Attacking a DUI Breath Test Case on a Budget
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1 Attacking a DUI Breath Test Case on a Budget Ben TheSessionsLawFirm.com ben@thesessionslawfirm.com (470) Georgia ICLE Atlanta, Georgia December 7, 2018
2 State of Georgia v. Sober Ben
3 ! Totality of circumstances!! v.!! Totality of the negative circumstances!
4 The Presumption of Innocence Mr. Ben is presumed to be innocent unless and until the State produces enough evidence to convince you beyond a reasonable doubt that the defendant is guilty of the offenses charged.
5 Compare the Role of the State and the Accused There is no burden of proof upon the defendant whatsoever, and the burden never shifts to the defendant to introduce evidence or to prove innocence. When a defense is raised by the evidence, the burden is on the State to negate or disprove it beyond a reasonable doubt.
6
7 Not Guilty = Not Proven Beyond a Reasonable Doubt! Grave Suspicion Is Not Enough Facts and circumstances that merely place upon the defendant a grave suspicion of the crime charged or that merely raise a speculation or conjecture of the defendant's guilt are not sufficient to authorize a conviction of the defendant. They did not offer any evidence of compliance with the 20-minute observation requirement before the administration of the breath test.
8 What is a reasonable doubt? A reasonable doubt is a doubt for which a reason can be given, arising from a consideration of: the evidence, a lack of evidence, or a conflict in the evidence. After giving consideration to all of the facts and circumstances of this case, if your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law, and you must acquit the defendant.
9 What is a reasonable doubt? After giving consideration to all of the facts and circumstances of this case, if your minds are: wavering, unsettled, or unsatisfied, then that is a doubt of the law, and it requires that Mr. Ben be acquitted. Acquitted means found not guilty / not proven beyond a reasonable doubt.
10 2 different types of DUI charges!
11 Reasons for Doubt From the Evidence! DUI Per Se Count 2! From their witness Mr. Tilson:.118 based upon mouth alcohol.02 from breath spray.032 cake.049 gum The mouth alcohol problem is a real problem in this case.
12 3 things are necessary to protect against mouth alcohol! minute wait (OBSERVATION) period agreement of the samples 3. the slope detector in the machine (.049 on cake &.11 when no alcohol should have been detected)
13 Officer Janke Reasons for Doubt From the Evidence! DUI Per Se Count 2! Cannot say that the 20-minute rule that he was trained on was followed Mr. Tilson Cannot say the 20-minute rule was followed
14 Reasons for Doubt From a Lack of Evidence! DUI Per Se Count 2! Where is their evidence of compliance with the 20-minute observation requirement? Where is their witness who overcomes the doubts raised by Dr. Hlastala? Biological uncertainties completely unrebutted. Where is the witness that negates Dr. Hlastala s testimony about the conversion from breath to blood? Where is the witness that negates temperature s affect?
15 Reasons for Doubt From a Conflict in the Evidence! DUI Per Se Count 2! Where is the evidence that is consistent with intoxication? No impairment of speech No impairment of ability to stand and walk No impairment of ability to balance Dr. Hlastala v. Mr. Tilson Mr. Tilson You can rely upon it, but 36% of the time it missed mouth alcohol.
16 What are we asking for?! Count 1 DUI Less Safe Not Guilty Not Proved Beyond a Reasonable Doubt Count 2 DUI Per Se Not Guilty Not Proved Beyond a Reasonable Doubt Underage possession of alcohol Count 3 Failure to Maintain Lane Guilty
17 ! Why is the Mouth Alcohol Defense my go-to defense?!! 1. My clients are broke, and it is affordable.! 2. They want a Not Guilty, and it works.!
18 Let s prepare ourselves.! Why are you doing this?! Who is this about?! Can we accept losing?! *Are you sure you must do this on a budget?
19 The Mouth Alcohol Defense starts with the Intoxilyzer Operator s Manual
20 The Mouth Alcohol Defense starts with the Intoxilyzer Operator s Manual
21 The possibility of mouth alcohol is dangerous stuff when the State relies upon a breath test to prove a per se charge Refresher Manual, p. 9! ** This quote is not present in prior Operator Manuals!
22 The importance of eliminating mouth alcohol/residual alcohol didn t change with the Intoxilyzer 9000.
23 3 Safeguards Against Mouth Alcohol From the Manual 20-minute wait (OBSERVATION) period!.02 agreement of the samples (the consecutive samples vary by more than.02)! the slope detector in the machine (Invalid Sample)! 2009 Manual, p Manual, p Manual, p Manual, p Refresher Manual, p. 10
24 The Mouth Alcohol Problem: The Intoxilyzer 5000 Operator s Manual 2009 Manual, p Manual, p Manual, p Manual, p Refresher Manual, p. 9
25 Mouth/residual alcohol is no less of a problem on the Intoxilyzer 9000.
26
27 The Intoxilyzer 9000 is not the best device at detecting mouth/residual alcohol!
28 The Intoxilyzer 9000 is not the best device at detecting mouth/residual alcohol!
29 The Intoxilyzer 9000 is not the best device at distinguishing cake from alcohol!
30 The Mouth Alcohol Detector (SLOPE DETECTOR) is not perfect.
31 The Mouth Alcohol Detector (SLOPE DETECTOR) is not perfect.
32 The Mouth Alcohol Detector (SLOPE DETECTOR) is not perfect.
33 The Mouth Alcohol Detector (SLOPE DETECTOR) - A.11 Result With a True BAC of.00?
34 Comparison of Mouth Alcohol Curves! Operator s Manual Garriott s Medical-Legal
35 Comparison of Mouth Alcohol Curves!
36 Jury Selection Ideas: Carl Bettinger, Twelve Heroes, One Voice
37 Jury Selection Ideas: If you show them, they ll show you Carl Bettinger, Twelve Heroes, One Voice
38 Jury Selection Ideas: Common Ground / Shared Values! Rule Followers The Pros and The Cons!
39 Opening Statement I spoke with you about my fear of the number.! Ask that they reserve judgment on it until the conclusion.! Challenge the State to show compliance with the 20- minute observation requirement.! Let them know that they will not see compliance with the 20-minute observation requirement established by the!
40 Goals in Cross-Examination of the Arresting Officer and Breath Test Operator! 1. Lock them down with regard to the timeline! 2. Lock them down with regard to their observation of your client! 3. Their observation period consisted of times when they were not watching your client! 4. Lock them into their training on the observation period!
41 !! Cross-Examination of the Operator: Observation of My Client! 1. Did not watch my client during the entirety of the 20- minute period! 2. He was in the rear of your patrol car during part of the 20-minutes prior to the breath test! 3. Possible he could have burped during the 20-minute period!
42 !!! Cross-Examination of the Operator: Training on the 20-Minute Wait Period! minute wait period is required before each test! 2. During the 20-minute period, the suspect is to be:! (1) in a controlled environment,! (2) prohibited from consuming alcohol, and! (3)monitored for regurgitation or vomiting.! 3. If vomit, allow them to rinse their mouth with water, and restart the 20-minute wait period.! 4. This applies to cases of burping or belching where regurgitation is suspected.!
43 Cross-Examination of the State s Expert: STAY FOCUSED ON YOUR GOALS?! 1. The mouth alcohol detector is not perfect.!! 2. The Intoxilyzer 5000 can produce results as high as.11 when a person has a true Blood-Alcohol Concentration of.000.!! Additional Cross-Examination Areas:!! 3. You wrote the Intoxilyzer Operator s Training Manual.!! 4. You established the Intoxilyzer Operator s Training Curriculum.!! 5. In order to be assured that mouth alcohol will not influence the printed alcohol concentration, the 20-minute observation period must followed.!
44 Closing We re not here fighting over general reliability.! We re here because we think it s important that they follow THEIR rules in performing a test.! We asked at the beginning of the trial if the State would simply show us that the rules for performing a breath test were followed.! The evidence does not eliminate mouth alcohol as a problem.!
45 Closing Argument Mouth Alcohol Defense! I charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate if properly operated. Johnson v. State Presumptions:! Jurors will have to make a decision based on their values.! The presumption of innocence, the burden of proof, and the standard of proof are the fundamental doctrines of American criminal jurisprudence and the bedrock of determining guilt or innocence in a criminal case. Little v. State, 230 Ga.App. 803, 806(2), 498 S.E.2d 284 (1998).
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47 Thank you! Attacking a DUI Breath Test Case on a Budget Ben TheSessionsLawFirm.com ben@thesessionslawfim.com Defense of Drinking Drivers Institute Atlanta, Georgia December 7, 2018
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