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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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