DUI Defense Lawyer Strategies
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Lawrence Taylor continues his keynote speech to DUI attorneys by focusing on the different variables in the human body that can affect a DUI case and explains how his law firm prepares for a DUI case. Quite simply put, the breath machine that is used by the police officers assumes that every person it tests is an average person. All people are different and everyone’s body reacts differently to alcohol, as such DUI defense attorneys should call into question the assumptions that the breath machine makes when providing its measurement of blood alcohol. It is of the utmost importance that a DUI attorney then explains these assumptions to the jury. Mr. Taylor operates an eight person law firm and the case preparation that they do is extensive. From the full-time investigators who interview the client for two hours, to the team of highly trained DUI defense attorneys, Mr. Taylor’s firm does all the investigation and discovery necessary to provide the highest level of service in a DUI case.
One other thing you’ve got going for you. And that is, you’re dealing with a human body. The human body is unique and every individual human is unique and complex and infinitively variable. And yet the prosecution’s entire case is premised on the simple concept that your client is not unique, is not variable, he is average, he is what is called average. Because, over and over again, as you educate yourself on the breath machine you’re going to find out that the manufacturers have assumed that your client is average and it just isn’t so. The assumptions of the machine are false. How many people here by a show of hands understand what partition ratio is? Okay, how many people know what twenty-one hundred to one? Does that ring a bell to anybody? Okay, this machine, and by the way, you have a decision in this state, I’m sorry what was the name of it again David, there is another one on partition ratio, Cotham, yeah, which, I’ve read it and I’ve talked to David about it, I’ve read it five times now, it’s a short decision. I cannot understand, I cannot understand it, it seems to keep, it says it keeps partition ratio out, but doesn’t tell you why really and seems to leave open, that you can get partition ratio in. Partition ratio is simply the assumption that for every unit of alcohol in your client’s breath, there are twenty-one hundred units of alcohol in the blood. So what does the machine do? And by the way don’t ever call this breath thing an instrument. The prosecution will call it that, you know the cop will call it; it’s not an instrument, it’s a machine, like a washing machine. You know, juries understand that, they understand that they don’t work always that well, they always break down, they’re not reliable. An instrument sounds like a whole different thing. But this machine has got this little, extremely simple computer in it. It’s basically the same computer by the way that used to be used in those palm games; I mean it’s a real basic computer. And it takes, to be simplistic here, it takes the reading of the breath and multiplies it by twenty-one hundred times and tells you, that’s what’s in the blood. Because that’s what the statute is concerned about, blood alcohol. That’s what’s in the blood. Well, that’s fine, except that, that’s just an average, twenty-one hundred to one, it’s an average. How do they know what your client’s partition ratio is? Your partition ratio is different than mine. Your partition ratio right now is different than it will be this evening; it varies. The human body is wonderfully complex. They can’t treat us all like averages, but they do. Now what does that mean twenty-one hundred to one? You know, how does it change? Well, very roughly you can say for every two hundred in the ratio it changes the reading by 0.01. So let’s take an example, try not to get too complex here. Let’s say your client is a thirteen hundred to one ratio, that’s an eight hundred variance, equals 0.04 differentiation. Meaning if your client is a true 0.07, let’s assume his blood alcohol is 0.07. That highly sophisticated machine is going to report it as a 0.11. What’s your client guilty of? Not DWI, not 0.08; he’s guilty of being not average. And you should tell the jury that’s what the prosecution is trying to prove, they’re convicting a fictitious person. An old friend of mine, Don Nichols, an attorney in Minnesota, used to tell the jury, he’d look at them and he’d say, “My client, sitting over there, is female, Chinese and she’s dead and the state can prove it.” The average person on this planet is female, the average person is Chinese, the average person is dead, therefore my client, my male, American, quite live client, is not. Okay, it’s important to drive that point home because once you educate yourself you’re going to understand that their, this is a recurrent theme throughout their case, is you understand the different, and it’s not just the machine by the way. That whole horizontal gaze and nystagmus test is presumed that the client is average in many different ways.
Okay, David asked me to give you some idea of how I prepare a case. Or how my firm, I have an eight attorney firm and I’ve gotten to the point now where I am semi-retired and let, you know, there a whole lot younger, smarter, tougher than I am and I sort of direct traffic. He was particularly interested in the questionnaire and there is a questionnaire in the materials from my book, but we don’t use a questionnaire anymore. We use - I have two full time investigators. A retired CHP, California Highway Patrol officer, and a retired Santa Ana Police Department DUI task force officer and they do our interviews. They will conduct a two hour interview of the client. They will go into terrific detail on everything that happened that day, drinking patterns, medical conditions that might affect the FSTs, might affect the blood or breath test and so on. And then they present a five page, roughly five page, arrest report, if you will, our version, to the attorney. And they will go into things like, you know, was the person exposed to paint fumes or was he pumping gasoline or you know these things all affect a breath machine. Then the investigator will visit the scene of the arrest for the FSTs, to see what it looks like, take pictures, videotapes, will possibly go over the route of driving, may videotape the route. I had Amber, she’s my CHP officer, about three months for trial, got a helicopter to videotape the route of driving to show how it was impossible for our client to have done what the officer had described. You should be using discovery motions. I understand things are a little bit different here in North Carolina for discovery. And there are some interesting aspects of it, when it comes to for example, getting an arrest report. You absolutely want that arrest report. And if you can’t get it through the officer, through apparently cooperation, apparently he has discretion to give it to you or not, which is incredible to me in terms of confrontation rights, but get it through subpoena, through the DMV process. Get a court order, get a subpoena through the court, whatever it takes, but get a whole lot more than that. You want to get all of the calibration records, the maintenance records, the usage logs for the breath machine, certification of the machine, of the lab if it’s blood, or the hospital if it’s blood, of the officer to operate the machine. You want any video, from possibly from the jail cell, security video. Particularly if it’s got audio because you can find out if his speech really was slurred. . .