Are Tougher DUI Laws Making It Harder To Defend A DUI Client?
Lawrence Taylor describes the important variables that are taken into consideration in determining the guilt or innocence of a person arrested for DUI. There will always be pressure by groups, such as MADD, to assure that DUI laws are tough on those who choose to drink and drive. This may in turn result in less DUI attorneys being able to effectively represent their clients. However, there are many variables that are in favor of a person arrested for DUI. These include the fact that the police departments and local governments will always be looking for the cheapest way to enforce their DUI laws. Also, the arresting officer will always be a human being; as such, there will always be some type of error rate that can be questioned. Finally, the machines that are used, such as the instruments used for the breath test, make the assumption that everyone tested is an average person, which results in unreliable measurements of blood alcohol levels. Using cheap techniques to enforce DUI laws, having the ever-present element of police officers being human beings, and the fact that every person tested by a breath machine for blood alcohol is different, are all constant variables in each and every DUI case. It is these variables that are used by specialists such as Mr. Taylor in questioning the prosecution’s case against the arrestee.
Richard Jacobs (RJ): Do you believe that the existing and future DUI legal system quirks, I guess that’s the best word I can use, such as, you know, losing your right to trial by jury, things like that, will at some point you know render a lot of DUI attorneys unable to really defend their clients well?
Lawrence Taylor (LT): Yes and no, they are always going to make it more and more difficult. They are always going to try to facilitate, or railroad, depending on your term. . .
LT: or preference, cases in DUI. There is tremendous pressure from MADD and others to facilitate convictions. There are two things that really work in our favor. One is, the police officer will always be a human and subject to human error and levels of competence and so on; that is not going to change.
LT: Second, actually I should say there are three things, secondly, they have proven over time, they being the governments, local governments, that they’re always going to take the cheapest and easiest course.
RJ: Ah, okay.
LT: For example, breath machines now, instead of these big expensive, relatively accurate, in terms of some of the simpler ones, machines are being phased out in terms of the hand held units in the field, that are highly inaccurate. What they call PAS or PBT devices, Preliminary Breath Test Devices and using those in evidence, they’ve never been permitted evidence and now in Orange County and other areas of California and the country, they are being used increasingly. They’re cheap, they’re quick, they’re easy, you get an immediate result, never mind that they are not accurate. So that’s one thing, the human body, the other factor, the human body is not going to change.
LT: The human body will always be a very complex variable. Two human beings are not the same. You are not the same as I am in, for example, our tolerance to alcohol, our absorption of alcohol, our elimination of alcohol, our metabolism of alcohol; it’s different. Your variability varies biologically – such as metabolism, such as partition ratio, perhaps we’ll talk about that in a moment, but these things are variables and they always will be and they will be to a high degree unpredictable and that’s going to be the same. So, the weaknesses in police officers, the inability to do what he is supposed to be an expert at and the variability of the human body are always going to be factors that are going to work in your favor.
RJ: And it sounds like you’re saying that, you know, that the variability of the human body is as variable as I am tall to you are short, or I am fat to you are skinny or. . .
RJ: all of those things. So, there is tremendous variation.
LT: There is, for example, partition ratio, I mentioned it, I think. It’s just a classic example; it’s certainly not the only variable. Essentially, partition ratio involves breath test. The breath test is not measuring the alcohol in your body, in your blood, that is going to your brain. It’s supposed to, that’s what they want to find out. . .
LT: because that is what the statute says, but it doesn’t. What it does is measure the alcohol in your breath, of course, well that’s fine, but what was it in the blood? Well, they use what is called a partition ratio. For every twenty-one hundred parts of alcohol in the blood, there is going to be one part of alcohol in the breath. . .
LT: or vice a versa. Why? Where’d they get that number, that ratio? It’s an average; it’s an average, only an average. You could be for example, a sixteen hundred or fifteen hundred to one ratio right now.
LT: In an hour your partition ratio may vary; it may go up to eighteen hundred to one. It’s going to be different from mine and it’s going to be different in you at different times. Result blood alcohol levels on a breath machine can vary as much as 0.03, 0.04.
LT: So, if it says you’re guilty, you had a 0.10 let’s say; in fact, you were an innocent man at a 0.06. Why? Why, why are you going to be convicted and tried in court without a really good lawyer? Because you weren’t average.
RJ: And a non-knowledgeable lawyer wouldn’t even present that to the court, that there is that much variation?
LT: He wouldn’t even know what the term partition ratio means.
LT: I mean there was a very good, one of the original pioneers, Don Nichols in Minneapolis, one of the top DUI lawyers in the country and he was a very good friend of mine. He would, in arguing to juries, look at the jury, point to his client and say, “my client is Chinese, my client is a female and my client is dead” and I am going to prove it to you. Of course, his client was none of those.
LT: He said, the average person on the planet is Chinese, the average person is a female and the average person died sometime ago, and that’s what the government is doing. My client is not average, but they are going to convict a fictitious innocent, average man, and that’s true, that’s exactly true. That’s what goes on.
RJ: That’s a very powerful argument.
LT: They have to deal with the defendant as an average man because, otherwise, they have no idea what all these variables in that person is.