#5 The Jury Trial Involving Math

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.

#3 The Jury Trial Where I Learn About Constructive Criticism

Remember when I told that DUI’s are where new criminal prosecutors often cut their teeth on jury trials?

Jury trial #3 involved a DUI where the defendant had been pulled over for speeding, he exhibited routine objective signs of intoxication, admitted to having 1 beer with dinner, and had marginal success on the field sobriety tests administered to him. His BAC (Blood Alcohol Content) was .12% approximately 15 minutes after driving.

Pretty basic fact pattern right? Well, the lesson here isn’t in the guilty verdict. In fact, it never really is. The mistrials and not guity verdicts are where I’ve learned the most. However, this particular case was an eye opener for me despite the successful outcome.

Sometimes when you see the same thing over and over again, like in an assignment like DUI’s you forget that while some of the facts are similar, every single case is different. This is because fundamentally the purpose of a jury trial is to provide the defendant with their constitutional right to have the issue of guilt decided by a jury of their peers. It’s unique because it affects them on an individual and personal level.

Victims also have a constitutional right to be present at all court hearings and have their opinions, their suffering, and their loss taken into account at sentencing. It’s the human factor that makes each trial separately important, because while it may be similar in nature to other criminal events, its important and life altering for the victims of the crime and the defendant who stands accused.

The investigating officer in this case loved DUI’s because of the formulaic structure, just like I love jury trials involving DUI because of the relatively straight forward presentation of evidence. The pattern provides guidance, but sometimes that structure can become commonplace.

After the verdict the majority of the jury held back so that they could meet with meet with me and the defense attorney. They wanted to provide specific feedback on this very issue. While it was directed at the officer who investigated the DUI, I felt that it rang true in DUI trials as well. The members of the jury felt that the words used to describe the objective signs and symptoms had simply become routine descriptors in our officer’s investigations and counseled that they would like him to pay attention to his word choice in the future. For example, the officer in this case testified to seeing “slow, thick, and slurred speech” when in reality, the body camera footage showed “slight slurring” of speech. They specifically said that the officer in this case sounded like he was talking about ANY DUI rather than this SPECIFIC DUI.

The officer and I worked together after receiving the feedback to figure out ways to present future DUI’s without sounding generic. We decided that more focus on the word choice for both defendant’s physical manifestations of impairment, as well as a slower breakdown of the field sobriety tests (i.e. why they were used and what specifically the defendant did during them that caused him to pass/fail). Body cameras were relatively new in this area around the time and so we discussed using that tool to review the investigation completed when drafting the final report.

The constructive criticism the jury provided in this case has stuck with me. It is a reminder of the importance of criminal prosecution. We must balance the rights of the accused, the rights of the victim, as well as the safety of the public in every single case. And while the facts may be routine, this duty is far from it; which is why every jury trial is unique and important, no matter what the crime may be.