Speeding but Staying in the Lanes

Effective DUI Defense without Waiving TimeKenneth N. Hamilton

Ventura County Public Defender’s OfficeFebruary 3, 2015

Why waive time?1. Increase personal caseload to prove you can thrive in chaos2. Give client more opportunities to FTA or plead out due to exhaustion3. Get your act together to vindicate your client’s innocence

How much time do you need to prepare a DUI trial?

•As much time as necessary to effectively represent client.•Effective representation=meeting professional standards of competence•1. Identify weaknesses in prosecution’s theory of the case and relevant defenses; 2. Organize and execute defense strategy

What contributes to delay in trials?

• Communication barriers with client• Delays in obtaining necessary discovery from prosecution• Delays in obtaining reports from investigators• Difficulty in subpoenaing documents• Difficulty in locating and subpoenaing witnesses• Difficulty with scheduling expert witnesses• Other cases competing for your attention needed to prepare for

trial• Out of Custody Client acquiescence or desire in delaying trial

Defense lawyer can exert considerable influence in reducing or eliminating contributors requiring a continuance of trial.

Practical Advantages to a Speedy Trial• Prompt case resolution• Reduced likelihood in destruction of evidence or disappearance of witnesses• Lower likelihood client will plead guilty to avoid multiple useless court appearances • Prosecution has less time to prepare for trial• Lower likelihood that case will be transferred to another public defender which may detrimentally impact client’s interests

Legal Advantages to a Speedy Trial•Pretrial appeal of righteous suppression motion•Less likelihood court will find good cause to delay trial at request of prosecution•Greater likelihood discovery sanctions against prosecution will be granted

DUI CHARGE IS BASED ON CIRCUMSTANTIAL EVIDENCE•Both charges relate to criminal conduct that occurred before the face to face investigation and arrest of client•Evidence in support of the crime may be developed hours after alleged criminal conduct•All evidence of BAC and impairment is circumstantial evidence including chemical test results and actual driving performance

Circumstantial Evidence of Sobriety: behaviors inconsistent with

drug/alcohol intoxication in all 3 phases of DUI Investigation

1. Vehicle in Motion (Driving / Stopping)2. Face-to-Face Contact (Interview and Exit)3. Pre-Arrest Screening (FST Testing / PAS test)

Use Prosecution Training Materials against the Prosecution

24 Driving Cues Identify Driving Impairment

Visual Detection of DWI Motorists•Problems Maintaining Proper Lane Position•Speed and Breaking Problems•Vigilance Problems• Judgment Problems

Speeding is not included as a driving cue (everyone speeds)

What’s with the horrible driving?

Sleep Deprivation• More Sleep Would Make Most Americans Happier, Healthier

and Safer -- American Psychological Association• Driving Drowsy as Bad as Driving Drunk – U.S. News

Distracted Driving• Driving while Texting Six Times More Dangerous than

Driving while Drunk• Drivers on Cell Phones Are as Bad as Drunks

10 Post-Stop Cues• Difficulty with motor vehicle controls• Difficulty exiting the vehicle• Fumbling with driver’s license or registration• Repeating questions or comments• Swaying, unsteady, or balance problems• Leaning on the vehicle or other object• Slurred speech• Slow to respond to officer or officer must repeat• Providing incorrect information, changes answers• Odor of alcoholic beverage from the driver

FSTs: Understand the Clues, but RecallNo Correlation with Safe Driving Ability•Distinguish between SFSTs and non-standardized FSTs• 3 Battery Test has standardized administration and clues• Some reports identify non-standard clues•Other tests lacking standardization: more subjective less helpful• Age, weight, below-average coordination, medication, fatigue affect performance of OLS and WAT• All 6 HGN clues observable in subjects with BAC .06• All FSTs of limited value in evaluating safe driving ability

Identify factors that contribute to distance between BAC estimate at time of test and BAC at time of driving• Address Uncertainty Budget for Chemical Tests• Assessment of breath test instrument’s in field performance

and accuracy checks to determine if instrument properly functioning, properly maintained, or testing high• Identify any physiological variables that contribute to

discrepancies in breath alcohol estimates• Assess anomalies in collection, preservation and storage of

blood sample• Evaluation of chromatogram for evidence of fermentation or

contamination

Measurement Uncertainty and Reasonable Doubt•Measurement Uncertainty acknowledges all measurements are estimates and is concerned about identifying a confidence level of a measurement•Measurement estimate without confidence level is incomplete and misleading•Uncertainty Budget seeks to identify all contributions to creating distance between measurement estimate and true value•Measurement Uncertainty concept applicable to test result itself and time of driving BAC estimate

Lab Accreditation Agency Mandates Evaluation of Measurement Uncertainty• “Estimation of measurement uncertainty is an element of

measurement traceability, a requirement for…accreditation and an important tenant of the laboratory’s management system.”• “the laboratory shall at least attempt to identify all

components of uncertainty and make a reasonable estimation, and shall ensure that the form of reporting of the result does not give a wrong impression of the uncertainty.”• “All uncertainty components which are of importance in the

given situation shall be taken into account using the appropriate methods of analysis.”

ASCLD/LAB Policy on Measurement Uncertainty

Cause and Effect Diagram: Uncertainty in Breath Testing

The Prosecutor’s Problem: .08 BAC after driving is not criminal•The law’s solution: statutory “presumption” (inference) of BAC within 3 hours•Statutory inference is simply a specific reference to circumstantial evidence•General circumstantial evidence principals control: with multiple reasonable inferences that point to guilt and innocence jury must follow innocence inference

Only Relevant BAC is BAC at TOD•No crime to have a BAC of .08 or higher before or after driving•Driving while still absorbing alcohol will give exaggerated BAC estimate when backtracking the booze (retrograde generally assumes full absorption/elimination phase at drive and test times)• Testing while still absorbing alcohol will exaggerate BAC at test time by significant amount and is not properly employing the breath test

Prosecution Experts agree that BAC can rise quickly

Blood Evidence: EvaluateCollection, Storage and Analysis• Time between blood draw and receipt by crime lab varies widely• Lab does not perform analysis on sample’s amount of preservative or anticoagulant• Evidence of contamination or fermentation may be identified by presence of volatile compounds in blood•Use of single vs. duel column GC may cause BAC reading to be artificially high

Defense Expert Important to identify and interpret inferences

consistent with innocence• Jury required to adopt inferences from circumstantial evidence consistent with innocence• Prosecution witnesses specifically trained to discount defense theory and identify it as unreasonable and speculative•Defense toxicology expert will identify and explain to jury that a reasonable interpretation of the evidence is that client’s BAC was under .08 at time of driving

Speedy trial requires early evaluation and investigation of case so get your discovery ASAP

• Informal Discovery Request Stipulation between DA and PD• Submit specific informal discovery request 15 days before

trial date• “Motion” to compel discovery does not require notice or

written motion, and can be raised at first jury trial date • When you answer “ready for trial” disclose that remedies

for outstanding discovery will litigated in front of trial judge• Potential Remedies include continuance, jury instruction,

evidence preclusion, and dismissal

Don’t waste your time filing a formal, noticed discovery motionA formal request or motion for discovery is not a precondition that must be satisfied before a party may request and receive sanctions for the opposing party's failure to comply with an informal request for discovery. People v. Jackson (1993) 15 Cal.App.4th 1197, 19 Cal.Rptr.2d 80 .

Evidence exclusion as a Discovery Sanction• Penal Code section 1054.5(c) provides that "[t]he court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." • The requirement that all other sanctions have been exhausted requires that the trial court "consider" and "reject" other sanctions before imposing a preclusion sanction. People v. Edwards (1993) 17 Cal.App.4th 1248, 1264, 1265, 22 Cal.Rptr.2d 3 . • Continuance remedy should be “rejected” if defendant has not previously waived time.

Use of discovery and deadline checklist can assist you in verifying your readiness to effectively try your DUI without waiving time

Good things happen when you answer “ready for trial” without waiving time• Formal probation on 1st Time DUI convictions is unreasonable and our client’s can’t afford it•Don’t let DA or court bully you into a plea—you are prepared to effectively try your DUI without waiving time—bully them into a dismissal•Often times misdemeanors are not retried following a hung jury• Take advantage of office resources: rich collection of DUI materials in “Erwin’s World” folder