ACCUSED'S CONSTITUTIONAL RIGHT TO OFFER EXPERT TESTIMONY ATTACKING THE PROSECUTION'S "SCIENCE EVIDENCE": MISTAKEN CALIFORNIA V. TROMBETTA'S ANTIDOTE

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33 AZLR 59
(Cite as: 33 Ariz. L. Rev. 59)
Arizona Law Review
1991
*59 THE RECOGNITION OF AN ACCUSED'S CONSTITUTIONAL RIGHT TO
INTRODUCE EXPERT TESTIMONY ATTACKING THE WEIGHT OF
PROSECUTION SCIENCE EVIDENCE: THE ANTIDOTE FOR THE
SUPREME COURT'S MISTAKEN ASSUMPTION IN CALIFORNIA v.
TROMBETTA
Edward J. Imwinkelried [FNa]
Robert G. Scofield [FNaa]
Copyright 1991 by the Arizona Board of Regents;
Edward J. Imwinkelried and Robert G. Scofield
"What the People seek . . . is not an escape from an unfair disadvantage, but the
perpetuation of an unfair advantage." [FN1]
California v. Trombetta [FN2] is one of the leading Supreme Court precedents defining
the scope of an accused's constitutional right to discovery. In Trombetta, the accused was
charged with driving while intoxicated. Shortly after his arrest, the accused submitted to an
Intoxilyzer test to measure his blood alcohol concentration (BAC). The test indicated that the
accused's BAC exceeded 0.10 percent, the level which triggered California's statutory
presumption of intoxication. [FN3] The police could have used the technological
state-of-the-art, a field crimper-indium tube encapsulation kit, to preserve a sample of the
accused's breath. The police, however, neglected to do so.
Before trial, the accused moved to suppress all prosecution testimony about the results
of his Intoxilyzer test. [FN4] The accused argued that the police failure to preserve a breath
sample violated his constitutional right to present a defense. [FN5] If the police had saved a
breath sample, a defense expert could have retested the accused's breath. A retest might have
exculpated the accused by yielding a different, lower BAC. The accused contended that the
government's *60 failure to save a breath sample denied his due process discovery rights. As a
sanction for the denial, the accused urged the Court to suppress all testimony about the
inculpatory intoxilyzers test result.
On certiorari, the Supreme Court rejected the accused's contention. The Court found
that the police acted in good faith; when they tested the accused, it was not apparent to them
that a second breath sample would have been exculpatory. [FN6] Quite to the contrary, since
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the initial test was inculpatory, the police were entitled to assume that a retest would have
produced additional incriminating evidence. [FN7] Writing for the Court, Justice Marshall
summarized the evidence that the Intoxilyzer is an accurate scientific test. [FN8] That
evidence convinced the Court "that the chances are extremely low that preserved samples
would have been exculpatory." [FN9] In the Court's judgment, the exculpatory value of the
lost evidence was too speculative and conjectural. [FN10]
Despite the general reliability of the Intoxilyzer, Justice Marshall recognized that it was
possible that a retest of a second breath sample would have been exculpatory. He
acknowledged that the accused had the right to attempt to prove that "the Intoxilyzer results . .
. were inaccurate. . . . " [FN11] The Justice, however, reasoned that the accused had
"alternative means" of attacking the prosecution's Intoxilyzer evidence. [FN12] He gave three
examples. First, the accused could attempt to show "faulty calibration" of the instrumentation.
[FN13] Justice Marshall noted that under state law, the accused had a right to inspect not only
the Intoxilyzer machine itself but also the records of the machine's weekly calibration tests.
[FN14] Second, the accused could try to demonstrate "extraneous interference with machine
measurements." [FN15] The accused could offer evidence that radio waves might have
interfered with the machine or that as part of a diet, he had consumed chemicals which the
Intoxilyzer might misread as alcohol. [FN16] Finally, the accused could try to establish that
there had been operator error. [FN17] The accused had the opportunity to cross-examine the
police officer who conducted the test to prove that the test had been improperly administered.
[FN18] The Justice acknowledged that there must be a fair, adversary *61 balance [FN19] at
trial. However, given these alternatives, that balance could be maintained even though the
accused had been deprived of potentially exculpatory testimony.
Four years later in Arizona v. Youngblood, [FN20] the Supreme Court revisited the
Trombetta issue. In Youngblood, the accused was charged with kidnapping, assault, and
molestation of a young child. After his release by his captor, the child was taken to a hospital.
Hospital personnel collected evidence, including the child's clothing and samples such as saliva
specimens. The personnel included the samples in a sexual assault kit which they properly
refrigerated for preservation. They neglected, however, to take any steps to preserve the
clothing. Although crime laboratory personnel later examined the samples, they failed to apply
certain scientific techniques such as sophisticated genetic marker tests [FN21] "that might have
completely exonerated" the accused. [FN22] There were also body fluid stains on the child's
clothing, but the stains were untestable due to the failure to properly preserve the clothing.
[FN23]
As in Trombetta, the accused in Youngblood argued that he had been denied his
constitutional discovery rights. Once again, the defense argument failed. In the course of the
majority opinion, Chief Justice Rehnquist cited Trombetta and reiterated the Court's earlier
reasoning. [FN24] The Court reaffirmed its belief that "the chances that preserved samples
would have exculpated the defendants were slim." [FN25] In part for that reason, the
unavailability of defense expert testimony about a retest of the samples did not render
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Youngblood's trial fundamentally unfair. As in Trombetta, the Court added that while the
accused may not have had the benefit of the ideal evidence of a retest, the accused had
"alternative means" of proof available. [FN26] In the last sentence of his opinion, the Chief
Justice asserted that "the defendant is free to argue to the finder of fact that a . . . test would
have been exculpatory, but the police do not have a constitutional duty to perform any
particular tests." [FN27]
In both Trombetta and Youngblood, the Court assumed that defense evidence
attacking the weight of prosecution scientific testimony would generally be admissible. The
Court plainly assumed that although the trial judge might permit the prosecution to introduce
inculpatory scientific testimony such as an Intoxilyzer test result, the judge would allow the
defense to rebut and respond in kind. That assumption is a vital link in the Court's line of
argument to the conclusion that the accused's inability to retest the physical evidence does not
upset the essential balance and fairness of the adversary system. To be sure, *62 the accused
does not have the best of all possible worlds; the government's destruction or contamination
of the physical evidence precludes the accused from offering retest evidence to show that the
prosecution's earlier test was in error. According to the Court's assumption, however, the
accused can resort to other effective kinds of rebuttal testimony to attack the weight of the
prosecution's test evidence.
The rub is that the Court's assumption is mistaken. When the police destroy or
contaminate the physical evidence after the initial inculpatory test, the accused is necessarily
limited to two types of rebuttal evidence: generalized testimony about the unreliability of the
scientific technique in question or speculative testimony about potential errors by the crime
laboratory technicians in performing the initial test. In Trombetta and Youngblood, the Court
failed to realize that under well-settled doctrines in many jurisdictions, these two types of
evidence are vulnerable to prosecution evidentiary objections. In short, the defense may be
unable to present the rebuttal evidence needed to maintain a fair balance in the adversary
system.
The thesis of this article is that the Court should announce that the accused has a
constitutional right to introduce expert testimony that can generate a reasonable doubt by
impeaching the weight of prosecution scientific evidence. The first part of this article critiques
the Court's assumption in Trombetta and Youngblood that defense rebuttal evidence will be
admissible as a matter of course. This part of the article not only demonstrates that prosecutors
can theoretically object to the admission of defense rebuttal evidence; it also documents that in
some jurisdictions, trial and appellate courts have already sustained such objections. The
second part of the article advances the argument that the Court should restore the balance of
the adversary system by conferring on the accused a constitutional right to introduce expert
testimony attacking the weight of prosecution scientific evidence. The article concludes by
calling on the Court to end the "unfair advantage" [FN28] which the prosecution currently
enjoys because of the Court's mistaken assumption in Trombetta.
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I. THE EVIDENTIARY OBJECTIONS TO GENERALIZED AND
SPECULATIVE DEFENSE ATTACKS ON THE WEIGHT OF PROSECUTION
SCIENTIFIC TESTIMONY
In Trombetta situations in which the police destroy or contaminate physical evidence
after an initial inculpatory scientific test of the evidence, the defense's inability to retest the
evidence prevents the accused from offering the best rebuttal evidence. The condition of the
physical evidence makes it impossible for the accused to present a defense expert's testimony
about a carefully conducted second test of the same evidence. The unavailability of the
evidence for retesting forces the accused to resort to two, clearly inferior, types of rebuttal
testimony. The accused can offer generalized [FN29] testimony about the unreliability of the
scientific test. The accused, for example, might attempt to introduce testimony about the test's
inherent margin of error [FN30] or the standard *63 deviations computed in past tests. [FN31]
Alternatively, the accused can proffer more particularized, but more speculative testimony.
Justice Marshall's opinion in Trombetta is suggestive. According to the Justice, the defense
could offer evidence of several factors -- such as the presence of a source of radio waves in the
test area or operator errors -- to attack the weight of the prosecution's Intoxilyzer testimony.
[FN32] Since the defense experts could not retest the physical samples to conclusively
demonstrate that the earlier test was in error, the defense experts can merely conjecture that
the factor in question might have distorted the outcome of the earlier test.
In the past, commentators observed that defense counsel often find it difficult to
introduce evidence attacking the weight of prosecution scientific testimony. [FN33]
Trombetta compounds this difficulty. It is predictable that in some jurisdictions, defense
counsel will find it impossible to introduce the types of evidence that Trombetta forces the
defense to rely on. These types of testimony are vulnerable to three evidentiary objections
[FN34] -- objections which some prosecutors have already made and which some judges have
already sustained. [FN35]
A. The Defense Evidence Attacking the General Reliability of the Scientific Technique
Is Irrelevant Because the General Reliability of the Technique Is Conclusively
Presumed
It is axiomatic that an item of evidence must be logically relevant to be admissible. In
the words of Federal Rule of Evidence 401, "[e]vidence which is not relevant is not
admissible." [FN36] Suppose, for example, that the prosecution offers scientific testimony to
establish that the accused was driving while drunk. The government charges the defendant
with the violation of a statute proscribing driving with a certain breath alcohol concentration.
The prosecution evidence is a breath alcohol test. In its case-in-chief, the defense offers expert
testimony about the difficulty of converting a breath alcohol reading into a blood alcohol
reading. The trial judge can exclude the testimony as irrelevant. [FN37] The defense
testimony would be relevant if the statute criminalized driving with a certain blood alcohol
level, and the prosecution offered the breath alcohol reading as evidence of the accused's
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blood alcohol level. [FN38] In this hypothetical, however, the statute directly criminalizes
driving with a breath alcohol exceeding a specified level. Thus, "there is no need to assume
any conversion ratio between blood alcohol and breath . . . alcohol." [FN39] The *64 defense
expert testimony therefore fails the threshold standard for logical relevance.
In other cases, however, the prosecution opposes the admission of the defense
testimony even though the defense testimony obviously satisfies the threshold test. Assume,
for instance, that the jurisdiction's statute criminalizes driving with a particular blood alcohol
level. Again the prosecution relies on breath test evidence to prove up the offense. As in the
previous hypothetical, the defense offers expert testimony about the difficulty of converting a
breath alcohol reading into a blood alcohol measurement. To convert a breath reading into a
blood alcohol measurement, breath testing devices such as the Intoxilyzer assume that a
person has the same amount of alcohol in one part of blood as he or she has in 2,100 parts of
breath -- a conversion ratio. [FN40] Empirical studies, however, establish that some persons
have ratios higher than 1:2,100 while many have lower ratios. [FN41] When the prosecution
offers breath test evidence to prove a blood alcohol offense, general defense testimony about
the range of conversion ratios is indisputably relevant.
In most jurisdictions, when a defendant is charged with a blood alcohol offense, the
courts not only recognize the relevance of general testimony about the unreliability of the
scientific technique; they construe their drunk driving statutes to permit the defense to
introduce such testimony to attack the weight of prosecution breath test evidence. [FN42]
However, a number of courts come to a contrary conclusion. In these jurisdictions, the courts
found a conclusive presumption regarding the accuracy of breath testing devices -- rendering
general testimony about the range of conversion ratios "irrelevant" and inadmissible.
These courts invoke two theories to justify the exclusion of general rebuttal testimony.
Some courts interpret the governing state statutes as erecting a conclusive presumption
regarding the reliability of the scientific device the prosecution testimony is based on. [FN43]
These courts have concluded that their *65 statutes manifest a conclusive [FN44] legislative
determination [FN45] that the scientific technique is trustworthy. In these jurisdictions, the
statutes render the scientific technique unassailable. [FN46] The courts thus bar general
defense rebuttal evidence as irrelevant. [FN47]
Other jurisdictions rely on a different theory to reach the same result. These courts
point out that when the accuracy of the scientific technique in question is generally accepted,
the reliability of the technique is a proper subject for judicial notice. [FN48] There is authority
that once a judge judicially notices a proposition, "evidence contradicting the truth of the fact
is inadmissible." [FN49] Citing this authority, these courts reason that the judicial notice of the
accuracy of a scientific technique bars the admission of testimony generally attacking the
trustworthiness of the technique. [FN50] The end result is the same as under the statutory
construction theory: Evidence attacking the general reliability of the scientific technique is
deemed irrelevant and inadmissible.
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As previously stated, if the police innocently destroy or contaminate physical evidence
after an initial inculpatory scientific analysis of the evidence, Justice Marshall's opinion in
Trombetta allows the prosecution to use testimony *66 about the analysis against the accused
at trial. The Justice's opinion assumes that the accused will be able to maintain a fair
adversarial balance at trial by offering rebuttal testimony. To rebut the prosecution evidence,
the accused might resort to expert testimony about the general untrustworthiness of the
scientific technique. As this subsection has demonstrated, however, in a growing number of
jurisdictions Justice Marshall's assumption is wrong. By invoking a statutory construction or
judicial notice theory, an increasing number of courts hold general defense testimony to be
irrelevant and inadmissible.
B. Under the Rules Governing the Admissibility of Expert Opinions, Defense
Testimony About the Potential Errors in the Initial Analysis of the Physical Evidence
or the Possible Outcome of a Defense Retest Is Inadmissible Because Such Testimony
Is Too Speculative
When the police innocently destroy or contaminate physical evidence after an
inculpatory scientific test, Trombetta leaves the defense only two options. To attack the
weight of the prosecution's scientific test, the defense must offer either: (1) general testimony
about the unreliability of the scientific test, or (2) more specific testimony about the errors the
police criminalist might have committed or the outcome which a defense expert might have
attained if a retest had been possible. The preceding subsection noted the difficulties the
accused faces if the accused chooses option (1). The difficulty of introducing general
testimony in many jurisdictions will pressure defense counsel to select the second option.
Under the rules governing the admissibility of expert opinions in many jurisdictions, however,
the prosecution may be able to block the admission of the more specific testimony. The
Trombetta Court commented on the speculative character of the lost defense evidence. [FN51]
Precisely because of its conjectural character, the admissibility of the defense evidence is
readily assailable. The prosecution may succeed in urging two separate objections to the
defense testimony.
1. The First Objection: The Defense Expert Is Testifying in Response to a Hypothetical
Question, and the Defense Has Failed to Offer Evidence of the Hypothetically Assumed Facts
Assume that the prosecution expert has already testified to the inculpatory scientific
test, or that the prosecution succeeded in introducing a laboratory report of the test under a
hearsay exception such as the business entry doctrine. [FN52] When the expert testifies in
person, the expert will likely claim that he or she "habitually" [FN53] follows proper test
protocol or that they recall complying with the "standard" test procedure on the particular
occasion. [FN54] When the prosecutor offers a laboratory report, the report will probably
contain *67 little information about the test procedures. [FN55] If the report says anything
about test procedures, the report may contain the bald assertion that the analyst followed
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"correct" or "accepted" protocol. Given this state of the record, the accused may be hard
pressed to introduce defense rebuttal testimony about potential errors in the prosecution test
or the outcome a defense expert might have achieved on a retest. [FN56]
On this record, the defense expert must testify in response to a hypothetical question.
Under the modern law of expert opinion testimony, there are only three types of permissible
bases for an expert opinion: personally observed facts, hearsay reports customarily considered
by practitioners of the expert's specialty, or the assumptions in a proper hypothetical question.
[FN57] Although an expert may rest an opinion on factual data of which he or she has
firsthand knowledge, [FN58] in Trombetta situations, the defense expert lacks personal
knowledge of the manner in which the prosecution expert conducted the initial test. Most
jurisdictions now permit experts to base an opinion on certain types of hearsay information,
[FN59] but here the defense expert does not even have a hearsay report of any mistakes
committed by the prosecution expert. The defense counsel therefore must attempt to base the
defense expert's opinion on hypothetical assumptions about errors the prosecution analyst
might have committed or a retest the defense expert might have performed.
The record, however, contains no evidence suggesting, much less supporting a finding,
that the prosecution analyst erred in conducting the test. Nor is there any competent evidence
of a defense retest. In Trombetta situations, there can be no retest because the police have
already destroyed or contaminated *68 the physical evidence. An expert may base an opinion
on assumed facts in a hypothetical question only when there is admissible evidence of the truth
of the assumptions. [FN60] There need not be direct evidence of the truth of the assumption,
[FN61] but the assumption must at least be inferable from the evidence in the record. [FN62]
Although most decisions announcing the requirement for proof of the assumption are civil
cases, there are criminal decisions imposing this requirement. [FN63] If the court strictly
applies the requirement for proof of the hypothetically assumed facts, [FN64] the accused will
be unable to introduce the defense expert's rebuttal testimony.
2. The Second Objection: The Defense Expert's Opinion Lacks the Requisite Degree of
Certainty to be Admissible
Assume that the accused overcomes the first prosecution objection to the proposed
defense rebuttal testimony. Under the expert opinion rules, the prosecution can renew the
objection on an alternative ground that the defense expert's opinion lacks the required degree
of certainty to qualify for admission. In most instances, even if the trial judge allows the
defense expert to speculate about the impact of potential errors or the outcome of a possible
retest, the expert will be unable to testify that the error would probably have affected the
outcome of the initial inculpatory test or that a retest would certainly have been exculpatory.
The expert can testify only that the error might have distorted the initial test or that on a retest
an exculpatory outcome would have been a good possibility.
*69 If the defense expert proposes to testify along these lines, the prosecution may
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persuade the court to exclude the testimony. The traditional, common-law view required that
the expert vouch that his or her opinion was a reasonable scientific certainty or probability.
[FN65] Under this view, an opinion couched as a mere possibility is automatically
inadmissible. [FN66] The Federal Rules of Evidence do not expressly codify the traditional
view, [FN67] and many courts no longer enforce an invariable requirement that expert
opinions be stated as probabilities or certainties to be admissible. [FN68] In these
jurisdictions, there is no hard-and-fast, categorical rule excluding opinions stated as
possibilities.
A careful reading of the published opinions, however, indicates that, as in the case of
the erroneous report of Samuel Clemens' demise, the reports of the "death" of the traditional,
common-law view are exaggerated. Many courts continue to exclude opinions which fall short
of expressing a probability or certainty. [FN69] There are numerous civil [FN70] and criminal
[FN71] decisions permitting or mandating the exclusion of such opinions. These opinions
have even been excluded in jurisdictions which have adopted the Federal Rules of Evidence.
Some courts cite Federal Rule of Evidence 403 as authority. [FN72] Rule 403 authorizes the
trial judge to exclude relevant evidence when the judge concludes that the attendant probative
dangers substantially outweigh the probative value of the evidence. [FN73] These courts argue
that opinions couched as mere possibilities possess minimal probative worth. Other courts
look to Federal Rule 702 as authority. [FN74] Rule 702 provides that expert opinions are
admissible only when they will assist the trier of fact. [FN75] These courts contend that an
opinion stated as a mere possibility will be unhelpful to the jury.
Like the requirement for independent proof of hypothetically assumed facts, courts'
reluctance to admit expert opinions couched as possibilities may prove to be an
insurmountable barrier for an accused offering expert testimony to attack the weight of
prosecution scientific evidence. Before the defense *70 expert states a final opinion, the
prosecutor can take the witness on voir dire [FN76] and force the expert to concede that her
opinion falls short of probability or certainty. Armed with that concession, the prosecutor can
then argue that the opinion is inadmissible. It is predictable that, in some cases, the argument
will prevail. [FN77]
C. The Trial Judge Has Discretion to Exclude Defense Rebuttal Testimony When the
Trial Judge Concludes that the Probative Dangers Incidental to the Admission of the
Testimony Outweigh the Probative Value of the Testimony
The last subsection noted that the prosecutor may convince the trial judge to exclude
the defense rebuttal testimony solely because of the speculative character of the testimony.
Even if the judge is unwilling to bar the testimony on that ground alone, the speculative
character of the testimony gives rise to another prosecution argument. The prosecutor can
invoke the common-law legal relevance doctrine [FN78] or the modern codification of the
doctrine, Rule 403, in a Federal Rules jurisdiction. Rule 403 reads:
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Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence. [FN79]
Suppose that in our hypothetical the trial judge overrules the prosecutor's objection that
under the expert testimony rules, the defense witness' opinion is automatically inadmissible
because the opinion is too speculative. The prosecutor can nevertheless argue that the judge
should factor the speculative character of the testimony into a discretionary balancing under
Rule 403. Like the preceding prosecution objections, this argument has a decent prospect for
success.
1. The Probative Value Component of Rule 403 Balancing
The prosecutor is certainly correct in arguing that the judge may consider the
speculative character of the defense testimony in assessing the probative value of the
testimony. Virtually all courts and commentators agree that in gauging probative worth under
Rule 403, the judge may consider the facial vagueness or uncertainty of the proposed
testimony. [FN80] A certain or probabilistic opinion possesses more probative value than one
couched as a possibility. Thus, the unavoidably speculative character of the defense testimony
cuts against its admissibility under Rule 403.
*71 If the accused relies on testimony about the general unreliability of the scientific
technique rather than more particularized, speculative testimony about the mistakes the
laboratory technician might have committed, the prosecutor can argue that the circumstantial
character of the testimony diminishes its probative value. Courts and commentators also
concur that in Rule 403 analysis, the judge may consider the circumstantial character of the
evidence. [FN81] The ultimate issue to be resolved by the trier of fact is whether the
technician followed test protocol on the specific occasion when the technician analyzed the
physical evidence in question. In Trombetta cases, the accused rarely has direct evidence of an
error by the technician. General testimony about the untrustworthiness of the scientific
technique is merely circumstantial proof that the outcome of the initial police test was in error.
Even if the jury believes the general testimony, the jury must make a further inference as to
the specific test the technician conducted. The larger the number of intermediate inferences
the jury must draw, the greater the probability that the jury will commit inferential error, and
the lower the probative worth of the evidence. [FN82] To bolster its argument under Rule
403, the prosecution can point to favorable language in several New Jersey opinions. In one
case, the New Jersey Supreme Court stated that the probative value of general testimony about
the unreliability of the Drunkometer was "almost nil." [FN83] In another case, the same court
asserted that general testimony about the unreliability of the breathalyzer "has negligible
probative value." [FN84]
2. The Probative Danger Component of Rule 403 Balancing
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The judge's assessment of the probative value of the evidence is only the starting point
in Rule 403 analysis. The judge must also identify the probative dangers that may outweigh the
probative value. [FN85] In Trombetta cases, the prosecutor can frequently make a plausible
case that probative dangers substantially outweigh the probative worth of the defense
testimony. The probative dangers, listed in Rule 403, include the risks of "confusion of the
issues" [FN86] and "undue delay . . . [or] waste of time." [FN87]
In several cases in which prosecutors offered scientific evidence, prosecutors objected
to the admission of defense rebuttal testimony because that testimony was "confusing."
[FN88] In the Brayman case, the Washington Supreme Court noted that one of the state
legislature's motivations for amending that jurisdiction's drunk driving statutes was a desire "to
eliminate defense experts' testimony about blood-breath ratios." [FN89] The legislative history
of the statute suggested to the court that the legislature had a justifiable fear that such defense
*72 testimony would "confus[e] the jury." [FN90] The prosecutor's objection seems especially
credible in Trombetta cases when the defense expert attempts to testify about errors the police
technician might have committed or the outcome of a possible retest. Jurors could
conceivably find it difficult to sort the testimony about what the technician did, what the
technician might have done, and what a second analyst could have done during a retest.
A prosecutor might also argue that the presentation of the defense rebuttal testimony
would be time-consuming. In Brayman, the court indicated that the state legislature was also
concerned that attacks by defense experts on the weight of prosecution scientific evidence
"dragg[ed] things out" [FN91] at trial. Trial and appellate courts alike are familiar with the
horror stories of drawn out "battles of the experts" at trial. [FN92] In one case, the accused
objected to the admission of an electrophoretic analysis of dried bloodstains. [FN93] The
testimony about the reliability of electrophoresis consumed eight days of court time. [FN94]
In another case involving a challenge to the admissibility of moving radar speedmeter
evidence, the scientific testimony about the trustworthiness of moving radar required "over
2,000 pages" of trial transcript. [FN95] In the most famous DNA case to date, People v.
Castro, [FN96] there were "approximately five thousand pages" of testimony and argument
over the reliability of the DNA evidence, in particular the manner in which the laboratory
technicians applied DNA typing technology in that case.
If the prosecutor persuades the trial judge to exercise discretion under Rule 403 to
exclude defense rebuttal testimony, on appeal the accused will find it difficult to persuade an
appellate court to reverse. The appellate courts give the trial judge broad latitude [FN97] and
accord great deference to the trial judge's decision. [FN98] The appellate courts appreciate that
balancing probative value against probative danger is a Procrustean task. [FN99] The trial
judge cannot quantify the competing considerations. [FN100] The trial judge is in the position
of a metaphysician weighing intangibles. [FN101] As a practical matter, appellate courts rarely
second-guess trial court decisions under Rule 403. [FN102]
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*73 II. AN ACCUSED'S CONSTITUTIONAL RIGHT TO PRESENT EXPERT
TESTIMONY ATTACKING THE WEIGHT OF PROSECUTION SCIENTIFIC
EVIDENCE
In Trombetta, the Supreme Court proceeded on the assumption that as a general
proposition, even when the police innocently destroy or contaminate physical evidence after an
initial inculpatory scientific test, the accused will have a fair opportunity to rebut the
inculpatory test result at trial. The Court assumed that the rebuttal testimony would be
admissible. As Section I demonstrated, however, in many cases the Court's assumption will
prove to be mistaken. The unavailability of the physical samples for retest forces the defense
to fall back on two types of rebuttal evidence: general testimony about the unreliability of the
scientific technique in question and more specific, but speculative testimony about the initial
test and a potential retest. These kinds of rebuttal testimony are vulnerable to prosecution
objections under the statutory and decisional evidence law in many jurisdictions.
Defense counsel recently began to realize the evidentiary problems caused by
Trombetta. To surmount those problems, they are now arguing that they have a constitutional
right to override the statutory and decisional evidence law in their jurisdiction and introduce
the rebuttal testimony. Most courts have flatly rejected this argument. [FN103] A few judges,
however, have agreed that the defense argument has merit. By construing state statutes to
permit the admission of defense rebuttal evidence, some courts have endeavored to moot the
defense argument. [FN104] In other cases, dissenters argued in favor of the existence of such
a constitutional right. [FN105] In still other cases, the courts recognized the right in dictum.
[FN106] Most importantly, however, a handful of cases from Alaska, California, and Hawaii
squarely hold that the accused has this constitutional right. [FN107]
The thesis of this article is that this emerging line of authority reaches the right result.
In Trombetta, the Court expressed its concern for the maintenance of a fair, adversary balance
in the criminal justice system. The Court believed *74 that the balance could be maintained
because the accused supposedly has "alternative means" available to rebut the prosecution
evidence. [FN108] But as we have seen, the prosecution can upset the balance by blocking the
admission of defense rebuttal testimony in many jurisdictions. The most direct method of
reinstating the balance is to constitutionalize the accused's right to present the rebuttal
evidence. The cases supporting this right have taken that step.
However, to date all the cases in the line of authority suffer from a common weakness:
the failure to articulate a sound doctrinal basis for the recognition of the constitutional right.
In one case, the court summarily announced that the exclusion of the rebuttal evidence was
"unconstitutional." [FN109] Another court was content to declare in conclusory fashion that
the exclusion denied the accused "a fair trial." [FN110] At most, the courts invoked "due
process" as the source of this constitutional right. [FN111] The balance of this article attempts
to place this line of authority on a sounder doctrinal footing by rationalizing the result under
the accused's implied sixth amendment right to present reliable, critical evidence. [FN112] The
12
following subsection presents the prima facie case for extending the accused's sixth
amendment right to defense testimony rebutting prosecution scientific evidence. The second
subsection demonstrates that the courts have already applied the accused's sixth amendment
right to override the very types of evidentiary objections which prosecutors are now invoking
to bar the admission of defense rebuttal testimony.
A. The Prima Facie Case for Extending the Accused's Sixth Amendment Right to
Defense Expert Testimony Attacking the Weight of Prosecution Scientific Evidence
Before 1967, statutory and common-law evidentiary rules were generally invulnerable to
constitutional attack. The Supreme Court had not identified a constitutional theory for
evaluating the validity of the rules. In 1967, however, the Court rendered its landmark decision
in Washington v. Texas. [FN113] Washington was charged with murder. Another man named
Charles Fuller had already been convicted of the same killing. At his trial, Washington
attempted to call Fuller as a witness. Washington's attorney made an offer of proof that
Fuller's testimony would exculpate Washington. The prosecutor, however, objected on the
basis of two state statutes. The statutes provided that persons charged or convicted as
co-participants in the same offense could not testify for one another. The trial judge sustained
the prosecutor's objection, and a conviction followed.
In Washington, the Court held that the application of the statutes to bar Fuller's
testimony violated Washington's constitutional rights. Chief Justice Warren wrote for the
majority. As a threshold matter, Warren held that the fourteenth amendment due process
clause incorporates the sixth amendment *75 compulsory process guarantee. Warren next
ruled that as a necessary implication from the express compulsory process guarantee, the
accused has an implied right to present critical exculpatory testimony. Warren used reductio ad
absurdum reasoning to justify the ruling; he asserted that it would be nonsensical to grant an
accused a right to summon witnesses whom he could not even call to the witness stand. The
Chief Justice stated that under the sixth amendment, the accused has a constitutional "right to
put on the stand a witness who [is] physically and mentally capable of testifying to events that
he has personally observed, and whose testimony [is] relevant and material to the defense."
[FN114]
Washington dealt with a broad incompetency doctrine which purported to bar
testimony by certain types of defense witnesses altogether. Because the case involved a
blunderbuss incompetency doctrine, the Chief Justice's opinion left unanswered the question
of whether the new sixth amendment right spends its force by placing the witness on the
stand. "Did the right expend its force when it placed the defense witness on the stand? After
the [accused] seated his witness, was he then bound by whatever exclusionary rules the
legislatures and courts chose to apply" to the substance of the witness' testimony? [FN115] Or
could the accused also invoke the right to attack evidentiary rules with a more limited
exclusionary impact than an incompetence doctrine -- rules such as hearsay which regulate the
content of a witness' testimony? Many lower courts answered that question in the negative.
13
[FN116] As the Illinois Supreme Court stated in a post-Washington decision, "[t]here is no
suggestion in Washington that the admission of inadmissible hearsay is constitutionally
required." [FN117]
The Supreme Court confounded the lower courts by its 1973 decision in Chambers v.
Mississippi. [FN118] Like Washington before him, Chambers stood trial for murder. His
theory of the case was that the real murderer was Gable McDonald. McDonald told three
acquaintances that he perpetrated the crime. At trial, Chambers attempted to introduce the
three acquaintances' description of McDonald's statements. Citing the hearsay rule, the
prosecutor objected. The defense countered that McDonald's statements fell within the
declaration against interest hearsay exception. The prosecutor, however, contended that
Mississippi hearsay doctrine adhered to the hoary, common-law view admitting only
declarations against pecuniary or proprietary interest. The prosecutor argued that McDonald's
statements were inadmissible because they disserved only his penal interest. The trial judge
sustained the objection.
After the state courts affirmed Chambers' conviction, the Supreme Court granted
certiorari to decide, inter alia, [FN119] whether the trial judge's exclusion of the hearsay
evidence was unconstitutional. The Court specifically cited *76 Washington [FN120] as
authority for its conclusion that the trial judge's evidentiary ruling was constitutionally infirm.
Writing for the majority, Justice Powell found that McDonald's statements were demonstrably
reliable. The patently disserving character of the statements, their sheer number, and the
presence of some corroboration of McDonald's guilt "provided considerable assurance of [the]
reliability" of McDonald's statements. [FN121] Further, given Chambers' theory of defense,
the excluded hearsay was "critical." [FN122]
In subsequent decisions, the Supreme Court and the lower courts have elaborated on
the scope of this implied sixth amendment right. [FN123] The courts have gone to great
lengths in enforcing that right. The courts, for example, have allowed accused to introduce
testimony otherwise barred by the attorney-client privilege, [FN124] the medical privileges,
[FN125] rape shield laws, [FN126] and various restrictions on the admissibility of
impeachment evidence. [FN127]
Some of the cases recognizing the accused's constitutional right to present rebuttal
testimony attacking prosecution scientific evidence make the sweeping assertion that the
accused has a "constitutional right to present all relevant evidence in his defense to the crime
with which he is charged." [FN128] Although the courts have gone far in protecting the
accused's sixth amendment right, that assertion overstates the extent of the right. It would
trivialize that right -- and revolutionize criminal evidence law -- to extend the right to "all
relevant" defense evidence. The right is more limited. To trigger the right, the accused must
establish two things. First, the accused must show that the evidence is highly material to the
case. Courts generally confine the scope of the right to important or "crucial" evidence.
[FN129] The trend in the case law is to apply the constitutional right to an item of defense
14
evidence only if the item might generate reasonable doubt and affect the outcome of the trial.
[FN130] In addition, the accused must make at least a minimal showing that the evidence is
trustworthy. [FN131]
1. The Materiality Prong
In many cases, an accused offering rebuttal evidence to attack prosecution scientific
evidence will be able to make the requisite showing. In a high percentage of the cases, the
accused can demonstrate the requisite materiality. Crime laboratory facilities are overburdened.
[FN132] Prosecutors typically do not *77 go to the length of obtaining scientific evidence
unless the evidence will help the prosecutor prove an important element of the charged
offense. If the prosecution relies heavily on scientific evidence to prove such an element, even
minimally probative defense rebuttal testimony can generate the reasonable doubt the accused
needs to gain an acquittal.
In Judge Weinstein's famous survey of the federal trial judges in the Eastern District of
New York, he attempted to determine their understanding of the standard of proof beyond a
reasonable doubt. [FN133] The overwhelming majority responded that they equated the
standard with a probability exceeding eighty- five percent. A significant number of the judges
indicated that in their mind, the standard requires proof exceeding a ninety percent probability.
Defense rebuttal testimony raising a fifteen percent or even ten percent probability of
innocence might result in an acquittal. Defense rebuttal evidence raising any significant doubt
about the reliability of the prosecution's scientific testimony should therefore satisfy the
materiality prong of the test for triggering the accused's implied sixth amendment right.
Often, the accused will be able to establish such a significant doubt. There is a massive
amount of hard evidence that misanalysis is common at forensic laboratories. [FN134] The
published proficiency studies document an alarmingly high error rate. The Forensic Science
Foundation conducted proficiency tests of questioned document examiners. [FN135] The
percentages of error were in the double figures rather than in the single digits. [FN136] The
incidence of error was so high that defense rebuttal testimony about these error rates could
easily give a rational juror "cause for concern" if the prosecution relies primarily or exclusively
on questioned document testimony to prove the defendant's identity as the perpetrator.
[FN137] The prosecution often offers evidence of an immunoassay test of the accused's urine
to establish that the accused had consumed a contraband drug. According to two researchers
for the Office of Technology Assessment of the United States Congress, the proficiency
studies of the immunoassay laboratories reveal that "error rates continue to be high." [FN138]
A study conducted by the Centers for Disease Control (C.D.C.) yielded especially disturbing
findings. [FN139] One of the laboratories participating in the C.D.C. study reported
erroneous results on 66.5 percent of the 160 samples analyzed. Whenever the defense can
demonstrate such high error rates for the scientific technique the prosecution is relying upon,
the accused meets the materiality prong for invoking the sixth amendment right.
15
It is true that in almost all Trombetta cases, the defense expert must stop short of
stating an opinion couched as a certainty or probability. But because the prosecution has the
onerous burden of establishing guilt beyond a *78 reasonable doubt, [FN140] the accused can
be acquitted by establishing even a good possibility of innocence. When the prosecution relies
heavily on its scientific evidence to prove an essential element of the charged offense, a
defense expert's opinion couched as a possibility can easily suffice to raise a reasonable doubt.
The opinion would thus satisfy the materiality prong.
2. The Reliability Prong
The second prong mandates that the accused come forward with evidence establishing
the trustworthiness of the rebuttal testimony. The lower courts split on the question of the
required showing of reliability. [FN141] Some courts use Chambers as a benchmark and
demand an impressive showing that the defense evidence in question is trustworthy. [FN142]
In Chambers, the inference of the reliability of McDonald's hearsay statements was
overpowering; several factors, including the number of McDonald's incriminating statements,
pointed to the conclusion that his statements were trustworthy. The better view, however, is
the position championed by Professor Westen. Professor Westen, the leading contemporary
authority on the sixth amendment, has argued that the standard is laxer, essentially equivalent
to the standard the Court employs to determine the admissibility of prosecution evidence
under the confrontation clause. [FN143] In Chambers, the Court cited some of its earlier
decisions evaluating the trustworthiness of prosecution hearsay under the confrontation clause
as examples of showings of reliability sufficient to trigger the accused's sixth amendment right.
[FN144] "Chambers stands for the proposition that evidence that is sufficiently reliable by
constitutional standards to be introduced 'against' the accused is sufficiently reliable to be
introduced 'in his favor."' [FN145] When accused have challenged the reliability of
prosecution evidence under the confrontation clause, the Court has accepted relatively minimal
showings of the trustworthiness of the evidence. [FN146]
As in the case of the materiality prong, the accused will often be able to satisfy the
reliability test for triggering the accused's sixth amendment right. Suppose that the accused
offers a defense expert's testimony about the general unreliability of a scientific technique such
as evidence of the technique's inherent margin of error. [FN147] The accused can validate the
testimony by eliciting the defense expert's testimony that many, well-designed experiments
have verified the margin of error. [FN148] Or assume that the accused attempts to *79
introduce a defense expert's more specific testimony that the police analyst might have
committed a particular type of error in conducting the test and that that error might have
skewed the result. The accused could establish the reliability of this testimony by showing that
in proficiency studies conducted by reputable testing agencies such as the Centers for Disease
Control, the particular error is commonplace and frequently results in erroneous outcomes.
B. The Application of the Accused's Sixth Amendment Right to the Types of
Evidentiary Doctrines Which Prosecutors Invoke to Block the Admission of Defense
16
Rebuttal Testimony
Even though the accused can construct a prima facie case for extending the sixth
amendment right to the defense rebuttal testimony, the trial judge can sometimes justifiably
exclude the testimony. The judge's conclusion that the accused has satisfied the materiality and
reliability prongs does not end the analysis. The accused's sixth amendment right is not
absolute. [FN149] In the Washington-Chambers line of authority, the Court has developed a
balancing test to determine whether the accused's sixth amendment right overrides the
jurisdiction's statutory and common-law evidentiary rules. [FN150] After the accused makes
out a prima facie case for invoking the right, the judge must identify the competing
government interest, that is, the rationale for the evidentiary rule. The judge then balances that
interest against the accused's right. [FN151] Thus, even when the accused can make out a
prima facie case, it is not a foregone conclusion that the accused's sixth amendment right will
prevail over the evidentiary rules cited as bases for excluding defense rebuttal testimony. For
several reasons, however, the accused's contention has an excellent chance of success.
One reason is the prevailing view that when the judge has a bona fide doubt about the
proper way to strike the balance between the competing interests, "[t]he scales . . . are weighted
in favor of the accused." [FN152] One commentator observed that the Supreme Court has
"consistently" struck the balance in the accused's favor. [FN153] In the decided cases, the
scales appear to be "loaded" in the accused's favor. [FN154] The appellate courts send trial
judges a clear signal that in a "close" case, the judge should admit the defense testimony.
[FN155] The Supreme Court twice upheld the accused's right even though doing so *80
necessitated overriding an evidentiary rule that was then the majority rule in the United States.
[FN156] The cases teach that "doubts or borderline cases should be resolved in [the accused's]
favor." [FN157] While still a circuit judge, Justice Kennedy wrote that the prior cases "tip the
scales in favor" of the accused's sixth amendment right. [FN158]
Another reason is that the courts have already invoked the right to override the very
types of evidentiary rules that prosecutors invoke to block the admission of defense rebuttal
testimony in Trombetta cases.
1. Logical Relevance Rules
As Section I pointed out, in some jurisdictions the courts developed judicial notice and
statutory construction theories for excluding defense testimony about the general unreliability
of scientific techniques employed by police criminalists. These courts find a conclusive
legislative or judicial determination that the technique is valid and rule the defense testimony
"irrelevant."
When the defense testimony passes muster under the materiality and reliability prongs,
that ruling violates the accused's sixth amendment right. Concededly, government branches
such as the legislature and judiciary have wide latitude in defining crimes. [FN159] A
17
legislature can decide, for example, to criminalize the act of driving with a certain breath
alcohol concentration as well as driving with a particular blood alcohol level. [FN160]
However, even if the legislature defines the criminal offense as operating the vehicle with a
certain breath alcohol concentration, the breath test itself is not an element of the offense. It is
merely evidence which the prosecution uses to prove the accused's commission of the
forbidden act. [FN161]
It violates the accused's sixth amendment right to immunize prosecution evidence from
rebuttal by defense testimony which satisfies the materiality and reliability prongs. When
Congress passed on the proposed Federal Rules of Evidence, Congress assumed that it would
be unconstitutional to instruct a jury that the jury must accept as conclusive a judicially noticed
proposition such as the validity of a scientific technique. Congress amended Federal Rule
201(g) to explicitly state that jurors are "not required . . . to accept as conclusive any *81 fact
judicially noticed." [FN162] Congress added the amendment because it believed that treating a
judicially noticed fact as conclusive in a criminal case would be "contrary to the spirit of the
Sixth Amendment. . . . " [FN163] Several courts have voiced the same belief. [FN164]
Most importantly, the Supreme Court's 1986 decision in Crane v. Kentucky [FN165]
lends support to the belief. In Crane, the accused made a pretrial motion to suppress his
alleged confession. At the hearing, the accused introduced evidence of the circumstances
surrounding the statement. The trial judge denied the motion. At trial, the prosecution
introduced the confession. The accused then attempted to introduce some of the same
evidence to attack the weight of the confession. The prosecutor objected to the admission of
the evidence on relevance grounds, and the trial judge sustained the objection.
On certiorari, the Supreme Court reversed. Citing Trombetta at the outset of its
opinion, the Court emphasized that the accused has a "fundamental constitutional right to a
fair opportunity to present a defense." [FN166] The Court then cited both Washington and
Chambers for the proposition that the general constitutional right subsumes the more specific
right to present favorable evidence. [FN167] The Court independently reviewed the question
of whether the defense evidence in question was relevant to the evaluation of weight to be
given the accused's confession. [FN168] After its de novo review of the evidence, the Court
concluded that the evidence was logically relevant and that its exclusion amounted to
constitutional error.
Crane is a significant extension of the Chambers line of authority. In cases such as
Chambers and Washington, the excluded defense evidence was logically relevant to the
historical merits of the case. In both cases, the evidence tended to show that someone other
than the accused was the perpetrator. In Crane, however, the excluded evidence had no
relevance to the historical merits. It was relevant only to attack the weight of prosecution
evidence, the accused's confession. Crane thus stands for the proposition that the accused's
sixth amendment right attaches to defense testimony which is relevant only to the rebuttal of
damning prosecution evidence. Under Crane, the right therefore applies to defense expert
18
testimony offered to attack the weight of prosecution scientific evidence. Moreover, under
Crane the court is obliged to make an independent assessment of the logical relevance of the
defense evidence. The Crane Court undertook a de novo review of the relevance of the
evidence; [FN169] and when the issue arose in other contexts, the Court has exercised the
right to *82 independently assess the logical relevance of evidence. [FN170] Thus, a court
cannot shirk that responsibility and routinely defer to an earlier determination -- either judicial
or legislative -- that the evidence in question is irrelevant.
2. Expert Testimony Rules
Just as the accused can rely on the sixth amendment right to attack the exclusion of
defense evidence as irrelevant, the accused can invoke the right to invalidate the exclusion of
the evidence under the expert testimony rules. After Chambers, numerous courts invoked the
right to mandate the admission of various types of expert opinion testimony. A few courts
recognized an accused's right to introduce exculpatory polygraph test results. [FN171] A larger
number of courts relied on the sixth amendment right in holding that an accused had a
constitutional right to introduce various forms of psychiatric and psychological testimony.
[FN172]
he Supreme Court's 1987 decision in Rock v. Arkansas [FN173] strengthens the
argument for applying the sixth amendment to restrictions on the admissibility of expert
testimony. The accused, Vickie Rock, was charged with homicide. Before trial, she had
difficulty remembering the details of the shooting. She twice underwent hypnosis to revive her
memory. Only after hypnosis did she remember the critical detail that her gun had accidentally
misfired. The prosecutor filed a pretrial motion to exclude the accused's hypnotically refreshed
testimony. The trial court granted the motion, and the state supreme court affirmed. The state
court concluded that hypnotically enhanced testimony is so untrustworthy that it is per se
inadmissible. [FN174] Per se inadmissibility was apparently the majority view in the United
States at the time. [FN175]
On appeal, the accused challenged the exclusion of her testimony. The Supreme Court
sustained her challenge. [FN176] Justice Blackmun wrote for the majority. He began his
analysis by citing Washington. [FN177] Under Washington, the accused has a right to call
witnesses, including herself. [FN178] The Justice next conceded that the state has a legitimate
interest in protecting the integrity of the fact-finding process by excluding unreliable evidence.
He also frankly admitted *83 that "[t]he use of hypnosis in criminal investigations . . . is
controversial, and the current medical . . . view of its appropriate use is unsettled." [FN179]
After reviewing the scientific literature, however, he concluded that the prosecution failed to
show that "hypnotically enhanced testimony is always so untrustworthy . . . that it should
disable a defendant from presenting her version of the events." [FN180]
Since the Court's decision in Rock, the lower courts and commentators have assumed
that the accused's sixth amendment right applies to scientific evidence. Some commentators
19
have expressly concluded that Rock applies to scientific techniques other than hypnotic
memory enhancement. [FN181] Courts have also cited Rock as the basis for admitting novel
types of defense expert testimony such as evidence of a portable breathalyzer test. [FN182]
It is, however, possible to limit Rock to its facts. In Rock, the evidence the accused
attempted to present to the jury was her own lay testimony about the shooting. She did not
attempt to introduce any expert testimony about the reliability of the hypnotic enhancement
technique. But it would be illiberal to limit Rock in this fashion. The primary focus of Justice
Blackmun's opinion was the state of the scientific record on the reliability of testimony
produced by hypnotic enhancement. His immediate concern may have been the reliability of
the testimony produced in court, but in turn the reliability of that testimony depended on the
validity of the scientific methodology used to produce the testimony.
It is especially appropriate to apply the accused's sixth amendment right to defense
rebuttal testimony. Repeatedly, the courts assert that the primary danger posed by expert
testimony is that the lay jurors will overestimate the probative value of the testimony. [FN183]
The California Supreme Court voiced the fear that expert testimony may "cast a spell" over
the jury. [FN184] The same court also stated that a "misleading aura of certainty . . . often
envelops a . . . scientific process." [FN185] The District of Columbia Court of Appeals
asserted that jurors often attribute a "mystic infallibility" to scientific evidence. [FN186]
Similarly, the Maryland Court of Appeals wrote that jurors naively overestimate the objectivity
and certainty of expert testimony. [FN187]
The courts' concern about this supposed danger helps explain many of the restrictions
on the admissibility of expert testimony. Section I pointed out that *84 in some jurisdictions,
prosecutors can object to defense testimony on the ground that the defense expert's opinion
lacks the requisite degree of certainty. The requirement for a certain degree of certainty in the
expert opinion relates to this supposed danger:
[The courts] fear that the lay jurors will assume that virtually all scientific testimony is
infallible. If we work from that premise, it makes sense to limit expert testimony to opinions
that merit the weight we think that jurors will accord the opinions. If jurors are likely to give
scientific evidence certain or conclusive weight, it is arguable that only scientific opinions of
that degree of certitude should be admitted. [FN188]
Similarly, the limitations on the use of hypothetical questions are partially attributable to
this fear. Many, if not most, courts assume that jurors tend to uncritically credit the ultimate
opinion stated by an expert; [FN189] awed by the witness' stature as an expert, the jurors may
be inclined to accept the ultimate opinion merely because ipse dixit. Suppose that there is no
evidence of the truth of a particular assumption underlying the expert's opinion. The courts
suspect that even if an expert acknowledges that his opinion rests on a purely hypothetically
assumed fact, the jury might accept the opinion. The net result would be that the jury would
overvalue the opinion. Like the courts' insistence on opinions couched as probabilities or
20
certainties, the requirement for proof of the assumed facts represents an effort to ensure that
the expert opinions admitted in court possess the great weight which jurors presumably ascribe
to them. Before the court will permit an expert to opine based on an assumed fact, there must
be some evidence that the assumption is correct.
Thus, the overarching concern inspiring the expert testimony rules is preventing the
jury from overestimating the probative value of expert testimony. It is Catch 22 reasoning to
invoke the rules to exclude defense rebuttal testimony. The accused's rebuttal testimony does
not present that risk. The risk is most acute when the prosecution introduces scientific
evidence and the defense is denied an opportunity to offer expert testimony to rebut the
scientific evidence. If unrebutted, prosecution scientific evidence presents a grave risk that the
jury will overvalue the evidence. The exclusion of the defense rebuttal testimony compounds
the risk. But, the admission of the testimony will counteract the risk. In sum, when defense
rebuttal testimony satisfies the materiality and reliability prongs for triggering the accused's
sixth amendment right, it will usually be wrong-minded to mechanically invoke the expert
testimony rules to bar the defense testimony.
3. The Legal Relevance Doctrine Under Rule 403
Like the logical relevance and expert testimony rules, the legal relevance doctrine has
succumbed to attack under the accused's sixth amendment right. [FN190] The best example is
the Supreme Court's 1988 decision in Olden v. *85 Kentucky. [FN191] Olden, a black man,
was charged with raping a Ms. Matthews, a Caucasian woman. At trial, the accused offered
evidence that Ms. Matthews was having an affair with another black man, Mr. Russell. The
accused attempted to introduce the evidence to bolster his theory that Ms. Matthews had
consented to intercourse with him, later realized that Russell would be jealous, and finally
"concocted the rape story to protect her relationship with Russell. . . . " [FN192]
The prosecutor objected to the defense evidence on legal relevance grounds. The trial
judge sustained the objection. The trial judge stated that the evidence had extreme potential
for prejudice in the technical sense under the legal relevance doctrine. If the evidence were
admitted, it might generate "extreme prejudice against Matthews" [FN193] in the jury's mind
and tempt them to decide the case on an improper basis. [FN194] A bigoted juror might
improperly discount Ms. Matthews' credibility simply because she was involved in an interracial
affair. The Court acknowledged that in applying the legal relevance doctrine, a trial judge has a
measure of discretion. Nevertheless, the Court held that the exclusion of the defense evidence
was unconstitutional. The Court emphasized that Matthews' testimony was "central, indeed
crucial, to the prosecution's case." [FN195] The Court struck the balance in the accused's
favor because the evidence in question had great potential to demonstrate the falsity of
Matthews' testimony. [FN196]
Olden makes it far more difficult for trial judges to justify the exclusion of defense
rebuttal evidence under the rubric of legal relevance. In Olden, the trial judge's fear of a
21
bigoted reaction by jurors was plausible. If that reaction had materialized, a wrongful acquittal
could have resulted. Thus, the prosecution had a significant stake which might have
countervailed over the probative value of the excluded defense evidence. The Olden Court's
decision to mandate the admission of the evidence reflects the value which even the members
of the Rehnquist Court attach to the accused's "fundamental" [FN197] right to present a
defense. As one court remarked, "[t]he states' interests in the evidentiary rules at issue in
Chambers and Washington were surely more significant than . . . purely procedural interest[s]"
[FN198] such as the consumption of time entailed in the presentation of rebuttal testimony by
defense experts. The countervailing probative dangers listed in Rule 403 are legitimate
considerations; but standing alone, they will rarely override the accused's interest in presenting
rebuttal testimony that satisfies the materiality and reliability prongs.
*86 III. CONCLUSION
California v. Trombetta [FN199] is one of the Supreme Court's most famous criminal
law decisions in the past decade. Much has been written about the decision by commentators
[FN200] and other courts. [FN201] In these analyses, the commentators and courts have
conceived of Trombetta as exclusively a discovery decision. The evidentiary implications of
the decision, however, have been almost completely ignored. The purpose of this article has
been to highlight those implications. In Trombetta, the Court characterized the lost defense
evidence as speculative. The Court, however, failed to foresee that prosecutors would seize
upon the speculative character of defense rebuttal testimony as a basis for objecting to the
introduction of the testimony the Court assumed to be routinely admissible.
There are undoubtedly those who would argue that in Trombetta fact situations, the
fairest solution is to exclude the prosecution's scientific evidence whenever police conduct
prevents an independent retest of the physical evidence by defense experts. However, our
hypothesis is that the police acted in good faith, the initial test result was inculpatory, and the
exculpatory value of the lost defense evidence is highly conjectural. Under these facts, the
Trombetta Court is probably correct in concluding that the exclusion of highly relevant
scientific evidence is too Draconian.
The best analogy may be the dead man's or survivors' evidence acts. The early English
view was that parties were incompetent to testify. [FN202] At first, the American courts
adhered to that view. In the middle of the 19th century, however, there were sweeping
legislative reforms in most states. [FN203] The legislature generally abolished the
incompetency. However, "a compromise was forced upon the reformers" [FN204] -- the dead
man's acts. The acts provided that if one party to a transaction such as the formation of a
contract was dead at the time of trial, the other party was incompetent to testify against the
decedent's estate about the transaction. The argument ran that since death had silenced one
party, in fairness the law should silence the other. [FN205]
In time, most students of the law of evidence came to share Bentham's assessment that
22
the dead man's acts were "blind and brainless." [FN206] From a systemic perspective,
Bentham was certainly correct. The death of one party deprived the trier of fact of one of the
most important sources of information *87 about the transaction. The dead man's acts
aggravated the problem by preventing the jury from hearing from the other key source of
information, the surviving party. It would, however, be a mistake to entertain a naive faith in
the "curative" power of additional evidence: [FN207] Presenting a trier of fact with more and
more marginally relevant information does not necessarily improve the caliber of the final
decision. In some cases, deluging the trier with additional information may lower the quality of
the ultimate factual findings. But denying the trier the benefit of two of the potentially most
helpful sources of information will rarely advance the search for truth. On balance, the dead
man's acts were bad policy because they deprived the trier of fact of such valuable information.
Similarly, it would be unwise to exclude evidence of a highly relevant scientific analysis of
physical evidence, conducted by a police laboratory, to compensate for the defense's inability
to retest physical evidence which the police innocently disposed of or contaminated.
The optimum solution is the outcome proposed by this article: maintaining a fair,
adversarial balance in Trombetta cases by extending the accused's sixth amendment right to the
defense rebuttal evidence. When the rebuttal evidence passes muster under the materiality and
reliability prongs, the accused has a crucial interest in submitting that evidence to the trier of
fact. After Crane v. Kentucky, [FN208] it is clear that the accused's right attaches to testimony
which is logically relevant only to rebutting incriminating prosecution evidence. In striking the
balance under the sixth amendment test which the Court has announced, the judge admittedly
must consider the competing considerations underlying the evidentiary rules cited in the
prosecution's objection. However, those considerations should rarely be potent enough to
override the accused's stake. It is particularly inapt to invoke the expert testimony rules to bar
the admission of the defense evidence. Many of those rules are inspired by the courts' fear of
the risk that the trier of fact will overvalue scientific testimony. That risk is greatest precisely
when the judge admits the prosecution evidence but excludes the defense expert's rebuttal.
When the prosecutor objects to material, reliable defense testimony, the prosecutor is seeking
"the perpetuation of an unfair advantage." [FN209] In our adversary system of criminal
justice, [FN210] that type of advantage is both intolerable and unconstitutional.
FNa Professor of Law, University of California, at Davis, California; former chair,
Evidence Section, American Association of Law Schools.
FNaa Scofield & Volk, Sacramento, California. The authors would like to express their
appreciation to Mr. Joseph de Ulloa, Class of 1991, and Mr. David Kornbluh, Class of 1992,
University of California, at Davis Law School, who served as the authors' research assistants on
this project.
FN1. People v. Lepine, 215 Cal. App. 3d 91, 101, 263 Cal. Rptr. 543, 548 (1989).
FN2. 467 U.S. 479 (1984).
23
FN3. Id. at 482.
FN4. Id.
FN5. Id. at 485.
FN6. Id. at 489.
FN7. Id.
FN8. Id.
FN9. Id.
FN10. In Arizona v. Youngblood, 488 U.S. 51, 57 (1988), the Court commented on the
value of the lost evidence in Trombetta. The Court stated that "no more can be said than that
it could have been subjected to tests, the results of which might have exonerated the
defendant." Id. See also Note, Arizona v. Youngblood: Adherence to a Bad Faith Threshold
Test Before Recognizing a Deprivation of Due Process, 34 SO. DAK. L. REV. 407 (1989)
(noting that the in Trombetta and Youngblood, the Court emphasized the speculative
character of the lost evidence).
FN11. Trombetta, 467 U.S. at 490.
FN12. Id.
FN13. Id.
FN14. Id.
FN15. Id.
FN16. Id.
FN17. Id.
FN18. Id.
FN19. Id. See generally S. LANDSMAN, READINGS ON ADVERSARIAL
JUSTICE: THE AMERICAN APPROACH TO ADJUDICATION (1988); Younger,
Sovereign Admissions: A Comment on United States v. Santos, 43 N.Y.U. L. REV. 108
(1968); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69
24
YALE L.J. 1149 (1960).
FN20. 488 U.S. 51.
FN21. For a general discussion of genetic marker tests, see P. GIANNELLI & E.
IMWINKELRIED, SCIENTIFIC EVIDENCE 565-632 (1986).
FN22. 488 U.S. at 55.
FN23. Id.
FN24. Id. at 56.
FN25. Id. The Court notes, however, that "here, unlike Trombetta, the State did not
attempt to make any use of the materials in its own case in chief." Id.
FN26. Id.
FN27. Id. at 59.
FN28. Lepine, 215 Cal. App. 3d at 101, 263 Cal. Rptr. at 548.
FN29. Id. at 96, 263 Cal. Rptr. at 545-46.
FN30. E.g., Barcott v. State, 741 P.2d 226, 228 (Alaska 1987).
FN31. Davis v. Commonwealth, 8 Va. App. 291, 293-94, 381 S.E.2d 11, 12 (1989).
FN32. Trombetta, 467 U.S. at 490.
FN33. Kurzman & Fullerton, Drug Identification, in SCIENTIFIC AND EXPERT
EVIDENCE 521, 554-56 (E. Imwinkelried 2d ed. 1981); Risinger, Denbeaux & Saks,
Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting
Identification 'Expertise,' 137 U. PA. L. REV. 731, 770-71 (1989).
FN34. Lepine, 215 Cal. App. 3d at 94, 263 Cal. Rptr. at 544 (the prosecution objected
to the defense evidence as "irrelevant, speculative and potentially confusing").
FN35. Id. See also People v. Thompson, 215 Cal. App. 3d Supp. 7, 265 Cal. Rtpr. 105,
(Dept. Super. Ct. 1989).
FN36. FED. R. EVID. 401.
25
FN37. State v. Brayman, 110 Wash. 2d 183, 191, 205, 751 P.2d 294, 298, 305 (1988).
FN38. Imwinkelried, The Basic Legal Challenges to Per Se Statutes: Admissibility,
Sufficiency and Constitutionality, 1 D.W.I.J. 77, 90-93 (July/Aug. 1986).
FN39. Id. at 92.
FN40. Id.
FN41. Id. at 91-92.
FN42. Fuenning v. Super. Ct. in & for Cty. of Maricopa, 139 Ariz. 590, 596, 680
P.2d 121, 127 (1984) ("the defendant may attack the accuracy of the test on any relevant
ground, including inherent margin of error"); Burg v. Municipal Court, 35 Cal. 3d 257, 266
n.10, 673 P.2d 732, 737 n.10, 198 Cal. Rptr. 145, 149 n.10 (1983); Lepine, 215 Cal. App. 3d at
94, 100, 263 Cal. Rptr. at 544, 548-49; Thompson, 215 Cal. App. 3d Supp. at 13, 265 Cal. Rptr.
at 108 ("several states . . . allow general evidence refuting the accuracy and reliability of breath
test readings to go to the trier of fact"); People v. Cortes, 214 Cal. App. 3d Supp. 12, 18, 263
Cal. Rptr. 113, 115-16 (Dept. Super. Ct. 1989) ("Evidence of the range of individual
blood-breath ratios cannot be excluded"); People v. Brown, 143 Misc. 2d 270, 274-75, 540
N.Y.S.2d 650, 653 (Crim. Ct. 1989) ("The margin of error in the breathalyzer test should be
considered by the trier of fact in deciding whether the evidence sustains a finding of guilt
beyond a reasonable doubt."). See also Davis, 8 Va. App. 291, 381 S.E.2d 11.
FN43. See, e.g., People v. Herst, 197 Cal. App. 3d Supp. 1, 3, 243 Cal. Rptr. 83, 84
(Dept. Super. Ct. 1987) ("[g]eneral evidence of . . . a possibility of error in the partition ratio
will not suffice to rebut this presumption"); Lepine, 215 Cal. App. 3d at 95, 263 Cal. Rptr. at
545 ("Herst supports the proposition that general evidence concerning partition ratio
variability is irrelevant"); Cortes, 214 Cal. App. 3d Supp. at 16, 263 Cal. Rptr. at 114
(quoting Herst, 197 Cal. App. 3d. Supp. at 4 n.1, 243 Cal. Rptr. at 83, n.1, the court states that
"[t]he jury should not consider any conclusions made by any witness regarding the Defendant's
blood alcohol concentration based upon breath alcohol results which use a partition ratio other
than 2100 to 1"); State v. Lowther, 740 P.2d 1017, 1020 (Haw. Ct. App. 1987) (commenting on
City of Columbus, 24 Ohio App. 3d 173, 174, 493 N.E.2d 1002, 1003 (1985), the court stated
that the City of Columbus court in effect held that "the reliability of the Intoxilyzer has been
legislatively resolved and is not subject to attack by Defendant"); State v. Vega, 12 Ohio St. 3d
185, 188-89, 465 N.E.2d 1303, 1305, 1307 (1984) (the statute manifests a "legislative
determination" which renders "general [defense rebuttal] testimony" "nonrelevant"); City of
Columbus, 24 Ohio App. 3d at 174, 493 N.E.2d at 1003-04. Commenting on Vega, 12 Ohio
St. 3d 185, 465 N.E.2d 1303, the court declared that
[a]n accused may not use expert testimony to attack the general reliability of intoxilyzers as
valid, reliable breath-testing machines in view of the fact that the General Assembly has
26
legislatively provided for the admission of such tests. . . . [T]he efficiency of [the] testing
process is not subject to challenge, since it is presumed accurate. . . . [T]he trial court properly
excluded testimony which challenged the ability of intoxilyzers to accurately measure the
alcohol content of breath -- for example, quarreling with ratios between breath-alcohol content
and blood-alcohol content; the varying ability of persons to provide deep lung samples of
breath; the margin of error expected of intoxilyzers.
Id.
FN44. Davis, 8 Va. App. at 298, 381 S.E.2d at 15 (the Davis Court found that while the
use of the term "per se" suggests that blood alcohol level is conclusive proof it held that it is
not. The court called the evidence a fact which creates a rebuttable presumption that the
measurement reflects the blood alcohol concentration at the time of driving).
FN45. Vega, 12 Ohio St. 3d at 189, 465 N.E.2d at 1307.
FN46. Lepine, 215 Cal. App. 3d at 98, 263 Cal. Rptr. at 547.
FN47. Id. at 95, 263 Cal. Rptr. at 545.
FN48. See, e.g., State v. Downie, 117 N.J. 450, 468, 569 A.2d 242, 251 (1990); Romano
v. Kimmelman, 96 N.J. 66, 80, 474 A.2d 1, 9 (1984); People v. Donaldson, 36 A.D.2d 37, 40,
319 N.Y.S.2d 172, 176 (1971); State v. Johnson, 42 N.J. 146, 170-71, 199 A.2d 809, 822-23
(1964); State v. Manfredi, 577 A.2d 1338, 1339 (N.J. Super. 1990) (citing Downie, 117
N.J. 498, 569 A.2d 242); Brown, 143 Misc. 2d at 274, 540 N.Y.S.2d at 652; People v. Gower,
42 N.Y.2d 117, 121-22, 366 N.E.2d 69, 71, 397 N.Y.S.2d 368, 370 (Ct. App. 1977) (the court,
however, does not use the term of art, "judicial notice").
FN49. C. MCCORMICK, EVIDENCE § 332, at 931 (3d ed. 1984).
FN50. Downie, 117 N.J. at 468-69, 569 A.2d at 251; Brown, 143 Misc. 2d at 273, 540
N.Y.S.2d at 652 ("Our neighboring state of New Jersey . . . found that the new scientific
challenges to the breathalyzer regarding the variability of the 2100:1 breath-blood ratio were
inadmissible. . . . The court held that in light of Romano v. Kimmelman, 96 N.J. 66, 474 A.2d
1 (1984), which requires that judicial notice be given to breathalyzer test results in drunk
driving prosecutions, the new evidence could only be offered to make a record for a future
appeal.").
FN51. Youngblood, 488 U.S. at 56 (commenting on Trombetta, 467 U.S. 479); Note,
supra note 10.
FN52. See generally Giannelli, The Admissibility of Laboratory Reports in
Criminal Trials: The Reliability of Scientific Proof, 49 OHIO ST. L.J. 671 (1988).
27
FN53. See FED. R. EVID. 406.
FN54. Imwinkelried, The Constitutionality of Introducing Evaluative Laboratory
Reports Against Criminal Defendants, 30 HAST. L.J. 621, 644 (1979) [hereinafter The
Constitutionality of Introducing Evaluative Laboratory Reports Against Criminal Defendants].
FN55. P. GIANELLI & E. IMWINKELRIED, supra note 21, § 3-2, at 87.
FN56. There might appear to be a method of mooting the problem of unproven,
hypothetically assumed facts by cross-examining the prosecution witness. Some jurisdictions
take the position that if an expert testifies in response to a hypothetical question on direct
examination, the cross-examiner may vary the assumptions in the hypothesis even if there is no
evidence in the record to support a finding of the new assumption. C. MCCORMICK, supra
note 49, at 37 n.19; 4 F. BUSCH, LAW AND TACTICS IN JURY TRIALS 143 (1961). Some
states permit the cross-examiner to pose a hypothetical question even when the expert did not
testify in response to a hypothesis on direct. E. IMWINKELRIED, THE METHODS OF
ATTACKING SCIENTIFIC EVIDENCE § 11-2(B), at 375-76 (1982) [hereinafter THE
METHODS OF ATTACKING SCIENTIFIC EVIDENCE]; J. MCELHANEY, TRIAL
NOTEBOOK 173 (1981). The defense can argue that it is entitled to put hypothetical
questions to the prosecution's expert about the effect of possible errors on the test outcome
even if on direct examination the expert did not testify on the basis of hypothetically assumed
facts.
The accused, however, cannot be confident that the trial judge will accept this argument. The
judge might foreclose the use of a hypothetical question on cross-examination. Although some
jurisdictions permit the use of hypothetical questions on cross even when the expert did not
rely on a hypothesis during direct examination, that view is not universal. J. MCELHANEY,
supra, at 173. Even if the judge allows the use of a hypothetical question for the first time on
cross-examination, the judge might treat the formal cross-examination as a functional direct
examination. Thus, the cross-examiner is the questioner initially resorting to the hypothetical
question technique. Consequently, the judge might insist that as on direct examination, the
cross-examiner include assumptions in the hypothesis only if there is evidence in the record to
sustain a finding of the truth of the assumption.
FN57. E. IMWINKELRIED, P. GIANNELLI, F. GILLIGAN & F. LEDERER,
COURTROOM CRIMINAL EVIDENCE § 1407-10 (1987) [hereinafter COURTROOM
CRIMINAL EVIDENCE]. See also Zaremski & Goldstein, Hypothetical Questions and
Discovery of Facts Underlying Opinion, in FORENSIC SCIENCES ch. 5 (1990).
FN58. COURTROOM CRIMINAL EVIDENCE, supra note 57, at § 1407.
FN59. Id. at § 1410.
28
FN60. Alabama Power Co. v. Robinson, 447 So. 2d 148, 152 (Ala. 1984); Edwards v.
California Sports, Inc., 206 Cal. App. 3d 1284, 1287, 254 Cal. Rptr. 170, 171 (1988); Hyatt v.
Sierra Boat Co., 79 Cal. App. 3d 325, 337- 38, 145 Cal. Rptr. 47, 54 (1978); People v. Sundlee,
70 Cal. App. 3d 477, 484, 138 Cal. Rptr. 834, 837 (1977); Clark v. Ross, 284 S.C. 543, 552-53,
328 S.E.2d 91, 97-98 (Ct. App. 1985); C. MCCORMICK, supra note 49, at § 14; 3 B.
WITKIN, CALIFORNIA EVIDENCE § 1849, at 1806 (3d ed. 1984).
FN61. C. MCCORMICK, supra note 49, § 14, at 37.
FN62. Clark, 284 S.C. at 552-53, 328 S.E.2d at 97-98.
FN63. E.g., Sundlee, 70 Cal. App. 3d at 484, 138 Cal. Rptr. at 837.
FN64. Some courts relax the requirement when factors beyond the proponent's control
preclude the proponent from gathering evidence to prove the truth of the assumed fact.
Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964), is
illustrative. In Vandermark, the plaintiff brought a personal injury action against an automobile
dealer and manufacturer. The plaintiff sustained injuries when he lost control of the car which
one defendant sold to him and which the other defendant manufactured. A key issue at trial
was the cause of the failure of the brake master cylinder piston to retract. Unfortunately, the
damage to the vehicle, caused by the accident, prevented the plaintiff's expert from definitively
determining whether the master cylinder assembly had been properly installed and adjusted
before the accident. Nevertheless, at trial the expert attempted to opine about the possible
causes of the failure. The trial judge struck the opinion as speculative. The appellate court held
that the trial judge erred. In so holding, the court stated:
[P]laintiffs were entitled to establish the existence of a defect and defendants' responsibility
therefor by circumstantial evidence, particularly when, as in this case, the damage to the car in
the collision precluded determination whether or not the master cylinder assembly had been
properly installed and adjusted before the accident.
Id. at 260, 391 P.2d at 170, 37 Cal. Rptr. at 898. See also People v. Guntert, 126 Cal. App. 3d
Supp. 1, 10, 179 Cal. Rptr. 426, 430 (Dept. Super. Ct. 1981) (the court should consider
"whether a party offering . . . evidence had had a reasonable opportunity to investigate
evidence of the condition at a prior time").
FN65. THE METHODS OF ATTACKING SCIENTIFIC EVIDENCE, supra note
56, at § 6-6(C)
FN66. Id. § 6-6(C), at 221.
FN67. See FED. R. EVID. 702-04.
29
FN68. R. CARLSON, E. IMWINKELRIED & E. KIONKA, MATERIALS FOR
THE STUDY OF EVIDENCE 444 (2d ed. 1986) [hereinafter MATERIALS FOR THE
STUDY OF EVIDENCE]; COURTROOM CRIMINAL EVIDENCE, supra note 57, at §
1411.
FN69. See, e.g., Mayhew v. Bell S.S. Co., 917 F.2d 961 (6th Cir. 1990). See also Joseph,
Less Than Certain Medical Testimony, 14 TRIAL 51 (Jan. 1978).
FN70. Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311-12 (5th Cir. 1990); Lanza v.
Poretti, 537 F. Supp. 777 (E.D. Pa. 1982); Vuocolo v. Diamond Shamrock Chemicals Co., 240
N.J. Super. 289, 573 A.2d 196 (1990); Becker v. Lake County Memorial Hosp. West, 53
Ohio St. 3d 202, 560 N.E.2d 165 (1990); Collins by Collins v. Straka, 164 Ill. App. 3d 355, 361,
517 N.E.2d 1147, 1151 (1987); Garza v. Keillor, 623 S.W.2d 669, 672 (Tex. Ct. App. 1981).
FN71. E.g., United States v. Bowers, 660 F.2d 527, 529 (5th Cir. 1981); State v. Clark,
324 N.C. 146, 159, 377 S.E.2d 54, 62-63 (1989); People v. Babbitt, 45 Cal. 3d 660, 684-86, 755
P.2d 253, 264-66, 248 Cal. Rptr. 69, 80-81 (1988); Welch v. State, 677 S.W.2d 562 (Tex. Ct.
App. 1984).
FN72. E.g., Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir.
1986).
FN73. FED. R. EVID. 403.
FN74. E.g., Brown v. Parker-Hannifin Corp., 919 F.2d 308, 311-312 (5th Cir. 1990);
Nelson v. Trinity Medical Center, 419 N.W.2d 886, 892 (N.D. 1988).
FN75. FED. R. EVID. 702.
FN76. COURTROOM CRIMINAL EVIDENCE, supra note 57, at §§ 131-33.
FN77. In explaining its decision to exclude evidence attacking the general reliability of
the breathalyzer, the Ohio Supreme Court agreed with the dissent in the court below which
characterized the evidence as "speculative." Vega, 12 Ohio St. 3d at 186, 465 N.E.2d at 1305.
Similarly, in Lepine, 215 Cal. App. 3d at 94-95, 263 Cal. Rptr. at 544-45, the trial judge
sustained a prosecutor's objection that defense rebuttal evidence was "speculative."
FN78. MATERIALS FOR THE STUDY OF EVIDENCE, supra note 68, at Ch. 16.
FN79. FED. R. EVID. 403.
FN80. Imwinkelried, The Meaning of Probative Value and Prejudice in Federal Rule of
30
Evidence 403: Can Rule 403 Be Used to Resurrect the Common Law of Evidence?, 41
VAND. L. REV. 879, 884-85 (1988).
FN81. 22 C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 5213, at 259-60 (1978).
FN82. Id. § 5214, at 271; Imwinkelried, supra note 80, at 885.
FN83. Johnson, 42 N.J. at 171, 199 A.2d at 823.
FN84. Downie, 117 N.J. at 453, 569 A.2d at 243 (citing Johnson, 42 N.J. at 171, 199
A.2d at 823).
FN85. MATERIALS FOR THE STUDY OF EVIDENCE, supra note 68, at 262.
FN86. FED. R. EVID. 403.
FN87. Id.
FN88. E.g., Lepine, 215 Cal. App. 3d at 94-95, 263 Cal. Rptr. at 544-45.
FN89. Brayman, 110 Wash. 2d at 205, 751 P.2d at 305.
FN90. Id.
FN91. Id. See also State v. Manfredi, 242 N.J. Super. 708, 710, 577 A.2d 1338, 1339
(1990) ("long trials complicated" by expert testimony).
FN92. Myers, The Battle of the Experts: A New Approach to an Old Problem in
Medical Testimony, 44 NEB. L. REV. 539 (1965).
FN93. People v. Reilly, 196 Cal. App. 3d 1127, 242 Cal. Rptr. 496 (1987).
FN94. Id. at 1135, 242 Cal. Rptr. at 501.
FN95. State v. Aquilera, 25 Crim. L. Rep. (BNA) 2189 (Fla. County Ct., May 7, 1979).
FN96. 144 Misc. 2d 956, 957, 545 N.Y.S.2d 985, 986 (Supp. 1989).
FN97. United States v. Barron, 707 F.2d 125 (5th Cir. 1983).
FN98. Doty v. Sewall, 908 F.2d 1053, 1058 (1st Cir. 1990) (citing 1 S. CHILDRESS &
M. DAVIS, STANDARDS OF REVIEW 233 (1986)).
31
FN99. Comment, Evidence -- Other Crime -- Balancing Relevance and Need Against
Unfair Prejudice to Determine the Admissibility of Other Unexplained Deaths as Proof of the
Corpus Delicti and the Perpetrator's Identity, 6 RUT.-CAM. L.J. 173, 177 (1974).
FN100. Teitelbaum & Hertz, Evidence II: Evidence of Other Crimes as Proof of
Intent, 13 N.M.L. REV. 423, 433 (1983).
FN101. Hall, The Trial of a Recidivist and Proof of Other Crimes, CASE &
COMMENT 47-48 (Sept.-Oct. 1979).
FN102. Doty, 908 F.2d at 1058; United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990); Barron, 707 F.2d 125.
FN103. E.g., Vega, 12 Ohio St. 3d at 186, 465 N.E.2d at 1305 ("an accused is not
denied his constitutional right to present a defense" by the exclusion of evidence attacking the
general reliability of the breath-testing instrument).
FN104. E.g., People v. Mertz, 68 N.Y.2d 136, 146, 497 N.E.2d 657, 662, 506 N.Y.S.2d
290, 295 (1986) ("To foreclose a defendant's introduction of evidence seeking to establish that
his BAC while operating was less than .10 may raise doubt as to constitutionality. . . . ").
FN105. E.g., Vega, 12 Ohio St. 3d at 190, 465 N.E.2d at 1308 (1984) (Brown, J.,
dissenting) (the accused has a "constitutional right to present all relevant evidence in his
defense to the crime with which he is charged").
FN106. E.g., Champion v. Dept. of Public Safety, 721 P.2d 131 (Alaska 1986) (This
case involved the failure of the state to preserve a breath sample rather than excluding defense
rebuttal evidence. The court held that the failure denied the motorist a fair hearing and thus
violated due process).
FN107. See, e.g., Barcott v. Dept. of Public Safety, 741 P.2d 226, 228-29 (Alaska 1987)
("due process requires consideration of the margin of error inherent in the breath testing
procedure used in this case; . . . the defendant has a constitutionally guaranteed right to attack
the accuracy of a breath alcohol test"); Thompson, 215 Cal. App. 3d Supp. at 14, 265 Cal. Rptr.
at 109 ("the exclusion of the general evidence denied appellant a fair trial"); Lowther, 740 P.2d
at 1019, 1021 ("the trial court unconstitutionally excluded relevant expert testimony . . .
proferred by Defendant").
FN108. Trombetta, 467 U.S. at 490.
FN109. Lowther, 740 P.2d at 1019.
32
FN110. Thompson, 215 Cal. App. 3d Supp.at 14, 265 Cal. Rptr. at 109.
FN111. Barcott, 741 P.2d at 228; Lowther, 740 P.2d at 1019.
FN112. See generally E. IMWINKELRIED, EXCULPATORY EVIDENCE: THE
ACCUSED'S CONSTITUTIONAL RIGHT TO INTRODUCE FAVORABLE
EVIDENCE (1990) [hereinafter EXCULPATORY EVIDENCE].
FN113. 388 U.S. 14 (1967).
FN114. Id. at 23.
FN115. Imwinkelried, Chambers v. Mississippi, __U.S.__ (1973): The Constitutional
Right to Present Defense Evidence, 62 MIL. L. REV. 225, 240 (1973).
FN116. E.g., People v. Scott, 52 Ill. 2d 432, 288 N.E.2d 478 (1972), cert. denied, 410
U.S. 941 (1973).
FN117. Id. at 439, 288 N.E.2d at 482.
FN118. 410 U.S. 284 (1973).
FN119. The trial judge also denied Chambers permission to treat McDonald as a
hostile witness and use leading questions to interrogate him at trial. Chambers argued that the
denial of permission violated his sixth amendment confrontation right. The Supreme Court
accepted Chambers' argument. Id. at 295-98.
FN120. Id. at 302.
FN121. Id. at 300.
FN122. Id. at 302.
FN123. See EXCULPATORY EVIDENCE, supra note 112.
FN124. Id. at § 10-5.a.
FN125. Id. at §§ 10-5.c-d.
FN126. Id. at § 9-4.
FN127. Id. at ch. 8.
33
FN128. Lowther, 740 P.2d at 1021 (quoting the dissent in Vega, 12 Ohio St. 3d 185,
465 N.E.2d 1303).
FN129. EXCULPATORY EVIDENCE, supra note 112, § 2-4.a, at 49-50.
FN130. Id. § 2-4.b, at 50-55.
FN131. Id. § 2-4.a, at 41-47.
FN132. Peterson, Ryan, Houlden & Mihajlovic, The Uses and Effects of Forensic
Science in the Adjudication of Felony Cases, 32 J. FORENSIC SCI. 1730, 1749- 50 (1987).
FN133. United States v. Fatico, 458 F. Supp. 388, 405-06 (E.D.N.Y. 1978).
FN134. See generally Giannelli, supra note 52.
FN135. Risinger, Denbeaux & Saks, supra note 33, at 738-51.
FN136. Id.
FN137. Id.
FN138. Miike & Hewitt, Accuracy and Reliability of Urine Drug Tests, 36 KAN. L.
REV. 641, 651-57 (1988).
FN139. Hansen, Caudill & Boone, Crisis in Drug Testing: Results of CDC Blind Study,
253 J. A.M.A. 2382 (1985).
FN140. In re Winship, 397 U.S. 358, 361 (1970).
FN141. EXCULPATORY EVIDENCE, supra note 112, § 2-4.a, at 41-47.
FN142. Id. § 2-4.a, at 42-44.
FN143. Westen, The Compulsory Process Clause, 73 MICH. L. REV. 71, 155 (1974).
FN144. Id.
FN145. Id.
FN146. EXCULPATORY EVIDENCE, supra note 112, § 2-4.a, at 44-47; Haddad,
The Future of Confrontation Clause Developments: What Will Emerge When the Supreme
Court Synthesizes the Diverse Lines of Confrontation Decisions?, 81 J. CRIM. L. &
34
CRIMINOLOGY 77, 78, 83 (1990); The Constitutionality of Introducing Evaluative
Laboratory Reports Against Criminal Defendants, supra note 53, at 629-35.
FN147. E.g., Barcott, 741 P.2d at 228-29.
FN148. People v. Collins, 94 Misc. 2d 704, 710, 405 N.Y.S.2d 365, 369 (Sup. Ct. 1978)
(excluding sound spectrography evidence because of the "preliminary and incomplete
experimentation" with the underlying premises of the technique); State v. Smith, 50 Ohio App.
2d 183, 192, 362 N.E.2d 1239, 1245-46 (1976) (excluding testimony about a modification of
the Harrison-Gilroy gunshot residue test because no one, "including [the witness], has ever
conducted any experiments to attempt to objectively determine" the accuracy of the modified
test); THE METHODS OF ATTACKING SCIENTIFIC EVIDENCE, supra note 56, §
4-4(B), at 123-24.
FN149. United States v. Bifield, 702 F.2d 342, 350 (2d Cir.), cert. denied, 461 U.S. 931
(1983); Hughes v. Matthews, 576 F.2d 1250, 1258 (7th Cir.), cert. denied, 439 U.S. 801 (1978).
FN150. EXCULPATORY EVIDENCE, supra note 112, at § 2-3.
FN151. Id.
FN152. Westen, supra note 143, at 107. See also Westen, Confrontation and
Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 HARV. L. REV.
567, 592 (1978).
FN153. Clinton, The Right to Present a Defense: An Emergent Constitutional
Guarantee in Criminal Trials, 9 IND. L. REV. 711, 756 (1976).
FN154. Note, Defendant v. Witness: Measuring Confrontation and Compulsory
Process Against Statutory Communications Privileges, 30 STAN. L. REV. 935, 990 (1978).
FN155. Commonwealth v. Drew, 397 Mass. 65, 75 n.10, 489 N.E.2d 1233, 1241 n.10
(1986).
FN156. Imwinkelried, The Case for Recognizing a New Constitutional Entitlement:
The Right to Present Favorable Evidence in Civil Cases, 1990 UTAH L. REV. 1, 5 (citing
Rock v. Arkansas, 483 U.S. 44, 57 (1987) and Chambers v. Mississippi, 410 U.S. 284, 299
(1973)). In Rock, the Court held that an accused had the right to testify about facts
remembered only after hypnotic induction. At the time of the Rock decision, it may have been
the prevailing view in the United States that hypnotically enhanced testimony was per se
inadmissible. In Chambers, the Court ruled that the accused had the right to introduce a third
party's declaration against penal interest over a prosecution hearsay objection. In the opinion,
the majority conceded that the "materialistic limitation on the declaration-against-interest
35
hearsay exception [restricting the exception to statements against proprietary and pecuniary
interest] appears to be accepted by most States in their criminal trial processes." Chambers, 410
U.S. at 299.
FN157. Note, Hypnosis and the Right to Testify: An Evidentiary and Constitutional
Dilemma for Connecticut, 9 BRIDGEPORT L. REV. 359, 409 (1988).
FN158. Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980).
FN159. See generally Allen, Structuring Jury Decisionmaking in Criminal Cases: A
Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321, 342-48
(1980).
FN160. Brayman, 110 Wash. 2d 183, 751 P.2d 294.
FN161. State v. Ulrich, 478 N.E.2d 812, 821, 824 (Ohio Ct. App. 1984).
FN162. FED. R. EVID. 201(g).
FN163. HOUSE COMM. ON JUDICIARY, FED. RULES. OF EVID., H.R. REP.
NO. 650, 93d Cong., 1st Sess. 6 (1973).
FN164. Barcott, 741 P.2d at 230 ("due process will not allow the results of a chemical
test . . . to be conclusively presumed accurate"); Lowther, 740 P.2d at 1020 ("'[T]he Legislature
may not declare the weight to be given to evidence or what evidence shall be conclusive proof
of an issue of fact"').
FN165. 476 U.S. 683 (1986).
FN166. Id. at 687.
FN167. Id. at 690.
FN168. Id. at 691.
FN169. Id.
FN170. In a number of other cases, the Supreme Court exercised the power to
independently assess the logical relevance of evidence. EXCULPATORY EVIDENCE, supra
note 112, § 5-2b, at 118-21. On occasion such as in Tot v. United States, 319 U.S. 463 (1943),
the Court disagreed with a legislative determination of relevance.
FN171. See, e.g., State v. Dorsey, 87 N.M. 323, 532 P.2d 912 (Ct. App.), aff'd on other
36
grounds, 88 N.M. 184, 539 P.2d 204 (1975); State v. Sims, 52 Ohio Misc. 31, 369 N.E.2d 24
(1977); P. GIANNELLI & E. IMWINKELRIED, supra note 21, at § 8-3(D).
FN172. See, e.g., Parisie v. Greer, 671 F.2d 1011 (7th Cir. 1982), vacated, 705 F.2d 882
(7th Cir. 1983), cert. denied, 464 U.S. 918 (1983); Hughes v. Matthews, 576 F.2d 1250 (7th Cir.
1978); Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225 (1983).
FN173. 483 U.S. 44.
FN174. Rock v. State, 288 Ark. 566, 573, 708 S.W.2d 78, 81 (1986), vacated, 483 U.S.
44 (1987).
FN175. Casenote, The Admissibility of Hypnotically Refreshed Testimony: Rock v.
Arkansas, 30 B.C.L. REV. 573, 594 (1989).
FN176. Rock, 483 U.S. at 55.
FN177. Id. at 52.
FN178. Id.
FN179. Id. at 59.
FN180. Id. at 61.
FN181. See, e.g,. Note, Rock v. Arkansas: Hypnotically "Refreshed" Testimony or
Hypnotically "Manufactured" Testimony?, 74 CORNELL L. REV. 136 (1988). See also
Casenote, supra note 175, at 594-98 (generally discussing the extension of the accused's
constitutional right by the Rock Court).
FN182. Patrick v. State, 295 Ark. 473, 478, 750 S.W.2d 391, 393 (1988).
FN183. Reed, Practical Pitfalls in Handling Scientific Evidence, in SCIENTIFIC AND
EXPERT EVIDENCE IN CRIMINAL ADVOCACY 17, 27 (1975).
FN184. People v. Collins, 68 Cal. 2d 319, 320, 438 P.2d 33, 33, 66 Cal. Rptr. 497, 497
(1968).
FN185. People v. Kelly, 17 Cal. 3d 24, 32, 549 P.2d 1240, 1245, 130 Cal. Rptr. 144, 146
(1976) (quoting Huntingdon v. Crowley, 64 Cal. 2d 647, 656, 414 P.2d 382, 390, 51 Cal. Rptr.
254, 262 (1966)).
FN186. United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974).
37
FN187. Reed v. State, 283 Md. 374, 385, 391 A.2d 364, 370 (1978).
FN188. MATERIALS FOR THE STUDY OF EVIDENCE, supra note 68, at 444.
FN189. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique
from the Perspective of Juror Psychology, 28 VILL. L. REV. 554, 562-63 (1983).
FN190. See generally EXCULPATORY EVIDENCE, supra note 112, at ch. 7.
FN191. 488 U.S. 227 (1988).
FN192. Id. at 230.
FN193. Id at 231. See also Wealot v. Armontrout, 740 F. Supp. 1436 (W.D. Mo. 1990).
FN194. The advisory committee to Federal Rule 403 states that "[u]nfair prejudice'
within [this] context means an undue tendency to suggest a decision on an improper basis. . . .
" FED. R. EVID. 403 advisory committee's note.
FN195. Olden, 488 U.S. at 233.
FN196. Id. at 232.
FN197. Chambers, 410 U.S. at 302.
FN198. United States ex rel. Veal v. Wolff, 529 F. Supp. 713, 722 (N.D. Ill. 1981), rev'd
on other grounds, 693 F.2d 642 (7th Cir. 1982).
FN199. 467 U.S. 479; Annotation, Prosecution's Failure to Preserve Potentially
Exculpatory Evidence as Violating Criminal Defendant's Due Process Rights Under Federal
Constitution -- Supreme Court Cases, 102 L. Ed.2d 1041 (1990).
FN200. E.g., Reidinger, Good Faith, Bad Evidence, 75 A.B.A. J. 48 (Feb. 1989); Note,
supra note 10.
FN201. E.g., State v. Matafeo, 71 Haw. 183, 787 P.2d 671 (1990); People v. Sheppard,
701 P.2d 49 (Colo. 1985); State v. Leroux, 18 Conn. App. 223, 557 A.2d 1271 (1989);
Annotation, Consumption or Destruction of Physical Evidence Due to Testing or Analysis By
Prosecution's Expert as Warranting Suppression of Evidence or Dismissal of Case Against
Accused in State Court, 40 A.L.R.4th 594 (1985).
FN202. C. MCCORMICK, supra note 49, § 65, at 159.
38
FN203. Id.
FN204. Id.
FN205. Id.
FN206. Id. § 65, at 160.
FN207. Graham, "There'll Always Be An England:" The Instrumental Ideology of
Evidence, 85 MICH. L. REV. 1204, 1211 (1987).
FN208. 476 U.S. 683.
FN209. Lepine, 215 Cal. App. 3d at 101, 263 Cal. Rptr. at 548.
FN210. S. LANDSMAN, supra note 19.
END OF DOCUMENT

There's times you'll get lucky in a DUI trial, but you'll never get lucky in a drunk driving trial if your attorney does not announce READY FOR TRIAL!

There are times you will get lucky in a DUI trial, but you will never get lucky in a drunk driving trial if your California DUI criminal defense attorney does not announce ready for trial.

From a DUI defense perspective, properly prepared Drunk Driving cases almost always get better in trial than they appear on paper.

At first this will seem to your California DUI criminal defense lawyer to be an interesting and happy happenstance. Upon reflection, what your California Drunk Driving criminal defense attorney may discover is that the cases get better in trial not because of some good fortune, but rather because without a trial the government’s evidence is never tested.

The DUI police report looks unyielding until the California Drunk Driving criminal defense lawyer's cross-examination of the cop. The DUI laboratory records appear bulletproof until they undergo the same vigorous scrutiny. Keep the faith.

DUI Drivers actually cause few traffic deaths

Quick Facts About Drunk and Drugged Driving

• In 2005, 16,885 people died in alcohol-related motor vehicle crashes, accounting for 39% of all traffic-related deaths in the United States (NHTSA 2006).

• An alcohol-related motor vehicle crash kills someone every 31 minutes and nonfatally injures someone every two minutes (NHTSA 2006).

• Drugs other than alcohol (e.g., marijuana and cocaine) are involved in about 18% of motor vehicle driver deaths. These other drugs are generally used in combination with alcohol (Jones et al. 2003).

• Each year, alcohol-related crashes in the United States cost about $51 billion (Blincoe et al. 2002).

• Most drinking and driving episodes go undetected. In 2005, nearly 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics (Department of Justice 2005). That’s less than one percent of the 159 million self-reported episodes of alcohol–impaired driving among U.S. adults each year (Quinlan et al. 2005).

Accepting these numbers as correct, and even if we assume that each of the deaths listed above took place in separate incidents, only .02% of episodes involving drivers impaired by alcohol ever end up resulting in an alcohol related motor vehicle accident death.

Source

All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!

Just got out of jail for a DUI and you need to understand California's DMV?

10. If you need to try to save your driver's license, your lawyer has only ten (10) calendar days to contact DMV! If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your attorney contacts DMV by the 10th day from your arrest.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)



Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!



1. All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






Click on below sites for more information or to contact a San Diego DUI Lawyer who can help:

San Diego DUI Lawyer

Video of San Diego DUI / DMV Attorney

California DUI FAQ by Drunk Driving Criminal Defense Attorney

If I'm stopped for DUI, what do I need to know?

Am I allowed to call an attorney before I decide which chemical test to take?

In California, you do not have the right to speak with a lawyer first. Some states, like Arizona, allow you to talk to your lawyer before you take a chemical test.

If I'm stopped for California DUI, can a police officer ask me questions without reading me my rights?

Sometimes. The answer depends on whether or not you are in California DUI police custody, i.e. whether you are subject to the restraints common to a formal arrest (e.g. handcuffed). For example, the U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop.

Accordingly, roadside questioning about your drinking, drug-taking, or performance on California DUI field sobriety tests does not constitute "custodial interrogation."

But once you are arrested -- or restrained by California DUI police in a manner consistent with arrest -- you should be read your Miranda rights. Failure to Mirandize may have limited favorable consequences, so contact a California DUI criminal defense attorney for more specificity.


Do I have to take a blood, breath, or urine test if asked to do so by California DUI police?

You may refuse to take a chemical test (blood, breath, or urine), but almost every state has a so-called "implied consent" law. When you drive on the roads of California, you give your consent to submit to a California DUI chemical test.

Under such laws, a refusal can result in suspension of your driver's license for 12 months. (This is true even if you're eventually found not guilty of the current California DUI / drunk driving charge.)

If your California DUI / drunk driving case goes to trial, the California DUI prosecuting attorney can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or under the influence of drugs. The California DUI jury could be instructed that refusal is consciousness of guilt.

I've been charged with California DUI - drunk driving. Should I get a California DUI criminal defense attorney?

Defending against a charge of California DUI - drunk driving is tricky. California DUI criminal defense lawyers need to know California DUI law & procedures, as well as understand complicated scientific and medical concepts.

To contest your California DUI charge, hire a California DUI criminal defense lawyer who is a California DUI Attorney Specialist.

DUI Defense Attorney exposes outrageous memo telling San Diego California DUI prosecution blood draw witnesses how to testify!!

California DUI Criminal Defense Lawyer exposed outrageous memo telling San Diego California DUI prosecution blood draw witnesses how to testify:

San Diego California DUI blood drawers take blood from the person arrested for a San Diego California Drunk Driving and must account for proper procedures used for the collection, handling and storage of the blood, including identification of the blood sample, etc.

The credibility of the forensic staff witness and the validity of these procedures are critical in a San Diego California DUI or San Diego California DMV case.

In a case San Diego California Drunk Driving Attorney Rick Mueller did, he obtained an amazing internal San Diego California DUI memorandum from a San Diego California DUI blood drawer.

These are the exposed instructions in that SDPD memorandum and potentially given by the San Diego California Police Department to their blood-drawing/laboratory technicians testifying in a San Diego California DUI trial:

"COURT TESTIMONY

You will be asked your name.

You do not have to remember drawing [blood from] the particular defendant. Just say you draw many patients each day you work and it is impossible to remember each one.

You may be asked how you draw the blood. It is the standard procedure you follow for ALL blood draws, EXCEPT that you use a NON-ALCOHOLIC antiseptic wipe (Benzalkolium) to cleanse the phlebotomy site. You ALWAYS follow the same procedure for every blood draw. The blood is drawn into grey top tubes provided by the San Diego Police Department. The tubes contain an anticoagulent (Potassium Oxylate) and a preservative (Sodium Fluoride). You check the tube for the presence of a loose, slightly pink powder before you use it. After you fill the tube with blood, you invert the tube 10 times to mix the blood with the anticoagulent/preservative. You will always mix any tube with an anticoagulent 10 times (you count the inversions). The important things to remember is that you always follow the same procedure, so even though you don't remember this particular individual, you know that you drew the person following our standard procedure.

The suspect is identified by the police officer and, when possible, you check the ID or ask the suspect their name. The police officer completes the label with the suspect's name, DOB, etc. You put your name, date, draw time, and place on the label and place the label on the grey top tube. You then place the grey top tube in the plastic chain-of-custody tube, put the cap on it, and seal it with the sealing tape provided by the SDPD. You then hand it to the officer and he takes charge of it.

"H:\My Documents\San Diego Police Dept\Forensic Staff\Court Testimony.doc"

These instructions on what to say in a San Diego California DUI trial are given to law enforcement witnesses testifying under oath in a San Diego California county court of law and at the San Diego California Department of Motor Vehicles.

San Diego California DUI blood or San Diego California DUI laboratory technicians are essentially told how to testify and what to say, not as to what they actually did -and not what they know - in an actual San Diego California DUI / drunk driving case.

California DUI / Drunk Driving Criminal Defense Lawyer Rick Mueller can be reached at Rick@SanDiegoDUI.com. Visit

Inaccuracy of Field Sobriety Testing shown - 46% of unimpaired (alcohol-free) erroneously believed by cops to be "too impaired to drive"!!

Study shows inaccuracy of FSTs. Field sobriety tests are given by California DUI cops, including:

horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.
walk-and-turn (heel-to-toe in a straight line).
one-leg-stand.
modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test).
finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger).
recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.).
touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1).
count backwards from a number such as 30 or 100.
breathe into a "portable or preliminary breath tester" or PBT.

Although most California DUI law enforcement agencies continue to use a variety of these FSTs, increasingly a 3-test battery of standardized field sobriety tests (SFSTs) is being adopted. These tests are recommended by the National Highway Traffic Safety Administration (NHTSA) after studies indicated other FSTs were relatively unreliable. The NHTSA-approved battery of tests consists of the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand.

DUI testing studies question whether the tests increase the officer's ability to judge. In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". The blood-alcohol concentration of each of the 21 DUI subjects was .00, unknown to the officers. The result: the officers gave their opinion that 46% of these innocent people were too drunk to be able to drive. This study showed the possible inaccuracy of FSTs.

Source: Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994)

"One Free Swerve" - US Supreme Court upholds ban on traffic stops based on a caller's tip!!

The Supreme Court agreed with a ruling in a DUI case that a cop must first see a suspicious act before stopping a vehicle. Virginia v. Harris will give drunk drivers 1 free swerve.

The Supreme Court cast some doubt yesterday on the legal authority of a police officer to pull over a suspected drunk driver based solely on a caller's tip.

Over an obviously biased strong dissent by Chief Justice John G. Roberts Jr., the high court let stand a Virginia Supreme Court ruling that held a police officer can follow but cannot stop a suspected drunk driver's car until the officer sees the driver do something suspicious, such as swerve in a lane.

"The effect of [this] rule will be to grant drunk drivers 'one free swerve' before they can be pulled over by the police," Roberts said. "It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check."

Roberts noted that hotlines and other services encouraged the public to report suspected drunk drivers.

The Supreme Court's action is not a formal ruling, and it does not require other states to follow Virginia's lead. But the case is likely to encourage more legal challenges to police stops that rely solely on anonymous tips.

The Virginia ruling freed Joseph Harris of Richmond, who was arrested early one morning after a caller had reported his green Nissan Altima was headed south on Meadowbridge Road. The tip included a partial license plate number as well as his name.

Harris stumbled out of his car and appeared obviously intoxicated when the officer tried to question him. Nonetheless, the Virginia high court said it was an "unreasonable search" to stop and question a motorist based entirely on a caller's tip.

Most state courts, including those in California, have upheld car searches based on a tip from a caller, so long as the vehicle matches the description given.

By a 7-2 vote, the justices turned down without comment an appeal from Virginia prosecutors, which was backed by Mothers Against Drunk Driving. The group said more than 12,000 Americans died every year in alcohol-related crashes. Its lawyers argued that the Virginia rule, if adopted widely, would crimp efforts to get drunk drivers off the road before they caused injuries or death. Justice Antonin Scalia joined Roberts in dissent.

Nine years ago, in a case involving a Miami youth who was arrested at a bus stop, the Supreme Court said police could not frisk a pedestrian based solely on an anonymous call. In that case, a caller said a youth wearing a plaid shirt was carrying a gun. The Virginia judges cited that precedent when ruling in favor of the drunk driver.

Commercial Driver .04% BAC limit upheld for California DMV purposes

California DMV may order suspension imposed on a person for driving a vehicle that requires a commercial driver's license with a blood alcohol content of .04% BAC or more where there is proof by a preponderance of the evidence that such a driver's BAC was .04% or more.

Filed 10/20/09
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
ATIQUR REHMAN,
Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.
C060579
(Super. Ct. No.
39200800192115CUWMSTK)
APPEAL from a judgment of the Superior Court of San Joaquin
County, Elizabeth Humphreys, Judge. Affirmed.
Walter S. Nomura for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alicia M. B.
Fowler, Senior Assistant Attorney General, David J. Neill,
Supervising Deputy Attorney General, Julie L. Harlan, Deputy
Attorney General, for Defendant and Respondent.
Plaintiff Atiqur Rehman filed a petition for a writ of
mandate seeking an order directing defendant Department of Motor
Vehicles (the department) to rescind its suspension of his
driver’s license because, with a blood alcohol content of 0.04
percent or more, he drove a vehicle that requires a commercial
2
driver’s license. (Veh. Code,1 § 13353.2, subd. (a)(3).) The
trial court denied the petition.
On appeal, Rehman contends that while the department can
immediately suspend the driver’s license of a person who, with a
blood alcohol content of 0.04 percent or more, drives a vehicle
that requires a commercial driver’s license, the department
cannot sustain an order of suspension following an
administrative hearing unless the person had a blood alcohol
content of 0.08 percent or more. (§ 13557, subd. (b)(2)(C)(i).)
We agree with the trial court that this is one of the rare
instances in which we must disregard the literal terms of a
statute because they conflict with another statute and would
compel an absurd result that the Legislature obviously did not
intend. Accordingly, we conclude that a blood alcohol content
of 0.04 percent or more was sufficient both to suspend Rehman’s
license and to sustain the order of suspension following the
administrative hearing. We shall therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A California Highway Patrol Officer operating the scales at
an Interstate 5 truck stop north of Santa Nella on June 7, 2008,
arrested Rehman for operating his tractor-trailer under the
influence of alcohol. (§ 23152, subd. (a).) Two breath tests
administered to Rehman about an hour after he was first stopped
showed a blood alcohol content of 0.04 and 0.05 percent,
1 All further section references are to the Vehicle Code.
3
respectively. Under subdivision (a)(3) of section 13353.2,
Rehman’s driving privilege was subject to immediate suspension.2
The officer confiscated Rehman’s license and gave him the
required notice of the order of suspension (see § 13353.2,
subd. (b)) and a temporary 30-day license.3
Rehman requested an administrative hearing. (See § 13558.)
Under subdivision (c)(2) of section 13558, “The only issues at
the hearing on an order of suspension pursuant to Section
13353.2 shall be those facts listed in paragraph (2) of
subdivision (b) of Section 13557.” That paragraph provides in
relevant part as follows:
“(2) If the department determines . . . by the
preponderance of the evidence, all of the following facts, the
department shall sustain the order of suspension . . . :
“(A) That the peace officer had reasonable cause to believe
that the person had been driving a motor vehicle in violation of
Section 23136, 23140, 23152, or 23153.
“(B) That the person was placed under arrest or, if the
2 “The department shall immediately suspend the privilege of
a person to operate a motor vehicle for any one of the following
reasons: [¶] . . . [¶] (3) The person was driving a vehicle
that requires a commercial driver’s license when the person had
0.04 percent or more, by weight, of alcohol in his or her
blood.” (§ 13353.2, subd. (a)(3).)
3 Under subdivision (a) of section 13353.3, “An order of
suspension of a person’s privilege to operate a motor vehicle
pursuant to Section 13353.2 shall become effective 30 days after
the person is served with the notice pursuant to . . .
subdivision (b) of Section 13353.2.”
4
alleged violation was of Section 23136, that the person was
lawfully detained.
“(C) That the person was driving a motor vehicle under any
of the following circumstances:
“(i) When the person had 0.08 percent or more, by weight,
of alcohol in his or her blood.
“(ii) When the person was under the age of 21 years and had
0.05 percent or more, by weight, of alcohol in his or her blood.
“(iii) When the person was under 21 years of age and had a
blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test, or other
chemical test.
“If the department determines that any of those facts were
not proven by the preponderance of the evidence, the department
shall rescind the order of suspension or revocation and,
provided that the person is otherwise eligible, return or
reissue the person’s driver’s license pursuant to Section
13551.”
At the hearing, Rehman relied on subdivision (b)(2)(C)(i)
of section 13557 (set out above) to argue that because his blood
alcohol content was not 0.08 percent or more, the department had
to rescind the order of suspension. The hearing officer
rejected that argument and sustained the order of suspension.
The hearing officer determined that a blood alcohol content of
0.04 percent or more was the proper standard for sustaining the
order of suspension because subdivision (d) of section 23152
makes it “unlawful for any person who has 0.04 percent or more,
5
by weight, of alcohol in his or her blood to drive a commercial
motor vehicle.”
Rehman offered the same argument to the trial court in
support of his writ petition. The trial court found no
ambiguity in the statutory directive in section 13557 requiring
a blood alcohol content of 0.08 percent or more to sustain a
suspension of a license under section 13353.2. The court
concluded, however, that this directive could not be harmonized
with section 13353.2’s requirement of a suspension based on a
blood alcohol content of only 0.04 percent or more. In light of
the express legislative intent of conforming state law to a
federal requirement imposing a standard of 0.04 percent on
drivers of commercial vehicles (noncompliance with which could
lead to the loss of federal funds), the trial court concluded
“it was a drafter’s oversight when Vehicle Code, section 13557
[subdivision] (b)(2)(C) was not amended to include a
circumstance to cover commercial drivers with a .04%, or more,
[blood alcohol content].” Accordingly, the court denied
Rehman’s petition.
Rehman filed a timely notice of appeal.
DISCUSSION
Because the facts are undisputed, the question before us
regarding the interpretation of these apparently conflicting
statutes is one of law that we review de novo. (Nationwide
Asset Services, Inc. v. DuFauchard (2008) 164 Cal.App.4th 1121,
1125.)
6
On its face, section 13557 requires evidence of a blood
alcohol content of 0.08 percent or more to sustain the
suspension of a driver’s license under section 13353.2, when
section 13353.2 requires a blood alcohol content of only 0.04
percent or more to suspend the license in the first place.
Rehman contends that, contrary to the trial court’s conclusion,
the two statutes can be harmonized. He suggests that, with
respect to commercial licenses, the Legislature might have
intended the lower 0.04 percent standard to apply only to the
immediate suspension in effect between arrest and the outcome of
the administrative hearing, but intended the higher 0.08 percent
standard to apply to the continuation of the suspension after
the administrative hearing “since the driver’s livelihood is
directly affected” by the suspension. He further argues that
“the continued suspension of a commercial driver’s license is
adequately handled by other Vehicle Code provisions.”
Specifically, he asserts that subdivision (a) of section 15300
provides for a one-year suspension of a commercial driver’s
license upon conviction of driving a commercial motor vehicle
with a blood alcohol content of 0.04 percent or more.4 (See §§
15300, subd. (a)(2), 23152, subd. (d).)
4 Rehman also refers to subdivision (a) of section 15315,
which provides that “[t]he department shall not issue a
commercial driver’s license to a person during a period in which
the person is prohibited from operating a commercial motor
vehicle, or the person’s driving privilege is suspended,
revoked, or canceled.” He contends that under this provision,
if the suspension of his driving privilege was continued under
section 13557, “then his commercial driver’s license would also
7
In interpreting statutes, if the “language is clear and
unambiguous there is no need for construction, nor is it
necessary to resort to indicia of the intent of the
Legislature . . . .” (Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735.) However, this “‘plain meaning’ rule does
not prohibit a court from determining whether the literal
meaning of a statute comports with its purpose or whether such a
construction of one provision is consistent with other
provisions of the statute.” (Ibid.) We must strive to
harmonize “provisions relating to the same subject matter . . .
to the extent possible.” (Ibid.) Therefore, “[t]he intent
prevails over the letter, and the letter will, if possible, be
so read as to conform to the spirit of the act.” (Ibid.)
The shortcoming in Rehman’s proffered harmonization of
sections 13353.2 and 13557 is the lack of any true “immediate”
suspension that takes effect upon arrest. While section 13353.2
does refer to “immediately suspend[ing]” the license, in
operation the suspension is anything but immediate. This is so
because the effective date of the suspension is either 30 days
after the arresting officer or the department gives notice of
the suspension (§ 13353, subd. (a)), or five days after the
department gives written notice of its determination to sustain
the suspension following the administrative hearing (§ 13558,
be suspended.” But section 15315 addresses only the issuance of
a commercial driver’s license, not the continued suspension of a
commercial driver’s license already issued, and thus that
statute has no relevance here.
8
subd. (d)). Until the effective date, the license holder
continues to enjoy the privilege of driving by virtue of a
temporary license. (See id., subd. (e).) Therefore, contrary
to Rehman’s proposal, the Legislature reasonably could not have
contemplated using different levels of blood alcohol content for
different parts of the suspension.
We are therefore left with conflicting provisions that
apply a higher blood alcohol content standard in the review of
an order of suspension issued based on a lower blood alcohol
content standard, which would lead to the absurd result of
issuing orders of suspension that could never be effective and
thus render section 13353.2, subdivision (a)(3) nugatory in some
cases. “The literal meaning of the words of a statute may be
disregarded to avoid absurd results or to give effect to
manifest purposes that, in light of the statute’s legislative
history, appear from its provisions considered as a whole.”
(Silver v. Brown (1966) 63 Cal.2d 841, 845.) Such a result is
appropriate here, particularly when we look to the legislative
purposes of these statutes.
In the history available for Assembly Bill No. 2520,
enacted in the 2005-2006 regular session (which the department
included in its opposition below), the Legislative Counsel’s
Digest does not explain the purpose in changing the standard for
suspending a commercial license to 0.04 percent. (Legis.
Counsel’s Dig., Stats. 2006, ch. 574.) However, according to
the Assembly Transportation Committee’s August 16, 2006, floor
analysis of the Senate’s amendments to the bill, the purpose of
9
the bill was to make “numerous changes to the Vehicle Code in
order to conform state law to federal regulations mandated by
the Federal Motor Carrier Safety Administration in the Motor
Carrier Safety Improvement Act of 1999. The following items are
conforming changes: [¶] a) Requires [the department] to
immediately suspend the commercial driver’s license of a driver
when he or she has . . . [0].04 percent or more . . . of alcohol
in his or her blood.” (Assem. Com. on Transportation, Rep. on
Assem. Bill No. 2520 (2005-2006 Reg. Sess.) as amended Aug. 16,
2006, pp. 1-2.)5 This intentional incorporation of federal
standards is also expressly recognized in the criminal statute
directed at impaired commercial drivers (§ 23152, subd. (d)),
which keeps the 0.04 percent standard in effect as long as it is
a requirement of federal law (id., subd. (e)).
The failure to amend section 13557 to reflect the addition
of the 0.04 percent standard to section 13353.2 may have had its
genesis in the department’s September 2005 legislative proposal
suggesting the necessary changes for compliance with federal
law. Among the “minor amendments” the department identified was
5 Federal law proscribes the operation of a commercial motor
vehicle with more than 0.04 percent of blood alcohol (49 U.S.C.
§ 31310(a)) and includes provisions to induce state law
compliance: “To avoid having amounts withheld from
apportionment under section 31314 of this title, a State shall
comply with the following requirements: [¶] . . . [¶] (3) The
State shall have in effect and enforce a law providing that an
individual with a blood alcohol . . . level at or above [0.04
percent] . . . when operating a commercial motor vehicle is
deemed to be driving under the influence of alcohol.” (Id.,
§ 31311(a).)
10
the need for a provision in section 13353.2 that “a driver of a
vehicle that requires a commercial driver license shall receive
an administrative action when a [0].04 blood alcohol content
level or greater is found.” (Italics added.) The department’s
proposal did not make any mention of the need to incorporate
this new standard for commercial drivers among the specified
findings in the procedural provisions of section 13557 as well.
Considering the administrative suspension process is
intended to provide the public with added protection because the
criminal process takes too long to resolve guilt (see Lake v.
Reed (1997) 16 Cal.4th 448, 454-455), it is inconceivable the
Legislature would enact a statute allowing the criminal
conviction of a commercial driver with proof of a blood alcohol
content of only 0.04 percent or more (§ 23152, subd. (d)), and
the suspension of a commercial license upon a determination of
this fact (§ 13352, subd. (a)), but not intend for an
administrative suspension to go into effect absent proof of the
higher blood alcohol content that is generally applicable to
ordinary drivers. To avoid this absurd result and give effect
to the manifest purpose of the statutes, we construe subdivision
(b)(2)(C)(i) of section 13557 as including a provision that
allows the department to sustain an order of suspension imposed
under subdivision (a)(3) of section 13353.2 on a person for
driving a vehicle that requires a commercial driver’s license
with a blood alcohol content of 0.04 percent or more where there
11
is proof by a preponderance of the evidence that the person’s
blood alcohol content was 0.04 percent or more.6
DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
SCOTLAND , P. J.
NICHOLSON , J.
6 This is not the first time that the Legislature has failed
to keep in line the criteria for immediate suspension and the
findings to sustain the suspension. Correcting an earlier
disparity created the previous year (see Stats. 1993, ch. 899,
§§ 1, 5, 9, pp. 5021, 5023, 5028; Stats. 1993, ch. 1244,
§§ 12.1, 15.5, 27, 28, pp. 7204, 7211, 7224), the Legislature
amended section 13353.2 in 1994 to allow the suspension of the
license of a minor for driving with an alcohol level over 0.01
percent “as measured by a preliminary alcohol screening test, or
other chemical test” or for having “0.05 percent . . . of
alcohol in his or her blood”; section 13357 contained the same
factors to sustain the suspension. (Stats. 1994, ch. 938, §§ 3,
9, pp. 5514, 5519.) In 1999, the Legislature deleted the
provision in section 13353.2 regarding a minor with an alcohol
level of 0.05 percent (Stats. 1999, ch. 22, § 14); however, it
neglected to remove this factor from the list in section 13557,
where the redundancy persists to this day (§ 13557, subd.
(b)(2)(C)(ii)). The Legislature may wish to address this
vestigial provision as well as the conflicting provisions
addressed in this opinion.

Why you shouldn't tell a Cop what you have been drinking!

If you are stopped in your vehicle at night by a police officer, many times you will be asked: "Have You Been Drinking?" You do NOT have to answer that question, say California DUI criminal defense attorneys. You do NOT have to answer any questions. You may politely decline once you provide License, Insurance & Registration. Talking usually can only hurt you in an otherwise defensible drunk driving charge. Acrobatics are also voluntary.

No cop will believe "2 beers" as most peoples say that. No cop will believe 1/2 glass of wine or something very small, as it may not be accurate; invariably the required blood or problematic breath test at the jail/station will likely show much higher. Impossibility is something hard to believe. It's just better to say nothing. If you say something, they can try to use retrograde extrapolation to later guess your blood alcohol level. But if you give them no facts, they can't start assuming. Having defended folks for 25 years as a DUI criminal defense lawyer, remain silent.

What to do within 10 days of being arrested for DUI

What to do within 10 days of being arrested for DUI

10. If you need to save your driver's license, your attorney has only ten (10) calendar days to contact DMV!


Do not schedule yourself. If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your attorney contacts DMV by the 10th day from your arrest.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)



Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!



1. All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






Click on below sites for more information or to contact a San Diego DUI Lawyer who can help:

California DUI Attorney

Video of San Diego DUI / DMV Attorney

Cops must continuously observe DUI suspect for 15 minutes prior to breath test, must remain with the person & must be able to use all of his senses !

California DUI attorneys' cases often focus on this relevant breath test regulation:

A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked. [ Title 17 - section:1219.3. Breath Collection ]

While the California case of Manriquez v. Gourley sometimes permits limited observation during the transportation time, California DUI criminal defense attorneys need to be aware of that case's distinctive criteria.

To obtain a better appreciation of the required observation, check out this helpful California DUI lawyer site's discussion of Manriquez v. Gourley (2003) 105 Cal.App.4th 1227 , 130 Cal.Rptr.2d 209.

New DUI Laws in California - Ignition Inerlock Mandatory

AB 91, Feuer. Vehicles: driving under the influence (DUI):
ignition interlock device.
(1) Existing law requires all manufacturers of ignition interlock
devices that meet specified requirements and are certified in a
manner approved by the Department of Motor Vehicles, that intend to
market the devices in this state, to first apply to the department on
forms provided by the department and to pay an accompanying fee in
an amount not to exceed the amount necessary to cover the costs
incurred by the department in carrying out those provisions.
This bill would require a manufacturer and a manufacturer's agent,
certified by the department to provide ignition interlock devices,
to provide each year to the department information on the number of
false positives and the time to reset the device. The bill would also
require the department to use this information in evaluating the
continued certification of an ignition interlock device.
(2) Existing law requires a person's privilege to operate a motor
vehicle to be suspended or revoked for a specified period of time if
the person has been convicted of violating specified provisions
prohibiting driving a motor vehicle while under the influence of an
alcoholic beverage or drug or the combined influence of an alcoholic
beverage and drug, or with 0.08% or more, by weight, of alcohol in
his or her blood or while addicted to the use of any drug, with or
without bodily injury to another. Existing law also authorizes a
person whose privilege is suspended or revoked in that manner to
receive a restricted driver's license if specified requirements are
met, including, in some instances, the installation of an ignition
interlock device on the person's vehicle.
This bill would require the department to establish a pilot
program from July 1, 2010, to January 1, 2016, in the Counties of
Alameda, Los Angeles, Sacramento, and Tulare that requires, as a
condition of being issued a restricted driver's license, being
reissued a driver's license, or having the privilege to operate a
motor vehicle reinstated subsequent to a conviction for a violation
of the above offenses, a person to install for a specified period of
time an ignition interlock device on all vehicles he or she owns or
operates, except as provided. The amount of time the ignition
interlock device would be required to be installed would be based
upon the number of convictions, as prescribed. The bill would
prohibit the implementation of the pilot program if the department
fails to obtain, by January 31, 2010, nonstate funds for the
programming costs of the pilot program.
The bill would set up a statutory scheme under which the
department would, with regard to the installation of an ignition
interlock device described above, notify the person of the ignition
interlock device installation requirements established under the
bill, accept notification from the installer of the ignition
interlock device of attempts to remove, bypass, or tamper with the
ignition interlock device or if the person fails 3 or more times to
comply with the maintenance requirements, monitor the installation
and maintenance of the ignition interlock device, and keep specified
records.
The bill would also require that manufacturers and manufacturer's
agents, certified by the department to provide ignition interlock
devices, adopt a fee schedule for payment of the costs of the
ignition interlock device based on the offender's ability to pay, and
would require the court to adopt a similar fee schedule with regard
to the fees for the county alcohol and drug problem assessment
program.
On or before January 1, 2015, the department would be required to
report to the Legislature regarding the effectiveness of the pilot
program in reducing the number of first-time driving under the
influence violations and repeat offenses in those counties.
(3) This bill would require that it become operative only if SB
598 of the 2009-10 Regular Session becomes operative on or before
January 1, 2010.
(4) Because it is a crime to operate a vehicle that is not
equipped with a functioning, certified ignition interlock device by a
person whose driving privilege is so restricted, the bill would
impose a state-mandated local program by expanding the scope of that
crime.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 13386 of the Vehicle Code is amended to read:
13386. (a) (1) The Department of Motor Vehicles shall certify or
cause to be certified ignition interlock devices required by Article
5 (commencing with Section 23575) of Chapter 2 of Division 11.5 and
publish a list of approved devices.
(2) (A) The Department of Motor Vehicles shall ensure that
ignition interlock devices that have been certified according to the
requirements of this section continue to meet certification
requirements. The department may periodically require manufacturers
to indicate in writing whether the devices continue to meet
certification requirements.
(B) The department may use denial of certification, suspension or
revocation of certification, or decertification of an ignition
interlock device in another state as an indication that the
certification requirements are not met, if either of the following
apply:
(i) The denial of certification, suspension or revocation of
certification, or decertification in another state constitutes a
violation by the manufacturer of Article 2.55 (commencing with
Section 125.00) of Chapter 1 of Division 1 of the Title 13 of the
California Code of Regulations.
(ii) The denial of certification for an ignition interlock device
in another state was due to a failure of an ignition interlock device
to meet the standards adopted by the regulation set forth in clause
(i), specifically Sections 1 and 2 of the model specification for
breath alcohol ignition interlock devices, as published by notice in
the Federal Register, Vol. 57, No. 67, Tuesday, April 7, 1992, on
pages 11774 to 11787, inclusive.
(C) Failure to continue to meet certification requirements shall
result in suspension or revocation of certification of ignition
interlock devices.
(b) (1) A manufacturer shall not furnish an installer, service
center, technician, or consumer with technology or information that
allows a device to be used in a manner that is contrary to the
purpose for which it is certified.
(2) Upon a violation of paragraph (1), the department shall
suspend or revoke the certification of the ignition interlock device
that is the subject of that violation.
(c) An installer, service center, or technician shall not tamper
with, change, or alter the functionality of the device from its
certified criteria.
(d) The department shall utilize information from an independent
laboratory to certify ignition interlock devices on or off the
premises of the manufacturer or manufacturer's agent, in accordance
with the guidelines. The cost of certification shall be borne by the
manufacturers of ignition interlock devices. If the certification of
a device is suspended or revoked, the manufacturer of the device
shall be responsible for, and shall bear the cost of, the removal of
the device and the replacement of a certified device of the
manufacturer or another manufacturer.
(e) No model of ignition interlock device shall be certified
unless it meets the accuracy requirements and specifications provided
in the guidelines adopted by the National Highway Traffic Safety
Administration.
(f) All manufacturers of ignition interlock devices that meet the
requirements of subdivision (e) and are certified in a manner
approved by the Department of Motor Vehicles, who intend to market
the devices in this state, first shall apply to the Department of
Motor Vehicles on forms provided by that department. The application
shall be accompanied by a fee in an amount not to exceed the amount
necessary to cover the costs incurred by the department in carrying
out this section.
(g) A manufacturer and a manufacturer's agent certified by the
department to provide ignition interlock devices shall provide each
year to the department information on the number of false positives
and the time to reset the device. The department shall use this
information in evaluating the continued certification of an ignition
interlock device.
(h) The department shall ensure that standard forms and
procedures are developed for documenting decisions and compliance and
communicating results to relevant agencies. These forms shall
include all of the following:
(1) An "Option to Install," to be sent by the Department of Motor
Vehicles to repeat offenders along with the mandatory order of
suspension or revocation. This shall include the alternatives
available for early license reinstatement with the installation of an
ignition interlock device and shall be accompanied by a toll-free
telephone number for each manufacturer of a certified ignition
interlock device. Information regarding approved installation
locations shall be provided to drivers by manufacturers with ignition
interlock devices that have been certified in accordance with this
section.
(2) A "Verification of Installation" to be returned to the
department by the reinstating offender upon application for
reinstatement. Copies shall be provided for the manufacturer or the
manufacturer's agent.
(3) A "Notice of Noncompliance" and procedures to ensure continued
use of the ignition interlock device during the restriction period
and to ensure compliance with maintenance requirements. The
maintenance period shall be standardized at 60 days to maximize
monitoring checks for equipment tampering.
(i) Every manufacturer and manufacturer's agent certified by the
department to provide ignition interlock devices shall adopt fee
schedules that provide for the payment of the costs of the device by
applicants in amounts commensurate with the applicant's ability to
pay.
SEC. 2. Section 23576 of the Vehicle Code is amended to read:
23576. (a) Notwithstanding Sections 23575 and 23700, if a person
is required to operate a motor vehicle in the course and scope of his
or her employment and if the vehicle is owned by the employer, the
person may operate that vehicle without installation of an approved
ignition interlock device if the employer has been notified by the
person that the person's driving privilege has been restricted
pursuant to Sections 23575 and 23700 and if the person has proof of
that notification in his or her possession, or if the notice, or a
facsimile copy thereof, is with the vehicle.
(b) A motor vehicle owned by a business entity that is all or
partly owned or controlled by a person otherwise subject to Sections
23575 and 23700, is not a motor vehicle owned by the employer subject
to the exemption in subdivision (a).
SEC. 3. Chapter 5 (commencing with Section 23700) is added to
Division 11.5 of the Vehicle Code, to read:
CHAPTER 5. IGNITION INTERLOCK DEVICES


23700. (a) Notwithstanding any other provision of law, the
Department of Motor Vehicles shall establish a pilot program in the
Counties of Alameda, Los Angeles, Sacramento, and Tulare to reduce
the number of first-time violations and repeat offenses of Sections
23152 and 23153, as follows:
(1) The Department of Motor Vehicles, upon receipt of the court's
abstract conviction for a violation listed in paragraph (7), shall
inform the convicted person of the requirements of this section,
including the term for which the person is required to have a
certified ignition interlock device installed. The records of the
department shall reflect the mandatory use of the device for the term
required and the time when the device is required to be installed by
this code.
(2) The department shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(3) Before a driver's license may be issued, reissued, or returned
to a person after a suspension or revocation of that person's
driving privilege that requires the installation of an ignition
interlock device, a person who is notified by the department pursuant
to paragraph (1) shall complete all of the following:
(A) Arrange for each vehicle owned or operated by the person to be
fitted with an ignition interlock device by a certified ignition
interlock device provider under Section 13386.
(B) Notify the department and provide to the department proof of
installation by submitting the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) Pay the fee, determined by the department, that is sufficient
to cover the costs of administration of this section.
(4) The department shall place a restriction on the driver's
license record of the convicted person that states the driver is
restricted to driving only vehicles equipped with a certified
ignition interlock device.
(5) (A) A person who is notified by the department pursuant to
paragraph (1) shall arrange for each vehicle with an ignition
interlock device to be serviced by the installer at least once every
60 days in order for the installer to recalibrate and monitor the
operation of the device.
(B) The installer shall notify the department if the device is
removed or indicates that the person has attempted to remove, bypass,
or tamper with the device, or if the person fails three or more
times to comply with any requirement for the maintenance or
calibration of the ignition interlock device.
(6) The department shall monitor the installation and maintenance
of the ignition interlock device installed pursuant to paragraph (1).

(7) A person is required to install an ignition interlock device
for the applicable term as a condition of being issued a restricted
driver's license, being reissued a driver's license, or having the
privilege to operate a motor vehicle reinstated subsequent to a
conviction for a violation or a suspension of a person's driver's
license, as follows:
(A) A person convicted of a violation of Section 23152 shall be
required to install an ignition interlock device, as follows:
(i) Upon a first offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of five months.
(ii) Upon a second offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of 12 months.
(iii) Upon a third offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of 24 months.
(iv) Upon a fourth offense or any subsequent violation, the person
shall install an ignition interlock device in all vehicles owned or
operated by that person for a mandatory term of 36 months.
(B) A person convicted of a violation of Section 23153 shall
install an ignition interlock device, as follows:
(i) Upon a first offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of 12 months.
(ii) Upon a second offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of 24 months.
(iii) Upon a third offense, the person shall install an ignition
interlock device in all vehicles owned or operated by that person for
a mandatory term of 36 months.
(iv) Upon a fourth offense or any subsequent violation, the person
shall install an ignition interlock device in all vehicles owned or
operated by that person for a mandatory term of 48 months.
(C) The terms prescribed in this paragraph shall begin once a
person has provided to the department proof of installation pursuant
to paragraph (2) of subdivision (h) of Section 13386 and upon
restoration of the driving privilege pursuant to Section 13352.
(8) A person who is notified by the department, pursuant to this
subdivision, is exempt from the requirements of this subdivision if
within 30 days of the notification, the person certifies to the
department all of the following:
(A) The person does not own a vehicle.
(B) The person does not have access to a vehicle at his or her
residence.
(C) The person no longer has access to the vehicle being driven by
the person at the time he or she was arrested for a violation that
subsequently resulted in a conviction for a violation listed in this
subdivision.
(D) The person acknowledges that he or she is only allowed to
drive a vehicle that is fitted with a functioning ignition interlock
device.
(E) The person acknowledges that he or she is required to have a
valid driver's license before he or she can drive.
(F) The person is subject to the requirements of this section when
he or she purchases or has access to a vehicle.
(9) Subdivisions (j), (k), (m), (n), and (o) of Section 23575
apply to this section.
(10) If a person fails to comply with any of the requirements
regarding ignition interlock devices, the mandatory term for which
the ignition interlock device is required to be installed shall be
reset by the department.
(b) (1) Every manufacturer and manufacturer's agent certified by
the department to provide ignition interlock devices, under Section
13386, shall adopt the following fee schedule that provides for the
payment of the costs of the ignition interlock device by offenders
subject to this chapter in amounts commensurate with that person's
income relative to the federal poverty level, as defined in Section
127400 of the Health and Safety Code:
(A) A person with an income at 100 percent of the federal poverty
level and below is responsible for 10 percent of the cost of the
ignition interlock device. The ignition interlock device provider is
responsible for absorbing the cost of the ignition interlock device
that is not paid by the person.
(B) A person with an income at 101 to 200 percent of the federal
poverty level is responsible for 25 percent of the cost of the
ignition interlock device. The ignition interlock device provider is
responsible for absorbing the cost of the ignition interlock device
that is not paid by the person.
(C) A person with an income at 201 to 300 percent of the federal
poverty level is responsible for 50 percent of the cost of the
ignition interlock device. The ignition interlock device provider is
responsible for absorbing the cost of the ignition interlock device
that is not paid by the person.
(D) All other offenders are responsible for 100 percent of the
cost of the ignition interlock device.
(2) The cost of the ignition interlock device may only be raised
annually equal to the Consumer Price Index.
(3) The offender's income may be verified by presentation of that
person's current federal income tax return or three months of monthly
income statements.
(c) This section does not permit a person to drive without a valid
driver's license.
(d) The requirements of this section are in addition to any other
requirements of law.
(e) For the purposes of this section, "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. A person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.

(f) This section shall become operative on July 1, 2010.
23700.5. The department shall not implement Section 23700 if, by
January 31, 2010, the department fails to obtain nonstate funds for
the programming costs of the pilot program specified in Section
23700.
23701. On or before January 1, 2015, the Department of Motor
Vehicles shall report to the Legislature regarding the effectiveness
of the pilot program authorized under this chapter in reducing the
number of first-time violations and repeat offenses of Sections 23152
and 23153 in the Counties of Alameda, Los Angeles, Sacramento, and
Tulare.
23702. This chapter shall remain in effect only until January 1,
2016, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2016, deletes or extends
that date.
SEC. 4. This bill shall become operative only if Senate Bill 598
of the 2009-10 Regular Session is enacted and becomes operative on or
before January 1, 2010.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

BILL NUMBER: AB 91 CHAPTERED
BILL TEXT

CHAPTER 217
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 3, 2009
PASSED THE ASSEMBLY SEPTEMBER 9, 2009
AMENDED IN SENATE AUGUST 17, 2009
AMENDED IN SENATE JULY 16, 2009
AMENDED IN ASSEMBLY JUNE 1, 2009
AMENDED IN ASSEMBLY MAY 4, 2009
AMENDED IN ASSEMBLY APRIL 21, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
AMENDED IN ASSEMBLY MARCH 16, 2009

INTRODUCED BY Assembly Member Feuer
(Coauthors: Assembly Members Buchanan, De La Torre, Gilmore, Hill,
Huffman, Jeffries, Jones, Lieu, Bonnie Lowenthal, Miller, Nava,
Saldana, Solorio, and Torlakson)
(Coauthors: Senators Benoit, Cox, and DeSaulnier)

JANUARY 6, 2009

An act to amend Sections 13386 and 23576 of, and to add and repeal
Chapter 5 (commencing with Section 23700) of Division 11.5 of, the
Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST




SB 598, Huff. Vehicles: driving under the influence (DUI).
(1) Existing law requires a person's privilege to operate a motor
vehicle to be suspended or revoked for a specified period of time if
the person has been convicted of violating specified provisions
prohibiting driving a motor vehicle while under the influence of an
alcoholic beverage or drug, or the combined influence of an alcoholic
beverage and drug, or with 0.08% or more, by weight, of alcohol in
his or her blood, or who is addicted to the use of any drug. Existing
law authorizes a person whose privilege is suspended or revoked in
that manner to receive a restricted driver's license if specified
requirements are met, including, in some instances, the installation
of a certified ignition interlock device on the person's vehicle.
Existing law requires that a person, convicted of driving under
the influence, without bodily injury to another, within 10 years of
being convicted of a separate violation of one of specified
driving-under-the-influence offenses, be punished by his or her
driving privilege being suspended for 2 years. The Department of
Motor Vehicles is required to advise the person that he or she may
apply for a restricted driver's license after completion of 12 months
of the suspension period, which may include credit for a specified
concurrent suspension, subject to certain conditions, including,
among other things, submitting proof of installation of a certified
ignition interlock device, agreeing to maintain the ignition
interlock device, and paying certain fees, including, but not limited
to, all administrative fees or reissue fees.
This bill would instead require the department to advise a person,
who was only under the influence of an alcoholic beverage at the
time of the violation, that he or she may apply for a restricted
driver's license after completion of 90 days of the suspension
period, under certain circumstances.
(2) Existing law requires that a person convicted of driving under
the influence, without bodily injury to another, within 10 years of
being convicted of 2 separate violations of specified
driving-under-the-influence offenses, be punished by his or her
driving privilege being revoked for 3 years. The department is
required to advise the person that he or she may apply for a
restricted driver's license after completion of 12 months of the
revocation period, which may include credit for a specified
concurrent suspension, subject to certain conditions, including,
among other things, satisfactory completion of 12 months of an
18-month or 30-month driving-under-the-influence program, submitting
proof of installation of a certified ignition interlock device,
agreeing to maintain the ignition interlock device, and paying
certain fees.
This bill would instead require the department to advise a person,
who was found to be only under the influence of an alcoholic
beverage at the time of the violation, of his or her ability to apply
for a restricted driver's license after completion of 6 months of
the revocation period, subject to certain conditions, including that
if the person is convicted of a specified offense that person
subsequently satisfactorily provides proof of enrollment in an
18-month or 30-month driving-under-the-influence program, as
prescribed. The bill would require the person to pay a fee sufficient
to cover the costs of administration, as determined by the
department.
(3) This bill would require that a person convicted of driving
under the influence of any drug or the combined influence of any drug
and an alcoholic beverage, without bodily injury to another, within
10 years of being convicted of a separate violation of one of the
specified driving-under-the-influence offenses, be punished by his or
her driving privilege being revoked for 2 years. This bill would
authorize the department to reinstate the privilege provided certain
conditions are met. This bill would require the department to advise
the person that he or she may apply for a restricted driver's license
after completion of 12 months of the suspended period, subject to
certain conditions including, among other things, that the person
provides proof of enrollment in an 18-month or 30-month
driving-under-the-influence program, as prescribed.
(4) This bill would also require a person convicted of driving
under the influence of any drug or the combined influence of any drug
and an alcoholic beverage, without bodily injury to another, within
10 years of being convicted of 2 separate violations of specified
driving-under-the-influence offenses, be punished by his or her
driving privilege being revoked for 3 years. This bill would
authorize the department to reinstate the privilege provided certain
conditions are met. This bill would require the department to advise
the person that he or she may apply for a restricted driver's license
after completion of 12 months of the suspended period, subject to
certain conditions, including, among other things, that the person
has satisfactorily completed the initial 12 months of an 18-month or
30-month driving-under-the-influence program as prescribed.
(5) This bill would make other conforming changes.
(6) This bill would become operative on July 1, 2010.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 13352 of the Vehicle Code is amended to read:
13352. (a) The department shall immediately suspend or revoke the
privilege of a person to operate a motor vehicle upon the receipt of
an abstract of the record of a court showing that the person has
been convicted of a violation of Section 23152 or 23153, subdivision
(a) of Section 23109, or Section 23109.1, or upon the receipt of a
report of a judge of the juvenile court, a juvenile traffic hearing
officer, or a referee of a juvenile court showing that the person has
been found to have committed a violation of Section 23152 or 23153
or subdivision (a) of Section 23109 or Section 23109.1. If an offense
specified in this section occurs in a vehicle defined in Section
15210, the suspension or revocation specified below shall apply to
the noncommercial driving privilege. The commercial driving privilege
shall be disqualified as specified in Sections 15300 to 15302,
inclusive. For the purposes of this section, suspension or revocation
shall be as follows:
(1) Except as required under Section 13352.1 or 13352.4, upon a
conviction or finding of a violation of Section 23152 punishable
under Section 23536, the privilege shall be suspended for a period of
six months.
The privilege may not be reinstated until the person gives proof
of financial responsibility and gives proof satisfactory to the
department of successful completion of a driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code described in subdivision (b) of Section 23538. If the court, as
authorized under paragraph (3) of subdivision (b) of Section 23646,
elects to order a person to enroll in, participate in, and complete
either program described in subdivision (b) of Section 23542, the
department shall require that program in lieu of the program
described in subdivision (b) of Section 23538. For the purposes of
this paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit may not be given to any program activities
completed prior to the date of the current violation.
(2) Upon a conviction or finding of a violation of Section 23153
punishable under Section 23554, the privilege shall be suspended for
a period of one year. The privilege may not be reinstated until the
person gives proof of financial responsibility and gives proof
satisfactory to the department of successful completion of a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code as described in subdivision (b)
of Section 23556. If the court, as authorized under paragraph (3) of
subdivision (b) of Section 23646, elects to order a person to enroll
in, participate in, and complete either program described in
subdivision (b) of Section 23542, the department shall require that
program in lieu of the program described in Section 23556. For the
purposes of this paragraph, enrollment, participation, and completion
of an approved program shall be subsequent to the date of the
current violation. Credit may not be given to any program activities
completed prior to the date of the current violation.
(3) Except as provided in Section 13352.5, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23540, and if the person was found to be only under the influence of
an alcoholic beverage at the time of the violation of Section 23152,
the privilege shall be suspended for two years. The privilege may not
be reinstated until the person gives proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code as
described in subdivision (b) of Section 23542. For the purposes of
this paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit shall not be given to any program activities
completed prior to the date of the current violation. The department
shall advise a person convicted or found to be in violation of
subdivision (a) or (b) of Section 23152 that after completion of 90
days of the suspension period, which may include credit for a
suspension period served under subdivision (c) of Section 13353.3,
the person may apply to the department for a restricted driver's
license. Eligibility for the restricted driver's license is subject
to the following conditions:
(A) The person has satisfactorily provided, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) Proof of enrollment in an 18-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code.
(ii) Proof of enrollment in a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, if available in the county of the person's residence or
employment.
(B) The person agrees, as a condition of the restriction, to
continue satisfactory participation in the program described in
subparagraph (A).
(C) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(D) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(E) The person provides proof of financial responsibility, as
defined in Section 16430.
(F) The person pays all reissue fees and any restriction fee
required by the department.
(G) The person pays to the department a fee sufficient to cover
the costs of administration of this paragraph, as determined by the
department.
(H) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(4) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23560, the privilege shall be revoked for a period of three years.
The privilege may not be reinstated until the person gives proof of
financial responsibility, and the person gives proof satisfactory to
the department of successful completion of a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as described in paragraph (4) of
subdivision (b) of Section 23562. For the purposes of this
paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit shall not be given to any program activities
completed prior to the date of the current violation. The department
shall advise the person that after the completion of 12 months of the
revocation period, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, the person may apply
to the department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in that 30-month program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(F) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(5) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23546, and if the person was found to be only under the influence of
an alcoholic beverage at the time of the violation of Section 23152,
the privilege shall be revoked for a period of three years. The
privilege may not be reinstated until the person files proof of
financial responsibility and gives proof satisfactory to the
department of successful completion of one of the following programs:
an 18-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code, as described in
subdivision (b) or (c) of Section 23548, or, if available in the
county of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise a
person convicted or found to be in violation of subdivision (a) or
(b) of Section 23152 that after completion of six months of the
revocation period, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, the person may apply
to the department for a restricted driver's license. Eligibility for
the restricted driver's license is subject to the following
conditions:
(A) The person has satisfactorily provided, subsequent to the
violation date of the current underlying conviction, one of the
following:
(i) With regard to a conviction under subdivision (a) or (b) of
Section 23152, proof of enrollment in an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) With regard to a conviction under subdivision (a) or (b) of
Section 23152, proof of enrollment in a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23546 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The person pays to the department a fee sufficient to cover
the costs of administration of this paragraph, as determined by the
department.
(H) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(6) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23540, and if the person was found to be under the influence of any
drug or the combined influence of any drug and an alcoholic beverage,
the privilege shall be suspended for two years. The privilege may
not be reinstated until the person gives proof of financial
responsibility and gives proof satisfactory to the department of
successful completion of a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code as
described in subdivision (b) of Section 23542. For the purposes of
this paragraph, enrollment in, participation in, and completion of an
approved program shall be subsequent to the date of the current
violation. Credit shall not be given to any program activities
completed prior to the date of the current violation. The department
shall advise the person that after completion of 12 months of the
suspension period, which may include credit for a suspension period
served under subdivision (c) of Section 13353.3, the person may apply
to the department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily provided, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) Proof of enrollment in an 18-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code.
(ii) Proof of enrollment in a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, if available in the county of the person's residence or
employment.
(B) The person agrees, as a condition of the restriction, to
continue satisfactory participation in the program described in
subparagraph (A).
(C) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(D) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(E) The person provides proof of financial responsibility, as
defined in Section 16430.
(F) The person pays all administrative fees or reissue fees and
any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(7) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23546, and if the person was found to be under the influence of any
drug or the combined influence of any drug and an alcoholic beverage,
the privilege shall be revoked for a period of three years. The
privilege may not be reinstated until the person files proof of
financial responsibility and gives proof satisfactory to the
department of successful completion of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as described in subdivision (b)
or (c) of Section 23548, or, if available in the county of the person'
s residence or employment, a 30-month driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety
Code, or a program specified in Section 8001 of the Penal Code. For
the purposes of this paragraph, enrollment in, participation in, and
completion of an approved program shall be subsequent to the date of
the current violation. Credit shall not be given to any program
activities completed prior to the date of the current violation. The
department shall advise the person that after completion of 12 months
of the revocation period, which may include credit for a suspension
period served under subdivision (c) of Section 13353.3, the person
may apply to the department for a restricted driver's license,
subject to the following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23546 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(8) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23153 punishable under Section
23550.5 or 23566, the privilege shall be revoked for a period of five
years. The privilege may not be reinstated until the person gives
proof of financial responsibility and proof satisfactory to the
department of successful completion of one of the following programs:
an 18-month driving-under-the-influence program licensed pursuant to
Section 11836 of the Health and Safety Code, as described in
subdivision (b) of Section 23568 or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 12 months of the revocation
period, which may include credit for a suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(ii) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if a 30-month program is
unavailable in the person's county of residence or employment.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23153
punishable under Section 23566 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(9) Except as provided in this paragraph, upon a conviction or
finding of a violation of Section 23152 punishable under Section
23550 or 23550.5, or Section 23153 punishable under Section 23550.5
the privilege shall be revoked for a period of four years. The
privilege may not be reinstated until the person gives proof of
financial responsibility and proof satisfactory to the department of
successful completion of one of the following programs: an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or, if available in the county
of the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, or a program specified in
Section 8001 of the Penal Code. For the purposes of this paragraph,
enrollment in, participation in, and completion of an approved
program shall be subsequent to the date of the current violation.
Credit shall not be given to any program activities completed prior
to the date of the current violation. The department shall advise the
person that after the completion of 12 months of the revocation
period, which may include credit for a suspension period served under
subdivision (c) of Section 13353.3, the person may apply to the
department for a restricted driver's license, subject to the
following conditions:
(A) The person has satisfactorily completed, subsequent to the
violation date of the current underlying conviction, either of the
following:
(i) The initial 12 months of an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code.
(ii) The initial 12 months of a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, if available in the county of
the person's residence or employment, and the person agrees, as a
condition of the restriction, to continue satisfactory participation
in the 30-month driving-under-the-influence program.
(B) The person submits the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(C) The person agrees to maintain the ignition interlock device as
required under subdivision (g) of Section 23575.
(D) The person provides proof of financial responsibility, as
defined in Section 16430.
(E) An individual convicted of a violation of Section 23152
punishable under Section 23550 may also, at any time after
sentencing, petition the court for referral to an 18-month
driving-under-the-influence program or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code. Unless good cause is shown, the
court shall order the referral.
(F) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(G) The restriction shall remain in effect for the period required
in subdivision (f) of Section 23575.
(10) Upon a conviction or finding of a violation of subdivision
(a) of Section 23109 that is punishable under subdivision (e) of that
section or Section 23109.1, the privilege shall be suspended for a
period of 90 days to six months, if ordered by the court. The
privilege may not be reinstated until the person gives proof of
financial responsibility, as defined in Section 16430.
(11) Upon a conviction or finding of a violation of subdivision
(a) of Section 23109 that is punishable under subdivision (f) of that
section, the privilege shall be suspended for a period of six
months, if ordered by the court. The privilege may not be reinstated
until the person gives proof of financial responsibility, as defined
in Section 16430.
(b) For the purpose of paragraphs (2) to (11), inclusive, of
subdivision (a), the finding of the juvenile court judge, the
juvenile hearing officer, or the referee of a juvenile court of a
commission of a violation of Section 23152 or 23153 or subdivision
(a) of Section 23109 or Section 23109.1, as specified in subdivision
(a) of this section, is a conviction.
(c) A judge of a juvenile court, juvenile hearing officer, or
referee of a juvenile court shall immediately report the findings
specified in subdivision (a) to the department.
(d) A conviction of an offense in a state, territory, or
possession of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, or Canada that, if committed in this
state, would be a violation of Section 23152, is a conviction of
Section 23152 for the purposes of this section, and a conviction of
an offense that, if committed in this state, would be a violation of
Section 23153, is a conviction of Section 23153 for the purposes of
this section. The department shall suspend or revoke the privilege to
operate a motor vehicle pursuant to this section upon receiving
notice of that conviction.
(e) For the purposes of the restriction conditions specified in
paragraphs (3) to (9), inclusive, of subdivision (a), the department
shall terminate the restriction imposed pursuant to this section and
shall suspend or revoke the person's driving privilege upon receipt
of notification from the driving-under-the-influence program that the
person has failed to comply with the program requirements. The
person's driving privilege shall remain suspended or revoked for the
remaining period of the original suspension or revocation imposed
under this section and until all reinstatement requirements described
in this section are met.
(f) For the purposes of this section, completion of a program is
the following:
(1) Satisfactory completion of all program requirements approved
pursuant to program licensure, as evidenced by a certificate of
completion issued, under penalty of perjury, by the licensed program.

(2) Certification, under penalty of perjury, by the director of a
program specified in Section 8001 of the Penal Code, that the person
has completed a program specified in Section 8001 of the Penal Code.
(g) The holder of a commercial driver's license who was
operating a commercial motor vehicle, as defined in Section 15210, at
the time of a violation that resulted in a suspension or revocation
of the person's noncommercial driving privilege under this section is
not eligible for the restricted driver's license authorized under
paragraphs (3) to (9), inclusive, of subdivision (a).
SEC. 2. Section 13352.5 of the Vehicle Code is amended to read:
13352.5. (a) The department shall issue a restricted driver's
license to a person whose driver's license was suspended under
paragraph (3) of subdivision (a) of Section 13352, if all of the
following requirements have been met:
(1) Proof satisfactory to the department of enrollment in, or
completion of, a driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code, as described
in subdivision (b) of Section 23542 has been received in the
department's headquarters.
(2) The person submits proof of financial responsibility, as
described in Section 16430.
(3) The person completes not less than 90 days of the suspension
period imposed under paragraph (3) of subdivision (a) of Section
13352. The 90 days may include credit for any suspension period
served under subdivision (c) of Section 13353.3.
(4) The person pays all applicable reinstatement or reissue fees
and any restriction fee required by the department.
(b) The restriction of the driving privilege shall become
effective when the department receives all of the documents and fees
required under subdivision (a) and shall remain in effect until the
final day of the original suspension imposed under paragraph (3) of
subdivision (a) of Section 13352, or until the date all reinstatement
requirements described in Section 13352 have been met, whichever
date is later.
(c) The restriction of the driving privilege shall be limited to
the hours necessary for driving to and from the person's place of
employment, driving during the course of employment, and driving to
and from activities required in the driving-under-the-influence
program.
(d) Whenever the driving privilege is restricted under this
section, proof of financial responsibility, as defined in Section
16430, shall be maintained for three years. If the person does not
maintain that proof of financial responsibility at any time during
the restriction, the driving privilege shall be suspended until the
proof required under Section 16484 is received by the department.
(e) For the purposes of this section, enrollment in, participation
in, and completion of an approved program shall be subsequent to the
date of the current violation. Credit shall not be given to any
program activities completed prior to the date of the current
violation.
(f) The department shall terminate the restriction imposed
pursuant to this section and shall suspend the privilege to drive
under paragraph (3) of subdivision (a) of Section 13352 upon receipt
of notification from the driving-under-the-influence program that the
person has failed to comply with the program requirements.
(g) If, upon conviction, the court has made the determination, as
authorized under subdivision (b) of Section 23540 or subdivision (d)
of Section 23542, to disallow the issuance of a restricted driver's
license, the department shall not issue a restricted driver's license
under this section.
(h) A person restricted pursuant to this section may apply to the
department for a restricted driver's license, subject to the
conditions specified in paragraph (3) of subdivision (a) of Section
13352. Whenever proof of financial responsibility has already been
provided and a restriction fee has been paid in compliance with
restrictions described in this section, and the offender subsequently
receives an ignition interlock device restriction described in
paragraph (3) of subdivision (a) of Section 13352, the proof of
financial responsibility period shall not be extended beyond the
previously established term and no additional restriction fee shall
be required.
(i) This section applies to a person who meets all of the
following conditions:
(1) Has been convicted of a violation of Section 23152 that
occurred on or before July 1, 1999, and is punishable under Section
23540, or former Section 23165.
(2) Was granted probation for the conviction subject to conditions
imposed under subdivision (b) of Section 23542, or under subdivision
(b) of former Section 23166.
(3) Is no longer subject to the probation described in paragraph
(2).
(4) Has not completed the licensed driving-under-the-influence
program under paragraph (3) of subdivision (a) of Section 13352 for
reinstatement of the driving privilege.
(5) Has no violations in his or her driving record that would
preclude issuance of a restricted driver's license.
SEC. 3. Section 23109 of the Vehicle Code is amended to read:
23109. (a) A person shall not engage in a motor vehicle speed
contest on a highway. As used in this section, a motor vehicle speed
contest includes a motor vehicle race against another vehicle, a
clock, or other timing device. For purposes of this section, an event
in which the time to cover a prescribed route of more than 20 miles
is measured, but where the vehicle does not exceed the speed limits,
is not a speed contest.
(b) A person shall not aid or abet in any motor vehicle speed
contest on any highway.
(c) A person shall not engage in a motor vehicle exhibition of
speed on a highway, and a person shall not aid or abet in a motor
vehicle exhibition of speed on any highway.
(d) A person shall not, for the purpose of facilitating or aiding
or as an incident to any motor vehicle speed contest or exhibition
upon a highway, in any manner obstruct or place a barricade or
obstruction or assist or participate in placing a barricade or
obstruction upon any highway.
(e) (1) A person convicted of a violation of subdivision (a) shall
be punished by imprisonment in a county jail for not less than 24
hours nor more than 90 days or by a fine of not less than three
hundred fifty-five dollars ($355) nor more than one thousand dollars
($1,000), or by both that fine and imprisonment. That person shall
also be required to perform 40 hours of community service. The court
may order the privilege to operate a motor vehicle suspended for 90
days to six months, as provided in paragraph (10) of subdivision (a)
of Section 13352. The person's privilege to operate a motor vehicle
may be restricted for 90 days to six months to necessary travel to
and from that person's place of employment and, if driving a motor
vehicle is necessary to perform the duties of the person's
employment, restricted to driving in that person's scope of
employment. This subdivision does not interfere with the court's
power to grant probation in a suitable case.
(2) If a person is convicted of a violation of subdivision (a) and
that violation proximately causes bodily injury to a person other
than the driver, the person convicted shall be punished by
imprisonment in a county jail for not less than 30 days nor more than
six months or by a fine of not less than five hundred dollars ($500)
nor more than one thousand dollars ($1,000), or by both that fine
and imprisonment.
(f) (1) If a person is convicted of a violation of subdivision (a)
for an offense that occurred within five years of the date of a
prior offense that resulted in a conviction of a violation of
subdivision (a), that person shall be punished by imprisonment in a
county jail for not less than four days nor more than six months, and
by a fine of not less than five hundred dollars ($500) nor more than
one thousand dollars ($1,000).
(2) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes bodily
injury to a person other than the driver, a person convicted of that
second violation shall be imprisoned in a county jail for not less
than 30 days nor more than six months and by a fine of not less than
five hundred dollars ($500) nor more than one thousand dollars
($1,000).
(3) If the perpetration of the most recent offense within the
five-year period described in paragraph (1) proximately causes
serious bodily injury, as defined in paragraph (4) of subdivision (f)
of Section 243 of the Penal Code, to a person other than the driver,
a person convicted of that second violation shall be imprisoned in
the state prison, or in a county jail for not less than 30 days nor
more than one year, and by a fine of not less than five hundred
dollars ($500) nor more than one thousand dollars ($1,000).
(4) The court shall order the privilege to operate a motor vehicle
of a person convicted under paragraph (1), (2), or (3) suspended for
a period of six months, as provided in paragraph (11) of subdivision
(a) of Section 13352. In lieu of the suspension, the person's
privilege to operate a motor vehicle may be restricted for six months
to necessary travel to and from that person's place of employment
and, if driving a motor vehicle is necessary to perform the duties of
the person's employment, restricted to driving in that person's
scope of employment.
(5) This subdivision does not interfere with the court's power to
grant probation in a suitable case.
(g) If the court grants probation to a person subject to
punishment under subdivision (f), in addition to subdivision (f) and
any other terms and conditions imposed by the court, which may
include a fine, the court shall impose as a condition of probation
that the person be confined in a county jail for not less than 48
hours nor more than six months. The court shall order the person's
privilege to operate a motor vehicle to be suspended for a period of
six months, as provided in paragraph (11) of subdivision (a) of
Section 13352 or restricted pursuant to subdivision (f).
(h) If a person is convicted of a violation of subdivision (a) and
the vehicle used in the violation is registered to that person, the
vehicle may be impounded at the registered owner's expense for not
less than one day nor more than 30 days.
(i) A person who violates subdivision (b), (c), or (d) shall upon
conviction of that violation be punished by imprisonment in a county
jail for not more than 90 days, by a fine of not more than five
hundred dollars ($500), or by both that fine and imprisonment.
(j) If a person's privilege to operate a motor vehicle is
restricted by a court pursuant to this section, the court shall
clearly mark the restriction and the dates of the restriction on that
person's driver's license and promptly notify the Department of
Motor Vehicles of the terms of the restriction in a manner prescribed
by the department. The Department of Motor Vehicles shall place that
restriction in the person's records in the Department of Motor
Vehicles and enter the restriction on a license subsequently issued
by the Department of Motor Vehicles to that person during the period
of the restriction.
(k) The court may order that a person convicted under this
section, who is to be punished by imprisonment in a county jail, be
imprisoned on days other than days of regular employment of the
person, as determined by the court.
( l ) This section shall be known and may be cited as
the Louis Friend Memorial Act.
SEC. 4. Section 23550 of the Vehicle Code is amended to read:
23550. (a) If a person is convicted of a violation of Section
23152 and the offense occurred within 10 years of three or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination thereof, that
resulted in convictions, that person shall be punished by
imprisonment in the state prison, or in a county jail for not less
than 180 days nor more than one year, and by a fine of not less than
three hundred ninety dollars ($390) nor more than one thousand
dollars ($1,000). The person's privilege to operate a motor vehicle
shall be revoked by the Department of Motor Vehicles pursuant to
paragraph (9) of subdivision (a) of Section 13352. The court shall
require the person to surrender the driver's license to the court in
accordance with Section 13550.
(b) A person convicted of a violation of Section 23152 punishable
under this section shall be designated as a habitual traffic offender
for a period of three years, subsequent to the conviction. The
person shall be advised of this designation pursuant to subdivision
(b) of Section 13350.
SEC. 5. Section 23550.5 of the Vehicle Code is amended to read:
23550.5. (a) A person is guilty of a public offense, punishable
by imprisonment in the state prison or confinement in a county jail
for not more than one year and by a fine of not less than three
hundred ninety dollars ($390) nor more than one thousand dollars
($1,000) if that person is convicted of a violation of Section 23152
or 23153, and the offense occurred within 10 years of any of the
following:
(1) A prior violation of Section 23152 that was punished as a
felony under Section 23550 or this section, or both, or under former
Section 23175 or former Section 23175.5, or both.
(2) A prior violation of Section 23153 that was punished as a
felony.
(3) A prior violation of paragraph (1) of subdivision (c) of
Section 192 of the Penal Code that was punished as a felony.
(b) Each person who, having previously been convicted of a
violation of subdivision (a) of Section 191.5 of the Penal Code, a
felony violation of subdivision (b) of Section 191.5, or a violation
of subdivision (a) of Section 192.5 of the Penal Code, is
subsequently convicted of a violation of Section 23152 or 23153 is
guilty of a public offense punishable by imprisonment in the state
prison or confinement in a county jail for not more than one year and
by a fine of not less than three hundred ninety dollars ($390) nor
more than one thousand dollars ($1,000).
(c) The privilege to operate a motor vehicle of a person convicted
of a violation that is punishable under subdivision (a) or (b) shall
be revoked by the department under paragraph (9) of subdivision (a)
of Section 13352, unless paragraph (8) of subdivision (a) of Section
13352 is also applicable, in which case the privilege shall be
revoked under that provision. The court shall require the person to
surrender the driver's license to the court in accordance with
Section 13550.
(d) A person convicted of a violation of Section 23152 or 23153
that is punishable under this section shall be designated as a
habitual traffic offender for a period of three years, subsequent to
the conviction. The person shall be advised of this designation under
subdivision (b) of Section 13350.
SEC. 6. Section 23552 of the Vehicle Code is amended to read:
23552. (a) (1) If the court grants probation to a person punished
under Section 23550, in addition to the provisions of Section 23600
and any other terms and conditions imposed by the court, the court
shall impose as conditions of probation that the person be confined
in a county jail for at least 180 days but not more than one year and
pay a fine of at least three hundred ninety dollars ($390) but not
more than one thousand dollars ($1,000).
(2) The person's privilege to operate a motor vehicle shall be
revoked by the department under paragraph (9) of subdivision (a) of
Section 13352. The court shall require the person to surrender the
driver's license to the court in accordance with Section 13550.
(b) In addition to subdivision (a), if the court grants probation
to any person punished under Section 23550, the court may order as a
condition of probation that the person participate, for at least 30
months subsequent to the underlying conviction and in a manner
satisfactory to the court, in a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code. In
lieu of the minimum term of imprisonment in subdivision (a), the
court shall impose as a condition of probation under this subdivision
that the person be confined in the county jail for at least 30 days
but not more than one year. The court shall not order the treatment
prescribed by this subdivision unless the person makes a specific
request and shows good cause for the order, whether or not the person
has previously completed a treatment program pursuant to subdivision
(b) of Section 23542 or paragraph (4) of subdivision (b) of Section
23562. In order to enable all required persons to participate, each
person shall pay the program costs commensurate with the person's
ability to pay as determined pursuant to Section 11837.4 of the
Health and Safety Code. No condition of probation required pursuant
to this subdivision is a basis for reducing any other probation
requirement in this section or Section 23600 or for avoiding the
mandatory license revocation provisions of paragraph (9) of
subdivision (a) of Section 13352.
(c) In addition to Section 23600 and subdivision (a), if the court
grants probation to any person punished under Section 23550 who has
not previously completed a treatment program pursuant to subdivision
(b) of Section 23542 or paragraph (4) of subdivision (b) of Section
23562, and unless the person is ordered to participate in, and
complete, a program under subdivision (b), the court shall impose as
a condition of probation that the person, subsequent to the date of
the current violation, enroll in and participate, for at least 18
months and in a manner satisfactory to the court, in a
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as designated by the court. The
person shall complete the entire program subsequent to, and shall not
be given any credit for program activities completed prior to, the
date of the current violation. A person who has previously completed
a 12-month or 18-month driving-under-the-influence program licensed
pursuant to Section 11836 of the Health and Safety Code shall not be
eligible for referral pursuant to this subdivision unless a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code is not available for referral in
the county of the person's residence or employment. A condition of
probation required pursuant to this subdivision is not a basis for
reducing any other probation requirement in this section or Section
23600 or for avoiding the mandatory license revocation provisions of
paragraph (9) of subdivision (a) of Section 13352.
(d) The court shall advise the person at the time of sentencing
that the driving privilege may not be restored until the person
provides proof satisfactory to the department of successful
completion of a driving-under-the-influence program of the length
required under this code that is licensed pursuant to Section 11836
of the Health and Safety Code.
SEC. 7. Section 23566 of the Vehicle Code is amended to read:
23566. (a) If a person is convicted of a violation of Section
23153 and the offense occurred within 10 years of two or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination of these
violations, that resulted in convictions, that person shall be
punished by imprisonment in the state prison for a term of two,
three, or four years and by a fine of not less than one thousand
fifteen dollars ($1,015) nor more than five thousand dollars
($5,000). The person's privilege to operate a motor vehicle shall be
revoked by the Department of Motor Vehicles pursuant to paragraph (8)
of subdivision (a) of Section 13352. The court shall require the
person to surrender the driver's license to the court in accordance
with Section 13550.
(b) If a person is convicted of a violation of Section 23153, and
the act or neglect proximately causes great bodily injury, as defined
in Section 12022.7 of the Penal Code, to any person other than the
driver, and the offense occurred within 10 years of two or more
separate violations of Section 23103, as specified in Section
23103.5, or Section 23152 or 23153, or any combination of these
violations, that resulted in convictions, that person shall be
punished by imprisonment in the state prison for a term of two,
three, or four years and by a fine of not less than one thousand
fifteen dollars ($1,015) nor more than five thousand dollars
($5,000). The person's privilege to operate a motor vehicle shall be
revoked by the Department of Motor Vehicles pursuant to paragraph (8)
of subdivision (a) of Section 13352. The court shall require the
person to surrender the driver's license to the court in accordance
with Section 13550.
(c) If a person is convicted under subdivision (b), and the
offense for which the person is convicted occurred within 10 years of
four or more separate violations of Section 23103, as specified in
Section 23103.5, or Section 23152 or 23153, or any combination of
these violations, that resulted in convictions, that person shall, in
addition and consecutive to the sentences imposed under subdivision
(b), be punished by an additional term of imprisonment in the state
prison for three years.
The enhancement allegation provided in this subdivision shall be
pleaded and proved as provided by law.
(d) A person convicted of Section 23153 punishable under this
section shall be designated as a habitual traffic offender for a
period of three years, subsequent to the conviction. The person shall
be advised of this designation pursuant to subdivision (b) of
Section 13350.
(e) A person confined in state prison under this section shall be
ordered by the court to participate in an alcohol or drug program, or
both, that is available at the prison during the person's
confinement. Completion of an alcohol or drug program under this
section does not meet the program completion requirement of paragraph
(8) of subdivision (a) of Section 13352, unless the drug or alcohol
program is licensed under Section 11836 of the Health and Safety
Code, or is a program specified in Section 8001 of the Penal Code.
SEC. 8. Section 23568 of the Vehicle Code is amended to read:
23568. (a) If the court grants probation to a person punished
under Section 23566, in addition to the provisions of Section 23600
and any other terms and conditions imposed by the court, the court
shall impose as conditions of probation that the person be confined
in the county jail for at least one year, that the person pay a fine
of at least three hundred ninety dollars ($390) but not more than
five thousand dollars ($5,000), and that the person make restitution
or reparation pursuant to Section 1203.1 of the Penal Code. The
person's privilege to operate a motor vehicle shall be revoked by the
department under paragraph (8) of subdivision (a) of Section 13352.
The court shall require the person to surrender the driver's license
to the court in accordance with Section 13550.
(b) In addition to Section 23600 and subdivision (a), if the court
grants probation to a person punished under Section 23566, the court
shall impose as a condition of probation that the person enroll in
and complete, subsequent to the date of the underlying violation and
in a manner satisfactory to the court, an 18-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code or, if available in the county of
the person's residence or employment, a 30-month
driving-under-the-influence program licensed pursuant to Section
11836 of the Health and Safety Code, as designated by the court. The
person shall complete the entire program subsequent to, and shall not
be given any credit for program activities completed prior to, the
date of the current violation. In lieu of the minimum term of
imprisonment in subdivision (a), the court shall impose as a minimum
condition of probation under this subdivision that the person be
confined in the county jail for at least 30 days but not more than
one year. Except as provided in this subdivision, if the court grants
probation under this section, the court shall order the treatment
prescribed by this subdivision, whether or not the person has
previously completed a treatment program pursuant to subdivision (b)
of Section 23542 or paragraph (4) of subdivision (b) of Section
23562. In order to enable all required persons to participate, each
person shall pay the program costs commensurate with the person's
ability to pay as determined pursuant to Section 11837.4 of the
Health and Safety Code. No condition of probation required pursuant
to this subdivision is a basis for reducing any other probation
requirement in this section or Section 23600 or for avoiding the
mandatory license revocation provisions of paragraph (8) of
subdivision (a) of Section 13352.
(c) The court shall advise the person at the time of sentencing
that the driving privilege may not be restored until the person
provides proof satisfactory to the department of successful
completion of a driving-under-the-influence program of the length
required under this code that is licensed pursuant to Section 11836
of the Health and Safety Code.
SEC. 9. This act shall become operative on July 1, 2010.

BILL NUMBER: SB 598 CHAPTERED
BILL TEXT

CHAPTER 193
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 10, 2009
PASSED THE ASSEMBLY SEPTEMBER 8, 2009
AMENDED IN ASSEMBLY SEPTEMBER 4, 2009
AMENDED IN ASSEMBLY AUGUST 31, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 23, 2009

INTRODUCED BY Senator Huff
(Coauthors: Senators Benoit, DeSaulnier, Hancock, and Leno)
(Coauthors: Assembly Members Buchanan and Solorio)

FEBRUARY 27, 2009

An act to amend Sections 13352, 13352.5, 23109, 23550, 23550.5,
23552, 23566, and 23568 of the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST

Urgent Press Release: Interlock Device Mandatory for First DUI Offenders, as Governor signs bill today!

If you are convicted of a first time California DUI offense, Governor Arnold says if you live in Alameda, Los Angeles, Sacramento and Tulare Counties, you must install an ignition interlock device in your vehicle. However, to become effective, the project must be funded by January 31, 2010 by federal money. Imagine having to blow every time before you start your car. That kinda sucks. Criminal DUI Attorneys must keep up the good fight in California.

DUI or drunk driving charge? Need the best California DUI attorney?

DUI or drunk driving charge? Need the best California DUI attorney? A seasoned San Diego DUI criminal attorney will provide the most thorough defense and professional handling of your case to protect your legal rights and reduce penalties to the minimum. Defend your California DUI case and give yourself the best chance to get back to your life so seek San Diego DUI legal representation immediately.



Retaining top San Diego drunk driving legal representation will ensure any necessary bail posting as soon as possible to reduce initial San Diego jail time.



The best San Diego DUI defense attorney will investigate all San Diego drunk driving arrests to ensure that the client’s legal rights were preserved and the San Diego county police officer following proper San Diego procedure.



If your San Diego DUI criminal lawyer identifies an illegal action or misconduct by the San Diego police officer, it could be grounds for San Diego DUI case dismissal.



However, if all proper San Diego procedures were followed - an unlikely event - your San Diego DUI attorney will nonetheless defend your San Diego drunk driving case to the most professional extent.



A first San Diego DUI / drunk driving offense is the best opportunity for your San Diego DUI defense lawyer to vigorously defend and to request a reduced San Diego DUI sentencing.



A premier San Diego DUI attorney will be one with over 24 years of experience and expertise in San Diego California drunk driving cases. Excellent San Diego court outcomes and satisfied clients will also be illustrative of the talent of your San Diego DUI / drunk driving criminal attorney.



San Diego DUI law firms provide free initial consultation to learn more about your case.

On August 1, 2009, Rick lectured at the Annual DUI Seminar in connection with the American Bar Association at Loyola Law School in Los Angeles.
If you need to save your driver's license or privileges, your attorney has only ten (10) calendar days to contact DMV!





All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!
Click to contact San Diego DUI Attorneys:

San Diego DUI Attorney

Stop the cops from cheating with your DUI DMV paperwork!

When your California DUI Defense Attorney is defending you at the DMV, you may encounter a sworn Officer's Statement where page 2 has a "cut & paste" narrative portion from the unsworn arrest report incorporated as the Probable Cause. The cop is supposed to detail the facts and circumstances. Instead, an impossible paper game is played and the cop must be stopped. Today California DUI Criminal Defense Lawyer Rick Mueller published an article designed to stop this nonsenses.

Sugar-free Candy or Gum's Sugar Alcohol Causes a Falsely Elevated California DUI Breath Test Reading

Can Sugar-free Candy or Gum's Sugar Alcohol Cause a Falsely Elevated California DUI Breath Test Reading?

Have any sugar alcohol lately?
If you've looked lately at the “Nutrition Facts” panel on a pack of sugar-free gum or candy, you might be surprised to see that it contains “sugar alcohol.” Don't let the name fool you. These ingredients were given this consumer-friendly name because part of their structure resembles sugar and part is similar to alcohol.

Now don't be confused. Although they share a similar name, sugar alcohol and alcoholic beverages do not have the same chemical structure. Sugar alcohol does not contain ethanol, which is found in alcoholic beverages.

What is sugar alcohol?
Sugar alcohols, also know as polyols, are ingredients used as sweeteners and bulking agents. They occur naturally in foods and come from plant products such as fruits and berries. As a sugar substitute, they provide fewer calories (about a half to one-third less calories) than regular sugar. This is because they are converted to glucose more slowly, require little or no insulin to be metabolized and don't cause sudden increases in blood sugar. This makes them popular among individuals with diabetes; however, their use is becoming more common by just about everyone. You may be consuming them and not even know it.

Identifying them
Common sugar alcohols are mannitol, sorbitol, xylitol, lactitol, isomalt, maltitol and hydrogenated starch hydrolysates (HSH). Sugar alcohols are not commonly used in home food preparation, but are found in many processed foods. Food products labeled “sugar-free,” including hard candies, cookies, chewing gums, soft drinks and throat lozenges often consist of sugar alcohols. They are frequently used in toothpaste and mouthwash too.

Check carbohydrates
So why are sugar alcohols used so often? For one thing, they help to provide the sweet flavor to food in many products marketed towards individuals with diabetes. But, beware! There is often the misconception that all sugar alcohol-containing products are “free foods.” Some of these products may still contain significant amounts of carbohydrates. It's important to check the food label for the total carbohydrate contained in the product and talk with a registered dietitian to determine how it will best fit into your meal plan.

If a manufacturer uses the term “sugar free” or “no added sugar,” they must list the grams of sugar alcohols. If more than one sugar alcohol is used in a product, the “Nutrition Facts” panel will list the amount of sugar alcohol it contains under the total carbohydrate. If just one sugar alcohol is used, the label will list its specific name, for example, “mannitol” or “hydrogenated starch hydrolysates.”

Pros and cons of sugar alcohols
On the positive side, sugar alcohols contain less calories (1.5 - 3 calories per gram) than sugar (4 calories per gram), and they do not cause tooth decay like sugar does. Therefore, many “sugar-free” gums including Trident® and Extra® are made with sugar alcohols. Sugar alcohols also add texture to foods, retain moisture better and prevent foods from browning when they are heated.

Unfortunately, there are some negatives associated with sugar alcohols. The most common side effect is the possibility of bloating and diarrhea when sugar alcohols are eaten in excessive amounts. There is also some evidence that sugar alcohols, much like fructose (natural fruit sugar) in fruit and fruit juice can cause a “laxative effect.” Weight gain has been seen when these products are overeaten. The American Diabetes Association claims that sugar alcohols are acceptable in a moderate amount but should not be eaten in excess. Some people with diabetes, especially Type I diabetics, have found that their blood sugars rise if sugar alcohols are eaten in uncontrolled amounts.

Sugar alcohols vs. artificial sweeteners
Sugar alcohols and artificial sweeteners, such as saccharin (Sweet & Low®) and aspartame (Equal® or Nutrasweet®), are not one and the same. One difference between the two types of sugar substitutes is that the artificial sweeteners contain zero calories whereas sugar alcohols contain about 2.6 calories per gram. Another issue is diabetes management. Artificial sweeteners do not contain carbohydrates so they do not cause blood sugar to elevate, whereas, sugar alcohols have some effect on blood sugar. Overall, both can be useful in diabetes management when used properly.

Forms of sugar alcohol
Mannitol occurs naturally in pineapples, olives, asparagus, sweet potatoes and carrots. It is extracted from seaweed for use in food manufacturing. Mannitol has 50-70 percent of the relative sweetness of sugar, which means more must be used to equal the sweetness of sugar. Mannitol lingers in the intestines for a long time and therefore often causes bloating and diarrhea.

Sorbitol is found naturally in fruits and vegetables. It is manufactured from corn syrup. Sorbitol has only 50 percent of the relative sweetness of sugar which means twice as much must be used to deliver a similar amount of sweetness to a product. It has less of a tendency to cause diarrhea compared to mannitol. It is often an ingredient in sugar-free gums and candies.

Xylitol is also called “wood sugar” and occurs naturally in straw, corncobs, fruit, vegetables, cereals, mushrooms and some cereals. Xylitol has the same relative sweetness as sugar. It is found in chewing gums.

Lactitol has about 30-40 percent of sugar's sweetening power, but its taste and solubility profile resembles sugar so it is often found in sugar-free ice cream, chocolate, hard and soft candies, baked goods, sugar-reduced preserves and chewing gums.

Isomalt is 45 - 65 percent as sweet as sugar and does not tend to lose its sweetness or break down during the heating process. Isomalt absorbs little water, so it is often used in hard candies, toffee, cough drops and lollipops.

Maltitol is 75 percent as sweet as sugar. It is used in sugar-free hard candies, chewing gum, chocolate-flavored desserts, baked goods and ice cream because it gives a creamy texture to foods.

Hydrogenated starch hydrolysates (HSH) are produced by the partial hydrolysis of corn. HSH are nutritive sweeteners that provide 40 - 90 percent of the sweetness of sugar. HSH do not crystallize and are used extensively in confections, baked goods and mouthwashes.

Contact a California DUI Defense Attorney for questions.

Cellphones should be turned off within at least 30-35 feet of any California DUI breath test machine for reliability & accuracy

Cellphones and other transmitting devices should be turned off within at least 30-35 feet of any California DUI breath test machine or California DUI Preliminary Alcohol Screening (PAS) breath test. Otherwise there exists the serious risk of frequency interference, causing one's California drunk driving breath test machine result to not be accurate.

There are a number of different cellular systems in use in California. In order of possible cellular interference, they are AMPS and D-Amps (analog), CDMA Code Division Multiple Access (digital) and TDMA Time Division Multiple Access (digital). Analog is obsolete technology but it is still being used.

TDMA is easily the worst as it can easily inflate readings on most California DUI breath test machines. The cellphone is transmitting SID signals (Signal Identification Data) at regular intervals to maintain communication with the nearest cellsite when not receiving cellphone messages.

Cellphone interference increases when receiving voice or text because it is then in two-way communication to verify handset identity. That exchange takes place before the phone even rings and if there is a CDMA/TDMA phone near to an in-use landline phone or e.g. a computer speaker system, one can often hear the reply pulses sent by the phone before it rings. This strong source of invasive Radio Frequency Interference (RFI) makes any California breath tests conducted under those circumstances extremely suspect and seriously questionable.

Radio Frequency Interference detectors are quite crude as they cannot detect at cellular frequencies or produce unreliable results. Even the more regarded Draeger 7110 MKIII C (a purportedly superior machine not even used by San Diego DUI police) can be affected as it will produce erroneous responses when a TDMA phone is operated nearby.

The RFI detector simply does not detect all Radio Frequency (RF), no matter what the power or frequency. Normal radio traffic or FM or AM radio does not set off the detector. There further may be a threshold level for power or frequencies at which the RF detector aborts the California DUI breath test.

There was a study by Digital Corporation, done for CMI, the maker of San Diego Police Department's Intoxilyzer machine. That study included various documents showing when the RF detector is essentially blind at various frequencies.

Undetected RF can be generated by internal components that are old or wearing out, such as the chopper wheel motor and the cooling fan motor.

RF has the potential for altering the accuracy of the machine. That is why the California DUI breath test manufacturers attempted to build detectors as part of its machines.

DUI Prosecution experts cannot produce valid studies to determine the sensitivity of the California DUI breath machine's RF detector. Studies show undetected RF actually artificially doubles the California DUI breath test machine's readout.

Accordingly, all cellular and other transmitting devices should clearly be switched off or in flight mode within at least 30-35 feet of any California DUI breath test machine. Otherwise, the California drunk driving breath test number is probably not reliable.

Consult a California DUI Attorney for assistance with this possible California drunk driving defense issue.

More lies, more DUI arrests, more $$$$$$$

DUI attorneys report a police officer motivated by extra pay from prospective court appearances has been caught lying in his DUI arrest reports. The Chicago drunk driving charges trumped up by the officer were shown to be fabrications by these videos.

California DUI Defense Lawyers explore ways to attack breath tests

California DUI Defense Lawyers explore ways to attack breath tests. For your BAC level to be accurate and reliable in a California DUI case, the test result should be representative of your true blood alcohol level at the time of driving (vs. the time of the test).

1) When were you tested: a) during the absorptive or b) during the post-absorptive phase?
2) Were you still absorbing alcohol at the time of driving?
3) Did your body complete absorption of alcohol as of the time of the test?

Your California DUI breath or blood test will most likely be unreliable if administered while you were still actively absorbing beer or wine or whatever.

Obviously, if you were still absorbing alcohol at the last time you were driving, your alcohol level would have to be lower at the time of driving than at the time of the California DUI test later taken at jail or the police station.

Depending on when you had your last alcoholic drink prior to driving, this is a critical factor as it may take 30 minutes to 3 hours for full alcohol absorption. And if there is food that has not yet digested, this could further delay absorption. Due to this absorptive phase factor, the results of your California DUI blood or breath test could be inaccurate. The number may not represent your BAC at time of driving.

Many articles may be used to one's advantage by your experienced California DUI Lawyer.

Cop Tailgate You Before DUI Stop!?

California DUI arrest triggered by Black-and-White Fever? California DUI officers create and spread something called "black-and-white fever.". This phenomenon is logically the normal reaction of most drivers to being followed by a marked police car (usually painted black and white).

If the citizen driver becomes cognizant that a police car is following him or her, he or she becomes reasonably apprehensive and increasingly focuses his or her attention on the marked police car in the rear view mirror. As the California DUI officer continues to follow, the driver becomes stressed and his or her concentration on pure driving is interrupted. He or she keeps his eyes more on the mirror and less on the road ahead. When the driver brings back his or her eyes forward to the road, he or she finds that he or she has drifted somewhat. Now he or she must correct the travel of the vehicle back to the center of the lane. What happens establishes probable cause for the stop: drifting, straddling or weaving, and possibly somewhat erratic movements such as sudden increases or decreases in speed (e.g. tension making one's shoe let up on the gas). Coincidentally, these are some of the most commonly encountered symptoms of a California DUI / drunk driver on the road. The California DUI officer's very existence or approach creates the probable cause for suspecting a DUI.

Once the California drunk driving officer pulls the driver over, the officer gets out and approaches the car with the very human preconception that the driver is probably intoxicated. Of course, the first thing the California DUI officer senses is an odor of alcohol. Like a bowling ball rolling down a lane, California DUI officers then see what they psychologically look to see: normally veined eyes appear bloodshot or red; normal but nervous speech sounds slurred; normal pink complexion is flushed; and the tense exit from the vehicle to some dark, unknown surface reveals an unsteady gait. Get up to speed with these California DUI articles and fight back!!

How to avoid a DUI

The best way to avoid a DUI conviction or DMV suspension is to not drink and drive.
These Top 10 tips are designed to provide accurate and authoritative information.

Purchasing a Portable Breath Tester will also assist you in determining your alcohol level before you drive. Even if you've had only a small amount of alcohol and you are not impaired, as long as you smell like alcohol, you can still be arrested. Being arrested for DUI does not automatically result in a conviction or loss of your driver's license. Protect your rights and save your license.

How does the US compare with UK & Oz re: DUI implications?

California DUI attorneys are often asked about International Comparisons

In the UK (United Kingdom) and Oz (Australia), deaths caused by DUI or drunk driving are much lower than the USA, although alcohol consumption per capita is higher and the legal age for drinking lower.

Research in the United Kingdom has show that the danger group for DUI or drunk driving is young men in their early 20's rather than teenagers.

Speed can be an issue in DUI / drunk driving cases.

UK & Oz do not see restricting access to alcohol as having any useful role to play in reducing drunk driving, and their lower drunk driving deaths would seem to bear this out (unlike California and the US).

DUI experience tells them it is that random breath tests, severe penalties, including imprisonment for a first DUI or drunk driving offense, combined with blanket public service broadcasting are the most effective strategy.

Anti-DUI driving adverts in Australia and the UK do not attempt to stigmatize drinking, in fact they make the point that it is a normal social activity; it is when you mix it with driving that it sometime becomes a purported problem.

Australian and British Law do not recognize the crime of DUI Manslaughter and sentences for causing death by drunk driving much lower than the USA while jail time for a first DUI offense is not uncommon.

DUI attorney prosecutor and the California DUI defense lawyer each have constitutional roles in a California DUI

California drunk driving cases require the California DUI attorney prosecutor to legally and ethically provide any California DUI evidence that shows that you are not guilty (or not).

The California DUI attorney prosecutor and the California DUI defense lawyer each have constitutional roles in a California DUI prosecution. These roles are intended to ensure fairness, a fair trial, and that an innocent person is not convicted of a DUI or drunk driving.

A California DUI defense attorney’s constitutional role is to ensure due process via fundamental fairness. Due process rights include the right to confront and cross-examine the witnesses and evidence, the right to have a defense attorney represent you, the right to remain silent and the right to a jury trial. The police must tell the truth and not get caught lying.

The job of a quality California DUI defense attorney cannot be fulfilled without thorough pretrial discovery. A California drunk driving prosecution cannot be fair unless one can see all the evidence - good and bad - the California DUI prosecutor has in your case.

In order to have complete discovery there is much information that should be sought in a California drunk driving case. The majority of this information relates to the elements that the state must prove, the burden of proof, and any California DUI defenses available to the defendant, including rising blood alcohol defenses.

Complete discovery means the California DUI defen­dant is entitled to DUI-related information including the qualifications of the arresting officer, the breath test operator, the blood technician, field sobriety test information, and California DUI blood and/or breath tests administered as part of the California drunk driving investigation.

If you need help, there a number of California DUI attorney resource centers online.

Military Base DUI Problem? California Criminal Defense Attorneys can help!

If arrested for DUI or drunk driving at Camp Pendleton, Miramar or any military base or naval station in San Diego County, why not call San Diego County DUI Law Center's drunk driving specialist Rick Mueller?

Why not hire a top drunk driving lawyer or DUI attorney who successfully gets United States District Court / federal drunk driving cases dismissed, deferred or reduced?

Worried about your Command? Let DUI Specialist Rick Mueller fax your Commanding Officer a Not Guilty letter, explaining how he will appear in court for you, how you enjoy the Presumption of Innocence in the civilian matter, how there is presently no evidence of guilt and how he will vigorously defend the DUI charges.