Huge win for truth and justice

Yesterday, in a Supreme Court case called People v. McNeal, the California Supreme Court ruled that competent evidence of variability of alcohol vapor in breath to blood alcohol content across the population may be admitted in cases where there is minimal showing of impairment. This has huge ramifications for innocent people. For years I have been telling people the sad story that there is no justice in California for DUI arrestees who happen to produce more alcohol vapor in the breath and were blind to this reality (of course) when they choose the more convenient method of blood alcohol testing: breath (not blood). Driving with any amount of alcohol in your system is to be avoided. However, convicting people 21 and older of misdemeanors who have not actually driven with a .08% BAC or greater, who are not impaired by alcohol, cannot be tolerated. At long last the Supreme Court is on board. Kudos to the brilliant lawyers who brought about this change!

Publisher's Folly, The Sequel

My first post, Publisher's Folly, was about the Daily Sound publisher Jeramy Gordon's borderline absurd claim that his newspaper should enjoy an absolute right of privacy with respect to its unpublished photos. Well, Gordon's claim fell flat on it's face in court, and now a publisher with a little more juice, that of the Independent, is likely to fall harder and flatter by taking the same basic claim all the way to the California Supreme Court. After spending $8,000, Mr. Gordon apparently had "suffered" enough rather inexpensive, per column inch, publicity grandstanding as a self-anointed hero of the First Amendment. He's been rather quiet... until today, that is. Today Mr. Gordon was quoted in a News Press article where he resumed his public rant against Deputy Public Defender Karen Atkins with even more acrimony than before. It's interesting that he bears so much hostility for a woman he doesn't know. And it's not just the person that he doesn't know, he hasn't a clue what a criminal defense attorney's role is. Either way, he is dead wrong that Ms. Atkins is motivated by a desire to soak him dry of money. She didn't get any of that $8,000. That money was paid to another lawyer. And now that same lawyer is billing undoubtedly more than $8,000 to take the same implausible claim all the way to the State Supreme Court. Ms. Atkins is a public employee on a salary she is paid to serve her young client, Ricardo Juarez, 15, and many others. She doesn't get paid per client and she doesn't even get a bonus if she gets Ricardo acquitted of the charge of murder. Her only motive is to help her client; not to get into a small-minded legal squabble with local newspapers. That is the last thing she wants to do. Her office has a limited budget with which to counteract the comparatively limitless funds the District Attorney has available to wage a homicide prosecution. And I can assure you that she would have prefered it if Mr. Gordon had spent no money at all waging his quixotic war on her client's right to a fair trial.

What is it with these local newspaper publishers anyway? They do seem to fuel up the Santa Barbara bloggers with plenty of material...And, the lawyers are staying busy too. As a Santa Barbara Lawyer Blogger, I really appreciate you.

Breath to Blood Fallacies of DUI Law

It is the alcohol in your blood that affects your ability to safely drive a motor vehicle. Because of the many causes of alcohol on the breath, only one of which is alcohol in the blood, and the fact that the alcohol content of your breath is, at best, loosely correlated with the alcohol content of your blood, the relationship between alcohol on your breath and your ability to safely drive a motor vehicle is actually pretty weak. So, why are breath testers (aka intoxylizers) in such wide use around the globe for determining levels of intoxication? Economics. It is cheaper and more expedient to test the breath of an individual than to draw and then test their blood by lawful and forensically approved methods. While cheaper, nearly everyone will agree that breath testing is less accurate than blood testing to establish a particular blood alcohol content. How much less accurate is breath testing than blood testing is hotly debated.

The debates center around three fallacies as follows:

The first fallacy is that breath is not blood and, therefore, a breath test is not a blood test. But you knew that already, right?

The second fallacy is that the breath generated in everyones' deep lungs (aka alveolar air) carries the same number of alcohol molecules when their blood alcohol content contains the same concentration of alcohol. This is simply wrong. The "breath/blood partition ratio" that the industry of breath instruments programs into their instruments is one gram of alcohol per 210 liters of breath. However, this ratio of 1:2100 is an average, not the truth about you or me. In fact, this ratio varies between 1:1300 to more than 1:3000 across the population. This difference across the population can and likely does account for innocents getting wrongfully accused as well as guilty people getting away with DUI. More vividly, my deep lung air might contain more alcohol than your breath, even though our blood alcohol content is the same. And, most likely, neither one of us has exactly a 1:2100 ratio at any given time. So, the industries' instruments are not designed for you and me, but for the population in general.

The third partial-fallacy, is that these breath instruments are in proper working order, properly maintained, properly calibrated, operated under ideal conditions (temperature, wind, etc.), actually testing deep lung air, and operated by someone with adequate training, who is, at a particular time, administering the tests in strict compliance with their training.

So, back to economics... After these alarming fallacies were exposed over many years of agressive and skilled litigation of DUI's, resulting in many people being found not guilty of DUI, California's legislature, along with many other state legislatures endeavored to write into law what might be viewed as a new law violation: Driving with a BREATH alcohol content which tests .08% or greater on instruments which presume a 1:2100 blood/breath partition ratio.

The Supreme Court of California affirmed on appeal the inadmissibility of testimony of an individual’s partition ratio, especially when the defendant exhibited clear signs of alcohol intoxication. Here the court looked to legislative intent to discourage drunken driving therefore a conviction based on alcohol measured by breath as amended by statute would stand. People v. Bransford, 884 P.2d 70 (Cal. 1995).

Say it ain't so!? Yes, the Supreme Court favored the California Legislature's one-size-fits all pragmatism over the pursuit of justice in the individual case. Sounds great until you're the one looking at a DUI case based on a Breath Alcohol test result narrowly above the legal limit, doesn't it? (Advertisement: If you are facing such a charge in Santa Barbara, and believe that your unique breath partition ratio may have over represented your blood alcohol percentage, then contact me at 805-892-4922 right away to discuss how you might be able to successfully defend your case).

They Didn't Read Me My Rights!

Nary a day goes by when I don't hear this phrase at least once. Thanks to Hollywood, nearly everyone believes, or at least wants to believe, that the sine qua non of lawful and ethical police conduct is where they initiate any arrest with the famous preamble, "you have the right to remain silent yada yada..." It should flow from the police officers' lips as fluidly as those who are paid to say, "welcome to McDonald's, may I take your order please", shouldn't it? The answer is "no". Yes, I am a criminal defense lawyer, and the answer is still "no". Sorry. This deeply ingrained belief, held by nearly everyone, is a powerful example of how the mass media misleads the public. So, was the Miranda Rule contrived by Paramount pictures? No. It was actually written into law by the United States Supreme Court, led by Chief Justice Earl Warren, in the landmark decision Miranda v. Arizona in 1966. It is one of the most, if not the most, significant Supreme Court actions to deter police misconduct. It was designed to do one thing and one thing only. It was designed to prevent the police from forcing people against their will (regardless of their guilt) from confessing to crime. However, it has not, as was intended, put an end to coercive interrogations by the police. But it may have deterred a great number of them. It has brought about some unintended changes and not all of them are positive ones.

Yes, innocent people sometimes confess to crimes they did not commit and guilty people are often led by the police to worsen their circumstances in a way which violates the spirit of the constitution. So, by dampening the polices' temptation to spend hours upon hours grinding someone down through a coercive interrogation, fewer innocents will confess, and fewer guilty people will be forced, against the spirit of the constitution, to be witnesses against themselves. Like many well-intended efforts, the Miranda v. Arizona ruling did not achieve all that it set out to achieve. In my view, its most positive contribution is that it made a few important constitutional rights reciteable, if not precisely understood, by practically every member of our society. It did not put an end to coercive conduct by law enforcement; not by any stretch of the imagination. This is due to the fact that police still feel quite justified in using their inherent power to intimidate, and otherwise manipulate, people into confessing to their crimes, and are not going to let some phony baloney technical rule (written by lawyers, no less!) get in the way of solving a crime. Yes, they do, on occasion, read the advisement, as required by law, but not surprisingly, it has not put an end to confessions. People still confess. And what they don't necessarily appreciate while they are doing it, is that they are destroying every chance they might otherwise have in getting favorable treatment in court.

Confessing is seldom, if ever, going to help someone get a better deal in court. One operating fallacy is that you won't get credit for early acceptance of responsibility if you wait to talk to a lawyer first. That is simply false. The other operating fallacy is that you will make the police angry if you don't confess, and will therefore worsen the outcome. Firstly, if a police officer is angered by someone exercising their constitutional right to remain silent, they ought to strongly consider a change in professions, if not citizenship. The constitutionally guaranteed right against self-incrimination is as American and mom and apple pie! Secondly, your goal is not to make friends with the police officer. Rather, your goal is to avoid incriminating yourself. Let them be angry. That, in and of itself, probably helps you more than it hurts you. Let their emotions get the better of them. And keep your mouth shut. Do honor to our great constitution by not incriminating yourself!

It appears that the Miranda advisement, when read, is not understood as anything more than a familiar police ritual. While the police are saying,

"you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have a lawyer present while being questioned. If you cannot afford a lawyer, the court will appoint a lawyer to represent you...",

the listener is most likely thinking something along these lines,

"Crap! I'm really in trouble now. I guess they aren't going to let me go with a warning after all! They believe I did it! I'm screwed no matter what! What can a lawyer do to help!? How am I going to get out of here?! Maybe if I cooperate with them, and tell them what they want to hear, which is that I did it, they will appreciate that and maybe let me go home...or at least stop scaring me"

The most negative impacts of Miranda v. Arizona are as follows:

1. That police think that, by reading the Advisement, they are thereby rendering their arrest "by the book". It gives the police an easy (and cookbook recipe-like) way to legally sanitize the encounter without necessarily honoring the spirit of the constitution.

2. That arrestees believe that the police are supposed to read the Advisement every time they arrest someone and that they must do so early on in the encounter. Because the advisement, if it is read at all, is read late in the encounter, the arrestees form the opinion that they are being mistreated due to the fact that police aren't, according to their Hollywood-based understanding, following the one rule of police conduct of which they have become aware. Accordingly, the individuals develop a bad attitude toward the officers. This bad attitude can hurt the arrestees chances of getting a good deal in court, and also tends to validate negative views police carry toward the larger population. It widens the "us" (the police) versus "them" (the rest of society) gap which, I strongly believe, is the root cause of nearly every instance of police misconduct.

So, when do they have to read the Advisement, you ask? Only when you are in handcuffs or are otherwise confined and they happen to want (or need) you to confess to something.