DUI Defender

In a decision that has major implications for citizens accused of driving under the influence (DUI), the U.S. Supreme Court decided the case of Melendez-Diaz vs. Massachusetts. Mr. Diaz was accused of possessing drugs, and pursuant to the usual procedures the alleged drug was sent to a crime lab for analysis. Rather than bringing in the person who performed the testing, the prosecution merely produced a declaration of the test results. The US Supreme Court held that this violates the right to confront a witness guaranteed to all citizens under the Fifth Amendment to the Constitution.

In the context of DUI cases, many jurisdictions allowed the same procedure; that the blood or urine test results could come in merely by way of a sworn affidavit. For years defense attorneys have argued that this violated the accused’s Constitutional right to question a key witness against them. Now it is clear that it does.

The Court stated that many labs are not in fact “neutral”; they are branches of the law enforcement team. As such they “may feel pressure-or have an incentive- to alter the evidence in a manor favorable to the prosecution”. Further, since the labs are products of the police agencies they often “sacrifice appropriate methodology for the sake of expediency”. In other words, sometimes people rush or take shortcuts and sometimes they fudge because they work for the same team.

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My latest book — Innovative DUI Trial Tools — has been getting some really nice reviews by lawyers across the country. This type of feedback from actual practitioners is encouragement.

I recently bought Innovative DUI Trial Tools ($99 at http://www.jamespublishing.com/books/dui.htm ), and have now read it cover to cover. I took away at least 10 gems that I will put to use immediately. I thought to myself: When is the last time you got that much from a cle? Some of the material may be old hat for those on this listserv with decades of experience. But for the rest of us, I thought the book was informative, easy to use and an excellent addition to my DUI library.

Kudos to Bruce.

Chris
The Angles Law Firm, LLC

I wholeheartedly agree. I read the whole thing in one night and issued some new motions the next day.

Scott C. Nolan
Scott Nolan Law

I received my copy while you all were at the Vegas seminar! I read it and had tons more fun than I would have if I were in Vegas!!!!! Well, not really, but I probably learned as much AND it cost me less than I would have spent in one trip to the tables (because I’m a crappy gambler).

Money well spent!

Jeffrey C. Meadows
Lyons & Lyons Co., L.P.A.

Thanks guys for the nice words!

On Friday the 22nd of 2006, Judge Gorgi of the San Francisco Superior Court ruled
that a San Francisco police roadblock from last September violated the Constitutional rights of drivers. In two separate DUI defense cases, I was able to successfully argue that the roadblock, set up on Geary at Steiner, did not meet the minimal requirements established by the United States and California Supreme
Courts.

Judge Gorgi found a number of violations existed but three, in particular, seemed to bother her. First was the admission that police would stop motorists who did nothing wrong except try to avoid the checkpoint even if they used the route the police created. Additionally, the lack of proper notice
before the check point coupled with its location led her to rule the entire event was wrong. Continue Reading »

James Publishing is just about to release my new book Innovative DUI Trial Tools. Here’s the publisher’s synopsis:

How the best lawyers consistently win DUI cases

To win regularly, you need to capture both the hearts and the minds of jurors.

The mind is simpler to persuade. You capture jurors’ minds through your cross examination, if the defense is one of prosecutorial problems … bad machine or bad procedures, or through your witnesses if the defense is something else … GERD, necessity, etc.

The heart is more difficult.  To persuade the heart, you need to give jurors a simple answer to the question posed by family and friends, “How come you let the drunk go?”  You need to make jurors want to let your client off.

Bruce Kapsack’s Innovative DUI Trial Tools provides strategies and language for persuading both hearts and minds.  These methods and arguments have succeeded in trial after trial, and can work for you.

Attention-getting openings
You can’t convince them if they aren’t listening to you.  Here is how to grab jurors in the first sentence and get them thinking that a fellow citizen has been falsely charged:

• Providing a strong argument, not a trial road map.  §3:04
• How to make it detailed and personal.  §3:04
• Filling in the blanks with positive information.  §3:07
• Pointing out the problems with the prosecution’s case.  §3:08
• Boosting the officer and prosecution expert so you can knock them down on cross.  §3:10
• How to use surprise to your advantage.  §3:11 Continue Reading »

How can you defend drunks? That question is posed to those of us specializing in this field more than any other. Lawyers who specialize in murder cases, where the evidence is usually much stronger, are not asked that question. It seems to be a given that a man who is accused of killing his wife is entitled to a strong defense, but not someone who is accused with less evidence.

People say if you drink, you drive, you lose; but that’s not the law. The law in every state of this union is that you CAN consume alcohol and drive, so long as you do so responsibly. So is it wrong for me to represent a person who is stopped for an expired registration and who only had one drink?

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“Stand over here, touch your nose, walk this line, follow this pen”. These are part of the instructions given to people who are stopped and suspected of driving under the influence. But what are they and what do they mean? The short answer is not nearly as much as people believe, and then only in specific situations.

It all started in the 1970’s. The federal government wanted to know if the various tests, literally hundreds, used by all of the law enforcement in America, had any validity and if some were better than others. In typical governmental fashion, a contract was awarded to the Southern California Research Institute, a study was commenced and eventually reports issued. The bottom line was that 3 tests, Horizontal Gaze Nystagmus, Walk and Turn and the One Leg Stand were deemed to be relatively reliable in assessing whether a person COULD be under the influence of alcohol.

THIS BECAME THE FIRST ISSUE WITH THE RESULTS. THE TESTS WERE TO DETERMINE UNDER THE INFLUENCE OF ALCOHOL, NOT IMPAIRMENT. There is a difference. The tests were designed to assist officers in the arrest or release decision. Not as proof of any underlying crime.

In fact, Dr. Marceline Burns, the person who ran this project, and known as the ‘godmother’ of SFST’s has made this absolutely clear in numerous court proceedings and statements “What you are asking is, are these tests of driving? They are not”. Nor can these tests be used to correlate to a specific blood alcohol level. This was discussed in the case of United States v. Horn.

So, despite what you may have heard, read or been told, any and or all of the field sobriety tests do not measure your alcohol level or the ability to drive a car. They just give the officer a “predictive power” of an elevated alcohol level.

Of course how accurate this predictive power may be depends on the officer, the situation and the use of statistics. Research has shown that under the best conditions with the best officers this predictive power never exceeds about 80%. Clearly not proof beyond a reasonable doubt.

Perhaps the biggest factor is the administration and interpretation of the tests. There are very specific guidelines on how to give a test and how to measure performance. So specific are these that officers MUST be trained to understand that varying from the standardized methods INVALIDATES the results. Again, this was said by Dr. Burns and appears in every training manual and at every training class on field sobriety tests.

So before you think that performance on a field test means a person is dui, ask yourself if the test was done correctly, was it interpreted correctly and was the result scored correctly. Then, and only then, give it the weight and value it was designed for, an arrest should be made. Not that the person is dui or has a specific alcohol level.

How Roadside Breath Machines Work

Roadside breath test devices typically use an electro-chemical reaction to measure breath alcohol content. Air, from a suspect or calibration machine, is blown over a porous disc. This disc is a wafer of materials, one of which will react with the alcohol, freeing electrons and causing a small electrical current. This current is measured and then translated in to an alleged Breath alcohol content.

In order to ensure a “good” breath sample, the devices measure the flow time of the air sample and “capture” a sample near the end of the “average” persons breath. Some devices are also equipped to allow a “manual” capture by the officer if the flow rate and time is not met. This is done by the simple pushing of a button.

Typically in breath testing, not all of a person’s breath is tested, only a small portion is reviewed. This is done by a simple piston popping closed once blow time or manual trapping has occurred. This sample is then analyzed and the results displayed.

Problems with Roadside Breath Machines
Because these devices only sample the air stream, they can easily end of measuring mouth alcohol instead of true breath (also known as deep lung alcohol). Laboratory machines typically have a “slope detector” that allows a trained operator to distinguish between the two. With a slope detector there is constant monitoring of the breath as it passes through the sample chamber and an evaluation made. Any rapid falling off of the alcohol level, or “slope”, triggers the sensor to indicate mouth alcohol.

Next, these machines are subject to more calibration problems. Unlike their big brothers, these machines are not being kept and maintained by laboratories and their staff. Most are housed by local cops or CHP. The maintenance, or more appropriately, calibration is being done by police officers with no scientific back ground.

Depending on the underlying technology, some roadside breath analyzers might be subject to other serious problems. For example, with fuel cell devices there is a lack of specificity: the devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Although the manufacturers of the passive alcohol sensor claim in their advertisements that it “is unaffected by acetone, paint and glue fumes, foods, confectionery, methane and practically any other substance likely to be found in the breath,” the fact remains that any device using fuel cell oxidation is not specific for ethanol; the manufacturer’s use of the term “practically” should certainly create suspicion.

“Officer, isn’t it true that everything you have just testified to on direct examination is a complete lie?” How many of us style our cross examination on this model? It is the old tried and true method made famous in books and movies; but is it necessarily the best?

Sure, jurors expect us to cross examine a witness, especially a police officer aggressively. They may even look forward to some fireworks, but how often does this play to our ultimate benefit? How many times could we obtain the same answers without the possible backlash of juror sentiment? Benjamin Franklin was considered a master at the art of polite questioning which inevitably led to the conclusion he was after. Lets see if we can do the same.

When a defense counsel first rises to ask the witness a question, all is hushed. The officer is poised to respond as if a weapon were drawn upon him or her in the street. The DA is set to backup the officer with objections and interruptions designed to shoot counsel in the back, or at least to wing’em. Jurors, formerly asleep at the dull droning of direct examination are now ready to see this ‘new’ phase of the trial, and the judge is paying attention for the first time since he or she may actually have to issue a legal ruling.

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