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.

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

The police conducted a dui investigation which the overweight woman had trouble completing, finally she provided a breath sample which measured .04. Still, she was arrested, her child taken away from her as she was taken to jail. At the jail she provided a chemical test that was below the .04 she provided in the field. That didn’t stop the District Attorney from filing charges for DUI instead of apologizing for the conduct of law enforcement.

The truth of the matter was that she was driving home from dental surgery, she stopped for lunch and ordered a mimosa which she didn’t finish as it irritated her mouth, she then switched to water… which was served in a wine glass, repeatedly.

This article is a statement of the sad reality of how one person, who wasn’t doing anything wrong, ended up in a legal pickle.

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.

The panel found that Ms. Gordon authenticated test solutions that were prepared by other laboratory personnel without independent validation. The laboratory protocols called for calibration/accuracy testing solutions to be prepared and independently tested by the lab personnel. The importance of these solutions rests in that the entire breath testing program relies on the accuracy of the solutions to validate the measurements taken by breath testing equipment. The solutions are heated and the vapor is used to simulate human breath, that vapor is measured by the breath testing equipment and the result is compared to the “known” value. Of course, the problem arises when the “known” value isn’t actually “known” and the machines are calibrated to the unknown value. Without knowing what the machine is actually measuring it is difficult to verify the accuracy of the accused citizen’s breath test.

The panel found that other procedures were employed by the lab that resulted in a “culture of compromise.”

Marijuana cases cause specific problems for law enforcement as there are no standards for quantifying the blood or urine concentration that will result in impaired driving. It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. The parent drug is the actual drug consumed while the metabolyte is the processed, but still measurable residue from the drug. Unfortunately, many involved in law enforcement are unaware that the metabolyte is not active and is not currently affecting/impairing the test subject.

In fact, the National Highway Traffic Safety Administration (NHTSA) concedes, “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. It is possible for a person to be affected by marijuana use with concentrations of THC in their blood below the limit of detection of the method. Mathematical models have been developed to estimate the time of marijuana exposure within a 95% confidence interval. Knowing the elapsed time from marijuana exposure can then be used to predict impairment in concurrent cognitive and psychomotor effects based on data in the published literature.”

While more studies need to be conducted on the effects of marijuana on driving, NHTSA, itself states that “some drivers may actually be able to improve performance for brief periods by overcompensating for self-perceived impairment.” For information see the NHTSA article about Marijuana and human performance.