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Over the years I've posted ad nauseum on this blog about the increasing disintegration of constitutional rights in DUI cases.  See, for example, The DUI Exception to the Constitution.  This has been particularly true of the right to due process and the right to defend oneself against the sacred breathalyzers.  See Trial by Machine and Trial by Machine — but How Good Are the Machines?.

This abandonment of an accused citizen's rights is not, however, limited to the United States.  Consider the following editorial from yesterday's Toronto Globe….

Accused Drunk Drivers Deserve a Chance to Defend Themselves Against Fallible Breathalyzers

Toronto, CN.  Nov. 4 —  If judges find a certain defence to a drunk-driving charge credible, is it fair that Parliament should take the possibility of that defence away? The Supreme Court of Canada said unanimously this week that the Conservative government’s 2008 removal of a common defence to an impaired-driving charge meets constitutional standards of fairness. It’s a troubling ruling – though at least the court made sure it’s still possible for accused people to have a realistic chance at poking holes in the readings of a breathalyzer machine.

This isn’t to question the seriousness of impaired driving in Canada. It continues to be a major problem implicated in more than a thousand deaths a year. But the very seriousness of the crime, and of the consequences of being found guilty, underscore why accused people need a real chance to defend themselves.

The machines, and the people who work them, are fallible, according to the Canadian Society of Forensic Science, which has worked closely with the Canadian government since the late 1960s on standards for breathalyzers. And the Supreme Court agrees – the possibility “is not merely speculative, but very real.”

The defence that the government abhorred – because it worked – was known as the “two-beer” defence: Accused people would claim to have had just two beers (or three, or one), and would obtain a toxicology report that at their height and weight, based on the amount they said they imbibed, the breathalyzer machine’s reading could not have been accurate.

The Supreme Court said there was a scientific “disconnect”; the breathalyzer machines work when in proper repair and when a trained technician is in charge, studies show; so the defence should not have been as effective as it proved to be. It seems a reasonable point. But then ask – why, if judges find the defence credible enough in individual cases, and judges are deemed by Canadian justice to be the experts in sifting evidence and determining the facts, should the defence be taken away? Isn’t that a disconnect, too?

The 2008 law that removed the “two-beer defence” would have made it almost impossible to defend against the machine’s reading. Accused persons would also have had to show not only a failure of machine or technician but that the failure led to the reading over the legal limit; and finally, they would need the two-beer defence to show that they weren’t over the limit. It verged on the impossible.

Instead, the court snipped out the parts it didn’t like. It will now be enough to raise a reasonable doubt about the machine’s functioning or of the technician who operated it. That will start a new era, according to Toronto lawyer Jonathan Rosenthal, of requests for disclosure of all manner of information about the machine and technician.

And at least we will not have machine justice.

Trial by machine.  The future is here….
 

DUI BLOG

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend them?”

The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, false or untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest.

One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.
 

DUI BLOG

I’ve expounded on this blog at great length in recent years on the unreliability and inaccuracy of the various machines used to measure the breath of citizens accused of drunk driving.  See for example,  "Trial by Machine "– But How Good Are the Machines?.  I’ve also blasted the unconstitutional laws of most states which presume the accuracy of these machines.  See If You Can’t Prove It, Make the Defendant Disprove It.   In many cases, as in my home state of California, the defense is even prohibited from offering critical scientifically-accepted evidence of the machine’s defects.  See DUI and the Presumption of Guilt.

A classic example of this law-trumps-science is the banning of evidence of partition ratio.  Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect.  The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood.  Problem:  We are not all average.  And ratios vary from 1100:1 to 3500:1.  This can cause blood-alcohol test results to vary by as much as .05%.  An accused with a BAC reading of .11% (over the .08% limit), for example, might actually have a true BAC of as little as .06% — well under the limit.

A couple of years ago, the California Supreme Court finally ruled that a defendant should be permitted to defend himself with that widely-accepted scientific fact. (And, I’m proud to say, the Court cited my book California Drunk Driving Defense three times as authority in its decision.)

California Supreme Court Says Defendants Can Challenge 



Breathalyzer Results

Amazing.  It takes a Supreme Court ruling to allow a citizen accused of DUI to defend himself with established scientific truth. 

DUI BLOG

I’ve expounded on this blog at great length in recent years on the unreliability and inaccuracy of the various machines used to measure the breath of citizens accused of drunk driving.  See for example,  "Trial by Machine "– But How Good Are the Machines?.  I’ve also blasted the unconstitutional laws of most states which presume the accuracy of these machines.  See If You Can’t Prove It, Make the Defendant Disprove It.   In many cases, as in my home state of California, the defense is even prohibited from offering critical scientifically-accepted evidence of the machine’s defects.  See DUI and the Presumption of Guilt.

A classic example of this law-trumps-science is the banning of evidence of partition ratio.  Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect.  The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood.  Problem:  We are not all average.  And ratios vary from 1100:1 to 3500:1.  This can cause blood-alcohol test results to vary by as much as .05%.  An accused with a BAC reading of .11% (over the .08% limit), for example, might actually have a true BAC of as little as .06% — well under the limit.

A couple of years ago, the California Supreme Court finally ruled that a defendant should be permitted to defend himself with that widely-accepted scientific fact. (And, I’m proud to say, the Court cited my book California Drunk Driving Defense three times as authority in its decision.)

California Supreme Court Says Defendants Can Challenge 



Breathalyzer Results

Amazing.  It takes a Supreme Court ruling to allow a citizen accused of DUI to defend himself with established scientific truth. 

DUI BLOG

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest in our society increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend those criminals?”

Well, to begin with, I have to wonder when Americans started assuming that any citizen who is accused by the government is a "criminal"…

But the answer to the cocktail question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, balancing the presentation of evidence, guarding constitutional rights, challenging untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping an increasingly intrusive government honest.

One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be.

But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying.

In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government…by a lone attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.
 

DUI BLOG