identify your Defense What Discovery to Request Investigation Expert(s)

3 LEARNING THE SCIENCE

4 LEARNING THE SCIENCE Absorption and Elimination i Body reaches peak absorption minutes on an empty stomach and minutes on a full stomach Body eliminates alcohol at a rate of.015% per hour

5 LEARNING THE SCIENCE Rt Retrograde Et Extrapolation lti Assumes full absorption has already occurred so we can work backwards to determine BAC at a previous time.

6 LEARNING THE SCIENCE Widmark

7 LEARNING THE SCIENCE What is a drink? 12 oz of 4% beer 4 oz of 12 % wine 1 oz of 100% proof liquor

8 LEARNING THE SCIENCE 1 drink raises a 150 Ibs man s BAC.025% and a 150 Ibs woman s BAC.031% (150/weight)(.025*) or (.031*) = BAC for 1 drink Lara s BAC/drink =.0372%

9 LEARNING THE SCIENCE Field Sobriety Tests

10 LEARNING THE SCIENCE Breathalyzers Title 17 Violations Margin of Error (.02%*) Mouth Alcohol Partition Ratio People v. McNeal (2009) 46 Cal.4th 1183

11 LEARNING THE SCIENCE Resources Treatises CHP DUI Manual NTHSA Manual Title 17 (Cal. Code Regs., tit. 17, 1215, et seq.) q)

12 HOW TO READ THE POLICE REPORT

13 Was there Observed Driving? If not possible no driving If not, possible no driving defense

14 Was There Probable Cause? If no PC, run 1538 If borderline PC, run 1538 If PC is good, still run 1538

15 Was There Blood Test? If low blood result consider If low blood result, consider retest

16 Was There a PAS Test? If no, could have a riser because only one chemical test and long after driving If yes, did the officer read the PAS admonition? If not, move to exclude because no informed consent A breath test is a search Requires informed consent

17 What Do You Do With the PAS? PAS < Blood/EPAS Riser Admit the PAS S b h PAS di Subpoena the PAS coordinator for trial

18 How to Admit the PAS? People v. Williams (2002) 28 Cal.4th 408: PAS device properly functioning Test properly administered Operator qualified to administer test

19 What Do You Do With the PAS? PAS > Blood/EPAS Try to exclude the PAS!

20 What Do You Do With the PAS? Argue that Title 17 applies People v. Bury (1996) 144 Cal.App.4th 1194, 1202, fn. 7; Cal. Code Regs., tit. 17, 1221

21 Title 17 Compliance 15 Minute Observation? Cal. Code Regs., tit. 17, samples, within.02% of each other? Cal. Code Regs., tit. 17, (a)(1)

22 Title 17 Compliance Accuracy checks every 10 days or every 150 tests? ClCd Cal. Code Regs., tit17 tit. 17, (a)(2)(B) Accuracy checked within limits: +/-.01% Cal. Code Regs., tit. 17, (a)(2)(A)

23 What Do You Do With the PAS? If it s admitted, d call it into doubt!

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25 What Do You Do With the PAS? Highlight that it s a field sobriety test used to indicate the presence of alcohol l Veh. Code 23612(h) Request limiting instruction CalCrim 303

26 What Do You Do With the PAS? Truncate third digit Cal. Code Regs., tit. 17, , (b) Require that the prosecution bring the actual PAS coordinator to lay the proper foundation or object based on Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527

27 Why Focus on the PAS? Easier to challenge the chemical test and save face It was taken closest in time to the driving

28 Standardized Tests v. FSTs? Horizontal Gaze Nystagmus One Leg Stand Walk and Turn

29 Validated Clues for HGN Four out of six is a failure

30 Validated Clues for OLS Two out of four is a failure

31 Validated Clues for W&T Two out of eight is a failure

32 IDENTIFY YOUR DEFENSE

33 IDENTIFY YOUR DEFENSE No Driving Drinking After Dii Driving Refusal Rising BAC Blood Re-Test Title 17 Violations Margin of Error Partition Ratio None

34 DISCOVERY TO REQUEST

35 DICOVERY TO REQUEST Booking Photo 911 call CAD log* Dispatch Recordings Blood* PAS/EPAS Use Accuracy Check Calibration Mit Maintenance

36 INVESTIGATION

37 DRINKING EVIDENCE* Drinking witnesses Ask open ended questions Bartender Receipts Surveillance *Food Intake

38 PHOTOGRAPH THE SCENE Grade/flat surface? Lighting? Proximity to freeway? Remote area?

39 RECORDING THE DRIVE Pot holes? Turns and hills? Wild animals? Traffic?

40 DEPOSE THE OFFICER File Motion Ask open ended questions Order transcript

41 ORDER MEDICAL RECORDS Medical conditions which might effect the performance of Field Sbit Sobriety Tests

42 ORDER DMV RECORDS Ask client to request DMV records/transcript from DMV hearing

43 USE OF EXPERTS

44 USE OF DEFENSE EXPERT Yes! Call around and ask for PD fee Referrals from Surrounding Counties/Offices Murder case? - Get a phlebotomist to the jail as soon as you can!

45 USE OF PROSECUTION S Yes! EXPERT Call their expert Ask hypothetical questions Opinion on when impaired Establish Relationship Ask spectrum of expertise Fax journal articles

46 PREPARING YOUR DUI TRIAL Lara Wallman a g