DUI Defense Lawyer Strategies
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Lawrence Taylor(retired) continues his keynote speech on DUI by finishing his explanation of what his firm’s preparation entails for a DUI case. He also discusses what different factors can lead to an inaccurate blood alcohol measurement by the breath machine. Mr. Taylor explains that being a DUI defense attorney is much different than an ordinary criminal defense attorney in that they are not simply trying to blow smoke, but are trying to seek the truth. It is incumbent upon all DUI defense attorneys to understand what partition ratio is and, furthermore, to understand all of the different variables and circumstances that can lead to an unreliable and ultimately inaccurate blood alcohol measurement. Everything from spraying breath freshener in your mouth to having acid reflux can cause a blood alcohol measurement to become distorted, and Mr. Taylor goes into specific detail about the most common variables that affect the blood alcohol measurement.
We then meet with our, after we’ve gone through discovery and done our interviews and so on, we meet with our forensic toxicologist. He’s the former head of the LA sheriff’s crime lab, retired. We love retired cops and techs. And I understand that you’re not going to have one in your firm, but you can certainly consult with one. And if you can’t find one or it’s too expensive, you might consider commercial apps or for expert witnesses, generally, consider your local colleges and faculties.
I talked about some of the things like partition ratio that you need to educate yourself on. You can do it, it’s not all that difficult, but it does take some effort.
Non-specific analysis, very important. What do we mean by non-specific analysis? It means the Intoxilyzer 5000, which you use in this state, does not measure alcohol, it’s that simple. Big shock, let the jury know, hey this machine they’re using does not measure alcohol. It measures the methyl group in a chemical compound. Any chemical compound that contains the methyl group will be reported as alcohol. So how many compounds, next question is, are there that have the methyl group? A few thousand. Well, let’s get realistic. How many can be found in the human body on the human breath? Two, three, studies show about two hundred. If you’re a diabetic, you’re going to have acetone. If you’re on a crash diet you’re going to have acetone, possibly acid aldehyde. Okay, if you’ve been pumping gasoline, you’ve inhaled gasoline fumes, if you’ve been in a room painting, if you’ve been using glue, hopefully for building a model airplane. Any of these things, paint thinner, all these industrial solvents, not only can you breathe it in, but you can also absorb it through your skin and interestingly the half life, is, it varies and can be very long, meaning you could have been painting a room yesterday and you are breathing out, the methyl group compound today. And what does the machine do? It adds up all the compounds in your body and adds them together cumulative and reports it as alcohol, along with any other, any real, alcohol in your system. Now they say they have interference detectors available, that’s hogwash. They got a thing that doesn’t work terribly well, which is supposed to detect acetone and acid aldehyde. It doesn’t do it effectively. It’s supposed to be calibrated and it can only be calibrated at the manufacturers and I know of no law enforcement agency that sends these things back for calibration.
Mouth alcohol, tremendous, tremendous source of, for a defense, basically it means that alcohol that the machine is reading is not coming from the lungs; it’s coming from the mouth. Remember the twenty-one hundred ratio? It presumes that the alcohol has been through the stomach, through the intestine, out into the blood, gone through the lungs and then breathed out and attenuated by a factor of twenty-one hundred. If there’s alcohol in the mouth for whatever reason, that machine is going to multiple it twenty-one hundred times. So you’re going to have a tiny amount of alcohol in the mouth, will have a hugely disproportionate affect on the machine. So how does it get into the mouth? Breath freshener, oop!, there’s a cop in the rear few mirror (spray sound), okay. Mouthwash, dentures, periodontal disease, common, the most common is burping or belching and this is why your officer is supposed to wait fifteen to twenty minutes before giving a breath test, to observe the person. And we both know they don’t, but they are supposed to. It’s because burping and belching, because the gases from the stomach which haven’t gone, alcohol has not gone into the body yet, are coming out through the mouth. We’ve had a lot of success in the last few years with GERD, Gastro Esophageal Reflex Disease, acid reflux. It’s a condition that is very prevalent in the American population. Basically, a herniation of the palatal valve and it opens the esophagus to gases from the stomach. So if you’ve had alcohol, the alcohol is constantly going into your esophagus, into your mouth, into the machine. Usually, you’ll need a doctor, the internist, your client’s internist, to testify to the condition.
Retrograde extrapolation is a highly inaccurate process of trying to guess backwards from the point of the test to the point of driving. And, again, everything depends on average man. Average man burns off 0.015 percent or 0.02 percent depending on which expert you’re listening to. And they use something called the Widmark Factor, which is about a hundred years old and other things that all rely on the average person.
Now the second great strength is that you hold the high ground. You fight an unpopular, but a just war. Now what do I mean by that? I mean, first of all, you seek the truth. Now that may sound strange. Now I am not saying your client is innocent and you’re trying to seek to show that he is innocent. I mean you are seeking the truth in the evidence that is being presented. Now this is a little different than your usual job, isn’t it? I mean, when you’re defending someone for burglary or rape or murder, or whatever, what’s your job? Most of the time your job is to blow smoke, you know. Create reasonable doubt, that’s your job. In the DUI case that’s not what your job is. Your job is to expose the false science - to expose the defective machines, to expose the incompetent police officer, to expose the field sobriety tests, for what they in truth are - to show that your client isn’t the average person. Your job is to find truth and give it to the jury; it is not to blow smoke. . .