Trial Defenses of DUI

Trial Defenses of DUI

Constitutional Considerations Regarding DUI Trials 

The criminal justice system and governmental prosecution of individuals is constrained by a number of Constitutional protections.

Defense against the criminal prosecution of a DUI case, in the hands of the appropriate lawyer, invokes concerns of Constitutional magnitude. It must be acknowledged that history exposes a recurring emergence of regressive cases and statutes determined to selectively isolate the DUI case for some particularly unique treatment. Some call this the “DUI Exception” to the Constitution.

That political underbelly of what is transpiring in the courts is, however, the very reason for special concern and alarm. Witness the erosion of traditional constructs of law for this special unpopular offense, and one cannot but fear the alarming prospect of other progressive encroachments upon accepted Constitutional protections.

These rights can be found in the Bill of Rights; the Fourth Amendments prohibition against unreasonable search and seizures, the Fifth Amendment’s protection against self-incrimination, or the Sixth Amendment’s guarantee of counsel.

There is enormous political pressure feeding the prosecution of DUI cases. Unfortunately, we encounter prosecutors and Judges annoyed at the prospect of affording a jury trial to a DUI defendant.

Knowledge of the case law interpreting and defining those constitutional rights which expressly limit the conduct and power of the prosecutors and Judges can be vital. These cases have established an accused has certain fundamental rights, which are necessary and must be protected to meet constitutional requirements.

The right to a fair jury trial is a cornerstone to our Country’s basic principles of rights of the accused. It is worth remembering whenever the press of criminal court business and the expediency of social objectives and government control interests work to smother exercise of the right to a fair trial. This is not the only point in the history of our country that politics and government power have combined in pursuit of societal objectives in ways that may value efficiency over the value of individual protections of a constitutional system.

The Presumption of Innocence and Reasonable Doubt in California DUI Trials 

Proof beyond a reasonable doubt requires “a subjective state of near certitude of the guilt of the accused.”
Jackson v. Virginia (1979) 443 U.S. 307, 315.

However, “nothing requires a trial court instructing on reasonable doubt to define any amount of subjective certitude required to make a finding of guilt.” People v. Zepeda (2008) 167 Cal.App.4th 25.

Even having a judge forget to read the reasonable doubt instruction has been held to be “harmless error” if other instructions in the case made the prosecution’s burden clear. People v. Aranda (2010).

In Victor v. Nebraska (1994), the U.S. Supreme Court held that California’s reasonable doubt instruction is not unconstitutional, but criticized some of the language.

The California Supreme Court responded to this criticism in People v. Freeman (1994), and suggested changes in CALJIC 2.90, which were adopted late in 1994.

The reasonable doubt instructions contained in the new CALCRIM 103 (PRE-TRIAL) and CALCRIM 220 provide a better treatment of reasonable doubt for the defense. The introductory instruction in CALCRIM 103 first tells the jury not to be biased against the defendant because he was arrested, charged with a crime, or brought to trial. Then the instruction states that the defendant is presumed innocent and that the prosecution has the burden of proof beyond a reasonable doubt. It then goes on to state that in deciding whether the People have proved their case beyond a reasonable doubt “you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt he is ENTITLED TO AN ACQUITTAL AND YOU MUST FIND HIM NOT GUILTY.”

People v. Ramos (2008), held that it was not reversible error to give CALCRIM 220 and to not state the requirement that the prosecution is required to prove each element of the crime beyond a reasonable doubt because the Court did, in fact, advise the jury that “Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt.” (Id.) CALCRIM 220 was also found to satisfy the reasonable doubt standard in People v. Zepeda, supra.

Upon proper request, the defendant has a right to an instruction that directs attention to evidence which could engender a reasonable doubt of his guilt. People v. Sears (1970).

Right to Jury Trial

The Sixth Amendment, made applicable to the states in this context by the Fourteenth Amendment of the federal Constitution, confers upon a defendant in a criminal trial the right to trial by jury (cites omitted) The right to a trial by jury is recognized to be a fundamental constitutional right. (cites omitted. Similarly, article 1, section 16, of the California constitution confers upon a defendant in a criminal prosecution the right to a trial by jury.

In California, both our constitution (Cal. Const., Art. I, §16) and codified statutes (Pen. C. §689) require a trial by jury in criminal cases, even in the case of a “petty” misdemeanor.

The Sixth Amendment to the U.S. Constitution (U.S. Const., 6th Amendment) does not require a trial by jury for “petty” crimes. Petty crimes are those where the offense carries a maximum jail term of six months or less, and the legislature has not added additional penalties so severe that the total punishment can be characterized as a legislative intent to make the offense a “serious” one. [Blanton v. North Las Vegas (1989); U.S. v. Nachtigal (1993)—No right to jury trial for drunk driving prosecution in a national park under the Federal administrative regulation (36 C.F.R. §4.23).]

Where the defendant is charged with more than one petty offense, each of which has a maximum possible sentence of six months, but in aggregate a sentence of more than six months is possible, there is no Federal constitutional right to a jury trial if the judge says before trial that any jail sentence will be less than six months (Lewis v. U.S. (1996).

In Dove Audio v. Dan Lungren (#CV-2570, Federal Court, CD Cal. 6/14/95), the Federal District Court ordered a preliminary injunction as of May 22, 1995, prohibiting the State of California and Los Angeles County from enforcing Pen. C. §116.5. That statute would prohibit jurors from being paid for information about a case within 90 days of jury service.

The opinion in Erickson v. Superior Court (People) (1997), held that a judge may not seal juror information prior to the verdict. The decision was based upon C.C.P. §237(a)(2), which allows sealing of juror identifying information in criminal cases only after the verdict has been rendered.

In U.S. v. McCrikard (1996), a U.S. District Court Magistrate held that it’s not unconstitutional for a Federal magistrate, instead of a judge, to try minor offenses without the consent of the defendant. The decision is based upon 1996 amendments to 18 U.S.C. §3401 and 28 U.S.C. §636(a). A petty offense is one punishable by six months or less in jail (18 U.S.C. §19). Keep in mind that California’s Constitution and statutory laws allow a trial before a commissioner or pro tem judge only with the defendant’s consent, though it can be implied (see Chapter 6).

In People v. Cleveland (2001), the California Supreme Court set out specific rules for discharging a juror who refuses to deliberate. The heart of the opinion states:

Although the provisions of Evidence Code §1150 apply only to the postverdict situation and not to an inquiry conducted during jury deliberations, the numerous decisions discussed above nonetheless support our conclusion that a trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberations and has not expressed an intention to disregard the court’s instructions or otherwise committed misconduct, and that no other proper ground for discharge exists. We also observe that permitting the attorneys for the parties to question deliberating jurors is fraught with peril and generally should not be permitted. Of course, the court may allow counsel to suggest areas of inquiry or specific questions to be posed by the court.

As discussed above, proper grounds for removing a deliberating juror include refusal to deliberate. A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. (See People v. Castorena (1996)

Right to Present Evidence in California DUI Trials

Federal Constitutional law allows the accused to present a defense even if it might contradict state law, so it is always a good practice to cite the federal constitution in support of a defendant’s motion to present evidence,

Privilege Against Self-Incrimination in California DUI Trials 

Most of the questioning in DUI cases tends to take place prior to arrest (e.g., what have you had to drink, when did you finish your last drink, do you feel the effects of the drinks). Though the motorist is detained during this period of time, he is generally not deemed to be in custody for purposes of triggering a Miranda (Miranda v. Arizona (1966) admonition. Thus, unless you can demonstrate “custodial interrogation” based on the totality of circumstances (e.g., site of the interrogation, whether investigation has focused on the subject, whether objective indicia of arrest is present, and the length and form of questioning), see People v. Boyer (1989), incriminating statements made by the accused at this juncture are generally admissible notwithstanding the lack of Miranda warnings. See Berkemer v. McCarty (1984) 468 U.S. 420.

However, Berkemer is premised to a certain extent on the presumption that folks stopped for traffic infractions know that their detention will be brief:

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely,” Miranda v. Arizona. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.

Confrontation and Cross-Examination Right in California DUI Trials 

“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford v. Washington (2004) (holding that testimonial hearsay is admissible only if the declarant is unavailable and there has been a prior opportunity for cross-examination of the declarant). Crawford contains a comprehensive discussion on the constitutional right to confrontation.

“[A] witness is not ‘unavailable’ for purposes of the...confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page (1968).

Witness Must Be Present in California DUI Trials 

A testimonial hearsay statement against a criminal defendant violates the Confrontation Clause of the Sixth Amendment, even if the witness is unavailable (unless the accused had a previous opportunity to cross-examine). Crawford v. Washington (2004).

The California Supreme Court has accepted a petition for review on the issue of whether or not the term “testimonial interrogation,” as referred to in Crawford, applies to all questioning of a victim by a law enforcement officer. People v. Adams (Oct. 13, 2004) 04 C.D.O.S. 9204. Its ultimate decision is likely to address the holding in People v. Caudillo (Oct. 7, 2004) 04 C.D.O.S. 9113 (which holds that statements made in a 911 call were not testimonial, and therefore not barred by Crawford) (overruled on other grounds).

Kelly/Frye—General Acceptance of Scientific Evidence 

When scientific evidence is challenged on the basis that it is not scientific, California courts apply the Kelly/Frye rule (People v. Kelly (1976); Frye v. United States (1923).

But the Frye basis of California’s Kelly/Frye rule was overturned in 1993 by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579. In Daubert, the court held that Frye was replaced by Rule 702 of the Federal Rules of Evidence. However Daubert’s ruling on this point has no effect on California law.

Daubert did not mention any Federal Constitutional basis for either the new ruling or the previous Frye rule. Without a Federal Constitutional basis, Daubert cannot compel our courts to follow the Federal lead. Thus, in 1994 the California Supreme Court ruled in People v. Leahy (1994) 8 Cal.App.4th 587, that California’s Kelly/Frye rule is still alive and well.

In People v. Thang Van Bui (2001) 86 Cal.App.4th 1187, 103 CR2d 908, the defendant’s attorney made a Kelly-Frye objection to the prosecution expert’s testimony about the effect of methamphetamine use on driving ability. Trouble is, the defendant’s expert agreed that the research method was generally accepted in the scientific community. To compound the error, the appeal was based on the denial of the Kelly-Frye objection. One almost suspects a conspiracy here to set this damaging opinion loose on all of us.

But that’s not the end of it. The defendant’s expert did give credible testimony about the defects in the prosecution expert’s research and the lack of a correlation between methamphetamine use and driving ability, but he was never called to testify at trial! That’s unfortunate because there’s ample support for the lack of an effect of methamphetamine use on the motor skills involved in driving a vehicle, at least where alcohol is not also involved. (We’re not told why the expert did not testify at trial. Not available? Not enough funds? Who knows.)
So, what can we conclude about the precedential value of this case? It stands for the proposition that when all the experts for both the prosecution and the defense agree that a research method is generally accepted in the scientific community, a court does not err in reaching the same conclusion.

One wonders why the court wasted its valuable time on this nonsense.
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