COMBATING DWI DEFENSES

COMBATING DWI DEFENSES I. THE IMPORTANCE OF PROSECUTING DWIS II. MAIN AREAS OF DEFENSE ATTORNEY ATTACKS Police reports / officer testimony Standard field sobriety tests (SFSTs) III. 2 ELEMENTS TO PROVE DWI UNDER LA. R.S. 14:98 Operation - Defenses to operation (accidents, asleep at wheel) - Reasonable suspicion issues Impairment - Observations by officers - Officer testimony - Miranda warnings / statements - Video issues 1

IV. SFSTs HGN test Walk and Turn test One Leg Stand test General tips V. INTOXILYZER AREAS OF ATTACK SDTs emerging issue? Diabetes defense Mouth alcohol defense VI. ALTERNATIVE DEFENSES TO IMPAIRMENT VII. NO REFUSAL INITIATIVE What it is Why it is important / effective Procedure Issues? 2

Christie Chapman Assistant District Attorney 19 th Judicial District How the public views drinking 1

How law enforcement sees it How victims see it 2

Why prosecute DWIs? THE #1 AREA OF ATTACK Defense attorneys ALWAYS attack the police report Memory is better at the time of the offense so Officers need to be DETAILED small details do add up at trial! If not in the report, it didn t happen 3

#2 AREA OF ATTACK Field Sobriety Tests Make sure the officer knows the SFSTs and can EXPLAIN them in court The defense will attack SFSTs Test may not be invalidated but Want to maintain credibility with judge/jury ONLY TWO ELEMENTS MUST BE PROVEN (La. R.S. 14:98): Whether suspect operated a motor vehicle Whether suspect was impaired by some intoxicating substance (alcohol, drugs, or a combo) 4

A NOTE ON BILLING If the defendant blows, make sure to include BAC thresholds and pay close attention to sentencing Penalties are ENHANCED for higher BAC levels May include special conditions for bond and/or on conviction For drugged driving, include all drug language If the driver used drugs and alcohol, OR if you aren t sure, use alcohol AND drug language OPERATION Was the defendant actually the driver of the vehicle or was the defendant properly determined to be in actual physical control of the vehicle? Did the officer have valid reasonable suspicion to stop or approach the driver? 5

DEFENSES TO OPERATION Accident cases I wasn t driving! Example Single car crash with no witnesses. Defendant says he wasn t driving(surely). How does the prosecution prove it s case? HOW TO COMBAT ACCIDENT CASES Pay attention to details in the police report! Observations of the accident scene Location of vehicle? is it running? door(s) open? blood/fluids on seat(s)? Observations of the suspect Is he muddy/dirty? Near vehicle as you approach? Keys in his pocket? Performance on SFSTs/intoxilyzer 6

State v. Michael Gill (1 st Cir 2007) Off duty officer observed defendant s truck crashed into ditch in one car accident; no witnesses Defendant was sitting in driver s seat, door open, legs out; appeared intoxicated to officer and trooper First admitted to driving, later said friend was driving and fled scene; admitted to drinking 5 6 beers Refused all SFSTs and intoxilyzer Convicted of DWI 4 th, 25 yr sent, affirmed by 1 st Cir. Keys found in defendant s pocket! DEFENSES TO OPERATION cont. Suspect found asleep at the wheel in his car on the side of road or in parking lot I was just resting, not driving! DETAILS (was car running, in drive/park, where were keys, appeared intoxicated ) 7

REASONABLE SUSPICION Was the suspect stopped for a traffic violation? Or suspicion of impaired driving? Once an officer makes the stop, his observations of the driver will determine whether the reasons for the stop can be confirmed and whether there is additional suspicion to justify detainment for further investigation. Initial observations are KEY to determine if PC existed for the stop. Why? REASONABLE SUSPICION cont. Defense may argue that the officer lacked reasonable suspicion to stop defendant or, after stopping him, did not have reasonable suspicion to detain him for further investigation. Motion to suppress all evidence after the stop Once the officer has developed reasonable suspicion of impairment, then he is justified in detaining the subject for further investigation. To prove this, the prosecution needs DETAILS. 8

REASONABLE SUSPICION cont. Citizen Informants can be enough to support reasonable suspicion State v. Elliott (La. Supreme Ct 2010) reasonable suspicion to make DWI traffic stop may be based solely on info provided by citizen informant if info: 1. Provided as violations occurred (call to 911); and 2. Informant identified himself (either by name or phone number) IMPAIRMENT The crime of operating a vehicle while intoxicated is the operating of any motor vehicle when: The operator is under the influence of alcoholic beverages; or The operator s blood alcohol concentration is 0.08 percent or more ; or The operator is under the influence of any controlled dangerous substance ; or The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances 9

WHAT DOES THIS MEAN? Prosecutors do NOT have to prove intoxication, that the suspect is drunk, that he s had too many, etc. We ONLY have to prove that the driver was under the influence of alcohol and/or drugs at the time of the offense Of course, if the suspect blows INITIAL OBSERVATIONS BY OFFICER Common defense attacks on cross exam of police officer: level of impairment isn t this purely subjective? odor of alcoholic beverages isn t alcohol odorless? speech have you ever met my client before this night? How do you know what her normal speech sounds like? balance wasn t it windy? Uneven surface? High heels? bloodshot eyes lack of sleep causes this, right? Contacts? Allergies? 10

SO, WHAT CAN I DO? Pay attention to small details!!! Clues from the scene suspect s background (if sick, medical conditions ) Was suspect allowed to take shoes off, move to different area to perform SFSTs? Talk to the officer before trial if at all possible CHALLENGING OFFICER S TESTIMONY MAIN DEFENSE TACTIC discredit the officer s testimony (esp. if no intoxilyzer/blood evidence) If you have videotape, review it along with your report! You d be surprised how many times they don t correspond, esp. regarding initial observations and SFSTs Why? B/c signs of intoxication are often subtle or unrecognizable on video 11

MIRANDA WARNINGS Roadside questioning of a motorist pursuant to a routine traffic stop does not constitute custodial interrogation sufficient to trigger Miranda (State v. Bourgeois La App 5 th Cir 2001) Defendants have no constitutional right to an attorney prior to submitting to a chemical test for intoxication (State v. Baptiste, La App 5 th Cir) NHTSA MANUAL Defense attorneys try to discredit officers testimony by using the National Highway Traffic Safety Administration s manual for SFST training. ADA should object to lack of foundation if defense atty attempts to use different manual than trained on. Defense will often focus on what s not in the report what indicators of impairment not observed/written down. 12

WHAT CAN I DO? Be familiar with the NHTSA Manual and make sure officer knows/can explain all SFSTs Officers must educate the judge/jury about SFSTs If you don t, the defense will Explain why each observation/non observation is important to this case (esp w/ drug cases) Know the right questions to elicit best testimony Have officer demonstrate if necessary SFSTs HGN (Horizontal Gaze Nystagmus): For prosecutors, this test can be a critical piece of evidence! Educate judges need to be informed why HGN is so important (it can not be faked/practiced like other tests) Natural nystagmus defense very rare condition (must be medically documented!) 13

HGN cont. SFSTs Be prepared for cross examination! Defendants will complain that passing cars, strobe lights, poor lighting conditions, etc. affected the test Make sure officer can testify that, Based on my training, that is not true and explain why. Walk and Turn: SFSTs At the scene fully explain and demonstrate the entire test for the suspect; make sure they understand all directions. Allow suspect to remove shoes, move to level surface (no excuse later for results). 14

SFSTs Ask about/document any physical conditions/injuries that may limit test On cross exam know the manual! One Leg Stand: SFSTs Again, make sure officer fully explained and demonstrated what suspect should do and not do. Allow suspect to remove shoes, etc. Use a reliable timing mechanism. 15

SFSTs GENERAL TIPS Make sure officer knows the NHTSA Manual For each test, have officer explain to the judge/jury what clues he was looking for and found; take the wind from the defense and explain what he did not find and why OR why suspect failed/could not perform The more details the better SFSTs and the Law Because these tests are non testimonial, no Miranda warnings are required, but If the test is not administered as prescribed in NHTSA manual, test can still be treated as non standardized exercise. It still provides information to the officer about impairment. When facing admissibility challenges on SFSTs, prosecutor should always argue that the problem alleged by defendant goes to weight and not admissibility! 16

INTOXILYZER 5000 (and soon 9000) Defense areas of attack: Chemical rights form Machine certification Officer certification Operational Checklist Wait 15 minutes! Diabetes Defense Faulty Machine CHEMICAL RIGHTS FORM Use the standardized form (La. R.S. 32:661(c) prescribes what the form must contain) Form should indicate that the suspect has a right to refuse the intoxilyzer Make sure the form was signed by suspect and that officer read it to suspect 17

Machine Recertification Form Original certificates are kept in the clerk of court s office in most jurisdictions (in EBR, yes) Certified copies may be used at trial in lieu of originals Re certifications are done quarterly, by statute Since these qualify as business records, the tech certifying the machine need not testify (???) OFFICER CERTIFICATION Officers must maintain and renew their Intoxilyzer Certification cards every 2 years They must keep the old cards! Do not toss them, because whichever card was valid at the time of the offense is the one applicable to that trial If an old card is lost or destroyed, Code of Evidence art. 1004 allows a copy to be introduced Copies are kept on file at LSP Applied Technology 18

OPERATIONAL CHECKLIST Make sure the checklist is part of the DWI packet of docs Make sure the court knows that this checklist was performed prior to the suspect blowing. 15 MINUTE OBSERVATION TIME Be sure the officer fully explains this observation time Notes/report should be precise Indicate what time piece was used to calculate time, is it used each time, how was time calculated? Make sure the officer watched the defendant! Note specifically that he was watched for the entire 15 minutes, where the officer was during this time, where defendant was 19

EMERGING ISSUE? Can defense attorneys file SDTs to obtain all BAC information for an intox machine? For all available intox machines? Happened in City Court in Baton Rouge judge denied State s motion to quash the SDT HIGHLY overburdensome for LSP Applied Tech Fishing expedition WHAT TO DO? File a writ (not appeal) of the quash denial DIABETES DEFENSE Defendant claims his impairment was caused by a diabetic reaction, rather than alcohol OR, defendant claims that his intoxilyzer reading is a false positive due to high acetone levels which interfere with breath alcohol measurements Atkins diet defenses 20

DIABETES DEFENSE cont. How to prepare for a diabetes defense: Prosecutor can obtain medical records, which includes time of diagnosis; consult an expert, especially if defense intends to call one Officer be sure to ask the suspect, at the scene, about any medical conditions and record them in report (less credibility if the condition pops up later at trial) MOUTH ALCOHOL This seems to be a popular defense to the intoxilyzer Defense argues that the instrument may detect unabsorbed mouth alcohol from the last drink, mouthwash, breath sprays, gum, or burping/ regurgitating This defense is BOGUS why? The mouthpiece specifically filters out mouth alcohol Have officer explain this to judge/jury! Prosecutors ask about this beforehand! 21

Alternative Explanations to Impairment Man, I was just tired. I only had 2 beers. I was taking medication that made me appear groggy/eyes red/etc. I have a back/knee/etc. injury that caused poor performance on SFSTs I was just nervous. ONLY 2 BEERS Be sure to investigate the type of beers consumed! Example: Dogfish Head craft beers, including the World Wide Stout and 120 Minute IPA, can contain up to 20% alcohol by volume. This compared to 3% 7% alcohol by volume for typical beers. 22

NO REFUSAL INITIATIVE Requires cooperation among law enforcement, the courts, prosecutors, and medical personnel Adopted 24/7 by a few jurisdictions (9 th JDC in Alexandria, 24 th JDC in Jefferson) Other jurisdictions special holidays What is No Refusal? If a person suspected of driving while intoxicated refuses either a breath test or a blood test, the officer submits a constitutionally valid search warrant to a local judge The warrant requires the suspect to submit to a blood test to search for alcohol/drugs If the warrant is signed, the suspect s blood is drawn by a qualified person (medical personnel, phlebotomist) and tested 23

Why No Refusal? TRAFFIC FATALITIES*: In 2009, 49% of Louisiana traffic fatalities were due to alcohol related crashes 49% mark steady for years 2007, 2008, and 2009 In 2010 and 2011, down to 42% (lowest ever except Katrina) In 2012, there were 652 fatal crashes, with 264 estimated involving alcohol down to 40% *Data provided by Louisiana Highway Safety Commission Why No Refusal? DWI ARRESTS/REFUSALS: 2009 31,970 arrests in Louisiana 2010 31,065 arrests in Louisiana 2011 29,922 arrests in Louisiana 2012 27,643 arrests in Louisiana (up from 24,791 arrests in 2008) In EBR parish, 2,055 DWI arrests in 2012 527 BAC refusals in 2012 (25% of total DWIs, down from 35% refusals in 2009) 24

So, Why No Refusal? DETERRENCE!! Fatality data suggests a possible deterrent effect May not even need a warrant having a dressed out nurse on duty DETERS refusals Word is getting out Is It Constitutional? Schmerber v. California, 384 U.S. 757 (1966) Held warrantless blood draw does not violate 4 th amend. if PC to arrest for DWI Why? B/c issue of destruction of evidence (alcohol leaving system) Blood draw held to be reasonable Must be drawn in reasonable manner Recognized by Louisiana courts 25

No Refusal Procedure 1. Officer arrests suspect for DWI 2. Officer offers breath test (arrestee s rights form), which suspect refuses 3. Officer prepares affidavit for search warrant and search warrant to fax to judge 4. Officer calls appropriate judge and advises of warrant; judge swears in officer 5. Officer signs affidavit and faxes affidavit and warrant to judge; if signed, judge faxes back No Refusal Procedure 6. Officer copies warrant, serves suspect and reads the judge s order to submit to blood test NOTE: some allow breath test at this point 7. Officer transports suspect to hospital (or other approved location) for blood draw (approved kit) officer personally observes blood draw! 8. Officer takes sample to evidence locker (proper storage is critical) 26

No Refusal Procedure 9. Officer takes blood to crime lab w/in 7 days 10. Officer prepares the return and inventory and includes one of the copies of the affidavit with his original signature to send to judge 11. Judge mails copy of warrant with his original signature to arresting agency No Refusal Issues Statutory right to refuse v. valid search warrant Implied consent drivers give implied consent to searches for alcohol/drugs (R.S. 32:661(A)(1)) Legislature created right to refuse (ability to w/draw consent) after informed of consequences of refusal (R.S. 32:666(A)) Valid search warrant negates need for consent Does statutory right trump a constitutional search warrant? 27

(Potential) Solutions JUDICIAL: Favorable outcome in court system LEGISLATIVE: Governor s DWI Taskforce is considering a bill to revise R.S. 32:661 (implied consent law) Insertion of language, That refusing a voluntary test or tests under this Part does not preclude a law enforcement officer from compelling a sample after acquiring a search warrant. Bullcoming v. New Mexico (2011) USSC case decided 6/23/11 Held: forensic lab report (here, DWI blood draw) is testimonial and cannot be admitted into evidence w/o testimony from analyst who actually made the certification on that blood draw. Cannot substitute another analyst familiar with the machines/procedure. HUGE burden on the crime lab 28

ADDITIONAL INFORMATION No Refusal Weekend Toolkits nhtsa.gov/impaired lahighwaysafety.org/impaired Includes sample affidavits and warrants tdcaa.com/dwi (Texas District & County Atty Assoc.) Great links to video and documents Admissibility of HGN It Does Not Make Sense! 29

Christie Chapman Assistant District Attorney 19 th Judicial District Court 222 St. Louis Street, 5 th Floor Baton Rouge, LA (225) 389 3453 christie.chapman@ebrda.org 30