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!

The study cited in this article states that approximately 50% of all drivers pulled over are binge drinkers (which the author uses as a criteria to determine that a person is an alcoholic). The author further qualifies the non-alcoholic group as being persons who consumed more than a certain number of drinks the night they were arrested. This may be true, a better study might include the mean BAC for DUI arrests as well as a % breakdown, I sincerely believe that this number will be significantly lower than MADD would have the general public believe…

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

Seems like driving legislation through the legislature is better for Krusee  than driving a vehicle - seems like he just picked up his 2nd DUI arrest and faces this special fine himself.

The process of rehabilitation may be initiated when 5 years has passed since the conviction. If a person needs to be admitted to Canada prior to initiating or completing the rehabilitation process you may apply for a temporary resident permit.

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.