Trial defense of dui in California

• Author: Paul Burglin/Barry Simons/Ed Kuwatch
• Pages: 579-787

TRIAL DEFENSE OF DUI

IN CALIFORNIA

9-1

CHAPTER 9

TRIAL DEFENSE OF DUI IN CALIFORNIA

§9:00 JURY SELECTION AND OPENING STATEMENT

§9:01 Vicinage (The Jury Pool)

§9:02 The Voir Dire Process

§9:02.1 Right to See Prosecutor’s Jury Book

§9:02.2 Sixth Amendment Right to Public Trial During Voir Dire

§9:02.3 Mask Wearing - Coronavirus Pandemic

§9:03 Suggested Voir Dire Topic Areas

§9:04 Exercising Challenges Against Jurors

§9:04.1 Challenges for Cause

§9:04.2 Peremptory Challenges

§9:05 Batson/Wheeler Challenges: Unlawful Discrimination in Jury Selection

§9:06 Prosecution Jury Selection Notes Discoverable In Batson/Wheeler Challenge

§9:07 Jury Selection May Not Be Reopened After Jury Impaneled

§9:08 Opening Statement

§9:10 CONSTITUTIONAL TRIAL RIGHTS

§9:11 Due Process Right

§9:12 Presumption of Innocence; Reasonable Doubt

§9:13 Right to Jury Trial

§9:13.1 Right to Exercise the Trial Right

§9:13.2 Waiver of Right To Jury Trial

§9:14 Right to Present Evidence

§9:14.1 Admissibility of Video Demonstration

§9:14.2 Evidence of Third-Party Culpability

§9:15 Privilege Against Self-Incrimination

§9:15.1 Post-Arrest/Pre-Miranda Silence

§9:15.2 Opening the Door to Excluded Statements

§9:16 Confrontation and Cross Examination Right

§9:16.1 Confrontation Improperly Denied Where Prosecutor Permitted To Ask Non-

Responding Witness Leading Questions About Prior Statements

§9:16.2 Video Conferencing and Masks

§9:17 Right to a Verbatim Record of Proceedings

§9:20 TRIAL PROCEDURE, ELEMENTS OF PROOF, EVIDENCE AND OBJECTIONS

§9:21 Judicial Council Standards for Conduct of Trial

§9:21.1 Code of Judicial Ethics

§9:22 Elements and Requisite Proof for DUI Offenses

§9:22.1 Presumptions

TRIAL DEFENSE OF DUI

IN CALIFORNIA

California Drunk Driving Law 9-2

§9:23 Speedy Trial Rights and Continuances

§9:24 Proof of Locus Delicti (Geographic Jurisdiction)

§9:25 In Limine Motions

§9:25.1 Renew Pretrial Suppression Motions

§9:26 Hearsay Exceptions and Confrontation Clause

§9:26.1 Admissibility of Forensic Lab Reports/Results

When Actual Analyst Does Not Testify

§9:26.2 Admissibility of Forensic Lab Reports/Results With a

Surrogate Witness Testifying Instead of the Actual Analyst

§9:26.3 Blood Sample “Collection Method” Aff‌idavit

§9:26.4 Expert’s Reliance On Website To Identify Drug

§9:26.5 Expert Claiming Superiors Approved His Conclusions

§9:27 Corpus Delicti Rule

§9:27.1 Defendant’s Statements Now Admissible Prior to Corpus

§9:27.1(a) Admissions/Confession May Be Otherwise Inadmissible

§9:27.2 Independent Proof of Corpus Still Needed for Conviction

§9:27.3 Corpus Needed for Holding Order at Preliminary Examination

§9:27.4 Corpus Not Needed at Probation Revocation Hearing

§9:28 Witnesses

§9:28.1 Expert Witnesses

§9:28.2 Opinion Testimony

§9:28.3 Hypothetical Questions

§9:28.4 Witnesses Referring to Documents

§9:28.5 Subpoenas

§9:28.6 Biased Off‌icer

§9:28.7 Witness Must Be Present

§9:28.8 Eyewitness Testimony

§9:28.9 Defendant Testifying—Danger Ahead!

§9:28.10 Prior Inconsistent Statements by Defendant

§9:28.11 Consciousness of Guilt by Adoptive Admissions

§9:28.12 Marital Privilege

§9:29 Discovery Sanctions and Dismissals

§9:30 SUFFICIENCY OF SCIENTIFIC EVIDENCE

§9:30.1 Impairment by Alcohol—Suff‌iciency of Evidence

§9:30.2 Test Results Near the Limit—Suff‌iciency of Evidence

§9:30.3 The Science of Margin of Error—Metrology

§9:30.4 Impairment By Drugs—Suff‌iciency Of Evidence

§9:31 Scientif‌ic Literature

§9:31.1 Using Scientif‌ic Articles as Evidence

§9:31.2 Bibliography

§9:31.3 Ethical Guidelines to Publication

§9:31.4 Copyrighted Documents

§9:31.5 Analytical Chemistry Terms

§9:32 Admissibility of Chemical Test Result

§9:32.1 Test Results Subject to Possible Suppression

§9:32.2 Lack of Scientif‌ic Foundation

§9:32.3 Chain of Custody; Authentication

§9:32.4 Blood Drawn by Unqualif‌ied Personnel

§9:32.5 Lost Blood or Urine Sample

§9:32.6 Jury Instructions

§9:32.7 Hearsay Objections

§9:32.8 Labs Get Funded From Conviction Fines

§9:32.9 Media Reports of Laboratory Def‌iciencies

TRIAL DEFENSE OF DUI

IN CALIFORNIA

9-3 Trial Defense of DUI in California

§9:33 Kelly/Frye—General Acceptance of Scientif‌ic Evidence

§9:33.1 The Rule

§9:33.2 “Generally Accepted”

§9:33.3 Effect of Rulings in Other Cases

§9:33.4 New Evidence Showing Bad Science

§9:33.5 Kelly/Frye Rule Not Abrogated by Proposition 8

§9:33.6 Daubert’s Gatekeeping Function—ALL Expert Testimony

Is Inadmissible Unless Found Scientif‌ically Valid

§9:34 Blood: Sample and Analysis

§9:34.1 Bibliography

§9:34.2 Blood Drawn by Unqualif‌ied Personnel

§9:34.3 Controlled by VC §23158 and Title 17, §1219.1

§9:34.4 Denial of Own Chemical Test

§9:34.5 Single Column Gas Chromatograph

§9:34.6 Lack of Refrigeration

§9:35 Hospital/Medical Blood Alcohol Test Results

§9:35.1 Bibliography

§9:35.2 Authentication and Scientif‌ic Foundation Attack

§9:35.3 Chart Illustrates Medical Blood Test Problems

§9:35.4 Lack of Consent

§9:35.5 No Physician-Patient Privilege

§9:35.6 Hospital Emergency Room Privacy Rights

§9:35.7 Civil C. §56.10 Requires Cour t Process for Disclosure of “Medical Information”

§9:35.8 Federal Substance Abuse Program Privilege

§9:35.9 Letter to Hospital Regarding Patient Conf‌identiality

§9:36 Blood Alcohol Changes With Time

§9:36.1 Bibliography

§9:36.2 Three-Hour Constant BAC Presumption

§9:36.3 BAC Calculations From Drinking History

§9:36 .4 BAC Calculations From Delayed Test—Retrograde Extrapolation or Relation Back

§9:37 Breath Alcohol Testing

§9:37.1 Bibliography of General Information

§9:37.2 Manufacturer’s Litigation Opens Doors

§9:37.3 Scientif‌ic Foundation, Kelly/Frye, Validity and Admissibility

§9:37.4 2100:1 Blood/Breath Partition Ratio Assumption

§9:37.5 Practical Tips for Dealing With Bransford and

Partition Ratio Assumption—The Dawn of McNeal

§9:37.5.1 Evidence of Individual Partition Ratio vs.

Evidence of General Population Variability

§9:37.5.2 Partition Ratio or Variability in Measurement of

Breath Alcohol— Limitations to Challenges on

Machine Reliability (Vangelder)

§9:37.6 Conforming Products List

§9:37.7 Third Digit of Breath Result Admissible

§9:37.8 Beware the Toluene Excuse

§9:37.9 15-Minute Observation; Cop Not Trained in Theory of Operation

§9:37.10 Radio Frequency Interference (RFI), aka Electro Magnetic Interference (EMI)

§9:37.11 Tyndall Effect on Infrared Devices From Airbag Deployment

§9:37.12 Intoxilyzer 5000, 5000EN, and 8000

§9:37.13 Alcotest 7110 and 7410 Plus

§9:37.14 Cops Deny Knowledge of Theory of Operation of Breath Machines

§9:37.15 Gastroesophageal Ref‌lux Disease (GERD)

§9:37.16 Failure to Advise of Breath Sample Destruction and Right to Independent Test

§9:38 Preliminary Alcohol Screening (P.A.S.) Devices