Saturday, May 15, 2010

DWI Trial: BAC of 0.16 and a Not Guilty Verdict

I got a few calls about my recent DWI trial so I figured I should tell the story. Despite a breath test showing a BAC of 0.16, the jury found my client not guilty.

Here are some details:

For starters, breath tests are not reliable -- see my post on breath test videos for some idea. Also key - in this case my client was innocent. For a variety of reasons, I have no doubt whatsoever.

My client, a retired engineer, had been at home with his wife and her parents. Over a period of three to four hours they shared one bottle of wine, with my client having two glasses. Driving the in-laws home at night, a dog ran out in front of the car.

Client turned around and went back. He turned around again and positioned his car to protect the dog, and put his flashers on. He got out of the car and asked a neighbor to call 911. He stayed at the scene. When the police arrived and asked who the driver was, he stepped forward.

These actions are not consistent with guilt.

The neighbor testified at the trial for the prosecution. While he did smell alcohol on my client's breath, he did not notice any slurred speech, problems with balance, or anything else that might have suggested he was intoxicated.

On the prosecution side, both officers testified that my client had slurred speech. The arresting officer said he had trouble walking and standing - in other words, my client was "falling-down drunk." Strange that the neighbor didn't notice this. Also strange that this officer, in filling out his paperwork that night, did not check the box for impaired speech.

The arresting officer was one of the worst police witnesses I've ever seen, and I'm not the only one with that opinion. At one point he insisted that he'd gotten my client back to the station at 7:30 pm, even though he didn't arrive at the scene of the incident until 7:40 pm.

The time he arrived at the station matters. Police are supposed to observe a suspect for 20 minutes before he blows into the machine, to watch for things that can throw off the test. In this case it appears he arrived at the station 27 minutes before the breath test. The arresting officer said that he kept my client in the booking room for more than 20 minutes. The breath test operator said that he observed my client for more than 20 minutes in the breath test room. Somehow they squeezed that 40+ minutes into the 27 minutes he was there. Or, they didn't observe him properly.

The breath test operator seemed credible. He kept saying that the device is a "highly reliable scientific instrument." When I pointed out that it had been off by ten percent 39 times in a row testing the lab-calibrated solution, he said that was within the parameters. If your speedometer was off by 10%, would you consider that highly reliable? If the gas pump gave you 10% less gas than you paid for, how would you feel about that?

I raised the Confrontation Clause issue with respect to documents that show calibration of the device (see my post on DWI and Melendez-Diaz), and the judge ruled it didn't apply. I'll explain more about this below.

I also tried to raise the problems at the State Police lab that did one of the calibrations. The solution calibration document was signed by Keith Coonrod. Per the NY Times and others, Coonrod covered up widespread systemic problems at the lab. The judge wouldn't allow me to ask the breath test operator if he was aware of these problems.

In our case, Defendant, his wife and her parents (age 90+) all testified that he had 2 glasses of wine over a 4-hour period and that he showed no signs of intoxication.

It was a close call for the jury - they took nearly 5 hours to decide and wrapped up at 11:45 pm on the second day of trial. They found him not guilty.

You'd think I'd be thrilled but that's not the emotion. When you believe your client is innocent, and you get a not-guilty verdict, the feeling is relief.

Getting back to the Confrontation Clause issue, this is really important. I can't cross-examine a machine. The breath test operator comes into Court and testifies how he operated the machine, but he is not competent to explain how it really works, nor to explain it's potential weaknesses.

I've had a number of cases where video showed my clients with no signs of intoxication in the face of police testimony that they had slurred speech, balance problems, etc. The general public does not know what I know from my work, so breath tests have an aura of accuracy and reliability in the public eye. It's wrong.

If the prosecution is going to rely so heavily on this "black box," then the details underlying it are essential facts in the case. They should be required to bring in the supporting witnesses so the defendant has a chance to confront and cross-examine them. Experts are commonly used in other states, like California.

Two other appropriate safeguards for DUI arrests are:
1. Repeating the test a second time, say 10-20 minutes later, to make sure you get a similar result;
2. Putting video cameras on every police car and in every police station - this also protects police from false accusations.

What worked in this trial? There were two things I did that made a huge difference.

First, I attacked the breath test's aura right at the beginning, in jury selection, and I kept attacking it throughout the trial.

Second, I emphasized the reasonable doubt standard, starting at jury selection. If you as a juror have any doubt, and you have reasons for that doubt, then you have to say not guilty.


Jeff Vachon said...

Allow me to preface. Some years ago I was getting ready for bed and the phone rang. It was a police officer accusing me of harassing a woman I had never heard of! My protestations of innocence seemed to infuriate him. He was quite insistent and belligerent and threatened to take me downtown! I told him to come pick me up.

As it turns out, he got my name out of the PHONE BOOK!!! The lady informed him that I was not the guilty party. There was someone else with my name!

I called him back (from the number on Caller ID) and asked him what was taking him so long. He apologized and said he made a mistake. I asked him to apologize to me in erson but he never did. The PD brushed me under the run.

Fast forward about a year.I was serving on a jury for a DWI case. I had never met the officer ho had previously falsely accused me of harassment. However, I had his name. When it came time for the officer to testify I realized he was the same guy! Now it was too late to excuse myself from the jury

The police officer testified that the defendant seemed "out of it". His testimony was shoddy at best.

When it came down to deliberations, of course, NOT GUILTY was the unanimous verdict. I was very persuasive ;).

Sometimes karmic justice is sweet.

Unknown said...

Great story Jeff. Sadly, what happened to you doesn't surprise me at all. The ending is delicious.

Benjamin Trent Esq. said...

I find your argument that admissibility of the calibration results would be a violation of the confrontation clause to be intriguing. I was thinking of what many state courts call the "Primary Purpose" test first described in Davis v. Washington and I can't help but think that the primary purpose of a calibration test is to provide a baseline for criminal prosecutions. Whereas a DNA test can have other purposes, breathalizers are nothing but testimonial in nature. The only BAC test I can think of that would be non-testimonial in nature would be those a hospital conducts when treating an accident victim. Coupled with the Melendez-Diaz witness requirements, it seems to me that the arresting officer, the testing officer, and the calibration officer would all be necessary to sustain a conviction and not run afoul of our 6th Amendment.

Carl Falotico said...

"Second, I emphasized the reasonable doubt standard, starting at jury selection. If you as a juror have any doubt, and you have reasons for that doubt, then you have to say not guilty."

I'm not looking to start a fight but that's a pretty liberal characterization of the reasonable doubt standard. I'm sure most readers here are familiar with it, but for those who aren't here is reasonable doubt standard taken from the NYS Court model jury instruction website:

"A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence."

Unknown said...

I don't see the difference.

asdf said...
This comment has been removed by the author.
Unknown said...

Carl, I think you're looking for a fight. I talked about the evidence in great detail. There were plenty of reasons for doubt.
You must have little faith in juries if you think they would be persuaded by that standard without evidence to support it.

Anonymous said...

Not my intention.


FactFinder said...

Many lawyers do not have a standard as to whether or not you should refuse a dwi test, but many say that if there is injury involved you should refuse the test, of course there are many variables involved that should be considered including whether or not you can comfortably survive without a driver's license, in albany, you may or may not depending on the public transportation.

Juries usually find defendants guilty so I am with albany lawyer on this one, even in criminal cases with little evidence juries still find guilty and later on absent or questionable DNA is discovered or false science or contaminated labs. Still despite the media many cases still have the district attorney unwilling to let the defense make certain moves and the case languishes.

In fact many folks automatically believe the police because they may think people are always up to no good or have no reason for them to lie or have never had to go through a situation where they where either falsely accused, harassed by the police such as Jeff, etc.