What Roberts does not seem to grasp is that the Supreme Court has routinely held that standing alone an anonymous tip of illegal activity is not sufficient to accost a citizen UNLESS the illegal activity can be confirmed.  In Florida v. J.L. the Court stated that a 911 call of an armed man on a street corner which was not confirmed by law enforcement was not sufficient evidence to seize and search the person.  The fact that a car is involved is of little import.

Putting aside precedence, let us look at common experience and human nature.  If the police were allowed to stop someone every time they receive an anonymous complaint with no requirement to confirm the facts, jealous wives, husbands, girlfriends and boyfriends would light up police switchboards throughout the country for personal gain.  Neighbors who have issues would report “I think they have drugs” to harass each other.  It would be ridiculous.

The principle of requiring articulable suspicion based on observed facts BEFORE allowing the police to seize a person is a fundamental precept of our free society.  Our founding fathers did not want the government to be able to  stop people based on mere allegations of illegal activities since THAT EXACT ACTION had been used by the British against them.  Houses were entered, people were seized and arrests were made by the British agents merely because someone was ‘alleged’ to be a patriot.
Now, in an effort to combat the “scourge of DUI” Mr. Justice Roberts wants the government to have that same power.  The power of government agents to stop anyone, anywhere, anytime, based merely on an anonymous complaint is not just the beginning of totalitarianism, but the end.  It would allow one officer to ‘anonymously call’ 911 to then allow another officer to make the seizure.

One further point that needs to be made.  The constant use of statistics to show the ‘need’ to violate the Constitution in DUI cases is completely fabricated.  First, a “dui fatality” as defined by the Department of Transportation includes if the deceased was under the influence but sitting at a bus stop and struck by an errant driver.  IN OTHER WORDS the statistics are NOT of accidents caused by drunk drivers, but of ANY accident in which a person died in ANY circumstance so long as that person had been drinking.

Second, the common flu, not the H1N1, kills three times the number of people that the government’s inflated statistics on DUI reports.  Perhaps Judge Roberts would like the government to break down the doors of the infirmed who allegedly did not get a flu shot, since they kill way more people than do possible drunk drivers, upon the anonymous tip of “I heard some sniffing”.

As experts in the field, you will recall that she is the person most responsible for legitimizing field sobriety tests. What many of you may not know is that we were the first law firm to formally depose her.

The transcript of the deposition is available on our main website as one of our DUI Resources.

Allen who serves as Georgia’s Delegate to the NCDD points out that not all of the techniques will work in every jurisdiction – fair enough. He goes on to say

the chapter on opening statements is definitely worth reading, while the chapter on cross-examination alone is worth the price of the book.

Allen also had nice things to say about the chapter on closings

The lawyer who defends DUI cases on a daily basis will find the chapter on closing arguments fertile with practical solutions to nagging problems.

Innovative DUI Trial Tools is currently available from James Publishing.

Melendez will be an issue only in criminal DUI prosecutions, not in civil or administrative hearings, noted Bruce Kapsack a criminal defense attorney with Kapsack & Bair in San Francisco.

For more details on what exactly this ruling means see my earlier post,
United State Supreme Court Reaffirms The Constitutional Right Of Confrontation

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.

Only through the “crucible of cross examination” can the court or jury determine the accuracy of the results from a test. Such examination is necessary to weed out the “fraudulent analyst as well as the incompetent one”. It is cross examination which serves as the quality control unit in these cases.

Not only will it be necessary, as it should be, to bring in the person who tested these samples, it is equally necessary to bring in the person who took the sample. In a DUI investigation, if a blood sample is requested, the person taking the blood must follow rigorous protocols to ensure the blood is not contaminated and later results are accurate. For example, it is easy to understand that if you want a blood sample for alcohol, it would be wrong to wash the arm with alcohol where the needle is going. Anyone could see that would mean the alcohol collected would include the cleansing alcohol and would not be accurate.

Previously some courts would allow a mere written statement from the nurse that she took blood to suffice. Now, the nurse would need to come in to testify that she did in fact NOT use an alcohol saw and various other critical issues. Most every one of us could agree that mistakes happen and it is important to check every step in such a critical situation as criminal convictions.

What is most interesting about this case, and its recent predecessor Crawford v. Washington is that they both rely on one of the oldest cases in Anglo-American jurisprudence; the Trial of Sir Walter Raleigh. Sir Raleigh was tried and convicted of Treason without witnesses coming in to court. They allegedly wrote accusations against Raleigh and he was never allowed to question whether they were true, or not; whether the witnesses were paid or threatened, or any other aspect which we all take for granted. Our Founding Fathers wrote the Bill of Rights with that case in mind, especially the right of confrontation. Now more than 400 years later, our Supreme Court has reaffirmed that position; that one accused of a crime MUST have the people making those accusations appear in court to be queried about their testimony or findings.

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!

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.

Along with my friend Aaron Bortel of the Law Office of Aaron Bortel, I held two days of hearings on this checkpoint. Testimony showed:

• the San Francisco Police did not follow the rules on advance publicity
• proper signage to allow the general public NOT to go in to the stop was nonexistant
• the criteria used to select which cars would be stopped was insufficient
• there was inadequate chain of command, and
• the location of the checkpoint was improper

Each of these factors have been considered critical in DUI checkpoint cases.

Roadblocks have been held to be Constitutional by the United States Supreme Court in a number of cases. In California, the Supreme Court has allowed roadblocks provided they meet several impartial criteria. The main reason for such procedures is to ensure that a roadblock does not become a police tool for prejudicial enforcement.

Allowing an officer to look at cars and select drivers to be questioned based solely on what they look like smacks of discrimination. Maybe the office only picks blacks, or women, or as in my clients case Asians. That is fundamentally wrong

During testimony the Officer in charge of the layout presented a diagram of the location, cone pattern and warning signs. All critical elements according to the California Supreme Court and as required by the Federal Operations Manual. Mr. Bortel then pointed out that if the diagram was correct, then the right of avoidance, a necessity for a roadblock, did not exist. At this point the officer changed his testimony and said the diagram misrepresented where signs had been placed.

I then impeached the officer by showing actual pictures of the scene witch matched the diagram and showed the officer to being less than honest. Additionally, I was able to show that if the officer’s testimony was to be believed, the signs would have been two blocks before the roadblock, another procedural violation.

Given that roadblocks are the least effective means of DUI enforcement, yielding less than a 2% arrest rate; that they create danger to officers and the public; and that they use an inordinate amount of resources (some 20 or so personnel); and that they are really upheld in court, one wonders why they still are used.

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

9 pattern openings

• Deliberate refusal.  §3:21
• Refusal due to confusion.  §3:21
• Who was driving?  §3:20
• Incorrect administration of field sobriety tests.  §3:22
• So what?  §3:22
• Rising blood alcohol.  §3:23
• Keeping an open mind.  §3:24
• It wasn’t my client.  §3:25
• The missing element.  §3:26
• And quick ideas for the crime, burdens, facts, law, and client testimony.  §3:28

Intellectually-persuasive cross-examinations
Each discussion begins with an explanation of the why and how of the strategy, then lists the points to be made with that adverse witness, and finishes with the cross-examination questions to ask:

• Slipping in drinking receipts as past recollection refreshed.  §5:14
• Unfair administration of field sobriety tests.  §5:25
• Showing improper administration of one-leg stand, heel-to-toe, and horizontal gaze nystagmus.  §5:26
• The 16 common attacks on breath tests.  §5:41
• Using partition evidence to refute a charge of driving while impaired.  §5:43
• Failure of the machine to measure breath temperature.  §5:45
• Using a steepling example to criticize the lack of two tests.  §5:47
• Failure of the machine to rule out interfering substances.  §5:50
• Faulty slope detection test for mouth alcohol.  §5:53
• False read in diabetes, hypoglycemia, and diet cases.  §5:54
• Exaggerated score due to GERD.  §5:55
• Presenting a rising alcohol defense.  §5:60
• Destroying presumptions in a rising alcohol defense.  §5:63

Closings which grab heart and mind
Of the two goals of DUI closings, the first — anticipating and countering prosecution arguments — is not difficult because DUI prosecutors are usually new and take a by-the-numbers approach.  The second goal — convincing jurors your client is not guilty — is harder.  Mr. Kapsack has found the following strategies and language helpful for both goals.

• Neutralizing the prosecutor’s closing.  §7:02
• Directly addressing the DUI defense stigma.  §7:05
• How to use the story close.  §7:20
• Using the here and now.  §7:23
• Making an emotional appeal.  §7:24
• The point-by-point rules closing.  §7:30
• Picking apart with the field sobriety tests.  §7:35
• Putting a list hook in your story close.  §7:37
• The “piece of junk” closing.  §7:50

Quick but memorable closing language for:

• Bloodshot eyes.  §7:21
• Machine reliability.  §7:64
• Rising alcohol.  §7:65
• Circumstantial evidence.  §7:66
• Reasonable doubt.  §7:67
• Missing element.  §7:68
• Disagreement in deliberations.  §7:70
• No testimony from State’s expert.  §7:71
• Burden of proof.  §7:80

4 complete closings

• Refusal.  §7:100
• Breath test.  §7:101
• High BAC.  §7:102
• No test or other guy drove.  §7:103

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?

This happens on a regular basis and it is not until an attorney obtains the blood test results, usually not until AFTER THE FIRST COURT DATE, and presents it to the DA is the case dismissed as an “error”. Of course the citizen who did nothing wrong now has a record of the arrest to deal with, but no one cares about that, it seems.

Of course we can not forget that in all 50 states the mere arrest, without knowing the blood alcohol level now triggers an immediate suspension of a citizens driving privilege. It then requires an attorney to persuade the department of motor vehicles to return the citizen his or her license.

These are rare cases I can hear people say, but not as rare as you may think, and more importantly, since when is rarity a scale on which your rights depend?

But let’s look at more common inquiries which an attorney would make in these cases. Did you know that diabetes, hypoglycemia, Gastro Esophageal Reflux Disorder, high protein diets and other common medical conditions can cause a FALSE POSITIVE reading on today’s breath machines? I know if I print it here you won’t believe me, so use the web to search for yourself. I’ll wait.

Want to know why this happens; because breath machines DO NOT TEST FOR ALCOHOL. Instead they use light to look for certain chemical bonds between molecules which are found in alcohol, BUT WHICH ARE ALSO FOUND IN OTHER SUBSTANCES.

This was not disclosed by the machine manufacturers, but discovered by defense attorneys who represented these people or PAINTERS and others who use certain chemicals which show up as alcohol on the machines. That’s right, it turns out that people who use industrial solvents will show the alcohol breath profile of someone who drank HOURS after they leave work.

Maybe this kind of ‘hidden ball trick’ is why virtually all the manufacturers of breath machines have been adamant in opposing the release of the information on how the machines work. They also will not sell these machines to independent labs or to the defense.

NOW WHY IS IT THAT WE WILL SPEND MILLIONS ON VOTING MACHINE INSPECTIONS BUT DON’T CARE IF THE MACHINEs USED TO CONVICT PEOPLE MEET EVEN THAT STANDARD?

Now you see some of why I and others like me do what we do. The mere fact that a person is arrested is NOT proof they are guilty. A breath test is not always correct. Innocent people do end up in the system all the time.

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.