Strategies for
Defending DUI Cases
in California
Leading Lawyers on Understanding the DMV's
Involvement in the Case, Reviewing Settlement
Options, and Preparing Your Client for Court
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DUI: A P
olitical
and
I
mprecise
C
rime
Mark Rosenfeld
Owner
Law Office of Mark Rosenfeld
MR DUI LA
Politics and DUI Laws
Over the past couple of decades, there has been a continuing and escalating push for more and harsher DUI penalties. This push is by various political bodies in the government and the private sector. Year after year, legislators and lobbyists advocate for lowering the drinking limit and raising the consequences on DUI cases. At every legislative session there are proposed laws to make the consequences more severe and elevate the cost of driving under the influence of drugs and/or alcohol.
The biggest factors driving this trend are politics and money. The physiology of the human body has not changed, the way people consume and absorb alcohol has not changed, and the way alcohol affects the human body has not changed. Nonetheless people want to get elected to office, attorneys want to become judges, and members of the legislature want to be seen as being tough on crime. Organizations such as Mothers Against Drunk Driving continue to push a political agenda to tighten the laws and increase the penalties on DUI drivers.1
Once upon a time there was no per se or numeric law imposed alcohol limit (like 0.08). Each case was taken on its own merits, and if someone could walk, talk, and drive fine, they were not drunk driving. However, over time legal limits were created, not based on science and safety alone but rather based on politics and money. Then over time the limits were changed, lowing the level at which someone would be deemed impaired regardless of any appreciable or observable effect on a particular person.
People and organizations trying to stop drunk drivers have a legitimate concern. We all want to be safe on the road, and nobody wants to be driving drunk. Many years ago, there was no limit on alcohol in the blood, and then there was a 0.15 limit and then a 0.10 limit. Now, generally, the limit is 0.08 and there are many people pushing to get that limit down to a 0.05.
At some point, there is simply no science or logic behind what people are trying to do. They are attempting to throw a wider net to capture more people and increase the revenue that comes from a DUI arrest. The lower
the number, the more people caught and the more money brought into the system. For each DUI arrest the police officer gets paid, the courts get paid, the required alcohol schools get paid, the insurance companies get paid. All of these penalties are over no real scientific foundation or evidence. DUI charges are now being filed where a few years ago the prosecutor’s office would have rejected the case and no charges would be brought.
In addition to the so-called legal limit changing, suspected DUI drivers face stiffer penalties. DUIs are now being divided into categories with low, medium, and high alcohol levels. Depending on the specific facts of the case, prosecutors can and do seek longer alcohol classes, higher fines, and additional terms of probation such as Mothers Against Drunk Driving classes (with mandatory donations), ignition interlock devices, trash pick-up, and even jail time.
Some of the new laws and penalties are consistent across California, but others are not. Los Angeles, Alameda, Sacramento, and Tulare are pilot counties. The legislature has implemented a pilot program on a temporary basis to require every person convicted in these counties of DUI to install an ignition interlock device. If you are in one of the neighboring counties, that is not a requirement, so people in Los Angeles are being treated differently than people in Orange County or San Bernardino. There are constitutional issues here, but in reality most people cannot afford to make that kind of challenge on a first-time DUI.
One interesting point to make is that the conviction for DUI is for driving under the influence generally, not just driving under the influence of alcohol. Someone could be convicted of driving under the influence of a controlled substance, an illegal drug, or even a prescription drug. That person ends up with a conviction and now has to install the breath test device or ignition interlock device in their car, which can impede or affect someone getting into the car and starting it and driving it in an emergency situation, even when they never consumed any alcohol. It can not only affect someone in an emergency situation, but even someone in the regular course of work, because the machines are not perfect. The ignition interlock device is a machine and can fail and leave a person stranded. This device could be required even if the person was completely alcohol free when arrested and never drinks at all.
In the current economy, police officers, courts, politicians, and private industry associated with DUIs are all pushing for stricter enforcement, lower alcohol limits, higher fines, and more requirements for those convicted of DUI. This is not just to help society but to make money and look good to the general public. Many opponents of DUI would also like to see a society free of all alcohol, just like what was tried with prohibition.
Using Discovery in Case Planning
People often just accept a DUI conviction when they are arrested for DUI. They do not realize the type of impact a DUI conviction can make in the long run, so they plead guilty or no contest and take a deal. Just because someone is arrested does not mean they are guilty. To help determine if someone is or is not guilty, one must diligently seek discovery. Discovery is one of the keys to successfully defending a DUI case. Discovery is where you are able to find out if the prosecution is going to be able to prove its case beyond a reasonable doubt. When you start finding deficiencies in the prosecution’s case through discovery, that is when you start to get deals, reductions, or dismissals of cases.
Looking at the Test Numbers
One of the things the prosecution focuses on in their analysis of a DUI case is the chemical testing, which is typically done through breath or blood. Prosecutors find it easy to look at a number and build their case around that, but that is a narrow view of what is going on in a DUI case. There is much more to be considered to know whether that blood alcohol number is accurate or reliable or even properly connected to your client.
Breaking Down the Case
When analyzing a DUI case, you have to break it down into the various sections. You want to know what the officer observed about your client’s driving. How was the client driving? Were there any signs or symptoms that would lead the officer to believe the client was under the influence? The officers are trained to look for specific signs someone is driving under the influence, so were they observed?
The next step is the contact the client had with the officer. Did the officer ask questions and talk to the client? Did the client appear to be under the influence? Was the client able to hold a conversation and answer questions? If the officer asked the client to get out of the car, did the client listen to and follow the instructions and get out of the car?
Our next consideration is the field sobriety test. We need to analyze this step to decide whether the case is a strong case for the prosecution or for the defense. We need to determine if the field sobriety test was administered correctly and how our client performed on the test, which may tell us much more about impairment than a breath test or blood test or depending upon how it was done may be worthless.
In addition to the field sobriety test, we will typically have results from a breath test or blood test and we need to check calibration, maintenance, usage records on the machine, and officer training to find out whether that machine is even working properly and has been used properly. We want to find out whether the number the machine is telling us is reasonable, based on what we have seen in the client’s driving, the conversations our client had with the officer, and the field sobriety tests.
Most of the time our DUI cases involve a driver with a relatively low alcohol level and a minor traffic violation. Most cases are not accident cases and people are not hurt. Often it is a borderline case; the person is driving on the freeway, speeding, and maybe swerving. The person gets pulled over and the officer may let the person go or arrest the person for DUI. It is a gray area.
The vast majority of DUI cases are minor traffic violations that turn into a DUI investigation with an officer deciding to make an arrest and with a chemical test that comes out somewhere around the legal limit. This leaves a lot of room for interpretation and argument.
Per Se and Impairment Standards
The evidence prosecutors primarily look to is the chemical test result, which is the breath test or blood test result. Prosecutors can hang their hat on scientific tests and they know they can sell driving impairment, based on a scientific number, to a jury.
Usually when we see a DUI case filed, prosecutors will file two separate charges. Most people do not realize that and the difference can be confusing. One of the charges is going to be driving under the influence of alcohol or drugs or a combination of both. It does not matter what the alcohol level is or what the drug level is of the person; that person is allegedly impaired for purposes of driving, which means the person cannot drive the same as a sober person. This first DUI charge is filed under Vehicle Code § 23152 Subsection (a).2
The second charge, filed under Vehicle Code § 23152 Subsection (b), is driving while over the 0.08 alcohol limit.3 This second charge says if a
person is mathematically or scientifically above this limit, the person is impaired for purposes of driving. You could be walking and talking and driving fine, but if you are a 0.08 or above the law is going to say you are impaired for purposes of driving.
The charges that actually get filed for a court case are not typically filed by the investigating or arresting officers themselves. They are filed by a prosecutor, typically a district attorney, after reviewing the investigation and the reports that were written. When the charges actually get filed, there usually is a blood or breath test result. The district attorney will know what that blood alcohol content number is and know whether to file only the DUI count (§ 23152(a)) or add the second count of driving above the legal limit (§ 23152(b)) or other possible enhancements.4
The penalties most of the time are the same if people are charged on both counts and when someone is convicted of both, the penalties will merge together. However, there is an escalating scale of penalties or punishments that can come along with various alcohol levels, so if you are dealing with a typical case where the limit is 0.08, you may end up with a certain set of penalties. However, if the client’s alcohol level is 0.15 or above, the prosecution may ask for increased penalties, fines, fees, and alcohol programs or even jail time. If the alcohol level goes up even higher, to 0.20 or above, there may be mandatory increased
2 CAL.VEH.CODE § 23152(a) (West 2012). 3 CAL.VEH.CODE §23152(b).
penalties. The higher the alcohol level alleged, the worse it is for the client and more difficult to defend.
Testing without Consent
In California, when you get your driver’s license you sign paperwork saying you agree to submit to a chemical test, either blood or breath, and if you do not give a sample when required to do so there are consequences, both at the Department of Motor Vehicles and in court with mandatory jail time and license suspension. By getting your driver’s license, you are consenting or agreeing to submit to a chemical test. In some cases, if you refuse the police officers can actually force a blood draw from you. They can hold you down and take your blood, depending on the consequences or what type of case it is. Some agencies do a forced blood draw on a regular basis, while others only do that in rare circumstances, such as if there is a significant accident with injuries.
Most states, if not all, have a 0.08 limit and they all have the requirement that people submit to a chemical test as part of getting their license. However, what constitutes an aggravated DUI and what the penalties or consequences are of refusing vary from state to state.
Use of Testing Equipment
Both the blood alcohol and breath alcohol tests have been around since the 1920s, but the quality and type of analysis has changed significantly.
Breath Testing
The first breathalyzers, or what was commonly referred to as dial-a-duce (duce referring to someone who was DUI), could easily be adjusted by the officers by turning a dial. The officers could actually turn a knob on the front of the machine and change the alcohol level. Of course, if the officers were honest and trustworthy they would not do that, but if they did not get along with a client the knob could easily be turned.
You would think that after almost 100 years of breath testing, things would have changed, but some of the current breath testing equipment is just as
flawed. One device in use now has an exit port where the breath comes out of the machine after the machine takes a sample. All an officer has to do is put a finger over that exit port and all of a sudden the breath test would jump to three times what it actually was. The way the breath-testing machine is used or operated by the officer can definitely affect the result. The machines today are much better than they used to be, but we still have the problem of garbage in, garbage out. The machines are only as good as the way they are used and maintained and how the officers are trained to use them. There can be what we would refer to as pre-analytical error, so if the machines are not used correctly, they do not have a chance of giving an accurate number.
Blood Testing
Blood testing has similar issues. In the handling of the blood sample, including the way it is drawn and maintained before it ever gets to the crime laboratory, there is ample room for error. Once the blood sample gets into the machine, we usually get a relatively accurate number (if the instrument is properly maintained), but that is only if it is handled and prepared in a scientific manner.
Over the years, blood testing technology has improved. The methods for analyzing the blood have improved, but many times crime laboratories have not kept up with those improvements. They put a policy in place twenty years ago using the technology of that time and have not changed that policy. While the rest of the medical and scientific community have improved methods and eliminated errors and created a better and more reliable way of analyzing blood, the crime laboratories have not. The errors that existed twenty years ago are still there, but there are no scientific reasons for it.
Defense Attorneys’ Role with Testing
As technology advances, it closes the door on some defenses but opens the windows on new defenses. Often new testing protocols that should make our jobs more difficult actually help us defend our clients. As technology advances it does not change the burden on who has to prove what in court.
One of the things a defense attorney needs to do is make the prosecution prove everything about their case by holding the district attorney, the police, and crime laboratory to their burden.
We need to make sure the burden stays on them and does not get shifted to us or our clients, who do not have the resources to do all the work the crime laboratory does. We need to make sure the prosecution team and the crime laboratory team does everything correctly every step along the way, from before the blood is drawn all the way to the storage and analysis of the blood sample. One way I get great results for my clients is by checking every step along the way. If there is a problem anywhere along the way, it is going to help our clients.
The way evidence is presented to a jury will vary from case to case. Juries will follow and will understand what is going on. On the jury there are twelve people from various walks of life who want to do the right thing, and they are going to listen and do the best they can to make the right decision. What evidence you take before a particular jury will depend on what type of case you have. The simpler the problems you have, the less you will have to explain to the jury. If the prosecution is doing their job right, we are going to have to go into more detail and pick apart what is going on, so what gets presented to the jury may be very simple or it may be very complicated, depending on the complexity of the case.
Field Sobriety Tests: An Overview
In the 1970s, there were some studies commissioned by the National Highway Traffic Safety Administration (NHTSA) to determine if there were any field sobriety tests that would be consistent and reliable across a large portion of the population.5 The studies surveyed various law enforcement
agencies to determine what field sobriety tests were commonly being used. The NHTSA narrowed it down to six common tests. Further testing narrowed it down to three tests that could be standardized and administered across the board to create fairly consistent results. There are only three “standardized” field sobriety tests. Police agencies, whether it is the highway patrol or a local sheriff’s department, can do other tests, but
these do not have the same scientific background or purported validity as the standardized tests.
The three standardized tests are (1) the horizontal gaze nystagmus (HGN) test, (2) the walk-and-turn test, and (3) the one-legged stand test. There are certain clues the officers are trained to look for. If the tests are performed and scored correctly, they can be a good arrest indicator, but there is still a significant error rate.
The three standardized field sobriety tests have been adopted by the California Highway Patrol and are taught in the patrol’s manual the same as they are in the NHTSA manual. All law enforcement agencies that train their officers on the standardized field sobriety tests are consistent with the NHTSA manual. Additionally, the police officers’ standardized training or POST training also mirrors the NHTSA standardized test instructions. Thus, all officers should be trained on the three standardized tests for them to administer and score them consistently and correctly.
The HGN Test
In this test, the officer has the person stand with feet together, arms at their side and head facing forward. The officer instructs the person to follow the tip of the officer’s finger or pen or flashlight with the eyes only while the officer makes a series of passes back and forth. The passes of the stimulus need to be at a certain speed or distance.
The officer is looking for a certain response in the person’s eyes. The person will not be able to tell what is going on with the eyes. The person will stand with the head still, not swaying, and follow the passes of the stimulus. This test takes about one and a half to two minutes for the officer to administer. The officer will pass the stimulus back and forth across the person’s eyes fourteen to sixteen times. The officer is looking for six standardized clues, three clues in each eye (lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees), and if the officer notes those things it can be consistent with the person having a 0.08 or above blood alcohol level. However, it is also important to note that there are many different types of nystagmus and many different triggers for nystagmus as well
as a percentage of the general population who have nystagmus naturally occurring even when they are alcohol free.
The Walk-and-Turn Test
The other two standardized field sobriety tests are the walk-and-turn test and the one-legged stand test. The walk-and-turn test consists of two separate stages, the instruction stage and the walking stage. The officer will ask the person to stand with his or her left foot on a line (real or imaginary), place their right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot, and to keep their arms at their side and maintain that position until the officer completes the instructions, while not starting to walk until told to do so. This is an unusual position to stand in. The person is instructed to stand in that position and listen to the officer’s instructions and not move until told to do so.
Of course this is not a natural position or even one that someone who is free of any alcohol could do for very long. Nonetheless if the person breaks from this position or starts to walk too soon they have already failed the test.
After getting the person in position, they will go through a series of instructions. The officer is looking for mental and physical impairment to see if the person is able to follow the instructions and take the right number of steps. The officer will instruct the person: when I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back. Then the officer will demonstrate. Then the officer will instruct the person that when they turn, they should keep the front foot on the line and turn by taking a series of small steps with the other foot. Then the officer should demonstrate. The officer should further instruct that when the person is walking they should keep their arms at their sides, watch their feet at all times, and count the steps out loud, and once you start walking do not stop until you have completed the test. Then the officer should ask if the person understands the instructions and to begin and count the first step from the heel-to-toe position as one.
There are eight standardized clues on the walk-and-turn test that the officer is looking for to see whether the person is able to follow the directions and
complete the test correctly. One, if the person cannot keep balance while listening to the instructions. Two, if the person starts before the instructions are finished. Three, if the person stops while walking. Four, if the person does not touch heel-to-toe. Five, if the person steps off the line. Six, if the person uses their arms to balance. Seven, if the person turns improperly. Eight, if the person takes the incorrect number of steps.
Now the person taking the test for the first time has a lot to keep track of, but so does the officer. With all of the possible errors the person taking the test could have, the officer administering and scoring the test has more. If the officer does not instruct the suspect properly, the standardized scoring is of little value.
The One-Leg Stand Test
With the one-leg stand, the officer will have persons stand with their feet together and arms at their side, and demonstrate. The officer tells the person they should not start until told to do so. Then if the person understands the officer, they should instruct the person to raise one leg, either leg, with the foot approximately six inches off the ground, keeping the raised foot parallel to the ground, and then demonstrate. Then the officer should say that the person must keep both legs straight, arms at their side. While holding that position, count out loud in the following manner: “one thousand and one, one thousand and two, one thousand and three” until told to stop, and demonstrate. The officer should then instruct the person to keep their arms at their sides at all times and keep watching the raised foot, and ask whether they understand. If they do, the person would start the test.
The officer will look for four standardized clues on the one-leg stand. One, if the person swayed while balancing. Two, if the person used their arms for balance. Three, if the person hopped. Four, if the person put their foot down. Again, if the tests are not administered correctly they have little to no value. This administration has nothing to do with the subject and everything to do with the officer giving the test correctly.
Officers are supposed to ask if the person has any injuries or a weight issue that could affect their test, but officers are not always interested in doing
the right thing all the time. Some officers are and some are not, and some want to keep their statistics up. If someone does have an injury, such as an injured knee, the tests may not be appropriate, but the officers frequently will say they will take that into consideration and have the person do the test anyway.
Some Advice Concerning Field Sobriety Tests
When officers ask people to get out of the car, things are already not going well. The officers are not asking to have them get out of the car to chat about the local sports team; they are asking them to get out of the car to take the investigation to the next level. They have already made a decision the person has been drinking or taking drugs and they want to investigate. Not everyone who is asked to get out is arrested but many are.
Field sobriety tests are voluntary. You do not have to do them and I recommend to friends and family that they elect not to do any field sobriety tests that are voluntary because no real good can come of it. If you elect not to do them, you are exercising your right to remain silent. Officers may not know how to do the tests correctly, and you can wind up with field sobriety tests that show impairment when that is only an officer’s opinion, so I would recommend that a person choose not to do any of the field sobriety tests. If you get arrested, you need to submit to a chemical test or risk automatically losing your driving privilege for a period of time, and I recommend it be a blood test. You should be transported to the hospital or local jail to have the blood drawn and not answer any questions about whether you have been drinking or how much or what, because those questions are geared towards collecting evidence to convict you.
Drug Influence versus Alcohol Influence
The number of arrests for driving under the influence of drugs is going up, and the different law enforcement agencies are pushing hard to increase the number of arrest convictions for driving under the influence of drugs. Resources and funding is in place to train officers on drug DUIs, and they are increasing drug DUI arrests. However, driving
under the influence of drugs is much more difficult to prove than driving under the influence of alcohol.
Alcohol is pretty consistent across the board: the more one drinks, the more impaired they are, and that is the same for everybody. Drugs are not exactly the same for everyone. People take different drugs, they take them at different levels at different times, and there is no consistent way from person to person to determine what impairment is at a specific blood concentration level. Drug detection equipment is getting better, but the equipment in the field is still just for screening tests and it only tells us whether there are drugs in the body. Drugs can also linger in the body in various forms. You may have traces of inactive drugs for hours, days, or weeks, and sometimes longer.
The Time Factor in Testing
During a drug DUI investigation, the law enforcement officer will ask if the person used drugs. Most of the time, people tell the officers they did some drugs, including what they did and when they did it. The officers may give them a test, but the test does not tell us how much or whether the drug is affecting people at the time they are driving. Often, officers will take blood or urine and send that to the laboratory to have it analyzed. At the laboratory the sample is analyzed for a specific quantity level, which is what prosecutors will use in an attempt to prove impairment, but that chemical test may be taken from a driver fifteen minutes after driving, or more likely much later, such as a hour or more. With both alcohol and drugs, the level in the body and the effect on the body changes over time, so the time is crucial in analyzing a DUI case.
The Police and DUI Investigations
One of the biggest factors that affect a DUI investigation is whether there are any aggravating circumstances. If there is a traffic accident, injury, or property damage, often the investigation will be more detailed and conducted by more experienced officers. If a police officer is involved in an accident or was injured by a suspected DUI driver, there will be a more extensive investigation. Also the officers’ experience and how busy they are will affect what type of investigation is done.
Pressure to Produce
Frequently, officers are out to make their numbers or meet their unofficial quota. They are trying to arrest as many people as they can in as short a period as possible. In doing this they often do a poor job investigating a DUI. They want to get back out to make another arrest. I have seen officers making up to six DUI arrests in one shift. Officers will not tell you they have a quota, but the officers keep track of how many DUI arrests they make in a shift, a week, a month, and a year. There are awards given out for the most number of DUI arrests. Police work is a competitive business. All officers are going to be competitive. They want to do a good job and they compete against one another in making arrests and getting convictions.
DUI = $$$
There is also another motivating factor for police officers, and that is money. Officers make a certain base salary and they add to it with overtime. If they have to work late in a shift or, more important, if they get called into the Department of Motor Vehicles or court to testify, they will make more money. It is not unusual for a California Highway Patrol officer to make a base salary of $80,000 a year and double that salary with overtime, thanks in large part due to DUIs.
Adjudicating DUI Cases
In the Los Angeles Superior Court system, the judges have put in place a timeline. They want the misdemeanor cases, such as DUIs, resolved in ninety days and no more than 120 days. They want a case from beginning to end to take a maximum of four months. That timeline is not necessarily appropriate. It is often impossible to adequately prepare DUI for trial within the ninety or 120 days allotted. Nonetheless, that is what the judges are trying to enforce.
How fast or slow I try to take a case through the system is going to depend entirely upon my client. I need to know what my client’s best interest is and what their desires are, then I handle the court case consistent with that. If clients want to move things along quickly, we can resolve the case quickly. If they want to slow things down, I can do further case investigation.
Delay Can Aid Victory
Often when we are talking about a DUI case, delay aids victory, so we want to slow things down as much as possible. I want time to get all the records I can obtain. During this period, equipment may be taken out of service or break and I want that to happen while I am still working on a case. I want to find out as much as I can about an officer, to see whether the officer will be available in the future or if the officer will be retiring or leaving the country.
Equipment Problems
Having equipment go out of service helps us. There are legal objections and arguments we make if a piece of equipment, such as a breath test machine, is not functioning properly. If equipment is not working correctly, it is not reliable and thus it should not come into evidence or be admissible and a jury should never hear about it. I have been successful many times in getting breath testing or blood testing results excluded or kept out of evidence because the testing equipment was not working properly. If excluded, a jury never hears about the tests. If we have a client who is two or three times above the legal limit but was tested using equipment that is not properly functioning, the jury never hears about the results. All they hear about is driving and field sobriety tests, and we know those are highly subjective.
Mistakes Law Enforcement Make
Law enforcement officers can make many mistakes when investigating DUI cases. The mistakes vary from person to person and case to case. For instance, an officer may not know or have appropriate training on how to do a DUI investigation. Not all officers are trained the same, and they are not all trained consistently. We see officers who received their training twenty years ago and have never had any updates on how to do field sobriety tests or work a breath-testing instrument.
Faulty Test Administration
We also see problems with how the chemical tests or breath tests are administered. It is extremely important for a breath test to be administered in accordance with state law and manufacturer’s guidelines. There are
certain waiting periods that must be observed, and if officers do not do that it can affect breath testing, and in some cases you can get the results excluded from court.
One of the big factors in breath testing is waiting at least fifteen minutes, though some manufacturers say twenty minutes, before giving a breath test to a subject. Many times officers do not do so, they wait only five minutes, which is not enough time for a properly administered chemical or breath test. The fifteen- or twenty-minute delay or depravation period is designed to ensure that no mouth alcohol exists. Mouth alcohol is left over alcohol in the mouth instead of in the lungs. This mouth alcohol can be from recently consumed alcohol or from alcohol vapors in the mouth.
The Importance of Timing
Timing in breath tests matters because there are certain things that can cause contamination in a breath test sample. One of the main contaminating factors in a breath test is something called mouth alcohol, where there is residual alcohol in the mouth that gives a falsely high reading on a breath test machine.
Breath test machines are supposed to read alcohol from the lungs, and in theory the breath sample is a deep lung sample, where the interaction between the blood and the air in the lungs exchanges. The machine is supposed to be reading a long, exhaled breath, and if officers do not wait the proper time the mouth can have alcohol residue from recent drinking or a burp, which can give a false high reading on the machine. The result can easily be double or triple the breath test result from what a true blood alcohol level should be for that person.
Officers need to have suspects under continuous and uninterrupted observation during the time they are conducting breath tests. They need to use all of their senses, watching and listening to make sure the suspects do not have anything in their mouth and do not burp or eat or drink for fifteen minutes. There is some leeway; the officers may share the observation period between two different officers, but if the observation period is broken there are some serious questions about the accuracy or reliability of that breath test and the corresponding admissibility in court.
The Nature of DUI
DUI cases are unlike other general criminal cases. They are time-sensitive, very fact-specific, and highly scientific in how they need to be analyzed. Evidence can be subjective when dealing with field sobriety tests. Different officers are going to judge field sobriety tests differently. Each DUI test may start out the same with the traffic stop, but each one has to be looked at on its own merit. We need to look at everything from beginning to end, not only the driving and the field sobriety tests, but what breath test machine was used, how long that machine was in service, and how many people have been tested on that machine. We need to go through all those tests when we are defending a case.
Building a Case
We first talk to our clients about what happened and get an overview of the case. We give them a questionnaire to discuss their observations and perceptions. When we start a case, our clients will know more about the case than anyone. We will examine the police officers’ investigation and find out if there are any audio or video recordings, and we start to compare our clients’ memory with the officers’ investigation and then look for what can and cannot be proven in court.
We also go out to the scene and take a look at where our clients were stopped. We want to see what the surroundings look like and how that compares to both our client’s version of what happened and the police officers’ version of what happened. Then we go to the next level through discovery and get our hands on as much information as possible, which may be audio and video recording, police radio calls, dispatch logs, tow truck logs, and GPS locations. We find out as much as we can from computer-generated sources and other forms that people do not typically think about and less likely fabricate or embellish.
Discovery and Good Intentions
Most prosecutors are trying to do the right thing. They believe our clients did something wrong and they want to prosecute them, but they understand there are rules they need to play by and information they need
to turn over. The biggest problem as far as turning over documents is not that prosecutors do not want to; they just do not know what they have. They are overworked and often lack training on what actually exists out there. They may think that turning over a breath test ticket from a breath test machine is all there is, but in reality there is much more paperwork and discovery that exists. It is the attorney’s job to bring that to the district attorney’s and judge’s attention. Once we talk to them about it and tell them what else exists and how we know it exists, they go look for it and find it.
Arguments in the Case
The arguments I use in my defense strategy depend on the type of case. There are often factual defenses for a particular case. For example, it may be that the person was not driving, but was parked on the side of the road. The person was impaired but not driving, so we have a factual scenario where there was no driving at all. There may be another factual scenario where the person was not impaired at the time of driving and the alcohol level changed from the time of driving to the time of the test, so that may be what the defense strategy would be. Another defense strategy may be that the chemical tests were contaminated and are not reliable so we have no idea what the chemical level was, or the testing equipment could have returned a result that was an overestimation of the person’s true alcohol level.
Every case is different and sometimes even the worst case based on the police reports can be won. What happens in trial is not always the same as what is in the police report or even what really happened.
Winning Is Everything
The two most important things to my clients are staying out of jail and saving their driver’s license. It is great to go to trial and win a full acquittal, but often simply keeping clients out of jail is a win. They may end up with a conviction, but if they do not step foot into county jail and do not have to go through that nightmare we can call it a win. Frequently, we are able to get cases reduced and agree upon settlement
deals. We save the clients’ job; they may end up with a conviction but not for a DUI and they get to keep working, which is what is important to those particular clients. What is or is not a win depends completely on the case and the client’s needs and desires.
Advice to Clients
As mentioned previously, I always tell people not to agree to do any field sobriety tests because most of the time I do not see any good coming out of those tests. Unless they have been doing drugs, they should opt to take a blood test, and if they have been doing drugs, maybe a breath test would be more appropriate. My best advice is that I would rather not see people in my office as DUI clients. I recommend that people take a cab when they go out to a restaurant or bar. If they take a cab to the restaurant they are not going to need to call me.
Considerations for Repeat Offenders
I have clients coming back on multiple offenses, and that happens regularly. Maybe I got them a great deal the first time and they get arrested again, thinking it will end the same. Often people behave the same way time after time. They have been going out every Friday night and having a few drinks. They get a DUI but they will not change. They still go out every Friday night and have a few drinks. Sometimes people have bad luck and they get DUIs back to back. I have clients who have had multiple DUIs in the same day. There are different avenues you need to pursue. Sometimes people have a bad day and they get a DUI and sometimes people have a problem and they need help. My job is to help them if they want or need it. Often we can work that into a good defense strategy as far as working on a settlement, but sometimes people have a problem with alcohol and they need the guidance and counseling to start to get better, and that is something I work with them on.
The Look-Back Period
There is a look-back period for DUI records where a subsequent DUI arrest in a certain period of time will be charged as a second or third and so
on. It used to be there was no look-back, then the legislators passed laws looking back five years, then seven, and now ten. I would not be surprised if the period went to fifteen years. The longer the look-back, the greater the likelihood is that someone gets a second or third DUI in that time period. Repeat offenses need to be handled differently. Prosecutors seek greater penalties and there is mandatory jail time on the second offense. We need to avoid the mandatory jail time and keep our clients out of county jail. There are sentencing alternatives. Even with the mandatory jail on a second DUI, there are ways to negotiate and avoid county jail time, and avoiding jail becomes an even bigger challenge and necessary component of a DUI case.
Options for Repeat Offenders
There are many different options for repeat offenders, such as electronic monitoring, alcohol monitoring, and work release programs. There is also city jail versus county jail. What we seek will depend on the location and the type of offense and what is in the best interest for that particular person. Recently I had a case where the client had been arrested for multiple DUIs. This person had a problem with alcohol and we were able to put them into a residential rehabilitation program. The client was ordered into the program and started earning credit towards potential jail time while in treatment. We worked out a deal with the judge and the district attorney where the person never went to jail, but stayed in the treatment program and received the help they both wanted and needed. The prosecution may get a conviction, but the prosecutor can achieve the goal of keeping a person off the street and at the same time help to rehabilitate them and increase the likelihood that the person will never be arrested for another DUI.
When you have a DUI with injury, everything changes. Often we have family members of victims and what they are looking for may not be simply keeping the person off the street but actual punishment. With victims following a case, they want the person locked up and put away for good, and that can definitely create all sorts of tension in the courtroom and make
settling the case difficult. The effect of victims and family or friends of victims cannot be understated.
A Defendant’s Rights
I would never recommend that people represent themselves and plead guilty. You must review the facts of the case and you must have an attorney who is well trained in handling DUIs analyze it. If you cannot afford an attorney, have a public defender represent you.
The Right to Counsel
A defendant has a right to have an attorney represent them in court. If you cannot afford an attorney, a public defender can be appointed. If you can afford an attorney, the court may not appoint a public defender. Additionally, even if the public defender is appointed, the county may send a defendant a bill for services. If one can afford a private attorney, one should really retain a good DUI defense attorney. A private defense attorney often has the time and resources to do a lot more than the public defender.
Going to Trial
Whether a case should go to trial is going to depend on the person. Trials are stressful and expensive, and the amount of pressure that is put on a client is enormous. Sitting through a trial in court and listening to officers testify can be extremely difficult. It is also expensive, not just in attorney fees but in missing work or school or time away from the family, the additional cost of an expert, and general emotional stress.
Depending on what court you are in, a trial could take three days or it could take three weeks, and that is just for a first-time DUI. Those are factors that need to be considered on an individual basis and discussed with the attorney. Sometimes, even if the cost is great, a case has to go to trial; if the person is a commercial driver or has a professional license, there may be no other option but to go to trial.
Bench or Jury Trial?
Given a choice between a bench trial and a jury trial, I would always recommend a jury trial on a DUI. Judges who do bench trials are kind of immune to some of the nuances of the cases. They hear, day in and day out, a host of people pleading guilty to DUI and they think everyone should plead guilty.
We need to take the case to a jury that is not familiar with DUI cases and is willing to listen to the specific facts and make a decision as a common person would, not as a judge. Judges will make decisions based on their emotions, opinions, and experience, and they are not making decisions as an impartial jury would. With a bench trial, you have one person who makes a decision; with a jury you have twelve people upon whom to rely, and if they do not all agree, there is no conviction, which is the goal.
Using Forensic Experts
Forensic experts are an important part of a DUI case, not only to help the attorney understand and analyze the scientific evidence but to help explain it to a jury so they, too, can understand. Experts are valuable and I would recommend using one in every case. The prosecution team will use an expert, so you should as well.
What an Expert Does
In a DUI case, I want an expert to testify to just about all the facts, from driving to field sobriety tests and chemical testing. The expert should be able to explain to a jury what is and is not impaired driving; what field sobriety tests are designed for and used for and what they mean and what they are good for and what they are not good for; and what a chemical test is, what the errors are, and what it tells us about alcohol level at the time of driving. I would highly recommend the use of an expert in any DUI case.
How Experts Can Differ
Different experts will have different opinions. They may have read different articles and have different training. If an expert was trained twenty years ago, that expert may have the opinion that people are impaired at a 0.10 level instead of the 0.08 that an expert trained more recently would believe. The defense experts may be more willing to share information than prosecution witnesses. Experts may have the same studies and rely on the same evidence, but the prosecution witnesses may not be as forthcoming with that evidence where a defense expert may be more willing to help you and answer the questions more completely.
Essential Qualifications for a Defense Expert
A defense expert must have more knowledge than a normal person. When I am looking for a defense expert, I am looking for one that has twenty years of experience or more in the field and has testified at least a couple of hundred times at court. I want the defense expert’s qualifications to be much better than the state’s witness, and the state is going to want its expert to be better. I have been successful in getting the court to appoint or pay for an expert on behalf of many of my clients. Some clients can pay, but if they cannot afford one I ask the court to pay for the expert because I cannot do my job without a good expert.
Defending DUIs, Now and in the Future
In the future we are going to see tougher enforcement of DUIs. We are going to see the alcohol level get pushed down from a 0.08 to a 0.05, although there is not much scientific literature to support this drop. We are going to see the look-back period on DUIs go to fifteen or twenty years or maybe even a lifetime, so the DUI will stay on a person’s record forever as a prior offense and the fines, fees and classes will continue to increase over time. There is a possibility that there may be legislation to put breath test machines in all cars, even if people do not drink, but I think that quite a few years off. If breath test machines are required in all cars, or cars become self-driving, the occurrences of DUI will go way down and there will be much less to handle in this practice area.
If you are defending DUI cases in California, you cannot do it alone. You need to work on DUI cases as a team. I do not necessarily mean on an individual case, but you need to consult with other DUI attorneys in the area and work together on gathering information on officers, the crime laboratory, and the prosecutors. You need to be able to bounce ideas off of one another and be good colleagues in the field, working together as a team on defending cases. There are various organizations in California and in the country that focus on helping new attorneys learn DUIs and do them well. There are Internet listservs where people can ask questions and share information, similar to what the prosecutors and police officers have.
Conclusion
The key to defending DUI cases is putting in a lot hard work. You will not take every case to trial, but you will want to prepare every case as if it were going to go all the way through a jury verdict. The better prepared you are, the more likely you will reach an excellent outcome for the client. With all the political, financial, and time pressures imposed, one must work quickly and diligently in getting all of the information and documents you need to properly defend a case.
DUI cases can be won. Field sobriety tests can be understood and invalidated in front of a jury. Chemical testing can be understood and debunked in front of a jury. Police officers can be understood and discredited in front of a jury. But all of this takes work, training, and the willingness to fight to the end on behalf of someone accused of DUI. Ultimately, it is the defense attorney who is the catalyst between an accused DUI driver and their freedom.
Key Takeaways
• Make sure the burden stays on the prosecution and the crime laboratory to prove their case. Force them to prove their case to you. Make sure they do everything correctly and check every step along the way. If there is a problem anywhere, it is going to help your client.
• With DUI cases, delay aids victory. Slow things down as much as possible to put in the time to research the case exhaustively. Use the time to gather as much information as you can.
• If the chemical testing procedures and equipment are not reliable, the chemical test result should not come into evidence or be admissible and a jury should never hear about it.
• Forensic experts can help explain your case to a jury. You should use one in every case. After all, the prosecution team is going to have an expert, so you should, too. If your client cannot afford an expert, ask the court to appoint one for them.
• Our job involves not only defending people but helping people as well. If a client needs help, work with them to get help. If a person has a problem with drugs and/or alcohol, they may need guidance and counseling. Assist them to get the help they need.
Mark Rosenfeld has been handling the most difficult DUI cases in Los Angeles County since 1999. He has extensive training and experience in working will all types of breath, blood, and urine testing. He is trained in the same procedures as the police in how to properly investigate a suspected DUI driver and in how to properly administer the field sobriety and chemical tests. His practice is exclusively limited to handling driving-related offenses in Los Angeles County, primarily DUI cases, including everything from reckless driving cases all the way up to vehicular homicide. The largest portion of his caseload is handling DUI cases.
Mr. Rosenfeld graduated from the University of California at Santa Barbara in 1996 and California Western School of law in 1998. He is licensed to practice in California, Nevada, and before the US Supreme Court.
Acknowledgment: I would like to acknowledge and thank my wife, Andrea, for her endless patience, support, and understanding, as well as my associate, Anton Labrentz, for his tireless effort in the pursuit of justice.
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