Archive for July, 2009

California Supreme Court: DUI Defendant Permitted to Defend Self With Truth

Friday, July 10th, 2009

I’ve expounded on this blog at great length in recent years on the unreliability and inaccuracy of the various machines used to measure the breath of citizens accused of drunk driving.  See for example,  "Trial by Machine "– But How Good Are the Machines?.  I’ve also blasted the unconstitutional laws of most states which presume the accuracy of these machines.  See If You Can’t Prove It, Make the Defendant Disprove It.   In many cases, as in my home state of California, the defense is even prohibited from offering critical scientifically-accepted evidence of the machine’s defects.  See DUI and the Presumption of Guilt.

A classic example of this law-trumps-science is the banning of evidence of partition ratio.  Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect.  The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood.  Problem:  We are not all average.  And ratios vary from 1300:1 to 3500:1. 

Yesterday, the California Supreme Court ruled that a defendant should be permitted to defend himself with that widely-accepted scientic fact. (And, I’m proud to say, the Court cited my book California Drunk Driving Defense three times as authority in its decision.)


California Supreme Court Says Defendants Can Challenge

Breathalyzer Results

The court permits drunk-driving defendants in some cases to question blood-alcohol findings, which are sometimes inaccurate depending on factors such as gender and medical conditions.


Los Angeles Times
.   July 9
  – Accused drunk drivers now have more ammunition for challenging Breathalyzer findings as a result of a unanimous ruling Thursday by the California Supreme Court.

The ruling is expected to make drunk-driving cases more complicated and possibly more difficult to prosecute, lawyers said. Courts in two other states, Arizona and Vermont, have reached similar conclusions.

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual’s medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

"The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence" in certain cases, Justice Carol A. Corrigan wrote. The court’s answer was yes.

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday’s ruling permits defendants in some cases to challenge those results based on mathematical ratios.
 
"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing," Corrigan wrote.

San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was "going to make DUI trials a little more difficult to put on" because more technical evidence will be permitted.

"The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt," Vos said.

Jamie L. Popper, the appellate defense lawyer in the case, said the ruling will ensure that juries have the information they need to judge a case.

"The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure," Popper said…

 

Amazing.  It takes a Supreme Court ruling to allow a citizen accused of DUI to defend himself with established scientific truth. 

But….in a typical retreat from logic, the Court limited the admissibility of partition ratio evidence to defending against the charge of driving under the influence — not to the accompanying charge of driving with .08% blood-alcohol concentration (BAC).  So…you can use scientific facts that the BAC reading is faulty to defend yourself against the BAC-based presumption of being under the influence – but not against the charge that your BAC was .08% or higher.
 
Hmmmm…

 

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Drunk Driving Entrapment

Tuesday, July 7th, 2009

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies? This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car. He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the Supreme Court reversed the lower court and reinstated the conviction. Its reasoning? "Obviously," the court said, "if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear".

The court continued its twisted logic: "No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…." (Emphasis added)  State v. Fogarty, 607 A.2d 624.

This "no win" scenario is fairly typical of what I have referred to in earlier posts as "the DUI exception to the Constitution".
 

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