Peter Gerstenzang , the senior partner in the Albany, NY law firm of
Gerstenzang, O'Hern, Hickey & Gerstenzang, specializes in the defense of DUI cases.
A former prosecutor, he was certified as a breath test operator and taught for many years
at the New York State Police Academy in their Breath Test Training Program.
His book, Handling the DWI Case in New York (West Publishing Company 1987)
is updated annually and is a standard reference for the defense of DUI cases.
He is an acclaimed lecturer for the New York State Bar Association, the judiciary, police
and prosecutors. This article is abstracted from his presentation at the NACDL
Ultimate in DUI Defense seminar presented in Las Vegas on September 11, 1998.
Excerpted from
This article discusses various methods that can be used to attack the validity of the prosecution's breath test result. The selection of a particular approach is dependent upon your theory of the case and the congruity of your attack on the breath test with the rest of the defense.
The blood alcohol concentration is a significant part of the case, but it must be seen in conjunction with the evidence derived from the police officer's observations and your client's performance of field sobriety tests. Attacks on chemical test results frequently consist of the things that could have gone wrong or the things that might have affected the validity of the test result. Due to the limited access of the defense to the instrument, we are rarely able to affirmatively prove that the test result was inaccurate.
At best, we are able to show that the test result had to be wrong and these are the probable reasons why the test result obtained was invalid. Raising possibilities of instrument malfunction will not win an acquittal, however, if the people are able to prove that your client was drunk, by using the physical observations derived from police observation and field sobriety tests.
Fortunately, the trend in modern law enforcement has been to emphasize the chemical test result at the expense of the common law case. Accordingly, the most common scenario is one which is weak in regard to physical observations and strong in regard to chemical testing.
Test Has To Be Wrong
The failure of the police to build and preserve a common law case is the Achilles' heel of most DWI prosecutions. This is particularly true where the test result is relatively high. While most defense attorneys abhor the high test result, it can be a great asset -- particularly where the police have neither obtained, nor preserved the physical evidence that would support that test result. Since the defense is rarely in a position to specifically prove exactly what it was that went wrong with the breath test instrumentation, we need a scenario that will help establish the invalidity of the test result. Our attack on the instrument must transcend speculation as to what might have gone wrong and reach the realm of likelihood in regard to what probably did go wrong."The test has to be wrong" assertion arises out of the fact that the test result obtained is inconsistent with the physical observations of the defendant. To establish this defense, you need someone to interpret the test results into a volume of alcohol. For example, a .14 BAC in a 160-pound male does not sound particularly significant until a physiologist tells the jury that the machine is saying that the defendant had the alcohol equivalent of seven 12-ounce bottles of beer in his bloodstream at the time he blew into the breath test instrument. Obviously, this would be a pretty risky and foolhardy thing to present to a jury if your client was described as staggering, having heavily slurred speech and other dramatic signs of intoxication.
Where, however, the police officer does not recall strong signs of impairment in the manner in which your client spoke, walked and functioned in general, the interpretation of alleged test results into alcohol can be very effective in establishing the impossibility of the test result obtained. With this as a foundation, an attack upon the test has far more credibility than mere speculation that something might have gone wrong.
An alco-calculator is essential to the defense of a DWI case because it allows you to interpret what your client recalls drinking into a numerical reading. It further allows you to take the numerical reading alleged by the police and interpret it into alcohol. While people generally tend to believe in the accuracy of technology, empirical experience suggests that breath test results are frequently inaccurate. In doing alcohol calculations, the commonly accepted equivalents are that the alcohol contained in a 12-ounce bottle of beer is roughly equivalent to the alcohol contained in 4 ounces of wine, 1 ounce of 100 proof liquor, and 1-1/4 ounces of 86 proof liquor. It is important to bear in mind that these are rough equivalents which vary with the alcohol content of the particular beverage. Edward Fitzgerald provides the formulas necessary to tailor these rough estimates into specific numbers applicable to your case. See Edward F. Fitzgerald, Intoxication Test Evidence, 2d ed., 11.8, at 11-11 (1995).
Impeaching the test result with the people's common law case has the singular advantage of enlisting the common experience of the jury in regard to the effects of alcohol. Most people would expect to see fairly dramatic signs of intoxication in a person having the alcohol equivalent of seven bottles of beer present in their system at the time of observation.
Typically, the prosecutorial response to this situation is to assert "tolerance." Tolerance is the quality of being able to appear fairly sober at a time when you are impaired. A person who has "tolerance" is able to mask the signs of intoxication. While there are people who have acquired this ability, they are rare and their numbers diminish dramatically as the blood alcohol concentration increases. Even law enforcement publications such as The Breath Test Manual for the New York City Police Department indicates that tolerance is not a factor at BACs above .10.
In many cases, the client did not, in fact, consume the alcohol indicated by the police test result. Furthermore, calculation of the BAC based upon your client's recollection indicates that the client should have passed the test and was not, in fact, intoxicated. Here, you should consider having your client testify as to the events leading up to the arrest, and the timing and volume of the consumption of alcohol. Under these circumstances, the use of a pharmacologist, pharmacist, doctor, or registered nurse and/or a physiologist may be very effective in establishing what the BAC actually was at the time of the test.
Utilizing the principles of retrograde extrapolation and the elimination of alcohol, you can dramatically contrast the number of drinks necessary to achieve the alleged BAC with the amount of alcohol actually consumed. Your expert can take the amount of alcohol actually consumed and calculate the BAC that should have been attained. The expert can further testify as to the physiological effects which should have been visible at the time the defendant was tested, if the defendant actually had the BAC alleged by the police. On summation, you can demonstrate the consistency of the expert's extrapolated BAC with the police testimony in regard to the physical evidence and/or the absence of signs of intoxication.
What makes this approach viable is that there are a number of things that should be present with a high BAC. One of the more graphic is the need to urinate. In a felony DWI case that our office tried, the defendant did testify and we were able to contrast how much he had to drink with how much he would have had to consume in order to arrive at the BAC alleged by the police. The testimony was that he was arrested within minutes of leaving the bar where he was drinking. Further testimony was that he was held for a few hours while he was processed and tested. The police officers had testified that he neither requested, nor was he allowed to use the bathroom at the police station during the time he was in custody. Our pharmacologist was very effective in establishing the number of bottles of beer required to attain the alleged BAC; and in establishing the fact that the defendant would have been in extreme discomfort had he not been given the opportunity to urinate during the processing at the police station.
When you combine the physiological impossibility of the test result with the possible reasons for this erroneous test result having been obtained, you are in a good position to obtain an acquittal; or at the very least, a conviction for a lesser included offense, presuming your jurisdiction has such.
In setting up this defense of impeaching the chemical test result with the common law proof, it is critical that you pin the police down at whatever pret-rial hearings your jurisdiction allows. At the end of the direct examination of the arresting officer, you should know whether you have any chance of winning the pre-trial hearing and having your case dismissed. Under these circumstances, no questions would be appropriate because they might establish missing elements or give the prosecutor a chance to fix the problem on re-direct.
More commonly, the direct examination does establish probable cause. There is nothing to lose in your conducting a far more detailed "direct" examination which is, in effect, the criminal defense attorney's version of a civil examination before trial. In effect, you try to pin down everything the police officer might possibly say at trial and to close off all of the different areas that might be raised anew once you get to trial.
In particular, you establish all of the things that the police officer did not see: the defendant did not have slurred speech, did not have blood shot eyes, etc. Go through the whole laundry list of everything that was not there to eliminate the common law symptoms of intoxication that should clearly have been there if the defendant really did have the high blood alcohol concentration that has been reported by the instrumentation.
Low BAC
The flip side of this situation is where you have a low blood alcohol concentration such as a .10 or .11, and a description by the police officer of a highly intoxicated individual. This case can also be effectively defended because the likelihood is that the police officer is exaggerating and/or lying about the observations that were made. Here, you have to impeach both the observations and the test result. Merely discrediting the police officer will not be enough to defeat the evidentiary impact of the chemical test result. The jury may tell you afterwards that they thought the cop was lying through his teeth, but had to convict because of the test result -- which, while in the lower regions, was still above the legal limit.Here, you demolish the police officer with the inconsistencies of the common law case. These can be found by the close examination of the officer at the pre-trial hearing. Since the officer is most likely lying, you will have such inconsistencies as the defendant walking in a normal manner prior to the field sobriety tests, or providing comprehensive information in a clear and forthright manner. These facts can be contrasted with the dramatic signs of intoxication witnessed in the performance of the field sobriety tests.
The vast majority of DWI cases follow a formula in which the police officer is geared to make certain observations at certain points in the case. For example, we have the erratic driving that justifies the stop, and we have the interview in the car consisting of the request for the license and registration and the manner in which they are produced, the bloodshot eyes, the odor of alcoholic beverage, the slurred speech, and the incriminating admissions of consumption of alcohol.
From there, the case moves to how the defendant got out of the car, how the defendant moved to the rear of the car and how the defendant stood just prior to the commencement of the field sobriety tests. You will then have the testimony in regard to the performance of those tests. These are the areas with which the police officer is most familiar, and where the police officer will often exaggerate the observations that he or she made.
While dishonesty and stupidity are not necessarily linked together, they frequently manifest themselves in DWI cases. The intelligent and competent officer will generally have too much pride to descend into outright lying. It is the lazy, ignorant and incompetent officer who is most commonly found to be indulging in hyperbole and creative descriptions of intoxicated defendants. Most commonly, their testimony will be inherently inconsistent. They will exaggerate everything to the point of incredulity, or may describe a dramatic drunk in their field sobriety tests, but have the defendant acting in an otherwise sober manner before and after the sobriety tests. In those cases where you have more than one police witness, the possibilities of potential contradiction are great. The falling down drunk described by Officer A can easily be contrasted with the cooperative and relatively sober defendant described by Officer B.
What is critical here is that unless you are able to prove that the specific test that was performed upon your client was, in fact, invalid for specific reasons -- such as some mechanical defect in the instrument that caused a particular erroneous reading -- what you are raising in regard to your challenges to the instrumentation are only potentials.
You need to show that the test was wrong, by contrasting it with the other evidence. It is then that the potential reasons for why the test is wrong can come to the fore and be used by the jury as a basis to discredit the test.
What They Don't Know Can Hurt Them and Help Us
One of the most interesting developments in breath testing has been the shift in training of officers in regard to the performance of breath tests. In those jurisdictions utilizing the 900 and 900A Breathalyzers, training of Breathalyzer operators consists of approximately a week and involves a fairly detailed orientation as to the operation of the instrument. The reason for this is that the performance of the test requires a fairly high level of operator participation. Accordingly, the operator is required to know a considerable amount about the operation of the instrument and the various things that can go wrong. Breathalyzer operators are, thereby, far more prepared to withstand cross-examination than those police officers trained in the operation of newer, computerized infrared instruments.With the advent of the infrared instrumentation, the officer's role is minimal. In effect, the officer types in the data requisite for the performance of the test and the instrument takes it from there. Accordingly, the training period is shorter and the police officer is given and/or retains very little information as to the functioning of the instrument, because the officer is not as involved in the process.
The officer is, therefore, vulnerable to a cross-examination that focuses on the things that could have affected the test and of which he is ignorant. Simple questions such as, "As you sit there, you agree that you can't tell this jury that this test was not affected by X, Y and Z." The officer's expression of ignorance in regard to the effect of the defendant's body temperature upon the test result, variation in the partition ratio, mouth alcohol, etc. can be very effectively contrasted with the testimony of an expert as to how all of these things will affect the test result.
The primary motivation for truncating police training in regard to the new computerized infrared devices is most certainly budgetary. There is, however, a school of thought among some law enforcement officials that ignorance can be an effective foil to an informed cross-examination. This ignorance, however, can also be turned to the advantage of the defense in that it can be used to raise questions as to the officer's competence in regard to the performance of the test.
An effective technique is to ask whether anyone would be willing to accept the results of a test performed in a similar manner by a person of similar training as a basis for a decision to undergo surgery. This is a fair analogy given the fact that the test result is going to be used to determine whether a person is guilty of a crime. This is a diagnostic test and it is fair to argue that the qualifications for the performance of such test should exceed a few hours of learning how to push buttons, particularly in light of all of the variables that can affect the test result.
Prosecution Expert
The most common response to such a cross is for the prosecution to call a police expert to address the issues raised by the defense. While this is unlikely in most misdemeanor prosecutions, it is fairly common in felony cases. Even if the police expert is called to testify, it is important to remember that the expert is a double-edged sword. Just as defense experts are frequently turned to the prosecutor's advantage, the police expert can be used to legitimize all of the defenses of which the breath test operator professed ignorance.The key to the effective direct and/or cross-examination of an expert is not so much the expert's qualifications as it is the qualifications of the attorney asking the questions. If you thoroughly research the subject matter and are intimately familiar with the details of how the instrumentation works, the police expert can be turned into a defense asset and can be highly effective in developing your defense.
Where both the prosecution and the defense fail in regard to the utilization of expert witnesses is where the lawyer has little or no knowledge of the subject matter and is unable to phrase the initial questions and/or follow up those questions to effectively make the points that could and should be made for the benefit of their case.
Specific Challenges
Depending upon the theory of your case, there are a number of specific challenges that can be made to the validity of the breath test result. The next .10% Solution will detail some of the most common. The critical thing to remember is that the assertion of a laundry list of things that could potentially have gone wrong is generally ineffective. You are far better off using pre-trial discovery and your knowledge of the particular instrument at issue to tailor a theory of the case and focus your defense on the things that did go wrong or, if that is not possible, the things that most likely went wrong and which explain the inaccurate test result obtained.
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