Speaking for the Arizona Criminal Defense Bar on May 6^th at their annual DUI program, Mr. Kapsack, of Kapsack and Bair, LLP, once again demonstrated why he is one of the most sought after lecturers and one of the best attorneys in the DUI defense field. Using techniques from his top selling book, Innovative DUI Trial Tools, James Publishing, Bruce lectured on redefining the process of Opening and Closing arguments to today’s juries.

Mr. Kapsack will next be lecturing in Chicago for the Illinois Bar on two topics,Trial Techniques and Breath testing. Having served as a Regent for the National College for DUI Defense, Mr. Kapsack was the first attorney in California to take and pass the Board Certification in DUI defense acknowledged by the American Bar Association. Kapsack and Bair, LLP is AVVO 10 of 10 and Martindale/Hubbell AV rated.

More and more people arrested for DUI in these areas have been looking to our expertise to see them through. Now Kapsack and Bair are happy to announce we will be meeting with clients and offering free initial consultations in a convenient downtown Sacramento location.

Sacramento DUI Lawyer
Esquire Plaza
1215 K Street
17th Floor
Sacramento, California 95814
United States
(916) 930-1967

The Oakland art murmur happens the First Friday of every month is a collective community party that celebrates art, music, and fun. It is a great time time to show off the revitalization of Oakland’s Uptown District.

During First Friday many of Oakland’s premier bars and clubs also participate as their mixologists vie to out-do one another with fancy libations. While art, music, fun, and cocktails can sometimes come together, at Kapsack & Bair, we know that drinking and driving never do.

If your First Friday fun involves cocktails, please get a short-hop cab voucher from one of our partner drinking establishments:

• Penelope at 11th and Clay
• The Layover at 1517 Franklin
• Era Artbar at 19 Grand

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

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!

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 is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

You can see the full Kapsack and Bair profile.

Here’s one of our recent answers. We are pretty sure it was the best, but it was not chosen for some reason. Oh well, you can lead a horse to water …

Question
I was pulled over a couple weeks ago at a dui checkpoint in Orange County and took the blood test and got the results that were .08 BAC. I am not proud of this, and am willing to pay the consequences for my actions. I am wondering what that is going to entail. Here is the thing with my case. I am moving to New York on August 1st. My job is transferring me to our firm out in the city and its already all in the pipeline. My court date is august 10th, so I think I am just going to move my start date back because I don’t know if I can go to court earlier. I called a lawyer’s office and they charge 4000 to fight the case, so I think I am just going to go in there alone. I need info on probation, costs, classes, etc. Especially in regards to how that works since I’m moving (I currently live in Cali). Thanks so much in advance for any advice. I really appreciate. Please don’t preach to me, I already feel bad.

Our Answer (from Bruce)
DON’T MAKE ANOTHER MISTAKE. First, roadside checkpoints are generally not constitutional. In order to pass muster, they must have publicity, proper notice, a way to avoid the stop and almost a dozen other REQUIRED criteria. It is unusual for the police to conduct these stops correctly. If the judge decides the police acted improperly in a checkpoint, then the resulting cases are dismissed.

Second, ALL chemical tests have a margin of error of AT LEAST .01. This means you may be below the legal limit, and under the presumption of innocence we all share, this benefit of the doubt goes to you.

Next, most courts will reduce these borderline case to less than a DUI. In fact, given the court you are in, and the facts you presented, the DA is likely to reduce the charges to non alcohol allegations because of the weaknesses I just pointed out.

While four thousand dollars may seem like a lot, you will make it up in saved fines (about ten thousand dollars for a DUI), school costs (about three hundred), license suspension (six months) and jail time. Add in to this the insurance cost for DUI insurance (about $3500 per year for 5 years) and you see why it is cheaper to fight than not.

Of course, you must also remember a DUI is a criminal conviction which may effect the rest of your life.

Driving under the influence was a mistake, not fighting a case like this would be worse.