DUI Defender

Recently a terrible accident occurred in Santa Clara County. John Mayfield, a diabetic, suffered some sort of lapse from low glucose levels. Rapid and unpredictable swings in glucose, blood sugar, levels is one of the main aspects of diabetes. It is for this reason that responsible diabetics regularly monitor their food intake and their sugar levels. In order to keep a “normal” blood sugar level, they adjust their insulin according to some general guidelines. However, this is not an exact science.

By all accounts this is what Mr. Mayfield had done prior to his driving back in July. Unfortunately, and with no warning, his sugar level dropped and an accident ensued. Mr. Mayfield’s truck lost control, flipped over and exited the freeway. The vehicle then collided with another truck, they burst in to flames and the passengers in the other vehicle died. Obviously a horrendous accident.

BUT THAT IS WHAT IT WAS, AN ACCIDENT. Mr. Mayfield did not intend to go in to diabetic shock. He did not disregard the warning signs. He did not overindulge. He did what is responsible, and more importantly, WHAT WAS REQUIRED BY LAW.

You see, in California, and most every state, people with certain medical conditions, such as diabetes or epilepsy, which may lead to lapse of control, can only drive if a doctor indicates the condition is under control from medication, such as insulin, and is relatively unlikely to occur. Such as Mr. Mayfield. In fact, it is unclear if Mr. Mayfield had ever suffered a similar situation.

So Mr. Mayfield was left with a choice; drive without his taking insulin, which violates his medical protocol, or take the insulin as directed. He did the prudent act, took his medication after checking his levels. It was not enough, and despite his intelligent and responsible actions, the accident occurred.

Now the District Attorney wants to prosecute John for driving under the influence of drugs; the drug being his insulin. So John is damned for what he did. Of course, we can easily surmise that had John NOT taken the required medication he would be charged with a crime for that omission, damned if he didn’t.

Not every event in life, no matter how tragic, is a crime. Accidents happen despite the best intentions and precautions of all involved. The mere fact that a death or deaths occurred does not elevate the event from tragedy to manslaughter. Prosecuting John Mayfield is the definition of persecution.

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.

The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.

In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

It comes as no surprise as researchers delve further into GERD, the causes and possible treatments that also should discover other symptoms. It has been recently published (GERD and Chronic Cough) that a chronic cough may be indicia of GERD in patients that are non-smokers and aren’t taking ACE inhibitors. This is currently being described as silent GERD and may account for 43 to 75% of all GERD cases, it also referred to as larygopharyngeal reflux disease. Just because a person isn’t symptomatic in a typical fashion (chronic heartburn, burping/belching, regurgitation) does not mean that they do not suffer from GERD. The reality is that a far greater number of people may have undiagnosed GERD which means that a larger percentage of the population may not be good subject’s for breath testing due to the mouth alcohol contamination caused by GERD.

There has been a lot of discussion recently regarding diet and alcohol. Some in the medical community have documented the fact that diabetics can enter a state of ketosis wherein their breath will test positive for alcohol on many types of breath analyzers that have specificity issues (devices that are not alcohol specific). In a recent Swedish study researchers found that low calorie diets can result in false positives that prevent ignition interlock devices from allowing cars to start. If the devices can’t tell the difference between ethyl alcohol, ketones and isopropyl alcohol, how can we trust the results of blood alcohol measurements made by similar machines used in law enforcement?

Earlier this week the United States Food and Drug Administration released a statement indicating that it hard notified the manufacturers of insomnia drugs that a possible side effect could be “sleep driving, making phone calls, preparing and eating food.”

This statement confirms what many of our client’s have related, that they don’t remember anything until the red and blue lights appeared behind them.  Last year, Representative Patrick Kennedy claimed that he had no recollection of driving after taking Ambien and crashing into a Capital security barrier.  Representative Patrick Kennedy’s experience is not the only story involving one of these drugs.

Experts recommend that people who are prescribed these types of drugs do not mix them with alcohol or other sedatives and take only the prescribed dosage.

The fact of the matter is that these drugs can be cause of driving that could result in a driving under the influence charge.  Driving under the influence is a general intent crime and therefore can be charged by a prosecutor without the accused specifically intending to violate the law.  A competent DUI attorney can help defend charges that arise from driving under the influence of these types of drugs or a combination of these drugs and alcohol.  Hoever, the ingestion of these types of drugs, and the unexpected conduct that resuklts as a side effect of proper usage may be a defense to a specific intent crime.

“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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