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New Year's Resolution for DUI Defense: Refresh, Reflect, Recalibrate (For Attorneys)

Posted by Richard Wagner | Dec 31, 2022

refresh recalibrate

Photo by Jordan McDonald on Unsplash

This specialized area of law is seductive because it provides immediate access to the courtroom. Going to law school at the same time Marcia Clark and Christopher Darden squared off against Johnnie Cochran, Robert Shapiro, F. Lee Bailey, and Barry Scheck, aka the Dream Team, in People v. Orenthal James Simpson on live TV, undoubtedly fueled my desire to be in the courtroom.

Back in 2020, the pandemic dealt a crushing blow to DUI practices with the shuttering of restaurants and bars.

However, the extra time was one byproduct of the Lockdown I did not take for granted. The year before I drove almost 17600 miles to courthouses and DMV Driver Safety Branches. 

As Abraham Lincoln noted,

“A lawyer's time [and advice] are his stock and trade.”

Like some DUI Defense attorneys, I refreshed my law library with the most up-to-date editions of

  • Garriott's Medicolegal Aspects of Alcohol, Sixth Edition;
  • Wigmore on Alcohol, Courtroom Alcohol Toxicology for the Medicolegal Professional;
  • Wigmore on Cannabis, The Forensic Toxicology of Marijuana for Lawyers and Other Medicolegal Professionals;
  • California Drunk Driving Law; and
  • Attacking and Defending Drunk Driving Tests

During that extra time the Lockdown afforded me, I often found myself with a book in my hands. One book, David Ball on Criminal Defense, has an obvious application to DUI practice and trials.

The other, A New Earth Awakening to Your Life's Purpose by Eckhart Tolle does not. However, its application will appear.

David Ball on Criminal Defense is a noticeably short book. You could almost call it a pamphlet. After having it in my arsenal for the last few years or so, I consider it indispensable. (Although I'm not sure it is available any longer). Judges have actually complimented me after using some of the strategies in my jury trials, proving the effectiveness of this small but potent book. Before, this never occurred.

The Reptile©

David Ball introduces us to the Reptile©. The Reptile©, he says, represents “the combined primal functions of our brain. He calls it the Reptile© because it has the functions and abilities of a modern-day reptile's brain. 

A “guilty verdict, Ball says, usually makes a juror feel safer [than] does [an] acquittal. This is why even the most mediocre prosecutors routinely beat seasoned defense attorneys.”  It is “the juror's unconscious mind that drives convictions without fretting about such niceties as reasonable doubt.”

Intriguing to be sure, however, I am not convinced jurors deserve all the blame. Upon further reflection about the unconscious mind and the Reptile©, my humble suggestion is we look inward. By doing so, we can achieve better results.

In A New Earth Awakening to Your Life's Purpose, Eckhart Tolle expands the discussion of the unconscious mind. Rather referring to it as a cold-blooded, scaly creature, he uses the terms ego or egoic mind. Everyone occasionally finds oneself in the ego's grasp, according to Tolle. Tolle alternatively refers to “the voice in our head – the incessant stream of involuntary and compulsory thinking and emotions that accompany it."

"Every ego, Tolle says, is continually struggling for survival, trying to protect itself.” Just like what Ball says, "In the face of either a danger or a potential survival benefit, the Reptile© drives the more advanced parts of the brain into making decisions that minimize danger and maximize survival chances.”

The extroverted are not the only ones who find themselves in the ego's grasp. “A shy person is not free of ego, Tolle explains, but has an ambivalent ego that both wants and fears attention from others.”

How Does This Relate To Defending A DUI Case?

By introducing us to the Reptile©, Ball provides insight and techniques for improving as a trial lawyer. One key takeaway is what he calls the Fatal Defense Error, namely, “seeming to have a burden.

He says that "jurors almost always think the defense is trying to prove things. You can explain otherwise but it won't work. Saying you don't have to prove anything falls on deaf ears.”

What May Cause Us To Commit The Fatal Defense Error?

First off, this is not something we can blame on the jurors' unconscious or reptilian minds. Just the opposite. 

It begins around the time we decide to take a case to trial. We have consulted or retained an expert – usually a forensic toxicologist. We have studied the treatises, the scientific literature, and followed the conversations on various listservs. This activity combined with all the years of experience has given us the ability to identify holes in the prosecution's case. Or, in some cases, the prosecution's offer is unacceptable and there is nothing to lose by going to trial. 

Perhaps in your case, as is explained in Chapter 7 of Garriott's Medicolegal Aspects of Alcohol, Sixth Edition, Methods for Breath Analysis, by Patrick Harding, B.S. and J. Robert Zettl, B.S. MPA, you can challenge the breath results with the residual mouth alcohol theory. That is, alcohol remained in your client's mouth from recent drinking or was introduced into the mouth from the stomach, and this detrimentally contributed to the breath alcohol results. Or, the mouth-alcohol challenge is a result of the police officer's failure to adhere to the pretest observation/deprivation period after you reviewed the footage from the video recording.

Or it could run deeper. For example, New Jersey law enforcement's use of a handheld, portable fuel cell, breath alcohol instrument – the Alcotest 7110 MKIII-C (Alcotest) was at issue in State of New Jersey v. Cassidy (2018) 197 A.3d 86. In the Cassidy case, the court noted it had previously “required that the devices be recalibrated semi-annually to help ensure accurate measurements.”  The court noted, “confidence in the reliability of instruments of technology used as evidence is of paramount importance.  Unfortunately, alleged human failings have cast doubt on the calibration process.” 

Essentially what had occurred in the Cassidy case, was that the “coordinator in the New Jersey State Police's Alcohol Drug Testing Unit, [who] was tasked with performing the semi-annual calibrations on Alcotest instruments neglected to take required measurements and falsely certified that he followed the calibration procedures. The coordinator was “indicted in 2016 for failing to use a thermometer that produces temperature measurements traceable to the standards set by the National Institute of Standards and Technology (NIST) to measure the temperature of simulator solutions used to calibrate Alcotest devices.”

The Cassidy court expanded on the significance of what had occurred:

During the calibration process, simulator solutions containing varying concentrations of ethanol are used to calibrate the Alcotest and confirm the accuracy of its blood alcohol content readings. The simulator solutions are poured into calibration units, which are glass containers that house a heating component. The calibration units heat the solutions to about 34 degrees Celsius, the generally accepted temperature for human breath, creating a vapor. The vapor is a proxy for human breath. It is essential that the temperature of the solution be accurate in order for the Alcotest's blood alcohol content readings to be correct. The Alcotest's calibration procedure requires the test coordinator to insert a thermometer that produces NIST-traceable temperature measurements into the simulator solution used to calibrate the Alcotest and confirm that the calibration unit heated the solution to a temperature within 0.2 degrees of 34 degrees Celsius. The NIST is the federal agency responsible for maintaining and promoting consistent units of measurement. When a thermometer's temperature measurements are “traceable” to the standard measurements of the NIST, those measurements are generally accepted as accurate by the scientific community.

Section 12.21 of Attacking and Defending Breath Tests by Donald J. Bartell and Mary Catherine McMurray explains each state has its own set of rules or regulations governing how frequently breath machines must be checked for calibration:

California requires a calibration check to be performed every 10 days or every 150 subjects tested, whichever happens first. [Title 17 California Code of Admin Regs §1221.4(2)(B).]

Connecticut requires checks to be conducted prior to and after every breath test. [State v Morelli, 595 A.2d 932 (Conn.App. 1991) (35-minute delay meets the requirement).]

Wisconsin requires breath equipment to be certified at intervals not exceeding 120 days. [Wisconsin Stat §343.305(6)(b)3.]

New Hampshire requires a check to be done every six months. [N.H. Admin Rules, He-P2207.05(d).]

Georgia requires each breath instrument to be checked periodically for calibration and operation. [GBI Rule 92-3-06(8).]

How Do We Avoid Committing The Fatal Defense Error? 

Once we discover an issue upon which we can build a defense, it lures us down a treacherous path toward committing the Fatal Defense Error. If we are unaware, the feelings and sentiments we typically associate with being an aggressive and successful DUI Criminal Defense Attorney may be contributing causes to making the mistake before we step foot into the courtroom for trial.

As we step into the courtroom, negativity may be all-consuming – anger, anxiety, and resentment.

We are angry at the cop who failed to adhere to the pretest observation and deprivation period, which caused the false readings on the breath machine.

We have a complaint against the individual in charge of keeping the breathalyzers in working order because she failed to take the necessary measurements and lied about following the calibration procedures.

We are concerned because we believe the state's expert will confirm that the breath test results are accurate and that any violations were unimportant. 

Moreover, we may feel resentful, bitter, aggrieved, and indignant (righteous or otherwise) because the whole system is unjust.

Be Aware of the Need to Be Right

David Ball emphatically says “Creating or allowing a tug-of-war over who's right is the single greatest reason for losing.” (emphasis in original).

Eckhart Tolle explains the ego strengthens itself by being right – identifying with a mental position – an opinion, a story, or in the DUI lawyer's case – our defense.

Your case may have similar facts as described above or maybe it resembles the scenario described by William H. Anderson, Ph.d in Chapter 10 of Garriott's, Collection and Storage of Specimens for Alcohol Analysis.

That is, microorganisms contaminated the blood sample, causing an increase in the ethanol concentration. Your expert informs you that studies have shown the preservative, sodium fluoride, has been shown to inhibit most microorganisms except Candida albicans. (Chang and Kollman, 1989; Blume and Lakatua, 1973).

She further says these studies have shown at room temperature sodium fluoride does not prevent the production of some ethanol. Your discovery reveals the blood sample did not make it to the crime lab refrigerator immediately after the blood draw. With your mental position staked out, you are on the fast track to committing the Fatal Defense Error.

Reunite with Reasonable Doubt

David Ball highlights another important area with his focus on reasonable doubt. Lawyers often overlook this in criminal cases in general and DUI cases specifically. I suspect it has to do with the focus and necessary time we devote to all the medical and legal aspects of alcohol and drugs, various breath alcohol instruments, methods for breath and blood analyses, drug DUIs, etc.

These areas are vital to be sure. However, please consider revisiting reasonable doubt. 

He instructs: “you're in trial solely to show that the prosecutor cannot rule out reasonable doubt(s).”

“Trial is not a tug-of-war between who is right and who is wrong. It is only about whether the prosecutor can rule out every possible reasonable doubt.”  “Rule out” is your constant primary topic, your fundamental rule, your main theme, your mantra.”

Not all states have jury instructions (not all states have jury trials for DUIs) for reasonable doubt. In fact, I have heard that in some states, judges give their own made-up instructions. In California, Cal Crim Instruction No. 220 discusses the burden of proof and reasonable doubt:

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In the past, I have been guilty of simply reading this toward the end of my closing argument. Saying something like … and don't forget ladies and gentlemen, Mr. or Ms. is presumed innocent. You can't vote guilty unless you have an abiding conviction that the charges are true.  And then, occasionally, I'd try to give some example of what the word abiding means. And that would be it for reasonable doubt.

However, a much more effective approach is to use reasonable doubt as a sword rather than as a shield. Ball suggests, from jury selection through closing, framing it in terms of what the prosecutor has failed to “Rule Out.”

As Caitlyn Johnstone says,

“Your sword is your words. Be relentless and unmitigated, doubtless and dauntless. Plant your feet and say it like it's true because it is.”

To illustrate how this can be accomplished in jury selection, Ball gives I would say, game-changing suggestions for questions to ask during jury selection. Not to be critical, but if you are showing up for a DUI trial, asking prospective jurors “Whether or not they drive?” or “If they can be fair? you are not picking up all the marbles. Most judges and prosecutors will ask these questions.

One of the most effective questions is: “Some folks would vote not guilty even if a reasonable doubt only might be true. Maybe. Others would want the reasonable doubt to be true before they would vote not guilty. How many of you are closer to the folks who'd vote not guilty even when a reasonable doubt is only maybe true? (Raise your hand and ask for a show of hands). How many of you are closer to folks who'd vote not guilty only if the reasonable doubt is true?   (Raise your hand and ask for a show of hands).

The brilliance of the question lies in the words. It encourages jurors to engage and express opinions by letting them know there are already “some folks” who share those opinions.

Every ego is continually struggling for survival, trying to protect itself. The primal functions of the human brain, Ball says, are akin to the modern-day reptile's brain. It is driven to make decisions that minimize danger and maximize survival chances.”

For the jurors, the courtroom is an unfamiliar and scary habitat. The attorneys and the judge are asking them probing and personal questions. One of your jobs is to make them feel safe. By implying that there are others who feel and think the same way, it makes the environment seem less threatening.

This question exposes what we know but have lost. We know the prosecutor must do the proving. We know because this is basic stuff. The judge gives an instruction stating it's the State's burden of proof. But for reasons, discussed above, whether we label it ego, unconscious or reptilian mind, we have gone astray. We have been unwarily trapped in a no-win situation, trying to prove we are right, and they are wrong.

I encourage DUI lawyers to break with the past. Be open to the suggestion that it may not be the fault of the jurors who failed to comprehend what we were so vehemently trying to convey.

All machines need a calibration check. The same goes for us. As the late great Don Bartell wrote, “a calibration check is simply a check to see if the unit is working properly. It does not include an adjustment or calibration of the machine.”

The New Year provides the perfect time for a calibration check on ourselves.

In the New Year, resist the urge to engage in the tug-of-war of who is right and wrong. We no longer need to prove the cop failed to adhere to the pretest observation period, to prove this caused the false readings on the breath machine.

We now expose these flaws as events that might have occurred and highlight the fact that the prosecutor failed to rule out these reasonable doubts.

We no longer insist the person in charge of the breath machines failed to take the required measurements and falsely certified they followed the calibration procedures. We shine the light on these omissions and confidently suggest this might have happened, proclaiming that the prosecutor did not rule out these reasonable doubts.

And because the prosecutor failed to rule out these reasonable doubts, there is only one, logical option for the jurors. The one option that makes sense, the one that makes them feel safe – a not-guilty verdict.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...