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A DUI trial: winning a DUI case in Los Angeles

In this article, Los Angeles DUI Defense Lawyer discusses A DUI trial. Click on the links below to go directly to your topic of interest.

• Can a Judge Punish A Defendant For Taking His DUI Case To a Trial?
• DUI Trial: Scientific Argument
• Expert Witnesses at a DUI trial in Los Angeles
• Can a DUI Case be dismissed when the courts are congested with other cases?

Can a Judge Punish A Defendant For Taking His DUI Case To a Trial?

One of the reasons many defendants accept a plea bargain is to avoid harsher punishment.  Often people worry that a judge will punish a defendant going to trial.   That can happen because some judges will see a defendant going to trial on a lost case that is lost as something that wastes the court’s time.  Both California and Federal law prohibit punishing defendants with a harsher sentence after a jury trial guilty verdict only because they took their case to trial.

Here are some opinions from case law on point:

• People v. Morales (1967) 252 Cal. App.2d 537, 546 – trial court abused discretion in imposing a more severe sentence because the defendant availed himself of right to a trial;

• People v.Miller (1931) 112 Cal. App. 535, 539  – abuse of discretion in denying probation because the defendant invoked the right to a jury trial];

• To punish a person for exercising a constitutional right is “a due process violation of the most basic sort. (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363)

• A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to a trial or more harshly because he exercises that right. People v. Superior Court (Felmann) (1976) 59 Cal. App.3d 270, 276; 

The bottom line: the courts cannot give a harsher sentence to a DUI defendant after a conviction by trial than the punishment that DUI defendants would receive after a conviction by a plea bargain.  Despite a very clear law on this, some courts, possibly because of personal feelings, still punish the defendants who go to trial with more severe punishment.  Other then this possible (and illegal) harsher punishment by some courts, there should not be any reason for a defendant to plead guilty. From the defense point of view, unless a defendant gets the benefit of a reduced charge or the prosecutor agrees to strike the enhancements, there is no benefit for a defendant to accept a plea bargain offer.

DUI Trial: Scientific Argument

In a DUI trial, the prosecutor needs to prove that the defendant

• drove the vehicle and

• that at the time his or her blood alcohol level was at or above .08% by weight (CALCRIM 2111).

Alternatively, for a refusal DUI or for a violation of California Vehicle Code section 23152(a) the prosecutor needs to prove that the defendant

• drove the vehicle and that

• at the time of driving the defendant was under the influence of alcohol or drugs (or both) (CALCRIM 2110).

To do that, the prosecutor will typically call at least two witnesses, the arresting officer, and a forensic toxicologist.  A forensic toxicologist is a person who will testify at the time of driving, the defendant’s blood-alcohol level was above 0.08% and/or that defendant was impaired (aka under the influence of alcohol (or drugs)).

In most Los Angeles DUI prosecutions, the chemical test of defendant’s blood (by a breath test or a blood test) is done way after the driving – allowing Los Angeles DUI lawyers to argue that at the time of driving the defendant blood alcohol level was lower than at the time of testing.

The prosecutor’s expert (forensic toxicologist) will try to use a “retrograde extrapolation” technique to estimate Los Angeles DUI driver’s blood-alcohol level at the time of driving and testifying that the defendant was above the legal limit of .08 and/or under the influence of alcohol.  By doing this, he will try to convince the jury that the DUI driver is guilty.  “Retrograde Extrapolation” is a fancy term used by forensic toxicologists to calculate the blood alcohol level at the time of driving looking at the following 6 factors: (1) drinking pattern (2) sex of defendant (3) weight of defendant (4) time of driving (5) time of blood or breath test (6) Defendant’s blood alcohol concentration.

The forensic toxicologist will likely make two major assumptions about the way the body processes alcohol.  First, he or she will make the assumption that all alcohol is absorbed within 30 minutes of consumption.  Second, he or she will make the assumption that alcohol eliminates with a rate of .015 percent per hour.

Those assumptions will allow the toxicologist to calculate blood alcohol level at the time of driving.  If the driving was at 1 am and the breath or blood test was done at 2 am with a blood alcohol level of .12, then the expert will usually testify that at the time of driving, the driver was either .10 if he was still absorbing alcohol or .13 if he was eliminating alcohol.  This is very damaging testimony for a Los Angeles DUI defendant – it can sway the jury to vote guilty.  This is why you need help by having an expert in Los Angeles DUI defense fight for you.

A good Los Angeles DUI lawyer will question the assumptions used in “retrograde extrapolation”.  Many scientific pieces of research show that the assumptions used by the government’s experts are wrong.  For example, the assumption that all alcohol absorbs within 30 minutes of consumption is very inaccurate.  Or the assumption that the rate of alcohol elimination is 0.015 per hour is also inaccurate.  There are several scientific articles with published studies showing that absorption can be longer than 30 minutes.  This DUI defense argument is very important because the longer the absorption period the stronger the defense that the driver’s alcohol level was lower and below the legal limit at the time of driving.   Observe,  using the same example, if the absorption period is increased to 2 hours, then the driver whose blood alcohol level is 0.13 percent of alcohol one hour after the driving would be below .08 percent alcohol at the time of driving.  This is a type of defense strategy used by Los Angeles DUI attorneys every day to win cases.

How does one present evidence to the jury that absorption can be longer than 30 minutes?  By having defense forensic toxicologist testify or by impeaching the people’s expert with proper scientific research.  Impeachment is a term to describe a legal evidentiary process when the witness is confronted with contradictions.  Proper evidentiary impeachment is best done by DUI trial lawyers.  To create a cross-examination you would need the help of an experienced Los Angeles DUI attorney.

Here are quotes for just one book that can help impeach the government expert.  (”Goldfrank’s Toxicologic Emergencies”,  a 2,000-page treatise used to teach medical school and pharmacy school, students.)

“80% to 90-% of the ingested dose is fully absorbed within 60 minutes”… However, “… presence of food, … GI disease, co-ingestion of drugs such as aspirin, time taken to ingest the drink, and individual variation” … “can delay absorption for 2 to 6 hours”.

Using this language, a people’s expert can be confronted and convinced to concede that his testimony is inaccurate or biased – but you can’t do it without a DUI trial attorney.

Many experts will acknowledge that “ethanol tolerant patients may not exhibit impairment even at serum ethanol concentration greater than 300 mg/dL”  (same source).  This is certainly an important factor for refusal DUI cases that rely on impairments to show a certain blood alcohol level.

Expert Witnesses at a DUI trial in Los Angeles

As discussed above, a typical Los Angeles DUI trial involves at least two witnesses from the government – the arresting officer, and a toxicologist, who is an expert in forensic science.  Often, the prosecutor will call the arresting officer to testify first.  During his testimony, he will be expected to testify about his observation that led to the DUI arrest – including the smell of alcohol, the driving pattern, other objective signs of intoxication, such as an unsteady walk or swaying, etc. Once the officer completes his testimony, the prosecutor will call an expert witness who will testify about the science behind intoxication and hypothetical scenarios that will resemble your performance on the field sobriety tests.  He will be asked to opine what was your blood alcohol level at the time of driving (basically “extrapolating” alcohol level backward to the time of driving).  He also will be asked to opine if such a level of alcohol in the blood will make the operation of a vehicle unsafe.  He will typically be asked if he reviewed the evidence and if based on the evidence he is of an opinion that you were intoxicated at the time of driving?  Usually, the government will expect the expert to testify that you and anyone with this level of alcohol in his blood and with this performance on field sobriety test is impaired.  On the basis of that opinion, the government will attempt to obtain a DUI conviction against you.

As a defendant in a criminal trial, you have the right to present a defense.  Often, the best course of action is not to present any defense and instead, focus on showing to the jury that the government simply did not meet its burden of proof.  Because presumption of innocence and burden of proof favors the defendant,  many cases can be won by not presenting any defense and instead by poking holes in People’s case.  For example, the officer’s poor memory, officers not following the procedure, lying, or making mistakes in the police report can be pointed out as slovenly police work.  Alternatively, good performance of field sobriety test, following traffic laws and instruction, lack of strong odor of alcohol – all can be used to show that you were not intoxicated.

Similarly, Los Angeles drunk driving attorneys from our office can help win your DUI case by showing research that refutes the prosecutor’s opinion about intoxication.  For example, researchers such as Michale Hlastala in 2005 showed that field sobriety tests are not reliable predictors of intoxication at low levels of blood alcohol levels (such as .08% or .09%).  Doctor Dominick Labianca showed flaws in breath alcohol tests – substantially overestimating the level of alcohol present in the defendant’s breath.  Research by G. Simpson shows that absorption can take up to 6 hours (as opposed to what government experts testify to be usually 30 minutes).

Using the work of researchers such as Hlastla, Labianca, Rose, and Simpson skilled Los Angeles DUI attorneys can discredit the prosecutor’s witnesses and win your DUI case.  On the other hand, the prosecutors will rely on the research of AW Jones, who is a chemistry PhD and seems to misunderstand many of the issues in forensic alcohol research because of a lack of medical training.

Can a DUI Case be dismissed when the courts are congested with other cases?

Yes, it can. For example, there are precedents, such as Arreola v. Municipal court, where over 30 misdemeanor cases were dismissed because the courts were too congested to hear them. A defendant has a right to have a speedy trial within 45 days of arraignment if the defendant is out of custody. Failure to do so is a violation of the US Constitution, the California Constitution, and California Penal Code Section 1382. The remedy for failure to bring your DUI case to trial during the statutory speedy trial period is dismissal unless good cause for the delay is shown by the state.

The courts will often side with the prosecution and decide that the state has met its burden of good cause. As discussed in Arreola, “chronic court congestion and overcrowding is not a good cause”. An exception to this rule is a “court backlogs caused by exceptional circumstances”. In Arreola, the People argued that “unprecedented demand for trial” is an “exceptional circumstance”. The court disagreed, so this argument will not work again, however, the court hinted that (1) an unusual increase in criminal filing and (2) a sharp and unexpected decrease in available judges, would be factors to consider “exceptional circumstances”. The court also discussed other grounds that can or can not be used as grounds to continue beyond the 1382 time limits.

We are happy to take your cases to the DUI trial and win them for you or your loved one.  Call us now to talk directly to a trial attorney (818) 921-7744.

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