Attacking Blood-Alcohol Evidence

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Can we destroy evidence in DUI cases? Yes, according to Trombetta vs. California. Is it double jeopardy for the officer to take the license, suspend it and then in court, in a separate proceeding, suspend it again, or impose additional criminal sanctions? Is that double jeopardy? No, again, because the first suspension was remedial; the second suspension was punitive, so there's no problem. No double jeopardy.

It's important for you to understand and have perspective on what you're dealing with when you go into a DUI case. Alright, we've talked about the development of the crime itself. We've talked about the Constitutional projections and, by the way, what happens in the DUI field—and this is where we are losing our rights—I don't want to sound too much of a zealous advocate, but I feel this very strongly—this is where we're losing our rights. What happens today is going to happen tomorrow in other types of offenses. Roadblocks today for DUI. Roadblocks tomorrow for everything else. It's called precedent.

So we've talked about those two, now let's talk about the third area that I'm supposed to talk about today. That is the area of scientific evidence. I use the term scientific very advisedly. Scientific evidence. Science, evidence, law. What is science? Science is the pursuit of truth. The systematic pursuit of objective truth. Law. Law is society's mechanism for imposing order. Okay. Is science concerned with imposing order? No. In fact, quite the opposite, if you understand quantum mechanics, science has determined that is quite the opposite. It is chaotic, the nature of the universe. Is law concerned with the pursuit of truth? No. They are concerned with the pursuit of order. Of predictability. Public confidence. Of a number of things, but not of truth. There are different goals in science, in law and you've got to understand that when you're dealing with the so-called scientific evidence.

Let's go back a few centuries. There was a time when, according to the Vatican and the civilized world, the earth was flat and the sun rotated around it, so a gentleman named Galileo came along and said "Objection, I've got evidence here that shows the earth is round." Objection overruled and he was [almost] executed. The universe had order. It was not true, but it had order. It was predictable.

Let's fast-forward now. We know that the partition ratio assumed is 2100-to-one. We know that's the presumption, we also know—everyone knows—that it varies anywhere from about a thousand to thirty-five hundred. But, we don't permit anyone to mention it. It is assumed to be twenty-one hundred-to-one. Is that true? Is the Bransford decision and other decisions in other parts of the country true? No. It is false to science. Dick Jensen and any other reputable scientist will tell you that it is a lie, it is false science, but from it comes order. And you have to understand that.

Okay, so to attack DUI scientific evidence, you have to understand what you're dealing with. When you're dealing with these quasi-scientific field sobriety tests and these magic boxes, you're talking about the difference between truth and expediency or imposition of order. The system, the legal system, is not concerned with truth. The defense, now here's where we come to the important point, you must understand what I've just said and from it comes a very important point and that is, when you are defending a DUI case, when you are attacking specifically the subject I have—attacking scientific evidence, what is the strategy, what is the tactic, what is the approach, what is the perspective? The defense is truth. It's truth. What a mind-boggling concept to a criminal defense lawyer! Think about it. You're criminal defense lawyers. The other side, you know, they've got the eyewitnesses, they've got the fingerprints, they've got the cop-out confession. What are you there for? To blow smoke and raise reasonable doubt, right? You have been trained that way. That's how you pursue and defend your cases. DUI isn't like that. DUI is different. What's different is they're the ones who are blowing smoke. They're the ones that are palming off false science. They're the ones that are palming off this field sobriety crap. You are the ones who are trying to point out to the jury what the truth is. That these—this is not science. This is not true, it is false.

This is difficult for some of you to comprehend, that you are interested in bringing truth to the jury in a DUI case. And that is a pretty darn important perspective. I think it's a pretty neat thing. A lot of people ask me why the heck do you defend drunk drivers and nothing else? And I've been doing it for a long time now. Because, two real reasons, one; I firmly believe we are the people at the dam with our fingers in that crack in the dike when it comes to constitutional protection. This is where we're losing it. Two; I like, I really like the feeling that I'm trying to bring the truth to a jury. Long ago I got tired of trying to blow smoke and raise reasonable doubt. I like truth. You've got to understand that is what you are trying to do. You are trying to develop truth. You're trying to get the jury educated to what really is happening. To debunk this false science.

Okay, what is their truth? What is the prosecution's truth? The truth and we'll focus now, because John Henry dealt with field sobriety tests. I'll talk to you about the machine. I'm just going to talk about how you bring the truth out about this box, this metal box, this machine. And many of you heard me speak before, you know I have this thing—don't ever call it an instrument—it's a machine! Juries understand machines. It's not an instrument. Does not have that scientific aura. Does not deserve that aura that the word instrument imposes, it is a machine. And, by the way, I now, since a few months ago, I no longer talk about the other—refer to the other attorney in trial as the Deputy D.A. or the City Attorney or the prosecutor. I found this very effective. I found this out just a few months ago at a trial. I called them the government's lawyer. As in, "I'm here from the government and I'm here to help you and don't worry because I'm a lawyer." I started doing it about, probably about three months ago in Orange County and this Deputy D.A., it actually drove her to tears. I mean she asked the Judge to instruct me to refer to her as a Deputy D.A. You know and it really rattled her. Since then I've been using that and what's in a label? Well, machine versus instrument, I guess. The government's lawyer, versus the prosecutor.