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TABLE OF CONTENTS
Table of Checklists
Table of Forms
CD Contents
Preface
Acknowledgements
PART I CRIME AND PUNISHMENT
Chapter 1 The Offense
? 1.01 The Nature of the Crime
? 1.02 The Corpus
? 1.03 What Constitutes "Driving"?
[A] Type of Conduct
[1] Asleep or Unconscious (Engine Off)
[2] Asleep or Unconscious (Engine On)
[3] Conscious (Engine On), No Vehicular Movement
[4] Temporary Shelter
[B] Putting the Defendant Behind the Wheel
[C] "Vehicle"
[D] "Highway"
? 1.04 Under the Influence of Alcohol
[A] Definitions
[B] Evidence
[C] Presumption of Intoxication from Blood-Alcohol Analysis
? 1.05 Over .08 Blood Alcohol
[A] Drivers Under 21
[B] Commercial Drivers
[C] Presumption of BAC at Time of Driving
[D] Lay Expertise
[E] Admissibility of Non-Impairment Evidence
[F] "Direct Breath" Statutes Over .08 Percent Blood Alcohol
? 1.06 Under the Influence of Drugs
? 1.07 Felony Drunk Driving: DUI with Injury
[A] Multiple Prior Convictions ("Three Strikes")
[B] Manslaughter
[C] Murder: DUI with Inferred Malice
? 1.08 Civil Liability
[A] The Effects of Finding Intoxication
[B] The Fifth Amendment Right to Remain Silent
? 1.09 Inchoate and Accomplice Liability
[A] Attempted Drunk Driving
[B] Accomplice to Drunk Driving
? 1.10 Affirmative Defenses
[A] Necessity
[B] Duress
[C] Entrapment
[D] Mistake of Fact
[E] Involuntary Intoxication
[F] Insanity (Alcohol Abuse)
Chapter 2 The Sentence
? 2.01 Sentencing in the DUI Case
[A] Ignition Interlock Devices
[B] Vehicle Confiscation and Forfeiture
[C] Immigration/Deportation Consequences
[D] Travel Consequences
[E] Mitigating Punishment
? 2.02 Statutory Enhancements: Refusal, Speed, and Other Factors
[A] Apprendi and Blakely
[B] Prior Convictions
? 2.03 Alternative Sentencing
? 2.04 Multiple Punishment
[A] Single Act v. Continuing Course of Conduct
[B] Punishment for Both DUI and .08 Percent Offenses
? 2.05 Probation Violation Hearings
Chapter 3 The Administrative License Suspension
? 3.01 Implied Consent
[A] Double Jeopardy: Criminal and Administrative Punishment
[B] Due Process and the Administrative License Suspension
? 3.02 The Administrative Hearing
[A] Sample Forms
[B] Collateral Estoppel
? 3.03 The "Per Se" Suspension (.08 percent)
[A] The Under-21 Driver: "Zero Tolerance"
[B] Proof of Driving
[C] Probable Cause and Arrest
[D] Failure to Give a Choice of Tests
? 3.04 The Refusal Suspension
[A] What Constitutes a "Refusal"
[B] The Defective Implied Consent Advisement
[C] Confusion: Implied Consent, Miranda, and the Right to Counsel
[1] Right to Counsel Exists in Jurisdiction
[2] No Right to Counsel in Jurisdiction
[D] Inability to Provide Sample or Understand Advisement
[E] Attempts to "Cure" a Refusal
? 3.05 The FAA and Pilot License Suspensions
? 3.06 Interstate Driver's License Compact
PART II EVIDENCE
Chapter 4 Field Evidence
? 4.01 Field Evidence and the Arresting Officer
[A] In General
[B] The Officer as DUI Witness
? 4.02 Driving Symptoms
[A] The NHTSA Studies
[B] The Distracted Driver
[C] The Drowsy Driver
? 4.03 Appearance and Behavior of Defendant
[A] Initial Behavior
[B] Clothing and Grooming
[C] Bloodshot Eyes
[D] Flushed Face
[E] Odor of Alcohol on Breath
[F] Slurred Speech
[G] Pupil Reaction
[H] False Symptoms from Abnormal Blood Sugar Level
? 4.04 Field Sobriety Tests
[A] Categories of Field Sobriety Tests
[1] Balance Performance Tests
[a] Walk-the-Line
[b] One-Leg Stand
[c] Modified Position of Attention
[2] Coordination Performance Tests
[a] Finger-to-Nose
[b] Finger-to-Thumb (Finger Count)
[c] Hand-Pat
[d] Coin Pickup
[3] Mental Ability Tests
[a] Reverse Counting
[b] Recited Alphabet
[c] Written Alphabet
[4] Eye Impairment Tests
[a] Pupil Reaction
[b] Nystagmus
[B] Validity of Field Sobriety Tests
[C] "Standardized" Field Sobriety Tests
[D] The History and Development of the Field Sobriety Tests
[E] Horizontal Gaze Nystagmus
[1] General Discussion
[2] The Test Itself
[F] Walk-and-Turn
[G] One-Leg-Stand
[H] Field Notes on the Field Sobriety Tests
[I] Field Sobriety Test Checklists
? 4.05 Preliminary Breath Tests
[A] The Alco-Sensor
[B] Defense Use of Favorable PBT Evidence
[C] The Alcotest 7410
? 4.06 Audiotapes and Videotapes
Chapter 5 Introduction To Blood-Alcohol Analysis
? 5.01 Forensic Alcohol Analysis
[A] Introduction
[B] Fundamentals of Forensic Breath- and Blood-Alcohol Analysis
[1] Quality Assurance
[a] Introduction
[b] Designing a Forensically Reliable Method of Analysis
[2] Forensic Breath-Alcohol Testing
[a] Variables Affecting Testing
[i] Blood/Breath Partition Ratio
[ii] Retrograde Extrapolation
[iii] Breathing Rate
[iv] Duration of a Single Exhaled Breath
[v] Reflux
[vi] Body/Breath Temperature
[vii] Calibration
[viii] Single v. Duplicate Sample Analysis
[ix] Screening v. Confirmation
[b] Conclusions
[3] Blood-Alcohol Testing
[a] Introduction
[b] Blood as a Sample
[c] Sample Collection and Chain of Custody
[d] Blood-Alcohol Analysis
[e] Blood-Alcohol Testing Errors Summary
? 5.02 Alcohol and the Human Body
[A] Variance Factors - Internal and External
[B] Individual Tolerance
? 5.03 Retrograde Extrapolation: Projecting Test Levels Back to Time of Driving
[A] The Fallacy of Retrograde Extrapolation
[B] Non-Linear Metabolism
[C] The Widmark Factors
[D] The Rising Blood-Alcohol Level
? 5.04 General Sources of Error
[A] Inherent Error
[B] The Fallacy of the "Average Person"
[C] Male vs. Female Metabolism of Alcohol
[D] Racial Differences
[E] Effects of Eating and Smoking
[F] Body Fat
[G] Circadian Rhythm
[H] Zinc Deficiency
[I] Internally Produced Alcohol
Chapter 6 Breath Analysis
? 6.01 The Reliability of Breath-Alcohol Analysis
[A] The Blood-Breath Partition Ratio
[B] The New Paradigm
? 6.02 Non-Specific Analysis
[A] Interferents on the Breath: Acetone and Acetaldehyde
[B] Interferents on the Breath: Industrial Compounds
[C] The Diabetic Client
? 6.03 Mouth Alcohol
[A] Burping: The Pre-Test Observation Period
[B] Heartburn, Reflux, and Hiatus Hernias
[C] The Saliva Effect
[D] Food in the Teeth
[E] "Mouth-Alcohol Detectors"
? 6.04 Additional Sources of Error
[A] Testing During the Absorptive State
[B] Hematocrit
[C] Body Temperature
[D] Breathing Pattern
[E] Stress
[F] Simulator Calibration
[G] Used Mouthpieces
[H] Ambient Air
[I] Incomplete Purging and the "Air Blank"
[J] Radio Frequency Interference (RFI)
[K] Testing After an Auto Collision
? 6.05 The Machines
[A] Intoxilyzer 5000
[B] BAC DataMaster
[1] Operation
[2] Sources of error
[3] "The Lawyer's Guide to the DataMaster"
[C] Alcotest 7110
[D] Intoximeter EC/IR
Chapter 7 Blood and Urine Analysis
? 7.01 Blood Analysis
[A] General Sources of Error
[B] Sterilization of the Skin
[C] Fermentation in the Vial
[D] Whole Blood Versus Serum/Plasma
[E] Arterial Versus Venous Blood
[F] Chain of Custody
[G] Coagulation
? 7.02 Urinalysis
[A] The Incomplete Void
[B] The Urine-to-Blood Ratio
[C] Candida Albicans
[D] Inability to Urinate (Paruresis)
PART III PRE-TRIAL
Chapter 8 Analysis and Arraignment
? 8.01 Initial Client Contact
[A] The Interview
[B] Educating the Client
[C] The Retainer Agreement
? 8.02 Preliminary Investigation
? 8.03 Analysis of the Case
[A] The Prosecution's Case
[B] The Defense Case
[C] Evaluation
? 8.04 The Arraignment
[A] The Defective Complaint
[B] Double Jeopardy
? 8.05 Plea Bargaining Considerations
Chapter 9 Prior Convictions
? 9.01 The Prior DUI Conviction
[A] Striking the Prior
[B] The Uncounselled Prior: Baldasar - Nichols
[C] Priors from en masse Arraignments
[D] Foreign, Juvenile, and nolo Priors
? 9.02 Prosecutorial Burden
[A] Burden of Proof v. Burden of Producing Evidence
[B] Prosecutor's Refusal to Accept Admission of Prior
? 9.03 Bifurcation of Trial
Chapter 10 Discovery
? 10.01 Discovery of DUI Evidence
[A] Objects of Discovery
[B] Discovery of Computer Program in Breath Machine
[C] Prosecutorial Resistance
? 10.02 Preservation and Production of Blood/Urine Sample
[A] Obtaining an Independent Blood/Urine Sample
[B] Independent Analysis and the Defense Expert
[C] Getting a Court-Appointed Blood-Alcohol Expert
? 10.03 Preservation and Production of the Breath Sample: Trombetta
? 10.04 The Discovery Motion
? 10.05 The Subpoena Duces Tecum
Chapter 11 Suppression of Evidence
? 11.01 Probable Cause to Stop, Detain, and Arrest
[A] Reasonable Suspicion
[B] The Citizen Informant
? 11.02 Sobriety Checkpoints: Sitz
[A] Evasion of Sobriety Checkpoints
[B] "Electronic Roadblocks"
? 11.03 Unlawful Arrest
? 11.04 Incriminating Statements
[A] Miranda and the DUI Case
[B] The Corpus Rule
[C] Crawford and the DUI Case
? 11.05 Refusal Evidence
[A] Self-Incrimination: Neville
[B] Relevance
[C] Refusal to Take Field Sobriety Tests
? 11.06 Field Evidence
[A] Verbal Field Sobriety Tests: Muniz
[B] Field Sobriety Tests
[C] Nystagmus
[D] Pupil Reaction Test
[E] Preliminary Breath Tests
[F] Videotapes, Audiotapes, and Photographs
[G] "Spoliation": Lost and Erased Tapes
[H] Police Obstruction of Witnesses
? 11.07 Blood-Alcohol Evidence
[A] Test Given Prior to Formal Arrest
[B] Defective Implied Consent Advisement
[C] Denial of Access to Counsel
[D] Denial of Choice of Tests
[E] Delayed Testing: Sample Obtained Too Remote in Time
[F] Forceful Seizure of Blood Sample: Rochin ? Schmerber
[G] The Physician-Patient Privilege (Blood)
[H] Noncompliance with Testing Regulations
[I] Lack of Pre-Test Observation Period (Breath)
[J] Denial of Independent Sample
[K] Noncompliance with Discovery
[L] Chain of Custody
? 11.08 Other Evidence
? 11.09 The Suppression Motion
PART IV TRIAL
Chapter 12 Setting The Stage
? 12.01 Jury Selection
[A] A Closer Look at Voir Dire
[1] Conducting the Jury Voir Dire
[2] Illustrative Jury Voir Dire
[B] Sample Proposed Written Questions
[C] Discovery of Prosecution Records in Jurors
[D] The Right to a Jury Trial in DUI Cases
? 12.02 The Opening Statement
[A] Expert Insight
[B] Illustrative Opening Statements
? 12.03 Using Demonstrative Evidence
Chapter 13 Cross-Examination
? 13.01 The Arresting Officer
[A] Preparation
[B] Strategy: The Judo Approach
[C] Attacking the Foundation: Training and Experience
[D] Undermining the Field Sobriety Tests
[E] Using Nystagmus to Expose the Officer
[F] Confronting the Officer with His Training Manual
[G] Revealing Negative Scoring
? 13.02 Techniques for Cross-Examination of the Officer
[A] The Infallible Cop
[B] Selective Recall
[C] The Wedge
[D] The Magic Memory
[E] Xeroxed Symptoms
[F] The Disappearing Sway
[G] The Negative Pregnant
[H] Reverse Impairment
[I] The Rigged Scoreboard
[J] The Memory Chart
[K] Geometry for Cops
[L] How to Make Big Money in Drunk Driving
[M] The Two-Edged Sword of Refusal
[N] The Bomb
? 13.03 Cross-Examination of Arresting Officer
[A] Illustrative Cross-Examination
[B] Illustrative Cross-Examination - FST
[C] Illustrative Cross-Examination on Nystagmus
? 13.04 The Breath Operator and/or Blood-Alcohol Expert:
Strategy and Techniques
[A] The Smart Machine
[B] The Spiked Aspirin
[C] Close Enough for Government Work
[D] How Infrared Works ? And Why It Doesn't
[E] The Defective Warranty
[F] RFI Magic
[G] A Ton of Beer
[H] The Invisible Breath Sample
[I] Wonder Blood
[J] Purple Urine
[K] A Lot of Hot Air
[L] The Virgin Vial
? 13.05 Illustrative Cross-Examination of Operator/Expert
? 13.06 Illustrative Cross-Examination of the Percipient Witness
Chapter 14 The Defense
? 14.01 The Sobriety Witness
[A] Illustrative Direct Examination of Sobriety Witness
[B] Preparing the Sobriety Witness for Cross-Examination
? 14.02 The Defense Blood-Alcohol Expert
[A] Illustrative Direct Examination of Defense Expert
[B] Preparing the Defense Expert for Cross-Examination
? 14.03 The Defense Police Expert
? 14.04 Should the Defendant Testify?
[A] Illustrative Direct Examination of the Defendant
[B] Preparing the Defendant for Cross-Examination
Chapter 15 Closing
? 15.01 Summation: Strategy and Illustration
? 15.02 Jury Instructions
Resources
Table of Cases
Index
Library of Congress Subject Headings for this publication:
Drunk driving -- United States.
Defense (Criminal procedure) -- United States.