DUI Today

Driving under the influence of alcohol, also called DUI" or "drunk driving", is by far the most commonly encountered offense in the courts today. Yet it has always been one of the most difficult charges to defend, involving as it does more esoteric areas of science and law than most felonies, while affording increasingly fewer constitutional safeguards. The substantive, evidentiary, and procedural aspects of DUI litigation have grown immeasurably more complex, while at the same time the stakes for the person facing DUI charges have been raised. In fact, the entire DUI scene today has undergone a change in recent years that may accurately be described as revolutionary.

These radical changes are attributable to a heightened national awareness of the DUI problem. Spurred on by constant media attention and such lobbying groups as Mothers Against Drunk Driving (MADD), legislators across the country have stumbled over each other to provide prosecutors with tougher weapons. It falls upon the California DUI defense attorney, of course, to understand and counter these new weapons with weapons of his own.

The most noticeable element in the prosecution's new arsenal is the so-called DWI per se law. Since 1982, the vast majority of states have enacted statutes that created a new offense: driving while having an excessive blood-alcohol level (.08 percent). This crime, which is usually charged along with the traditional DUI offense, is completely unconcerned with whether the driver was intoxicated or not: the crime is a biological one. Thus the prosecutor's job is made considerably easier - and the DUI lawyer's more difficult.

New and more sophisticated analytical devices have been introduced to prove the accused's blood-alcohol content. Once considered "state-of-the-art", the Breathalyzer 900 and 900A are now looked on as the simplistic "Model Ts" of the breath testing scene. Infrared spectroscopic instruments have taken over the field, with such units as the Intoxilyzer 5000 offering three-band analysis, internal computerization, acetone detection, and radio frequency interference options. Most recently, Draeger has offered its new Alcotest 7110, combining fuel cell technology with an improved infrared wavelength. Blood and urine samples are analyzed less commonly with traditional methods and more frequently with headspace gas chromatography.

But as the methods of analysis become more complex, the possibilities for error grow - and the problem becomes more difficult for the California DUI lawyer to handle. The phenomenon has created difficulties across the full spectrum of chemical analysis. Thus, for example, the spread of infrared analysis requires the DUI attorney to become familiar with light-wave theory and such potential defects as nonspecific analysis and the effects of acetone and acetaldehyde. Similarly, the theory and fallacies of retrograde extrapolation must be understood if the California drunk driving lawyer expects to effectively attack any method of blood-alcohol analysis. The California DUI defense attorney must be able to expose the weaknesses of the computer programming in the newer breath machines, such as the "assumed" alveolar air ratio used in computing blood-alcohol levels. As these instruments become ever more sophisticated, they are also increasingly susceptible to false readings caused by radio frequency interference.

California DUI lawyers must become familiar with this phenomenon and with the admissions by the federal government and the manufacturers themselves as to its effects. Quite simply, the DUI lawyer who does not familiarize himself with recent developments in blood-alcohol analysis is lost.

Chemical analysis has not been the only arena to experience radical evidentiary changes. Even traditional "field sobriety tests" have witnessed innovations. The "horizontal gaze nystagmus" test, for example, has spread rapidly across the country and can be devastating evidence - if the DUI defense attorney is unprepared to expose its foundational and physiological defects. And new models of hand-held preliminary breath-testing devices are becoming increasingly common among police officer.

As the new DUI laws,procedures, and forms of evidence have been introduced, so the courts have kept pace, with a seemingly unending stream of appellate decisions. In one short period, for example, the U.S. Supreme Court rendered a series of DUI decisions: self-incrimination was the subject in South Dakota v. Neville (1983); blood-alcohol discovery was dealt with in California v. Trombetta (1984); the application of Miranda in DUI cases was defined in Berkemer v. McCarty (1984). A few years later, the Court addressed the right to jury trial in DUI cases in Blanton v. North Las Vegas (1989); the validity of sobriety checkpoints in Michigan Department of State Police v. Sitz (1990); double jeopardy in DUI cases in Grady v. Corbin (1990); and questioning as part of field sobriety testing in Pennsylvania v. Muniz (1990). At the state level, courts across the country have busily churned out contradictory decisions concerning such diverse subjects as DUI roadblocks, foundational requirements for blood-alcohol analysis, right to counsel, admissibility of refusal evidence, and double jeopardy in administrative license suspension cases.

Concurrent with these changes is a marked increase in the severity of sentences rendered in DUI cases. Whereas in the past an offender could expect a fine, probation, and perhaps attendance at a "drunk driving school," he is now increasingly faced with loss of his driver's license and mandatory jail sentences - and, in cases of repeat offenders, with long terms or even felony status.

Underlying this recent rash of developments has been a growing federal presence in the DUI field. Through a "carrot-and-stick" approach using federal highway funds, and with the ominous threat of the Commerce Clause, federal authorities are successfully bringing pressure on states to meet federal guidelines concerning DUI per se laws, intoxication levels, blood-alcohol analysis, sentencing standards, standardized field sobriety tests, "zero tolerance" laws for drivers under 21, etc. As federal involvement continues, the drunk driving laws, evidence, and procedures in states across the country will continue to become even more uniform.

What does all of this mean to the California DUI defense attorney representing a client charged with driving under the influence? It means that education and preparation are more important than ever. The field of DUI litigation has always been a difficult one: Its complexity has easily doubled in recent years. At the same time, the damage that can be suffered by the DUI client has been increased substantially.

Yet despite the vastly more sophisticated nature of DUI litigation, the client accused of this offense is likely to be defended by counsel who normally does not handle DUI or even criminal matters; the crime is unique in that it is committed primarily by individuals who are respectable citizens and who often turn to their business or family lawyer for help. As a result, this highly complex case is handled routinely by attorneys with insufficient knowledge of the extensive scientific, evidentiary, procedural, and tactical considerations involved. And the result is too often predictable.

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