Staying On Top Of The Trends In DUI Litigation
Three Key Trends in DUI Discovery
There are presently three noteworthy patterns affecting driving impaired (DUI) disclosure. The main pattern identifies with DUI checkpoints. There have been a few essential cases sketching out what is a legitimate and suitable checkpoint. Clearly, any DUI captures coming about because of an inappropriate DUI checkpoint would be expelled. The Superior Court of Pennsylvania has held that by distributing the date and times of the proposed DUI checkpoint in the nearby daily paper 3 days ahead of time would be adequate notice. Pennsylvania law takes after the Tarbert/Blouse rules to decide whether a DUI checkpoint is substantial and lawful. The rules incorporate a brief and non-meddling beginning vehicle stop, adequate progress visual notice before the barrier; media see; the choice to hold a detour and the area and time and activity of the barricade must be founded on irrefutable criteria, and be made by the proper authoritative or administrative people; all vehicles ceased must be founded on objective, non-prejudicial norms; and the detour should consider general wellbeing, security and welfare issues.
The second pattern in DUI disclosure identifies with the testing of blood tests. Each testing lab must be ensured, and each lab tech and toxicologist must be qualified. A critical revelation issue identifies with the techniques used to test the blood, and that data has prompted late case law in the matter of who really needs to vouch for the aftereffects of the blood test in a DUI case. The individual affirming must be the individual who really tried the blood. There are likewise contemplations as for the chain of guardianship of the blood test, from the time it was taken at the healing center until the point that the time it was tried. The end result for the blood test in the middle? Where was the example put away? To what extent did it take for the blood to get from where it was attracted from the litigant to a confirmation locker? Was the example refrigerated? How was it transported, and to what extent did that take? Is it accurate to say that it was in a squad car for quite a while, and how hot was the auto? Was there any spoliation of the blood? Spoliation can have a major effect between a blood test that comes in at .159 perusing and an example that comes in at .160 and more prominent to be sure, that outcome can mean the contrast between completing 90 days in prison or completing one year in a state prison . Pennsylvania has three levels of DUI offenses. The least level would be .08 – .099; the high level would be .10 – .159; and the most astounding level would be levels of .16 and more prominent. Therefore, there are numerous issues related with spoliation and care of a blood test to ensure the testing comes about are legitimate. The implications and punishments vary so extraordinarily between a BAC of .159 and a BAC of .160.
The third and last pattern here is with respect to the reasonable justification for a DUI stop and consequent capture. For instance, was the radio call recorded with reference to why the litigant was being ceased? Did the officer verbalize the explanation behind the stop? Is there revelation concerning what field moderation tests were given, and was the individual who gave the field restraint test affirmed? What number of DUI captures has the officer made, and have they at any point had any DUI cases that were rejected in view of the officer’s declaration? For the most part, a huge segment of disclosure in DUI cases identifies with the real reasonable justification for the stop and the reasonable justification of the capture. A case could be expelled on the off chance that it is regarded that there was an issue with the reasonable justification of the stop or the reasonable justification to capture the litigant. For instance, if the officer stops an engine vehicle, and that vehicle did not submit a reasonable activity offense, or the Defendant breezed through the field moderation tests, the Court could decide that the Officer did not have reasonable justification to stop the vehicle, or reasonable justification to capture the individual and stifle any blood, inhale or pee tests taken.
How Technology is Changing the DUI Discovery Process
Innovation assumes a noteworthy part in the DUI revelation process, since so much confirmation is currently electronic in nature, rather than what is composed down on paper. Inquiries regularly emerge with reference to why certain proof was not recorded if everything else was recorded; if innovation was utilized to record confirm, there is less reason for an oversight.
Juries are frequently concerned if the Commonwealth can’t deliver certain kinds of confirmation in a DUI case. Due to TV programs, for example, CSI, the present legal hearers have a tendency to expect more specialized and logical confirmation from the indictment than was normal before. Legal hearers request that incredible care be gone up against the piece of the Commonwealth, the police, and the labs that handle a blood test. We have seen situations where the litigant’s blood was drawn and tried, and the respondent quickly documented a request to get care of the rest of the example to do autonomous testing of the blood. Prior to the proof is pulverized, litigants or their lawyers may request to have a blood test tried by an autonomous lab, and if the blood test was decimated, that is an issue that may come in as confirmation; a jury may ask why the blood test was obliterated so rapidly. Most testing labs are not required to save any blood, inhale or pee tests, as per both the United States Supreme Court, and the Pennsylvania Appellate Courts. The Appellate Courts have established that the test outcomes are the confirmation and not the real blood, inhale or pee, and in this way they don’t need to be safeguarded as proof. In spite of this, an endeavor to get an autonomous lab to test the blood could be exceptionally useful.
From the safeguard perspective, the utilization of innovation can likewise be an advantage in a DUI case. Innovation was regularly destructive in past DUI cases, on account of the way that it was ordinarily utilized against the respondent; yet now that individuals understand that there are such huge numbers of mistakes associated with the testing innovation utilized as a part of DUI cases, innovation can really be an advantage to DUI litigants. Before, most Jurors had small comprehension of the science and took the outcomes gave by the testing labs or testing machines as being, per say, precise. In any case, with watchful disclosure of the testing and capacity technique, a legal hearer could without much of a stretch choose that mistakes can be influenced both in the lab, in the confirmation to process, and the unwavering quality of any blood, inhale or pee testing gadget. Issues, for example, thickening, aging, oxidation and capacity of the blood can cause mistakes in the test outcomes.
The Reliability of DUI Evidence in the Discovery Process
Proof in DUI cases incorporates the aftereffects of blood, breath, or pee testing. Because of exhaustive revelation demands, numerous legal counselors are beginning to understand that missteps are being made amid the blood and inhale testing process which could have a tremendous effect in the result of a DUI case.
From the Commonwealth’s perspective, the police are doing all that they can to be as cautious as conceivable as for the testing procedure in DUI cases. In any case, if a cop who is bringing a blood test once more from a doctor’s facility witnesses a movement casualty or gets a call about genuine criminal case in transit back to the station, they must choose the option to go and aid that case. In the interim, the blood test is simply sitting in the police vehicle; it is in a compartment containing tablets that should help save the blood-yet in the event that that example is sitting in the back of an auto on an extremely hot day for a few hours, there must be a sure measure of spoliation.
Law authorization is doing as well as can be expected to safeguard DUI prove, inside a restricted spending plan. Bigger offices clearly have a more noteworthy capacity to buy cutting edge security of DUI prove, yet the littler offices are doing as well as can be expected with what they have. Revelation in regards to the care and chain of guardianship of the blood is imperative.
DUI Discovery Strategies
Getting and Analyzing Discovery
Amid the underlying meeting with a DUI customer, it is essential to make each inquiry that may prompt a conceivable disclosure issue, from the time they got up upon the arrival of the capture until the point that the time they got back home after the capture. Everything about be gotten to decide if there are any issues that will require more prominent revelation.
Each customer ought to be given a basic task they are to set up a written by hand or wrote story of all that they can review from the time that they had their first drink of liquor to the time they returned home. I need to know every one of the points of interest i.e., where they were sitting in the bar, eatery, or wedding gathering they went to; their identity with and who they may have conversed with at the end of the day, who may have the capacity to check the amount they drank; and what kind of liquor they drank, on the grounds that there is an incredible distinction between the liquor substance of different lagers and additionally different blended beverages. I need to know everything about, if their story is under seven to ten pages, they didn’t complete an adequate activity. Whatever data is given in composed or oral frame is lawyer customer special.
Much of the time, when customers are perched without anyone else’s input they will recall things that they didn’t recollect when they were conversing with me. They may converse with another person who will state, “Do you recall X, Y, and Z?” which may excuse them.
A case of this, a customer was pulled over for an affirmed tail light infringement, however it was found out that the customer’s dad had taken the vehicle in for a State Inspection the following morning, and that the auto passed examination and had no tail light issue. This made a solid issue on concealment in regards to the reasonable justification to stop the engine vehicle. Another case would be the individual who recalled that they were in an accommodation store a couple of minutes before the stop. The individual’s disposition and activities were recorded on the store’s observation camera demonstrating that the individual hinted at no inebriation. Acquiring the tape would be extremely useful in settling the case.
Determining Key Evidence in a DUI Case
Determining the key evidence in a DUI case is often based on what police department made the arrest and what lab or Toxicologist did the testing. There are various procedures used by different police departments in different counties, and there can be major differences in the way in which a laboratory tests for blood. One lab in a particular county seemed to always produce testing results that were significantly higher than the results of PBTs being done by police. This led to additional discovery about that lab’s testing procedures, because most testing laboratories will produce results that are slightly above, below, or the same as the preliminary breath test given by the police. Most police departments take pride in having fairly accurate PBT results. When tests from a certain lab are almost always significantly higher than the PBT results, then that is a sign that you need to do a lot more discovery with respect to that lab.
Similarly, a particular police department may handle their evidence in certain ways which may cause you to decide more discovery is needed. Again, every police officer, department, and testing laboratory is different, and you cannot treat them all in the same way.
Obtaining Evidence: The Discovery Process
The first thing that we do in a DUI case is a process of informal discovery, involving any potential witness interviews the client may provide. The client may say, “Here is my credit card information, and it shows that I paid for two drinks at this bar. I can give you the name of the bartender who served me the two drinks, and the name of someone who was with me all day who can testify that I did not drink during the day, and that we went to the bar together.” Basically, during this preliminary discovery process, I obtain the client’s position on what they had to drink, and then compare that to their blood alcohol content (BAC) reading.
Next, I will try to obtain additional informal discovery information at the preliminary hearing. It is important to bring a court reporter to the hearing so that everything is fully documented. If an officer is reading from a report, you are entitled to see that report; and often you will find that it contains much more information than can be found in the affidavit or probable cause statement. Quite often an Officer’s written report will have much more detail with regard to the field sobriety tests that were given, as well as information related to the probable cause for the stop and/or arrest. An Officer’s notes may give specific details of the field sobriety tests which when compared to standard field sobriety test training manuals would result in a pass. This would rebut the Officer’s Affidavit of Probable Cause where he or she deemed it to be a fail. I have found that you can often get a lot of informal discovery information at the preliminary hearing level.
The next step in the process is filing your formal discovery motion with the District Attorney’s office. You are entitled to everything they have in their file; and if you feel that you need more information, you can subpoena that documentation from the various testing labs, and anything else that you feel may be relevant. This includes past issues with respect to the particular police department or lab. You may wish to look into the testing procedures at the lab, or specifies about the toxicologist or lab technician-i.e., are they still employed there; and if not, can you get a statement from them as to the lab’s policies and procedures with respect to blood testing in DUI cases?
There may also be discovery issues with respect to the machine that was involved in a breath test-i.e., what is the history on that particular machine, and was it ever taken out of service? Usually only the police department will know the answers to those questions; therefore, you may need a separate subpoena directed at the company that does the maintenance and testing on the machine. You need to know if there have ever been any issues with the machine and what was done to correct them. It is very important to know something about the breath testing devise because many machines are handled and taken care of differently. The mouth pieces may not be carefully maintained, replaced and/or cleaned. An individual might have to provide an excessive breathe sample causing vomiting which could render the test invalid. You should also know about the various certifications that have to be done on the machine within a 30-day and one-year period, including all calibrations. For example, I had a DUI case where the breath test machine was taken offline for a period of time, and it was put back online before it was properly recalibrated and re-certified. Based on that fact, the client’s breath test was invalid, and the case was dismissed.
During the discovery process, I also ask my clients to go through the affidavit of probable cause word for word, and tell me line for line if they agree or disagree. Sometimes I find that an officer added something or did not put some piece of information in the affidavit of probable cause. Quite often I find that what an officer did not put in the affidavit of probable cause is more helpful to the defendant what they did put in it. It often turns out that an officer will fail to mention something for a reason and that can give you a greater ability to negotiate your client’s case. Many times if there is a problem that can be shown with regard to the stop, arrest or testing, a plea to a lesser charge or a lower count can sometimes be negotiated.
Ensuring a Complete Discovery Process
The only way to ensure that the discovery is process is complete is to make sure you have gone through all of the formal steps. First, you file your motion for discovery, and the district attorney will provide you with all the relevant discovery that they have. Once you get that information, you must then decide what additional discovery information you are going to need; and sometimes you have to file a petition with the court to force the lab or the district attorney to produce that additional discovery. Once the initial discovery material is reviewed, it might be necessary to subpoena all of the documentation to determine if the DUI checkpoint would survive the Tarbert/Blouse guidelines. Additional information with regard to the certification and service reports on an Intoxilizer machine; additional evidence subpoenaed from the laboratory that did the testing to determine who actually tested the blood, as well as information related as to how long the blood was stored and where it was stored prior to being tested.
Fortunately, most courts are very quick to force discovery; they will usually rule in favor of the defendant in order to give the defendant every benefit of the doubt. Courts generally feel that attorneys should have any information they need which could assist them in the defense of their client; and for the most part; unless you are asking for something burdensome or ridiculous, the judges will basically force the commonwealth to produce that discovery-because if it is something that will eventually exonerate an innocent person, they want to make sure that it is provided.
An Expert’s Role in Understanding Evidence
There are a couple of different experts that I have seen used in DUI cases. There may be an expert on field sobriety tests; in fact, sometimes when a case is based solely on a defendant’s field sobriety test you may want to bring in an expert who is certified in that area and has done field sobriety tests in the past-maybe a former police officer, or an instructor who teaches Police Officers how to do DUI field sobriety tests. Such an expert can testify with regard to why the defendant’s test should not have been judged a fail, and would not show that they were incapable of safe driving. These experts are usually used in cases where there is no blood, breath, or urine testing. In a case where the Commonwealth’s case was built solely on a Police Officer’s observation of the Defendant’s behavior and how they performed in field sobriety tests, an expert could rebut the testimony that the person failed the test or could show that the person would fail the test completely sober.
A field sobriety test expert can help bolster your client’s case in several ways. For example, the field sobriety test instruction manual states that the police officer is supposed to ask if the driver has a bad knee or bad ankle that could keep them from performing the field sobriety tests; and if your client has such an injury and they were not asked about it prior to testing, that could invalidate that field sobriety test. Therefore, in some cases you need an expert to assist you in proving that the client did not have fail a field sobriety test, either because there was no indication of intoxication or because the tests were not properly done-and therefore, the results are invalid.
Another expert that is often used in these cases is your own toxicologist. In Pennsylvania, the defendant’s BAC within two hours of driving is the standard for intoxication, but that still gives you the opportunity to bring in an expert to rebut what the defendant’s blood alcohol level was at the time of driving, as well as what you believe the toxicology report should have been or how it was handled. There are many laboratories that are certified in the State of Pennsylvania to do blood testing in DUI cases. It would require an expert to testify that the Commonwealth’s expert (toxicologist) somehow improperly or inaccurately tested the blood to create a reasonable doubt in the juror’s minds. Therefore, quite often you will need your own toxicologist to testify on your client’s behalf with regard to the blood sample.
A Unique Approach to Discovery
It is important to treat every DUI case as if it is going to be a trial case. Ninety (90%) percent of all DUI cases never get to the point where you need to do full discovery, because most cases do not go to trial. I have found that most DUI cases never get to the full discovery stage, because we have done enough preliminary discovery to indicate to the Magisterial District Judge, the police officer, or the district attorney’s office that there is an issue in the case. Simply put, I find that doing thorough discovery quite often enables you to resolve a DUI case long before you get to a jury trial. Also, if the case is going to a jury trial, you should not leave any stone unturned; you need to get every bit of discovery you can, because in a case where someone is looking at a one- or two-year prison sentence, you cannot take any chances.
It is important to know everything there is to know about any problems that the police department, testing lab, or testing device has had with any DUI cases. By knowing as much information as possible and knowing it early on, you are able to resolve cases at a much earlier stage; if you can point out that there is a particular issue or problem with your client’s case, you can often resolve the case short of having to take it to a jury trial. There are many potential issues or problems with a DUI case that could lead to a not guilty verdict; therefore, use of discovery information and how it impacts your case can help resolve the case at an early stage. Even when you have a strong defense, there is always the possibility of a conviction and much greater penalties for the client. It is far preferable to resolve a DUI case early on, rather than ending up in front of a jury.
Unfortunately, many lawyers only handle occasional DUI cases; and for that reason, they do not have the experience to know what they do not know. Some attorneys have never been in a position where they have been forced to learn all the ins and outs and nuances of DUI cases. Consequently, if they do handle a more complicated case, they may or may not be prepared to fully defend their client and protect every issue that may be available to them. Understanding DUI law is important, because many states have different laws. Some states seem to ignore both the State law and the U.S. Constitution with regard to DUI cases. DUI cases, both in Pennsylvania as well as across the country, have always been handled differently by both the State and Federal Appellate Courts regarding search and seizure issues, evidentiary issues, and spoliation of evidence issues. Appellate Courts have carved out DUI law based on the belief that it is the only way in which we can protect the public health, safety and welfare of the citizens with the growing DUI problems in the United States. For example, Pennsylvania allows the person to be convicted of a DUI if they are sitting in their car in a parking lot, with the vehicle turned off, but the keys in the ignition. No Driving is required to be convicted. In one case I handled, a person was legally parked in a parking lot, just outside of a Pennsylvania Wine and Spirits Store. The person drank a large amount of vodka. Although the person did not drive after they drank the vodka, because the keys were in the ignition of the motor vehicle, they were charged with a DUI.
The DUI laws have become much more aggressive in recent years. There will be greater efforts on the part of police and the Commonwealth to use sound technology in these cases-i.e., documenting the arrest and field sobriety tests on video. Documentation of chemical testing, chain of custody, and probable cause in a DUI stop and arrest, will continue to be the main battle ground in DUI cases. Improving the documentation of the DUI arrest and testing process is important from the prosecution’s point of view to avoid a not guilty verdict.
Lawyers in this practice area need to spend much more time getting as much information from the client as possible; this will then help them determine what additional discovery they need. They also need to review all the case law and trends in this practice area, to stay on the cutting edge of defense on DUI cases. Always read the case law updates that come out on a weekly basis; it is very important to read about every case in this area, from the Court of Common Pleas level to the U.S. Supreme Court level. Although there is often conflicts in the Pennsylvania Superior and Commonwealth Court decisions, it is important to review all of the recent trends in case law-and quite a few of those are with regard to issues of discovery, and must testify in these cases.
Much can be learned from discussing cases that other lawyers have handled that were dismissed or which resulted in not guilty verdicts. It is also helpful to talk to police officers and find out what issues they are having in DUI cases. Talking to people who are involved in these cases and reading the case law, give the clients the best defense possible.
- When a lawyer does their initial interview with a DUI client they should ask them every question that they think has any possible discovery issue, from the time they got up on the day of the arrest until the time they came home after the arrest. It is a good idea to give them an assignment to write a narrative of the day’s events. This will determine whether or not there are any issues that are going to need greater discovery.
- The next step in the process is filing your formal discovery motions with the District Attorney’s office. You are entitled to everything they have in their file; and if you feel that you need more information, you can subpoena that documentation from the testing laboratory, testing device manufacturer, Police Department, etc.
- Lawyers need to review all recent case law and analyze current trends in this area. Remember, every Police Department and District Attorney’s office handles DUI cases a little different. It is also helpful to talk to police officers and find out what issues they are having in DUI cases.