Staying On Top of the Trends in DUI Litigation

Aspatore Books
Greg Gifford
DUI Discovery

Staying On Top of the Trends in DUI Litigation

Three Key Trends in DUI Discovery

There are currently three major trends impacting driving under the influence (DUI) discovery. The first trend relates to DUI checkpoints. There have been several important cases outlining what is a legal and appropriate checkpoint. Obviously, any DUI arrests resulting from an improper DUI checkpoint would be dismissed. The Superior Court of Pennsylvania has held that by publishing the date and times of the proposed DUI checkpoint in the local newspaper 3 days in advance would be sufficient notice. Pennsylvania law follows the Tarbert/Blouse guidelines to determine if a DUI checkpoint is valid and legal. The guidelines include a brief and non-intrusive initial vehicle stop, sufficient advance visual notice prior to the road block; media notice; the decision to hold a roadblock and the location and time and operation of the roadblock must be based on verifiable criteria, and be made by the appropriate administrative or managerial persons; all vehicles stopped must be based on objective, non-discriminatory standards; and the roadblock shall take into account public health, safety and welfare issues.

The second trend in DUI discovery relates to the testing of blood samples. Every testing lab has to be certified, and every lab tech and toxicologist must be qualified. An important discovery issue relates to the procedures used to test the blood, and that information has led to recent case law as to who actually has to testify to the results of the blood test in a DUI case. The person testifying must be the person who actually tested the blood. There are also considerations with respect to the chain of custody of the blood sample, from the time it was taken at the hospital until the time it was tested. What happened to the blood sample in between? Where was the sample stored? How long did it take for the blood to get from where it was drawn from the defendant to an evidence locker? Was the sample refrigerated? How was it transported, and how long did that take? Was it in a police car for a long time, and how hot was the car? Was there any spoliation of the blood? Spoliation can make a big difference between a blood sample that comes in at .159 reading and a sample that comes in at .160 and greater-indeed, that result can mean the difference between doing 90 days in jail or doing one year in a state penitentiary . Pennsylvania has three tiers of DUI offenses. The lowest tier would be .08 - .099; the high tier would be .10 - .159; and the highest tier would be levels of .16 and greater. Consequently, there are many issues associated with spoliation and care of a blood sample to make sure the testing results are proper. The ramifications and penalties differ so greatly between a BAC of .159 and a BAC of .160.

The third and final trend in this area is with regard to the probable cause for a DUI stop and subsequent arrest. For example, was the radio call recorded as to why the defendant was being stopped? Did the officer articulate the reason for the stop? Is there discovery as to what field sobriety tests were given, and was the person who gave the field sobriety test certified? How many DUI arrests has the officer made, and have they ever had any DUI cases that were dismissed based on the officer's testimony? Generally, a large portion of discovery in DUI cases relates to the actual probable cause for the stop and the probable cause of the arrest. A case could be dismissed if it is deemed that there was an issue with the probable cause of the stop or the probable cause to arrest the defendant. As an example, if the officer stops a motor vehicle, and that vehicle did not commit a clear traffic offense, or the Defendant passed the field sobriety tests, the Court could rule that the Officer did not have probable cause to stop the vehicle, or probable cause to arrest the person and suppress any blood, breathe or urine tests taken.

How Technology is Changing the DUI Discovery Process

Technology plays a major role in the DUI discovery process, because so much evidence is now electronic in nature, as opposed to what is written down on paper. Questions often arise as to why certain evidence was not recorded if everything else was recorded; if technology was used to record evidence, there is less excuse for a mistake.

Juries are often concerned if the Commonwealth cannot produce certain types of evidence in a DUI case. Because of television shows such as CSI, today's jurors tend to expect more technical and scientific evidence from the prosecution than was expected in the past. Jurors demand that great care be taken on the part of the Commonwealth, the police, and the labs that handle a blood sample. We have seen cases where the defendant's blood was drawn and tested, and the defendant immediately filed an order to get custody of the remaining sample to do independent testing of the blood. Before the evidence is destroyed, defendants or their attorneys may ask to have a blood sample tested by an independent lab, and if the blood sample was destroyed, that is an issue that may come in as evidence; a jury might wonder why the blood sample was destroyed so quickly. Most testing labs are not required to preserve any blood, breathe or urine samples, pursuant to both the United States Supreme Court, as well as the Pennsylvania Appellate Courts. The Appellate Courts have determined that the test results are the evidence and not the actual blood, breathe or urine, and therefore they do not have to be preserved as evidence. Despite this, an attempt to get an independent lab to test the blood could be very helpful.

From the defense point of view, the use of technology can also be a benefit in a DUI case. Technology was often harmful in past DUI cases, because of the fact that it was typically used against the defendant; but now that people realize that there are so many errors involved in the testing technology used in DUI cases, technology can actually be a benefit to DUI defendants. In the past, most Jurors had little understanding of the science and took the results provided by the testing labs or testing machines as being, per say, accurate. However, with careful discovery of the testing and storage procedure, a juror could easily decide that errors can be made both in the lab, in the certification process, as well as the reliability of any blood, breathe or urine testing device. Issues such as clotting, fermentation, oxidation and storage of the blood can cause errors in the test results.

The Reliability of DUI Evidence in the Discovery Process

Evidence in DUI cases includes the results of blood, breath, or urine testing. Thanks to thorough discovery requests, many lawyers are starting to realize that mistakes are being made during the blood and breathe testing process which could make a huge difference in the outcome of a DUI case.

From the Commonwealth's point of view, the police are doing everything they can to be as careful as possible with respect to the testing process in DUI cases. However, if a police officer who is bringing a blood sample back from a hospital witnesses a traffic fatality or gets a call about serious criminal case on the way back to the station, they have no choice but to go and assist in that case. Meanwhile, the blood sample is just sitting in the police vehicle; it is in a container containing tablets that are supposed to help preserve the blood-but if that sample is sitting in the back of a car on a very hot day for several hours, there has to be a certain amount of spoliation.

Law enforcement is doing the best they can to preserve DUI evidence, within a limited budget. Larger departments obviously have a greater ability to purchase high tech protection of DUI evidence, but the smaller departments are doing the best they can with what they have. Discovery regarding the care and chain of custody of the blood is very important.

DUI Discovery Strategies

Obtaining and Analyzing Discovery

During the initial interview with a DUI client, it is important to ask them every question that might lead to a possible discovery issue, from the time they got up on the day of the arrest until the time they came home after the arrest. Every detail should be obtained to determine whether or not there are any issues that are going to need greater discovery.

Every client should be given a simple assignment-they are to prepare a handwritten or typed narrative of everything they can recall from the time that they had their first drink of alcohol to the time they got home. I want to know all the details-i.e., where they were sitting in the bar, restaurant, or wedding reception they attended; who they were with and who they might have talked to-in other words, who might be able to verify how much they drank; and what type of alcohol they drank, because there is a great difference between the alcohol content of various beers as well as various mixed drinks. I want to know every detail, and if their narrative is less than seven to ten pages, they did not do a good enough job. Whatever information is given in written or oral form is attorney-client privileged.

In many cases, when clients are sitting by themselves they will remember things that they did not remember when they were talking to me. They may talk to someone else who will say, "Do you remember X, Y, and Z?" which may exonerate them.

An example of this, a client was pulled over for an alleged tail light violation, but it was learned that the client's father had taken the vehicle in for a State Inspection the next morning, and that the car passed inspection and had no tail light issue. This created a strong issue on suppression regarding the probable cause to stop the motor vehicle. Another example would be the person who remembered they were in a convenience store a few minutes before the stop. The person's demeanor and actions were recorded on the store's surveillance camera showing that the individual showed no signs of intoxication. Obtaining the tape would be very helpful in resolving the case.

Determining Key Evidence in a DUI Case

Determining the key evidence in a DUI case is often based on what police department made the arrest and what lab or Toxicologist did the testing. There are various procedures used by different police departments in different counties, and there can be major differences in the way in which a laboratory tests for blood. One lab in a particular county seemed to always produce testing results that were significantly higher than the results of PBTs being done by police. This led to additional discovery about that lab's testing procedures, because most testing laboratories will produce results that are slightly above, below, or the same as the preliminary breath test given by the police. Most police departments take pride in having fairly accurate PBT results. When tests from a certain lab are almost always significantly higher than the PBT results, then that is a sign that you need to do a lot more discovery with respect to that lab.

Similarly, a particular police department may handle their evidence in certain ways which may cause you to decide more discovery is needed. Again, every police officer, department, and testing laboratory is different, and you cannot treat them all in the same way.

Obtaining Evidence: The Discovery Process

The first thing that we do in a DUI case is a process of informal discovery, involving any potential witness interviews the client may provide. The client may say, "Here is my credit card information, and it shows that I paid for two drinks at this bar. I can give you the name of the bartender who served me the two drinks, and the name of someone who was with me all day who can testify that I did not drink during the day, and that we went to the bar together." Basically, during this preliminary discovery process, I obtain the client's position on what they had to drink, and then compare that to their blood alcohol content (BAC) reading.

Next, I will try to obtain additional informal discovery information at the preliminary hearing. It is important to bring a court reporter to the hearing so that everything is fully documented. If an officer is reading from a report, you are entitled to see that report; and often you will find that it contains much more information than can be found in the affidavit or probable cause statement. Quite often an Officer's written report will have much more detail with regard to the field sobriety tests that were given, as well as information related to the probable cause for the stop and/or arrest. An Officer's notes may give specific details of the field sobriety tests which when compared to standard field sobriety test training manuals would result in a pass. This would rebut the Officer's Affidavit of Probable Cause where he or she deemed it to be a fail. I have found that you can often get a lot of informal discovery information at the preliminary hearing level.

The next step in the process is filing your formal discovery motion with the District Attorney's office. You are entitled to everything they have in their file; and if you feel that you need more information, you can subpoena that documentation from the various testing labs, and anything else that you feel may be relevant. This includes past issues with respect to the particular police department or lab. You may wish to look into the testing procedures at the lab, or specifies about the toxicologist or lab technician-i.e., are they still employed there; and if not, can you get a statement from them as to the lab's policies and procedures with respect to blood testing in DUI cases?

There may also be discovery issues with respect to the machine that was involved in a breath test-i.e., what is the history on that particular machine, and was it ever taken out of service? Usually only the police department will know the answers to those questions; therefore, you may need a separate subpoena directed at the company that does the maintenance and testing on the machine. You need to know if there have ever been any issues with the machine and what was done to correct them. It is very important to know something about the breath testing devise because many machines are handled and taken care of differently. The mouth pieces may not be carefully maintained, replaced and/or cleaned. An individual might have to provide an excessive breathe sample causing vomiting which could render the test invalid. You should also know about the various certifications that have to be done on the machine within a 30-day and one-year period, including all calibrations. For example, I had a DUI case where the breath test machine was taken offline for a period of time, and it was put back online before it was properly recalibrated and re-certified. Based on that fact, the client's breath test was invalid, and the case was dismissed.

During the discovery process, I also ask my clients to go through the affidavit of probable cause word for word, and tell me line for line if they agree or disagree. Sometimes I find that an officer added something or did not put some piece of information in the affidavit of probable cause. Quite often I find that what an officer did not put in the affidavit of probable cause is more helpful to the defendant what they did put in it. It often turns out that an officer will fail to mention something for a reason and that can give you a greater ability to negotiate your client's case. Many times if there is a problem that can be shown with regard to the stop, arrest or testing, a plea to a lesser charge or a lower count can sometimes be negotiated.

Ensuring a Complete Discovery Process

The only way to ensure that the discovery is process is complete is to make sure you have gone through all of the formal steps. First, you file your motion for discovery, and the district attorney will provide you with all the relevant discovery that they have. Once you get that information, you must then decide what additional discovery information you are going to need; and sometimes you have to file a petition with the court to force the lab or the district attorney to produce that additional discovery. Once the initial discovery material is reviewed, it might be necessary to subpoena all of the documentation to determine if the DUI checkpoint would survive the Tarbert/Blouse guidelines. Additional information with regard to the certification and service reports on an Intoxilizer machine; additional evidence subpoenaed from the laboratory that did the testing to determine who actually tested the blood, as well as information related as to how long the blood was stored and where it was stored prior to being tested.

Fortunately, most courts are very quick to force discovery; they will usually rule in favor of the defendant in order to give the defendant every benefit of the doubt. Courts generally feel that attorneys should have any information they need which could assist them in the defense of their client; and for the most part; unless you are asking for something burdensome or ridiculous, the judges will basically force the commonwealth to produce that discovery-because if it is something that will eventually exonerate an innocent person, they want to make sure that it is provided.

An Expert's Role in Understanding Evidence

There are a couple of different experts that I have seen used in DUI cases. There may be an expert on field sobriety tests; in fact, sometimes when a case is based solely on a defendant's field sobriety test you may want to bring in an expert who is certified in that area and has done field sobriety tests in the past-maybe a former police officer, or an instructor who teaches Police Officers how to do DUI field sobriety tests. Such an expert can testify with regard to why the defendant's test should not have been judged a fail, and would not show that they were incapable of safe driving. These experts are usually used in cases where there is no blood, breath, or urine testing. In a case where the Commonwealth's case was built solely on a Police Officer's observation of the Defendant's behavior and how they performed in field sobriety tests, an expert could rebut the testimony that the person failed the test or could show that the person would fail the test completely sober.

A field sobriety test expert can help bolster your client's case in several ways. For example, the field sobriety test instruction manual states that the police officer is supposed to ask if the driver has a bad knee or bad ankle that could keep them from performing the field sobriety tests; and if your client has such an injury and they were not asked about it prior to testing, that could invalidate that field sobriety test. Therefore, in some cases you need an expert to assist you in proving that the client did not have fail a field sobriety test, either because there was no indication of intoxication or because the tests were not properly done-and therefore, the results are invalid.

Another expert that is often used in these cases is your own toxicologist. In Pennsylvania, the defendant's BAC within two hours of driving is the standard for intoxication, but that still gives you the opportunity to bring in an expert to rebut what the defendant's blood alcohol level was at the time of driving, as well as what you believe the toxicology report should have been or how it was handled. There are many laboratories that are certified in the State of Pennsylvania to do blood testing in DUI cases. It would require an expert to testify that the Commonwealth's expert (toxicologist) somehow improperly or inaccurately tested the blood to create a reasonable doubt in the juror's minds. Therefore, quite often you will need your own toxicologist to testify on your client's behalf with regard to the blood sample.

A Unique Approach to Discovery

It is important to treat every DUI case as if it is going to be a trial case. Ninety (90%) percent of all DUI cases never get to the point where you need to do full discovery, because most cases do not go to trial. I have found that most DUI cases never get to the full discovery stage, because we have done enough preliminary discovery to indicate to the Magisterial District Judge, the police officer, or the district attorney's office that there is an issue in the case. Simply put, I find that doing thorough discovery quite often enables you to resolve a DUI case long before you get to a jury trial. Also, if the case is going to a jury trial, you should not leave any stone unturned; you need to get every bit of discovery you can, because in a case where someone is looking at a one- or two-year prison sentence, you cannot take any chances.

It is important to know everything there is to know about any problems that the police department, testing lab, or testing device has had with any DUI cases. By knowing as much information as possible and knowing it early on, you are able to resolve cases at a much earlier stage; if you can point out that there is a particular issue or problem with your client's case, you can often resolve the case short of having to take it to a jury trial. There are many potential issues or problems with a DUI case that could lead to a not guilty verdict; therefore, use of discovery information and how it impacts your case can help resolve the case at an early stage. Even when you have a strong defense, there is always the possibility of a conviction and much greater penalties for the client. It is far preferable to resolve a DUI case early on, rather than ending up in front of a jury.

Unfortunately, many lawyers only handle occasional DUI cases; and for that reason, they do not have the experience to know what they do not know. Some attorneys have never been in a position where they have been forced to learn all the ins and outs and nuances of DUI cases. Consequently, if they do handle a more complicated case, they may or may not be prepared to fully defend their client and protect every issue that may be available to them. Understanding DUI law is important, because many states have different laws. Some states seem to ignore both the State law and the U.S. Constitution with regard to DUI cases. DUI cases, both in Pennsylvania as well as across the country, have always been handled differently by both the State and Federal Appellate Courts regarding search and seizure issues, evidentiary issues, and spoliation of evidence issues. Appellate Courts have carved out DUI law based on the belief that it is the only way in which we can protect the public health, safety and welfare of the citizens with the growing DUI problems in the United States. For example, Pennsylvania allows the person to be convicted of a DUI if they are sitting in their car in a parking lot, with the vehicle turned off, but the keys in the ignition. No Driving is required to be convicted. In one case I handled, a person was legally parked in a parking lot, just outside of a Pennsylvania Wine and Spirits Store. The person drank a large amount of vodka. Although the person did not drive after they drank the vodka, because the keys were in the ignition of the motor vehicle, they were charged with a DUI.

Conclusion

Final Thoughts

The DUI laws have become much more aggressive in recent years. There will be greater efforts on the part of police and the Commonwealth to use sound technology in these cases-i.e., documenting the arrest and field sobriety tests on video. Documentation of chemical testing, chain of custody, and probable cause in a DUI stop and arrest, will continue to be the main battle ground in DUI cases. Improving the documentation of the DUI arrest and testing process is important from the prosecution's point of view to avoid a not guilty verdict.

Lawyers in this practice area need to spend much more time getting as much information from the client as possible; this will then help them determine what additional discovery they need. They also need to review all the case law and trends in this practice area, to stay on the cutting edge of defense on DUI cases. Always read the case law updates that come out on a weekly basis; it is very important to read about every case in this area, from the Court of Common Pleas level to the U.S. Supreme Court level. Although there is often conflicts in the Pennsylvania Superior and Commonwealth Court decisions, it is important to review all of the recent trends in case law-and quite a few of those are with regard to issues of discovery, and must testify in these cases.

Much can be learned from discussing cases that other lawyers have handled that were dismissed or which resulted in not guilty verdicts. It is also helpful to talk to police officers and find out what issues they are having in DUI cases. Talking to people who are involved in these cases and reading the case law, give the clients the best defense possible.

Key Takeaways

  • When a lawyer does their initial interview with a DUI client they should ask them every question that they think has any possible discovery issue, from the time they got up on the day of the arrest until the time they came home after the arrest. It is a good idea to give them an assignment to write a narrative of the day's events. This will determine whether or not there are any issues that are going to need greater discovery.
  • The next step in the process is filing your formal discovery motions with the District Attorney's office. You are entitled to everything they have in their file; and if you feel that you need more information, you can subpoena that documentation from the testing laboratory, testing device manufacturer, Police Department, etc.
  • Lawyers need to review all recent case law and analyze current trends in this area. Remember, every Police Department and District Attorney's office handles DUI cases a little different. It is also helpful to talk to police officers and find out what issues they are having in DUI cases.