► NOW PLAYING: DUI Defense Lawyer Strategies (1 of 3)
You have to refocus; you’re used to dealing with the laws and working with the laws. You got to understand that the laws are horrible and they’re going to get worse. And that’s the inherent weakness in the DUI case. Our constitutional rights have been shredded. The laws are totally unfair, violate due process. You’ve got to work within that system and that is difficult, but there is a tremendous strength and that requires you to refocus. The strength is truth. The strength is science, it’s facts, it’s the human body, it’s the machine, it’s the cop. Those are all weaknesses in the prosecution’s case, always will be. But what it requires is, for each of you, you’ve got to educate yourself. You’ve got to learn. You’ve got to learn how this machine works. You’ve got to learn about physiology, a little bit about biophysics and biochemistry and electrical engineering and mechanical engineering. You’ve got to learn some of the stuff about infrared spectroscopy. Now, you all went to law school because you know you did poorly in science and math and so on in college and I understand that and that’s the problem. But if I can do it, you can do it. And, by the way, after, I don’t know, god knows how many years, you know I am still learning. But you’ve got to put yourself in a position, where you’re the only person in that courtroom that understands that machine. I guarantee you, or who understands what goes into a field sobriety test or any of a number of other subjects, the blood test. And I guarantee you; the judge will not, the prosecutor will not, the police officer for darn sure will not and if you do, then you’re going to run the courtroom. Okay, your strengths are the facts, are the truth, are science, that doesn’t change. The human body is not going to change, no matter how many laws they pass. The limitations on the breath machine are only going to get more problematic for the prosecution and the cop is never going to change.
So, let’s take a look at the two, the main points, the main factors in the state’s case. What is the state’s case? What does it consist of? What do they have? Well, they have this breath machine and they got this cop and that’s it. Okay, let’s look at those. What is it really that we’re dealing with? Let’s take the breath machine. As I understand it, in North Carolina you have two tests, called duplicate analysis, most states do. This is a good thing. The duplicate analysis states that the officer has three chances to give a test before he has to start a new series. He has to get a second test that is within 0.02 percent of the first test. If the first test for example is 0.10, what does the second test have to be, to be a valid test? It has to be a 0.08 or a 0.09 or a 0.10 or a 0.11, or 0.12. Correct? Yeah, well, let’s use that 0.10 example. I use it because, first, of all it’s a very common result and, secondly, mathematically it is easy to work with. What are we talking about? This statute or this law in North Carolina, is designed for what? To make sure you get an accurate result. Correct? We want accuracy; we’re dealing with proof beyond a reasonable doubt. Correct? And what is their standard for accuracy of this machine? Range of error of a 0.04 on a 0.10 test. Now, even I can do the math. That’s a forty percent acceptable range of error. The state of North Carolina and, incidentally, the state of California considers this machine, which is going to be the basis for the conviction of your client on the per se 0.08 charge, as well as instrumental in the DWI charge. They consider it acceptable accuracy, if there is a range of error of forty percent.
Now, I got to fly back this afternoon on Delta to Los Angeles. I would not fly on that plane if the pilot had a range of error of forty percent. I don’t think any of you and I don’t think a juror would and yet what is the standard of proof? Is forty percent range of error proof beyond a reasonable doubt? Hardly. Now it’s even worse, the state of North Carolina says, okay if you have a 0.10, you’ve got a second shot and it’s got to be within a forty percent range of error, you think you can do it? And low and behold the officer comes up with a 0.15, not within the range of error. Don’t worry, don’t worry, we’ll give you a second chance and if you can do it the second time within forty percent we’ll call it an accurate test. Well, in California it’s a little different; they can give fifteen tests, as long as they get two in a row within 0.02, but it's the same idea. Not only is it a ridiculous range of error, but they’re giving you two shots at it. That’s not proof beyond a reasonable doubt and you should make sure the jury understands what the state considers to be proof beyond a reasonable doubt. So, what I am saying is that your defense is truth, your defense is science, it’s not the law.
Now I said that there were two prongs to the prosecution’s case and the other is the officer. You get the machine or blood and by the way there are all kinds of problems with blood, we simply don’t have the time in this presentation to get into that. But the second is the officer and as the machine becomes less reliable, there is going to be increased reliance by the prosecution on that cop, he becomes more important. He’s sort of been overlooked in the past because of the, what the prosecution always felt to be these marvels of science, these breath machines. Well, how reliable is he? Rutgers University’s Alcohol Behavior Research Laboratory did a study and found that there was absolutely no difference in ability to determine impairment between officers, bartenders and social drinkers, you and I, most of you and I, no difference. Surprise putting them through a one or two day class didn’t suddenly make them experts. Professor Sturgeon Cole from Clemson University here in South Carolina, he took videotapes of twenty-one different individuals performing field sobriety tests. He showed them to fourteen experienced DUI patrol officers. The officers found that forty six percent of the subjects were, quote, “too drunk to drive.” Forty six percent based on the field sobriety tests were too drunk to drive. What they didn’t know is that none of them had, had any alcohol, none of them. So, that’s your officer, he doesn’t have any special abilities; he doesn’t understand a whole lot. . .