"RI DUI - Selecting and preparing expert witnesses"

In order to be prepared adequately to cross-examine the prosecution experts, defense counsel should prepare for trial as in the defense of any other serious offense, limited only by the practical, economic limitations placed on him by his client. The selection of defense experts can be very critical because a well qualified expert who can make a favorable impression on the jury can make the difference between acquittal and conviction.

Defense counsel generally should match expert for expert with the prosecution by locating and preparing defense experts including breath test operators and supervisors, physicians, forensic chemists, toxicologists, and, when relevant, accident reconstruction engineers. Physicians, nurses, medical technicians, chemists and accident reconstruction engineers are relatively easy to find. A qualified expert on breath tests who is not already employed by or retained by the state, on the other hand, is much more difficult to find.

In a prosecution for gross vehicular manslaughter while intoxicated, driving while under the influence of alcohol or drugs and causing injury, driving with a blood-alcohol level of 0.10 percent or greater and causing injury, and being under the influence of a controlled substance (cocaine), the trial court did not err in permitting the People's expert, the chief forensic toxicologist at a county crime laboratory, to testify regarding the combined effects of alcohol and cocaine. Given the paucity of studies on the subject, it was quite proper to allow the expert to draw an inference based on her extensive knowledge of physiology, pharmacology, depressants and stimulants and, specifically, alcohol and cocaine. Work in a particular field is not an absolute prerequisite to qualification as an expert in that field. With the understanding that the expert had neither been trained in nor conducted studies on the combined effects, and that her opinion was based upon inference, the jury could properly weigh her testimony that cocaine would not counteract the noxious effects of alcohol against defendant's contrary testimony. People v. Coyle (1994, 6th Dist) 22 Cal App 4th 1679, 28 Cal Rptr 2d 488, 94 CDOS 1628, 94 Daily Journal DAR 2821, review gr (Cal) 31 Cal Rptr 2d 125, 874 P2d 900, 94 CDOS 4054, 94 Daily Journal DAR 7523 and reprinted for tracking pending review (6th Dist) 28 Cal App 4th 66.

Opinion on field sobriety test false positives: Erroneous statistical data elicited by defendant from expert on field sobriety tests regarding alleged percentage of sober persons who fail field sobriety tests opened door for State on cross-examination to point out error that manual from which statistical evidence was drawn did not use terms "sober" or "intoxicated" but instead provided statistics for persons with blood alcohol content of .10 or more who failed tests. Schmidt v. State, 816 N.E.2d 925 (Ind. Ct. App. 2004), transfer denied, 831 N.E.2d 743 (Ind. 2005).

In prosecution for DUI, third offense, trial court abused its discretion in denying defendant's motion for appointment and payment of expert witness to challenge reliability of Breathalyzer tests where issue of reasonableness of time between arrest and administering of test was particularly important in case, and thus defendant could not have safely proceeded to trial without appointment of expert to testify about reliability of tests following delay between time of arrest and administering of tests. People v. Jacobsen (1994) 205 Mich App 302, 517 NW2d 323.

Selecting and preparing expert witnesses—Breath-test expert

Since the defense attorney cannot expect the state's chemist to bring out or embrace the literature that is unfavorable to breath tests, locating an expert breath-test witness for the defense can make the difference between "guilty" and "not guilty" verdicts in many cases. Ideally, such an expert holds advanced degrees in chemistry, has attended schools on the operation of breath-testing devices, is familiar with the literature on the subject, and personally participated in experiments. The best places to search for such an expert are in college chemistry departments, professional societies, and independent testing laboratories. However, in many areas it is impossible to find a breath test expert to testify for the defense because there are none. About the only way to cope with such a situation is to locate a qualified chemist and persuade him to study information on the breath-test device. If qualified by intense recent study of the literature and experience with the particular testing device, any chemist would be qualified concerning the accuracy of the test, and could give an opinion regarding the defendant's intoxication based on the blood-alcohol content shown by the police-administered test.

Although experts in DUI case can be expensive and labor intensive, they are generally worth the effort if feasible. Experts are seldom utilized unless serious bodily injury or death are present; however if possible, experts should be used more frequently.

Rhode Island Expungement Lawyer

“Expungement” is a legal procedure. It allows eligible and deserving individuals to have any and all records relating to their criminal charges removed, both from public records and those of law enforcement agencies. Many times, although a case has been dismissed or the filing period has expired, the records of the arrest are not automatically expunged. In my experience, many people discover this fact the hard way.

Of course not anyone with a criminal record is eligible for expungement -the law provides that any criminal charge, with the exception of a “crime of violence”, is eligible for expungement. The law defines a “crime of violence” as follows: murder, manslaughter, first degree arson, kidnapping with intent to extort, robbery, larceny from the person, first degree sexual assault, second degree sexual assault, first and second degree child molestation, assault with intent to murder, assault with intent to rob, assault with intent to commit first degree sexual assault, burglary, and entering a dwelling house with intent to commit murder, robbery, sexual assault, or larceny. Anyone convicted of a “crime of violence” is ineligible for “expungement”. Anyone who is a “first offender” is eligible to have their criminal record expunged.

The law defines a “first offender” as follows: a person who has not been previously convicted of or placed on probation for a felony or a misdemeanor and against whom there is no criminal proceeding pending in any court.
Anyone convicted or placed on probation on more than one occasion is ineligible for expungement. The waiting period for expungement is as follows:

For misdemeanors - (5) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation.

For felonies - (10) years after the successful completion (no intervening convictions, probation, or pending cases) of your sentence and/or probation.

Whether you are eligible and deserving of an expungement must be determined by a judge of the court that originally heard the case. As mentioned previously in order to be eligible to have your criminal record expunged you must be a “first offender” and not have been convicted of a “crime of violence”.

The law also requires that in order to have your criminal record expunged you must be deserving of it. That is, you must be able to demonstrate to the court’s satisfaction that you are of good moral character; have been rehabilitated and; the expungement of your criminal record is consistent with the public interest, proof of which can include but is not limited to the following:
o Regular employment and financial and other support of family
o Successful completion of substance abuse and/or mental health counseling.
o Community or other public service
o Professional certification or licensing in field of employment
o Otherwise eligible for induction into the armed forces of the United States

The actual procedure for obtaining expungement is commenced by filing a motion to expunge with the court. Some but not all courts have blank motions to expunge that you can fill out and file with the court yourself. An attorney can assist you with completing the necessary paperwork including scheduling the motion for a hearing and giving you the date that it will be heard by the court. After filing the motion to expunge you are required to give notice of the date that it will be heard by the court to the Department of Attorney General and the police department that originally brought the charge. On the day that your motion to expunge is heard by the court you should be prepared to provide the following information about yourself to the judge hearing the motion:
o Have not been convicted or received probation for a “crime of violence”
o Are a “first offender”
o Possess good moral character
o Have been successfully rehabilitated and
o The expungement of your criminal record is consistent with the public interest

If your motion to expunge is granted, the court will provide you with copies of an order requiring that any and all records relating to the expunged case be deleted from the public record. A copy of this expungement order should be mailed to the Department of Attorney General and any other law enforcement agency known to have copies of these records. With certain very limited exceptions, any person having his or her record expunged shall be released from all penalties and disabilities resulting from the crime of which he or she had been convicted.

Again, with certain very limited exceptions, in any application for employment, license, or other civil right or privilege, or any appearance as a witness, a person whose conviction of a crime has been expunged pursuant to this chapter may state that he or she has never been convicted of the crime. According to RIGL § 12-1 3-4 (b), any person who is "an applicant for a law enforcement agency position, for admission to the bar of any court, an applicant for a teaching certificate, under chapter 11 of title 12, a coaching certificate under § 16-11. 1-1, or the operator or employee of an early childhood educational facility pursuant to chapter 48-1 of title 16," is required to disclose the fact of a conviction.

"Cross Exam of Prosecution Witnesses"

Cross-examination is the Defense Attorney’s primary tool in rooting out faulty testimony
in Rhode Island DUI and DWI cases. Often times, a Rhode Island Drunk Driving investigation
can only be held invalid by way of the concise and direct questions of the Defense Lawyer.
Preparation by the Rhode Island defense attorney for the cross-examination of prosecution
witnesses must take into account the probable testimony of such witnesses as policemen, experts,
and laymen. A Rhode Island Defense Lawyer should not overlook the possibility that the
bartender serving the defendant prior to his arrest might be a witness for the prosecution.

Counsel should note, during direct examination of prosecution witnesses, all primary
facts observed on which each witness bases his conclusion of intoxication. He can then
separately challenge the validity of each of these facts as establishing intoxication. However,
counsel should ignore facts testified to that he is unable to challenge, since cross-examination as
to these facts would simply emphasize the strength of the prosecution case to the jury. Instead,
counsel should question the witness whether separate primary facts on which he based his
opinion of intoxication might have been attributable to a cause other than intoxication.

Defense counsel should preliminarily ask the policeman to define intoxication. If a proper
definition is given, no harm is done since the jury figures that the witness was supposed to
know it. If an improper one is given, on the other hand, the fact can be very effectively used in
arguments to the jury.

"Breathalyzer Elements for Admissibility"

A Rhode Island DUI Case will often times include evidence of breathalyzer or breath test results. Defense counsel should inform himself of the foundation that the prosecution must lay in order to qualify the particular intoxication test. In the absence of an adequate foundation, defense counsel should object to admission of results of the test. Although all states do not require proof of the same matters, items from the following list could reasonably be required by any court as a predicate, and defense counsel should be prepared to object to admission of the test results if any applicable items are not established by the prosecution:

1. That the subject was legally arrested for driving while intoxicated prior to the demand for the test;

2. That the operator of the device was properly trained and licensed;

3. That the operator and the device were under adequate supervision by an expert;

4. That the chemicals used were compounded properly;

5. That the test was administered in accordance with the test methods directed by the state agency that supervises intoxication test results.

6. That nothing alcoholic was in the subject's mouth for 15 to 30 minutes before the test;

7. That the person interpreting the results of the test was qualified to do so; and

8. That the reading of blood-alcohol content showed a violation of the state statute creating a presumption of intoxication.

"In a RI DUI case, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence."

In a Rhode Island DUI, DWI, or Driving Under the Influence criminal defense, the attorney of record should have an in depth knowledge of the constitutional requisites for the admissibility of evidence. All possible violations of the defendant's constitutional rights should be investigated. These would include (1) whether the police had probable cause to stop the defendant, (2) whether a legal arrest was made, (3) whether constitutional and statutory warnings were given, (4) whether probable cause to request a breath-alcohol or other scientific test existed, (5) whether a legal search and seizure occurred (6) whether the defendant's right to counsel was violated, and (7) whether a confession was legally obtained. In a Rhode Island Drunk Driving, DUI arrest or DWI prosecution, a criminal defense attorney should also be keenly aware that “operation” is an important element for the prosecution to prove. In other words, the prosecutor in Rhode Island must prove beyond a reasonable doubt that the DWI, DUI suspect actually was operating the vehicle while under the influence. Some of these issues follow: Read More...

"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"

The following case reflects how recent interpretations of the Confrontation Clause and well settled hearsay rules will impact the admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…       

Court of Appeals of Virginia,
Phillip Lawton GRANT  v.  COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.

Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed. 

Holdings: The Court of Appeals, Petty, J., held that:

(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal. 

Reversed and remanded.

Present: FELTON, C.J., and FRANK and PETTY, JJ.
PETTY, Judge.

  *716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction. 

FN1. Grant's question presented on appeal is:

Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”  

While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.