Jury Trial 5 went right back into the arena of DUI.  At 12:56am the defendant ran a stop sign at the entrance kiosk to Loafer Creek campground in Oroville.  A State Parks officer attempted to pull him over but defendant did not yield, instead he continued to drive outside of the campground and onto Hwy 162; going about 300 feet before eventually stopping.  Defendant had bloodshot and watery eyes and an odor of alcohol about him.  Defendant admitted to drinking three Sierra Nevada beers between 11:00pm and 12:30am.  Field Sobriety Tests were performed including a PAS (Preliminary Alcohol Screening) 28 minutes after driving which indicated the presence of alcohol at a .09%/.08%.  Defendant was arrested and a breath test was administered 49 minutes after driving indicating a Blood Alcohol Content of .08%/.07%.

Defendant was charged with two separate counts of DUI.  We call them the “a count” and the “b count” referring to the subsection of Vehicle 23152 that applies.  One is based on intoxication above a legal limit of .08% and the other is based on the presence of an intoxicant and impairment shown by the circumstances.  Usually that includes, bad driving, poor performance during the field sobriety tests, admission of drinking etc.  A defendant can be convicted of both, but only punished for one. 

Math was an issue here guys.  According to the regulations governing DUI investigations there is built into the testing a .02% margin of error.  With a .08/.07% and the margin of error the breath test technically could come in under the legal limit of .08% where intoxication is presumed.  In this case we had a way to get around that, the PAS test.  28 minutes after driving the defendant took a PAS that showed a .09%/.08% meaning the defendant’s blood alcohol level was on the decline at the time of the chemical test.  A half hour before the PAS at that level would have meant, based on a dropping BAC, the defendant was actually a .10%/.09% at the time of driving.  We just had to get the PAS results in.

Our Judge wasn’t having it.  Repeatedly, the issue of admitting the PAS results was brought up: first orally, then in writing, then in again in writing.  Every time the Judge declined to allow the actual results in; limiting testimony on the PAS merely to a confirmation of the presence of alcohol.  The judge asked for case law, which was provided.  It was distinguished by the court on the facts.  An argument was made that the results of the PAS and their reliability went to the weight of the evidence and not to admissibility.  The Court ruled that the Legislature had intended there to be a distinction with the PAS and the chemical test and because of that the prior ruling would stand.

Without the PAS results I could not prove that the BAC was declining at the time of driving and without that reference point our expert could only give the opinion that it was either at .10% at time of driving or a .06% at time of driving depending on whether the BAC was rising or declining.

We had to pivot to a reliance on the bad driving and the performance of poor FST’s in order to convince the jury beyond a reasonable doubt that the defendant was guilty.  As my expert said, “of course he was intoxicated, look at the bad driving.”  Defendant was convicted of one count of DUI, the one involving impairment shown with bad driving.  Math had worked us out of a conviction based on the .08% presumption.  The jury in this case took a logical and well-reasoned approach in their verdict—Defendant was impaired by alcohol when he was driving regardless of his BAC at the time.

This trial taught me that, sometimes a judge will disagree with your legal analysis. To this day I stand behind my position that the results of the PAS should have been admitted into evidence; it was supported by case law. However, a judge ulitmately decides these issues, not the prosecutor, and I learned that as a prosecutor I have to be able to adjust to rulings I was otherwise anticipating to go in my favor. Fortunately, the alternative charging in this case saved it from an aquital in a jury trial where the defendant had been driving impaired. Regardless of the math, we were able to prevail based on the dual basis of liability we had set up at the time of charging.