Ordinarily, defense counsel should present a physician acquainted with acute alcoholic intoxication and a chemist familiar with the limitations of the particular intoxication test employed by the police. If this is not economically possible, defense counsel should elicit the limitations of the particular test from the prosecution expert.
If driving-while-intoxicated charges were filed even though the blood- alcohol reading was less than the level set by state statute as presuming intoxication, the defense attorney may want to introduce the test results as part of the defense case. In this event, he must lay the proper predicate for introduction. If an independent test was conducted at the defendant's instance, it is especially important that defense counsel lay an adequate foundation for admission of the test results. Consider the following cases:
Defendant's conviction of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) was supported by the evidence, even though she took an overdose of a prescription drug intending to commit suicide, and the acts which led a police officer to stop her occurred when, instead of dying, she drove her car in an unconscious state. Although involuntary intoxication is a defense and a trier of fact could have found that defendant's intoxication was not voluntary, such a finding was not compelled. The label on the drug defendant took warned her that it could cause drowsiness. Even if the drug was not as well-known as alcohol, it was reasonable foreseeable that, before achieving sleep, defendant would do something while in a state of intoxication. People v. Chaffey (1994, 2nd Dist) 25 Cal App 4th 852, 30 Cal Rptr 2d 757, 94 CDOS 4219, 94 Daily Journal DAR 7774.
Competing harms defense: State disproved competing harms defense beyond a reasonable doubt in prosecution for operating under influence (OUI); although defendant was justified in driving within parking lot in order to free himself from his alleged assailant's grip and reach "zone of safety," once defendant reached "zone of safety," he had reasonable alternatives of honking his horn to alert other patrons who were leaving bar or of using his cell phone to avoid assault before driving onto road, and thus, state disproved beyond reasonable doubt that defendant lacked reasonable alternatives to driving on road while intoxicated. 17-A M.R.S.A. § 103. State v. Nadeau, 2007 ME 57, 920 A.2d 452 (Me. 2007).
In trial for second degree vehicular manslaughter, failure to keep right, operating motor vehicle while intoxicated, and operating motor vehicle to left of center of road, court properly refused to allow defendant's expert, who was qualified in human-factors engineering, to testify about position of defendant's vehicle at point of collision with another vehicle, since expert may have been qualified to testify about effects of alcohol on defendant's driving, but there was no basis in record to find expertise about position of vehicles at point of collision. People v. Hanright (1992, 4th Dept) 187 App Div 2d 1021, 590 NYS2d 347, app den 81 NY2d 840, 595 NYS2d 739, 611 NE2d 778.
The defendant's in-court demonstrations were properly excluded as evidence where during a trial for driving while intoxicated, defense counsel had the defendant read from a newspaper and do other coordination exercises in an effort to provide a comparison with what the judge had seen on a videotape of the defendant when he was tested for intoxication at the time of his arrest, but defense counsel did not swear in the defendant as a witness and objected to the state's attempt to cross-examine the defendant, arguing that the demonstration was non-testimonial, because defense counsel laid no predicate for the reliability of these demonstrations. Baker v. State (1994, Tex App Houston (14th Dist)) 879 SW2d 218.
Since most driving-while-intoxicated cases are tried in one day or less, it is important to do some preliminary preparation on the jury argument as there will not be sufficient time after the trial commences. Since proof of the offense rests on opinion evidence, jury argument is more influential in these cases than in cases based on more concrete facts. In many of his remarks to the jury, defense counsel should carefully distinguish between the drinking driver and the drunk driver. The most recent evidence is that it is the thoroughly drunk driver who causes the most serious accidents.
In cases of clear intoxication, the defense attorney should ordinarily ignore the question of intoxication and argue any available defenses. If defenses are not available, the defense attorney should be concerned basically that the defendant's constitutional rights are observed.
In "questionably sober" cases, jury argument may be the deciding factor in the outcome of the case. In these cases, the defense attorney reminds the jury that each of the physical observations cited by the policemen in support of their opinions are easily explainable as normal, sober, human actions or as medical conditions; he then explains them one at a time. He further reminds the jury that intoxication is only a matter of opinion, that people can be mistaken in their opinions, and that reasonable doubt of the defendant's guilt surely exists. Depending on the effectiveness of his cross-examination of the breath-test operator and expert, the defense attorney may attack specific responses, attack the general credibility of the test, or simply chose to ignore it. If movies are usually made in a particular jail but were not made in the instant case, the defense attorney might subsequently argue that movies were not made of his client because they would have tended to show he was not intoxicated. Consider the following case:
Prosecutor's suggestion on summation that if defendant did not believe people's blood alcohol test was valid he could have had his own expert test blood sample improperly implied that defendant had burden on issue. Reversal was not warranted due to curative instruction. People v. Hall (4th Dept, 1992) 181 App Div 2d 1008, 581 NYS2d 951, app den 79 NY2d 948, 583 NYS2d 202, 592 NE2d 810.
Q. Breath analysis for alcohol amounts to this, doesn't it: a breath-test device collects a certain amount of air exhaled from the subject's lungs and passes that air through the chemicals in a test ampoule; the chemicals gather the alcohol out of the sample; and the device measures the alcohol absorbed by the chemicals.
A. That is right.
Q. Any claim to accuracy made for breath-testing devices assumes that the procedure measures almost infinitesimal quantities of alcohol found in the breath, is that correct?
Q. As I understand it, a Breathalyzer collects the equivalent of 52.5 cubic centimeters of breath, is that correct?
A. That is correct.
Q. How many cubic inches does 52.5 cubic centimeters amount to?
A. A little more than 3 cubic inches.
Q. And the breath-alcohol reading is converted by the testing device into a blood-alcohol reading?
Q. You have testified to a blood-alcohol reading of the defendant's breath sample taken on , of 0.15 percent, is that correct?
Q. A reading of 0.15 percent blood-alcohol presumes to indicate that in the defendant's blood there were 15 parts by weight of alcohol in every 10,000 parts of blood, is that correct?
A. That is correct.
Q. And since the specific gravity of alcohol is quite close to four-fifths that of whole blood, that same concentration would amount to only two parts of alcohol by volume in every 1000 parts of the defendant's blood, is that correct?
Q. However, it was the defendant's breath that was tested and not his blood?
Q. And breath tests for alcohol are not as precise as blood tests for alcohol, is that correct?
Q. Hasn't the alleged relationship between breath-alcohol and blood-alcohol been stated in fixed terms, presumably applying to all persons?
Q. What is that relationship?
A. It is 1:2100. Blood-alcohol is 2100 times greater than breath-alcohol in a given subject.
Q. However, aren't there individuals in whom the relationship varies from the average?
Q. If we accept, just for the moment, a breath-alcohol to blood-alcohol ratio of 1:2100, the quantity of alcohol measured in the breath sample would be equal to the quantity of alcohol to be found in 1/40th of a cubic centimeter of the defendant's blood?
A. That is correct.
Q. Is it true that one cubic centimeter of a liquid such as blood is equivalent to 0.034 fluid ounces, or very close to 1/30th part of an ounce?
A. That is correct.
Q. So, then, the amount of alcohol in the breath sample collected from the defendant would be equivalent to the amount we would expect to find in 1/30th part of 1/40th part of an ounce, 1/1200th part of an ounce, or 0.00085 ounce of his blood?
Q. To pin these extremely small amounts down further, since there are 480 drops in an ounce by apothecaries' fluid measure, the equivalent in blood of the amount of breath analyzed is less than half a drop—amounting, as a matter of fact, to 408/1000ths of a drop?
A. That is correct.
Q. And the amount of alcohol gathered by the chemicals to produce a blood-alcohol reading of 0.15 percent would be equivalent to only 2/1000ths of that half drop of blood, or eight ten-thousandths of a drop, or five hundred-thousandths of a cubic centimeter, or seventeen ten-millionths of an ounce?
A. I assume you are correct.