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1 I N S I D E T H E M I N D S Strategies for Defending DUI Cases in California Leading Lawyers on Understanding the DMV's Involvement in the Case, Reviewing Settlement Options, and Preparing Your Client for Court 2013 EDITION

2 2013 Thomson Reuters/Aspatore All rights reserved. Printed in the United States of America. No part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, except as permitted under Sections 107 or 108 of the U.S. Copyright Act, without prior written permission of the publisher. This book is printed on acid free paper. Material in this book is for educational purposes only. This book is sold with the understanding that neither any of the authors nor the publisher is engaged in rendering legal, accounting, investment, or any other professional service. Neither the publisher nor the authors assume any liability for any errors or omissions or for how this book or its contents are used or interpreted or for any consequences resulting directly or indirectly from the use of this book. For legal advice or any other, please consult your personal lawyer or the appropriate professional. The views expressed by the individuals in this book (or the individuals on the cover) do not necessarily reflect the views shared by the companies they are employed by (or the companies mentioned in this book). The employment status and affiliations of authors with the companies referenced are subject to change. For customer service inquiries, please If you are interested in purchasing the book this chapter was originally included in, please visit

3 DUI: A Political and Imprecise Crime Mark Rosenfeld Owner Law Office of Mark Rosenfeld MR DUI LA

4 By Mark Rosenfeld Politics and DUI Laws Over the past couple of decades, there has been a continuing and escalating push for more and harsher DUI penalties. This push is by various political bodies in the government and the private sector. Year after year, legislators and lobbyists advocate for lowering the drinking limit and raising the consequences on DUI cases. At every legislative session there are proposed laws to make the consequences more severe and elevate the cost of driving under the influence of drugs and/or alcohol. The biggest factors driving this trend are politics and money. The physiology of the human body has not changed, the way people consume and absorb alcohol has not changed, and the way alcohol affects the human body has not changed. Nonetheless people want to get elected to office, attorneys want to become judges, and members of the legislature want to be seen as being tough on crime. Organizations such as Mothers Against Drunk Driving continue to push a political agenda to tighten the laws and increase the penalties on DUI drivers. 1 Once upon a time there was no per se or numeric law imposed alcohol limit (like 0.08). Each case was taken on its own merits, and if someone could walk, talk, and drive fine, they were not drunk driving. However, over time legal limits were created, not based on science and safety alone but rather based on politics and money. Then over time the limits were changed, lowing the level at which someone would be deemed impaired regardless of any appreciable or observable effect on a particular person. People and organizations trying to stop drunk drivers have a legitimate concern. We all want to be safe on the road, and nobody wants to be driving drunk. Many years ago, there was no limit on alcohol in the blood, and then there was a 0.15 limit and then a 0.10 limit. Now, generally, the limit is 0.08 and there are many people pushing to get that limit down to a At some point, there is simply no science or logic behind what people are trying to do. They are attempting to throw a wider net to capture more people and increase the revenue that comes from a DUI arrest. The lower 1 MOTHERS AGAINST DRUNK DRIVING,

5 DUI: A Political and Imprecise Crime the number, the more people caught and the more money brought into the system. For each DUI arrest the police officer gets paid, the courts get paid, the required alcohol schools get paid, the insurance companies get paid. All of these penalties are over no real scientific foundation or evidence. DUI charges are now being filed where a few years ago the prosecutor s office would have rejected the case and no charges would be brought. In addition to the so-called legal limit changing, suspected DUI drivers face stiffer penalties. DUIs are now being divided into categories with low, medium, and high alcohol levels. Depending on the specific facts of the case, prosecutors can and do seek longer alcohol classes, higher fines, and additional terms of probation such as Mothers Against Drunk Driving classes (with mandatory donations), ignition interlock devices, trash pickup, and even jail time. Some of the new laws and penalties are consistent across California, but others are not. Los Angeles, Alameda, Sacramento, and Tulare are pilot counties. The legislature has implemented a pilot program on a temporary basis to require every person convicted in these counties of DUI to install an ignition interlock device. If you are in one of the neighboring counties, that is not a requirement, so people in Los Angeles are being treated differently than people in Orange County or San Bernardino. There are constitutional issues here, but in reality most people cannot afford to make that kind of challenge on a first-time DUI. One interesting point to make is that the conviction for DUI is for driving under the influence generally, not just driving under the influence of alcohol. Someone could be convicted of driving under the influence of a controlled substance, an illegal drug, or even a prescription drug. That person ends up with a conviction and now has to install the breath test device or ignition interlock device in their car, which can impede or affect someone getting into the car and starting it and driving it in an emergency situation, even when they never consumed any alcohol. It can not only affect someone in an emergency situation, but even someone in the regular course of work, because the machines are not perfect. The ignition interlock device is a machine and can fail and leave a person stranded. This device could be required even if the person was completely alcohol free when arrested and never drinks at all.

6 By Mark Rosenfeld In the current economy, police officers, courts, politicians, and private industry associated with DUIs are all pushing for stricter enforcement, lower alcohol limits, higher fines, and more requirements for those convicted of DUI. This is not just to help society but to make money and look good to the general public. Many opponents of DUI would also like to see a society free of all alcohol, just like what was tried with prohibition. Using Discovery in Case Planning People often just accept a DUI conviction when they are arrested for DUI. They do not realize the type of impact a DUI conviction can make in the long run, so they plead guilty or no contest and take a deal. Just because someone is arrested does not mean they are guilty. To help determine if someone is or is not guilty, one must diligently seek discovery. Discovery is one of the keys to successfully defending a DUI case. Discovery is where you are able to find out if the prosecution is going to be able to prove its case beyond a reasonable doubt. When you start finding deficiencies in the prosecution s case through discovery, that is when you start to get deals, reductions, or dismissals of cases. Looking at the Test Numbers One of the things the prosecution focuses on in their analysis of a DUI case is the chemical testing, which is typically done through breath or blood. Prosecutors find it easy to look at a number and build their case around that, but that is a narrow view of what is going on in a DUI case. There is much more to be considered to know whether that blood alcohol number is accurate or reliable or even properly connected to your client. Breaking Down the Case When analyzing a DUI case, you have to break it down into the various sections. You want to know what the officer observed about your client s driving. How was the client driving? Were there any signs or symptoms that would lead the officer to believe the client was under the influence? The officers are trained to look for specific signs someone is driving under the influence, so were they observed?

7 DUI: A Political and Imprecise Crime The next step is the contact the client had with the officer. Did the officer ask questions and talk to the client? Did the client appear to be under the influence? Was the client able to hold a conversation and answer questions? If the officer asked the client to get out of the car, did the client listen to and follow the instructions and get out of the car? Our next consideration is the field sobriety test. We need to analyze this step to decide whether the case is a strong case for the prosecution or for the defense. We need to determine if the field sobriety test was administered correctly and how our client performed on the test, which may tell us much more about impairment than a breath test or blood test or depending upon how it was done may be worthless. In addition to the field sobriety test, we will typically have results from a breath test or blood test and we need to check calibration, maintenance, usage records on the machine, and officer training to find out whether that machine is even working properly and has been used properly. We want to find out whether the number the machine is telling us is reasonable, based on what we have seen in the client s driving, the conversations our client had with the officer, and the field sobriety tests. Most of the time our DUI cases involve a driver with a relatively low alcohol level and a minor traffic violation. Most cases are not accident cases and people are not hurt. Often it is a borderline case; the person is driving on the freeway, speeding, and maybe swerving. The person gets pulled over and the officer may let the person go or arrest the person for DUI. It is a gray area. The vast majority of DUI cases are minor traffic violations that turn into a DUI investigation with an officer deciding to make an arrest and with a chemical test that comes out somewhere around the legal limit. This leaves a lot of room for interpretation and argument. Per Se and Impairment Standards The evidence prosecutors primarily look to is the chemical test result, which is the breath test or blood test result. Prosecutors can hang their hat on scientific tests and they know they can sell driving impairment, based on a scientific number, to a jury.

8 By Mark Rosenfeld Usually when we see a DUI case filed, prosecutors will file two separate charges. Most people do not realize that and the difference can be confusing. One of the charges is going to be driving under the influence of alcohol or drugs or a combination of both. It does not matter what the alcohol level is or what the drug level is of the person; that person is allegedly impaired for purposes of driving, which means the person cannot drive the same as a sober person. This first DUI charge is filed under Vehicle Code Subsection (a). 2 The second charge, filed under Vehicle Code Subsection (b), is driving while over the 0.08 alcohol limit. 3 This second charge says if a person is mathematically or scientifically above this limit, the person is impaired for purposes of driving. You could be walking and talking and driving fine, but if you are a 0.08 or above the law is going to say you are impaired for purposes of driving. The charges that actually get filed for a court case are not typically filed by the investigating or arresting officers themselves. They are filed by a prosecutor, typically a district attorney, after reviewing the investigation and the reports that were written. When the charges actually get filed, there usually is a blood or breath test result. The district attorney will know what that blood alcohol content number is and know whether to file only the DUI count ( 23152(a)) or add the second count of driving above the legal limit ( 23152(b)) or other possible enhancements. 4 The penalties most of the time are the same if people are charged on both counts and when someone is convicted of both, the penalties will merge together. However, there is an escalating scale of penalties or punishments that can come along with various alcohol levels, so if you are dealing with a typical case where the limit is 0.08, you may end up with a certain set of penalties. However, if the client s alcohol level is 0.15 or above, the prosecution may ask for increased penalties, fines, fees, and alcohol programs or even jail time. If the alcohol level goes up even higher, to 0.20 or above, there may be mandatory increased 2 CAL. VEH. CODE 23152(a) (West 2012). 3 CAL. VEH. CODE 23152(b). 4 CAL. VEH. CODE 23152(a), (b).

9 DUI: A Political and Imprecise Crime penalties. The higher the alcohol level alleged, the worse it is for the client and more difficult to defend. Testing without Consent In California, when you get your driver s license you sign paperwork saying you agree to submit to a chemical test, either blood or breath, and if you do not give a sample when required to do so there are consequences, both at the Department of Motor Vehicles and in court with mandatory jail time and license suspension. By getting your driver s license, you are consenting or agreeing to submit to a chemical test. In some cases, if you refuse the police officers can actually force a blood draw from you. They can hold you down and take your blood, depending on the consequences or what type of case it is. Some agencies do a forced blood draw on a regular basis, while others only do that in rare circumstances, such as if there is a significant accident with injuries. Most states, if not all, have a 0.08 limit and they all have the requirement that people submit to a chemical test as part of getting their license. However, what constitutes an aggravated DUI and what the penalties or consequences are of refusing vary from state to state. Use of Testing Equipment Both the blood alcohol and breath alcohol tests have been around since the 1920s, but the quality and type of analysis has changed significantly. Breath Testing The first breathalyzers, or what was commonly referred to as dial-a-duce (duce referring to someone who was DUI), could easily be adjusted by the officers by turning a dial. The officers could actually turn a knob on the front of the machine and change the alcohol level. Of course, if the officers were honest and trustworthy they would not do that, but if they did not get along with a client the knob could easily be turned. You would think that after almost 100 years of breath testing, things would have changed, but some of the current breath testing equipment is just as

10 By Mark Rosenfeld flawed. One device in use now has an exit port where the breath comes out of the machine after the machine takes a sample. All an officer has to do is put a finger over that exit port and all of a sudden the breath test would jump to three times what it actually was. The way the breath-testing machine is used or operated by the officer can definitely affect the result. The machines today are much better than they used to be, but we still have the problem of garbage in, garbage out. The machines are only as good as the way they are used and maintained and how the officers are trained to use them. There can be what we would refer to as pre-analytical error, so if the machines are not used correctly, they do not have a chance of giving an accurate number. Blood Testing Blood testing has similar issues. In the handling of the blood sample, including the way it is drawn and maintained before it ever gets to the crime laboratory, there is ample room for error. Once the blood sample gets into the machine, we usually get a relatively accurate number (if the instrument is properly maintained), but that is only if it is handled and prepared in a scientific manner. Over the years, blood testing technology has improved. The methods for analyzing the blood have improved, but many times crime laboratories have not kept up with those improvements. They put a policy in place twenty years ago using the technology of that time and have not changed that policy. While the rest of the medical and scientific community have improved methods and eliminated errors and created a better and more reliable way of analyzing blood, the crime laboratories have not. The errors that existed twenty years ago are still there, but there are no scientific reasons for it. Defense Attorneys Role with Testing As technology advances, it closes the door on some defenses but opens the windows on new defenses. Often new testing protocols that should make our jobs more difficult actually help us defend our clients. As technology advances it does not change the burden on who has to prove what in court.

11 DUI: A Political and Imprecise Crime One of the things a defense attorney needs to do is make the prosecution prove everything about their case by holding the district attorney, the police, and crime laboratory to their burden. We need to make sure the burden stays on them and does not get shifted to us or our clients, who do not have the resources to do all the work the crime laboratory does. We need to make sure the prosecution team and the crime laboratory team does everything correctly every step along the way, from before the blood is drawn all the way to the storage and analysis of the blood sample. One way I get great results for my clients is by checking every step along the way. If there is a problem anywhere along the way, it is going to help our clients. The way evidence is presented to a jury will vary from case to case. Juries will follow and will understand what is going on. On the jury there are twelve people from various walks of life who want to do the right thing, and they are going to listen and do the best they can to make the right decision. What evidence you take before a particular jury will depend on what type of case you have. The simpler the problems you have, the less you will have to explain to the jury. If the prosecution is doing their job right, we are going to have to go into more detail and pick apart what is going on, so what gets presented to the jury may be very simple or it may be very complicated, depending on the complexity of the case. Field Sobriety Tests: An Overview In the 1970s, there were some studies commissioned by the National Highway Traffic Safety Administration (NHTSA) to determine if there were any field sobriety tests that would be consistent and reliable across a large portion of the population. 5 The studies surveyed various law enforcement agencies to determine what field sobriety tests were commonly being used. The NHTSA narrowed it down to six common tests. Further testing narrowed it down to three tests that could be standardized and administered across the board to create fairly consistent results. There are only three standardized field sobriety tests. Police agencies, whether it is the highway patrol or a local sheriff s department, can do other tests, but 5 NAT L HIGHWAY TRAFFIC SAFETY ADMIN.,

12 By Mark Rosenfeld these do not have the same scientific background or purported validity as the standardized tests. The three standardized tests are (1) the horizontal gaze nystagmus (HGN) test, (2) the walk-and-turn test, and (3) the one-legged stand test. There are certain clues the officers are trained to look for. If the tests are performed and scored correctly, they can be a good arrest indicator, but there is still a significant error rate. The three standardized field sobriety tests have been adopted by the California Highway Patrol and are taught in the patrol s manual the same as they are in the NHTSA manual. All law enforcement agencies that train their officers on the standardized field sobriety tests are consistent with the NHTSA manual. Additionally, the police officers standardized training or POST training also mirrors the NHTSA standardized test instructions. Thus, all officers should be trained on the three standardized tests for them to administer and score them consistently and correctly. The HGN Test In this test, the officer has the person stand with feet together, arms at their side and head facing forward. The officer instructs the person to follow the tip of the officer s finger or pen or flashlight with the eyes only while the officer makes a series of passes back and forth. The passes of the stimulus need to be at a certain speed or distance. The officer is looking for a certain response in the person s eyes. The person will not be able to tell what is going on with the eyes. The person will stand with the head still, not swaying, and follow the passes of the stimulus. This test takes about one and a half to two minutes for the officer to administer. The officer will pass the stimulus back and forth across the person s eyes fourteen to sixteen times. The officer is looking for six standardized clues, three clues in each eye (lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees), and if the officer notes those things it can be consistent with the person having a 0.08 or above blood alcohol level. However, it is also important to note that there are many different types of nystagmus and many different triggers for nystagmus as well

13 DUI: A Political and Imprecise Crime as a percentage of the general population who have nystagmus naturally occurring even when they are alcohol free. The Walk-and-Turn Test The other two standardized field sobriety tests are the walk-and-turn test and the one-legged stand test. The walk-and-turn test consists of two separate stages, the instruction stage and the walking stage. The officer will ask the person to stand with his or her left foot on a line (real or imaginary), place their right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot, and to keep their arms at their side and maintain that position until the officer completes the instructions, while not starting to walk until told to do so. This is an unusual position to stand in. The person is instructed to stand in that position and listen to the officer s instructions and not move until told to do so. Of course this is not a natural position or even one that someone who is free of any alcohol could do for very long. Nonetheless if the person breaks from this position or starts to walk too soon they have already failed the test. After getting the person in position, they will go through a series of instructions. The officer is looking for mental and physical impairment to see if the person is able to follow the instructions and take the right number of steps. The officer will instruct the person: when I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back. Then the officer will demonstrate. Then the officer will instruct the person that when they turn, they should keep the front foot on the line and turn by taking a series of small steps with the other foot. Then the officer should demonstrate. The officer should further instruct that when the person is walking they should keep their arms at their sides, watch their feet at all times, and count the steps out loud, and once you start walking do not stop until you have completed the test. Then the officer should ask if the person understands the instructions and to begin and count the first step from the heel-to-toe position as one. There are eight standardized clues on the walk-and-turn test that the officer is looking for to see whether the person is able to follow the directions and

14 By Mark Rosenfeld complete the test correctly. One, if the person cannot keep balance while listening to the instructions. Two, if the person starts before the instructions are finished. Three, if the person stops while walking. Four, if the person does not touch heel-to-toe. Five, if the person steps off the line. Six, if the person uses their arms to balance. Seven, if the person turns improperly. Eight, if the person takes the incorrect number of steps. Now the person taking the test for the first time has a lot to keep track of, but so does the officer. With all of the possible errors the person taking the test could have, the officer administering and scoring the test has more. If the officer does not instruct the suspect properly, the standardized scoring is of little value. The One-Leg Stand Test With the one-leg stand, the officer will have persons stand with their feet together and arms at their side, and demonstrate. The officer tells the person they should not start until told to do so. Then if the person understands the officer, they should instruct the person to raise one leg, either leg, with the foot approximately six inches off the ground, keeping the raised foot parallel to the ground, and then demonstrate. Then the officer should say that the person must keep both legs straight, arms at their side. While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three until told to stop, and demonstrate. The officer should then instruct the person to keep their arms at their sides at all times and keep watching the raised foot, and ask whether they understand. If they do, the person would start the test. The officer will look for four standardized clues on the one-leg stand. One, if the person swayed while balancing. Two, if the person used their arms for balance. Three, if the person hopped. Four, if the person put their foot down. Again, if the tests are not administered correctly they have little to no value. This administration has nothing to do with the subject and everything to do with the officer giving the test correctly. Officers are supposed to ask if the person has any injuries or a weight issue that could affect their test, but officers are not always interested in doing

15 DUI: A Political and Imprecise Crime the right thing all the time. Some officers are and some are not, and some want to keep their statistics up. If someone does have an injury, such as an injured knee, the tests may not be appropriate, but the officers frequently will say they will take that into consideration and have the person do the test anyway. Some Advice Concerning Field Sobriety Tests When officers ask people to get out of the car, things are already not going well. The officers are not asking to have them get out of the car to chat about the local sports team; they are asking them to get out of the car to take the investigation to the next level. They have already made a decision the person has been drinking or taking drugs and they want to investigate. Not everyone who is asked to get out is arrested but many are. Field sobriety tests are voluntary. You do not have to do them and I recommend to friends and family that they elect not to do any field sobriety tests that are voluntary because no real good can come of it. If you elect not to do them, you are exercising your right to remain silent. Officers may not know how to do the tests correctly, and you can wind up with field sobriety tests that show impairment when that is only an officer s opinion, so I would recommend that a person choose not to do any of the field sobriety tests. If you get arrested, you need to submit to a chemical test or risk automatically losing your driving privilege for a period of time, and I recommend it be a blood test. You should be transported to the hospital or local jail to have the blood drawn and not answer any questions about whether you have been drinking or how much or what, because those questions are geared towards collecting evidence to convict you. Drug Influence versus Alcohol Influence The number of arrests for driving under the influence of drugs is going up, and the different law enforcement agencies are pushing hard to increase the number of arrest convictions for driving under the influence of drugs. Resources and funding is in place to train officers on drug DUIs, and they are increasing drug DUI arrests. However, driving

16 By Mark Rosenfeld under the influence of drugs is much more difficult to prove than driving under the influence of alcohol. Alcohol is pretty consistent across the board: the more one drinks, the more impaired they are, and that is the same for everybody. Drugs are not exactly the same for everyone. People take different drugs, they take them at different levels at different times, and there is no consistent way from person to person to determine what impairment is at a specific blood concentration level. Drug detection equipment is getting better, but the equipment in the field is still just for screening tests and it only tells us whether there are drugs in the body. Drugs can also linger in the body in various forms. You may have traces of inactive drugs for hours, days, or weeks, and sometimes longer. The Time Factor in Testing During a drug DUI investigation, the law enforcement officer will ask if the person used drugs. Most of the time, people tell the officers they did some drugs, including what they did and when they did it. The officers may give them a test, but the test does not tell us how much or whether the drug is affecting people at the time they are driving. Often, officers will take blood or urine and send that to the laboratory to have it analyzed. At the laboratory the sample is analyzed for a specific quantity level, which is what prosecutors will use in an attempt to prove impairment, but that chemical test may be taken from a driver fifteen minutes after driving, or more likely much later, such as a hour or more. With both alcohol and drugs, the level in the body and the effect on the body changes over time, so the time is crucial in analyzing a DUI case. The Police and DUI Investigations One of the biggest factors that affect a DUI investigation is whether there are any aggravating circumstances. If there is a traffic accident, injury, or property damage, often the investigation will be more detailed and conducted by more experienced officers. If a police officer is involved in an accident or was injured by a suspected DUI driver, there will be a more extensive investigation. Also the officers experience and how busy they are will affect what type of investigation is done.

17 DUI: A Political and Imprecise Crime Pressure to Produce Frequently, officers are out to make their numbers or meet their unofficial quota. They are trying to arrest as many people as they can in as short a period as possible. In doing this they often do a poor job investigating a DUI. They want to get back out to make another arrest. I have seen officers making up to six DUI arrests in one shift. Officers will not tell you they have a quota, but the officers keep track of how many DUI arrests they make in a shift, a week, a month, and a year. There are awards given out for the most number of DUI arrests. Police work is a competitive business. All officers are going to be competitive. They want to do a good job and they compete against one another in making arrests and getting convictions. DUI = $$$ There is also another motivating factor for police officers, and that is money. Officers make a certain base salary and they add to it with overtime. If they have to work late in a shift or, more important, if they get called into the Department of Motor Vehicles or court to testify, they will make more money. It is not unusual for a California Highway Patrol officer to make a base salary of $80,000 a year and double that salary with overtime, thanks in large part due to DUIs. Adjudicating DUI Cases In the Los Angeles Superior Court system, the judges have put in place a timeline. They want the misdemeanor cases, such as DUIs, resolved in ninety days and no more than 120 days. They want a case from beginning to end to take a maximum of four months. That timeline is not necessarily appropriate. It is often impossible to adequately prepare DUI for trial within the ninety or 120 days allotted. Nonetheless, that is what the judges are trying to enforce. How fast or slow I try to take a case through the system is going to depend entirely upon my client. I need to know what my client s best interest is and what their desires are, then I handle the court case consistent with that. If clients want to move things along quickly, we can resolve the case quickly. If they want to slow things down, I can do further case investigation.

18 By Mark Rosenfeld Delay Can Aid Victory Often when we are talking about a DUI case, delay aids victory, so we want to slow things down as much as possible. I want time to get all the records I can obtain. During this period, equipment may be taken out of service or break and I want that to happen while I am still working on a case. I want to find out as much as I can about an officer, to see whether the officer will be available in the future or if the officer will be retiring or leaving the country. Equipment Problems Having equipment go out of service helps us. There are legal objections and arguments we make if a piece of equipment, such as a breath test machine, is not functioning properly. If equipment is not working correctly, it is not reliable and thus it should not come into evidence or be admissible and a jury should never hear about it. I have been successful many times in getting breath testing or blood testing results excluded or kept out of evidence because the testing equipment was not working properly. If excluded, a jury never hears about the tests. If we have a client who is two or three times above the legal limit but was tested using equipment that is not properly functioning, the jury never hears about the results. All they hear about is driving and field sobriety tests, and we know those are highly subjective. Mistakes Law Enforcement Make Law enforcement officers can make many mistakes when investigating DUI cases. The mistakes vary from person to person and case to case. For instance, an officer may not know or have appropriate training on how to do a DUI investigation. Not all officers are trained the same, and they are not all trained consistently. We see officers who received their training twenty years ago and have never had any updates on how to do field sobriety tests or work a breath-testing instrument. Faulty Test Administration We also see problems with how the chemical tests or breath tests are administered. It is extremely important for a breath test to be administered in accordance with state law and manufacturer s guidelines. There are

19 DUI: A Political and Imprecise Crime certain waiting periods that must be observed, and if officers do not do that it can affect breath testing, and in some cases you can get the results excluded from court. One of the big factors in breath testing is waiting at least fifteen minutes, though some manufacturers say twenty minutes, before giving a breath test to a subject. Many times officers do not do so, they wait only five minutes, which is not enough time for a properly administered chemical or breath test. The fifteen- or twenty-minute delay or depravation period is designed to ensure that no mouth alcohol exists. Mouth alcohol is left over alcohol in the mouth instead of in the lungs. This mouth alcohol can be from recently consumed alcohol or from alcohol vapors in the mouth. The Importance of Timing Timing in breath tests matters because there are certain things that can cause contamination in a breath test sample. One of the main contaminating factors in a breath test is something called mouth alcohol, where there is residual alcohol in the mouth that gives a falsely high reading on a breath test machine. Breath test machines are supposed to read alcohol from the lungs, and in theory the breath sample is a deep lung sample, where the interaction between the blood and the air in the lungs exchanges. The machine is supposed to be reading a long, exhaled breath, and if officers do not wait the proper time the mouth can have alcohol residue from recent drinking or a burp, which can give a false high reading on the machine. The result can easily be double or triple the breath test result from what a true blood alcohol level should be for that person. Officers need to have suspects under continuous and uninterrupted observation during the time they are conducting breath tests. They need to use all of their senses, watching and listening to make sure the suspects do not have anything in their mouth and do not burp or eat or drink for fifteen minutes. There is some leeway; the officers may share the observation period between two different officers, but if the observation period is broken there are some serious questions about the accuracy or reliability of that breath test and the corresponding admissibility in court.

20 By Mark Rosenfeld The Nature of DUI DUI cases are unlike other general criminal cases. They are time-sensitive, very fact-specific, and highly scientific in how they need to be analyzed. Evidence can be subjective when dealing with field sobriety tests. Different officers are going to judge field sobriety tests differently. Each DUI test may start out the same with the traffic stop, but each one has to be looked at on its own merit. We need to look at everything from beginning to end, not only the driving and the field sobriety tests, but what breath test machine was used, how long that machine was in service, and how many people have been tested on that machine. We need to go through all those tests when we are defending a case. Building a Case We first talk to our clients about what happened and get an overview of the case. We give them a questionnaire to discuss their observations and perceptions. When we start a case, our clients will know more about the case than anyone. We will examine the police officers investigation and find out if there are any audio or video recordings, and we start to compare our clients memory with the officers investigation and then look for what can and cannot be proven in court. We also go out to the scene and take a look at where our clients were stopped. We want to see what the surroundings look like and how that compares to both our client s version of what happened and the police officers version of what happened. Then we go to the next level through discovery and get our hands on as much information as possible, which may be audio and video recording, police radio calls, dispatch logs, tow truck logs, and GPS locations. We find out as much as we can from computer-generated sources and other forms that people do not typically think about and less likely fabricate or embellish. Discovery and Good Intentions Most prosecutors are trying to do the right thing. They believe our clients did something wrong and they want to prosecute them, but they understand there are rules they need to play by and information they need

Please Step Out of The Car

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