Attacking Blood-Alcohol Evidence

Click Here to Listen 

The National Association of Criminal Defense Lawyers and the Information and Resource Center of National Cassette Services present this audio transcript. Recorded in Las Vegas, Nevada at the American Bar Association national seminar titled "Defending DUI Cases — Insights From The Masters".

You could probably tell from that last demonstration, this is not a prosecutor's seminar since there was some humor in this one. Let me turn serious. Drunk driving is a political crime. Unless you understand that and I mean a political crime as we know it today. I see lots of nods out there. Unless you understand that, unless you have that perspective; that you are dealing with a political crime, you are not going to be able to effectively defend a client. You are not going to be able to effectively approach the so called "scientific evidence" either the magic box or field sobriety tests or horizontal gaze nystagmus or anything else. You must develop that perspective. Many of you sense that there's something wrong—that this particular offense is a little different from other criminal offenses, but you still approach it as a criminal defense attorney, rather than as a DUI attorney.

Let's take — what I mean by political crime — let's take the evolution of a political crime. Many years ago and this will be a little bit different chronology than Dr. Burns gave you this morning. Many years ago there was a law passed, "Thou shalt not drive under the influence of alcohol". It was a good law. It was needed. It was just. Don't drive while you're impaired by alcohol. Problem is a lot of people who were arrested were being acquitted because of these criminal defense lawyers. So an inventor came along with a little gizmo, a little box. He called it a "Breathomatic" and he said this is really neat. You breath into the one end and out the other end tells you how much alcohol is in your system. Well, that was pretty neat and the AMA helped out by saying we've done studies. The AMA, I assume you all know, is not a scientific organization, rather political, but we've done studies and we found that if you're over .15 percent, you're probably impaired, so now, the prosecution had the magic box and medicine and science on their side: .15 or higher you're probably under the influence, but there were still criminal defense lawyers in the land and there were still people being acquitted and there was a growing group of concerned mothers out there who created an organization. And do not, by the way, ever take them lightly. They are an extremely powerful, well-organized, well-financed group that is at the seat of most of your problems in this field. And so a law was passed. It's not just evidence that you're under the influence. We're going to legally presume you were under the influence if you're over .15. That should take care of it. So juries were told, you were to presume and there was a lot of hassles about whether that was rebuttable or conclusive. Ended up, constitutionally, thank God, being rebuttable. We're going to presume you're under the influence. Okay, but, surprise: there were still jury acquittals. There were still criminal defense lawyers in there. So they went back to the AMA and they said you want to reconsider that .15? So the AMA reconsidered the .15 and lo and behold it was dropped to .10. Now had the human body changed over that period of time? No. So now prosecutors had it dropped to .10 percent with a presumption. You know the story. They were still — juries were still acquitting because there were these nasty little defense lawyers running around questioning the evidence.

Well, the next step was if .10 doesn't work we'll drop it to .08 and the law was changed again. The body was not changed, the law was changed and it was dropped to .08 and in some states it has been dropped further to .05 and it was still not working and so they passed new laws and the new law was: Okay, if the juries don't believe the person was under the influence over .08, how about if we change the law and make the crime having over .08. What a terrific idea. The crime becomes having over .08, whether you're impaired or not. Not only that, it gives the DA two shots — the prosecutor two shots at you. If he doesn't get you on the .O8, he'll get you on the DUI. Notice, by the way, how increasingly we are getting further and further away from the evil we're trying to resolve and that is: driving while impaired. Well, criminal defense lawyers being very adaptable continued — their attacking continued with acquittals. They pointed out things like, well this is all very interesting, .08 and all, but we got this problem called partition ratio, 2100-to-one. My client may not have been 2100-to-one, so your numbers are meaningless and so MADD, with the assistance of the Federal Government, passed new laws. Supreme Courts and the country started passing new decisions, most notably the Bransford Supreme Court decision in California. Basically they said, "Well, partition ratio isn't really relevant because we're now interested in the amount of alcohol on your breath, not in your blood. We'll re-phrase the statute to say .08 as measured on the breath. We're not concerned about blood anymore". Now in the Supreme Court decision, if California mentioned Bransford, there was a dissenting, lone dissenting justice, Justice Joyce Kinard and she pointed out the obvious (ha) and that is, "My brother Justices, haven't we just created a whole new crime of driving with alcohol on your breath?" Yes, that's exactly what they did. So now we have arrived to the stage where if you are driving with alcohol on your breath, over .05 or .08, or if the DA can get you with another version, they can get a conviction. What does this have to do with truth? What does this have to do with driving while impaired? Less and less and less and you've got to understand that.

Now the second development or series of developments that you must understand, not just intellectually, but understand how this affects your perspective in defending the case, is that not only has science been perverted and by the way, after listening this morning to our first speaker, NHTSA contracting with an organization to just (ha) field sobriety, it's sort of like contracting the American Tobacco Foundation, deciding to give a contract to an organization to determine whether tobacco causes lung cancer, isn't it? I mean it is not — the organization, NHTSA — and anybody here who is familiar with NHTSA knows where NHTSA is coming from. They are not an objective governmental group. They are there for law enforcement purposes. But we have the constitutional problems in DUI. What many of the more experienced of you out here refer to as the DUI exception to the Constitution. Maybe you haven't noticed it, but think about it. Roadblocks, they can stop you, with absolutely no probable cause, according to the United States Supreme Court in Michigan vs. Sitz. No probable cause — they determine if you're committing a crime, okay; they can't do that — if this — if they're trying to find out about drugs or weapons or fugitives or anything else. They can only do it in DUI. Notice, however, when the Sitz case went back to Michigan, Michigan said, "Okay if you're not going to protect our citizens, we will under our State Constitution". And four or five other states now have followed suit.

What about the presumption of guilt? In most states now when the person is stopped, the police officer finds him guilty on the spot, takes his license, suspends it and now you can appeal that suspension. You are presumed guilty and you are punished on the spot by the police officer. We find out, however, constitutionally, that's not presumption of guilt. That's remedial. That's administrative. That's not punishment. What about right to counsel? Is there a right to counsel in a DUI case? No. Not until after they've arrested you, taken you to the station and run you through possibly incriminating chemical tests. Do you know any other offense where that situation exists, where you can be arrested and kept in incarceration for an hour or two while they conduct incriminating tests and you have no right to an attorney, except in four or five states under their State Constitution? No. What about if you refuse to take the tests? Isn't there a Fifth Amendment right against comment on that refusal in Court? South Dakota State Supreme Court thought so until the U.S. Supreme Court reversed them and said, "Oh, no, DUI cases are different." Like Sitz, by the way, it went back to South Dakota and South Dakota said, "Alright we're going to rely upon our own State Constitution then." You can't mention refusals, or the Fifth Amendment right, or the equivalent for South Dakota citizens at least.