Challenges and Defenses II Claims and Responses to Common Challenges and Defenses in Driving While Impaired Cases The National Traffic Law Center is a program of the National District Attorneys Association. This document was prepared under Cooperative Agreement Number DTNH22-05-H-05166 from the U.S. Department of Transportation, National Highway Traffic Safety Administration. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the Department of Transportation, NHTSA, or the National District Attorneys Association. TABLE OF CONTENTS Acknowledgements ...........................................................................................................iii Introduction ....................................................................................................................... v Confronting Defense Issues in Prescription and Over-the-Counter Drug DUIs ......... 1 The defendant is not guilty because he was using an over-the- counter or lawfully prescribed drug............................................................................... 1 The defendant was mistakenly or involuntarily intoxicated. ......................................... 2 The quantitative levels of the drug are below the therapeutic dose and therefore not capable of causing impairment. ............................................................... 3 The defendant was unconscious or cannot remember what happened due to the effects of Ambien and therefore not legally responsible for his actions. ...................... 4 Jurors may empathize with the defendant about the use of a legal drug. ...................... 6 Breath Testing Results: Defense Alternative Explanations .......................................... 8 Diabetes ......................................................................................................................... 8 Defendant has diabetes .......................................................................................... 11 GERD (Gastroesophageal Reflux Disease) ................................................................. 13 Defendant has GERD, which created an artificially high reading or inaccurate result on the breath-testing instrument. ................................................ 13 Challenges to Blood Draws and Test Results ................................................................ 17 The swab used to cleanse the skin prior to the blood draw contained alcohol and contaminated the sample. ........................................................ 17 The presence of clots in the blood sample artificially increased the reported alcohol concentration. ................................................................................... 18 i Challenges to Blood Draws and Test Results (cont.) Improper package and storage of the blood caused the development of yeast (Candida albican,) artificially increasing the reported alcohol concentration (fermentation). ..........................................................................19 The State has not demonstrated that the gray top blood tubes used to draw the blood contained the proper chemicals to ensure a valid analysis. ...............................20 Serum and plasma have higher alcohol contents than whole blood. Because BAC is measured in terms of whole blood, the serum and plasma results are misleading. .....................................................................................20 The blood testing instrument measured and reported something other than ethyl alcohol and this artificially increased the reported BAC. ............................................21 The tubes used to collect the blood were expired, so the results cannot be trusted. .........................................................................................................22 Arterial blood is a much better indicator of actual BAC levels when compared to venous blood. ..........................................................................................22 The gray top tubes used to collect the blood samples were not FDA-approved. Therefore, the jury and/or judge should not trust the results. ......................................23 Measurement Uncertainty ...............................................................................................24 The chemical test results without an accompanying uncertainty measurement value are not scientifically reliable. .............................................................................25 The bare chemical test result without a confidence interval misleads the jury. ...........26 Challenges to the Source Code of Breath Testing Instruments ...................................28 The defense needs the source code in order to be assured of the accuracy of the breath test instrument and its results. .................................................28 The defendant has a right to discovery of the source code and the prosecution must produce it. ........................................................................................30 Resources and References ...............................................................................................32 ii ACKNOWLEDGMENTS This guide was created by the National Traffic Law Center of the National District Attor- neys Association and is the result of a collaborative effort of the following traffic safety professionals: L. Beth Barnes, Arizona Traffic Safety Resource Prosecutor, Assistant City Prosecutor, Phoenix, Arizona Edward A. Berkovich, Utah Traffic Safety/Domestic Violence Resource Prosecutor Brian Chodrow, Program Analyst, Impaired Driving Division, National Highway Traffic Safety Administration Daniel M. Fox, California Traffic Safety Resource Prosecutor Moses Garcia, Washington Traffic Safety Resource Prosecutor William Lemons, Minnesota Traffic Safety Resource Prosecutor Mark M. Neil, Senior Attorney, National Traffic Law Center of the National District At- torneys Association Jared Olson, Idaho Traffic Safety Resource Prosecutor R. Alexander Robinson, former Staff Attorney, National Traffic Law Center of the National District Attorneys Association Joanne E. Thomka, Program Director, National Traffic Law Center of the National District Attorneys Association iii iv INTRODUCTION DUI cases have become some of the most complex in the criminal justice system. As a result, defense challenges are being raised more frequently and are more procedural and scientific in nature. These challenges range from the initial law enforcement stop of the vehicle to the testing procedures used to determine alcohol concentration in blood, breath, and urine samples to possible alternative explanations for those results. This monograph was developed to assist prosecutors and law enforcement in understanding the nature of these challenges. It will assist prosecutors in formulating effective responses to these newer challenges and defenses and include drugged driving, alternative ex- planations to breath test results, blood draws and testing, scientific uncertainty, and computer source code discovery requests. The National Traffic Law Center previously published Overcoming Impaired Driv- ing Defenses, thanks to a contribution from a charitable foundation, discussing such de- fense challenges as invalid traffic stops, arrests and Miranda issues, as well as common trial tactics of attacking the investigation, such as driving observations, personal contact, field sobriety tests and breath testing. That monograph may be downloaded from the Na- tional District Attorneys Association Web site at www.ndaa.org. The terms DUI (driving under the influence), DWI (driving while intoxicated or impaired) and OUI (operating under the influence) are considered interchangeable for the purposes of this publication. v vi Confronting Defense Issues in Prescription or Over-the-Counter Drug DUIs When the topic of “drugged driving” comes up, most people think almost exclu- sively of the use of illicit or controlled substances by someone operating a motor vehicle. However, prescription or over-the-counter (OTC) drugs also impair a person’s ability to operate a motor vehicle in a safe and prudent manner. Both prescription and OTC drugs are known to cause mental and physical impairment, especially when multiple drugs are used in combination or drugs are mixed with alcohol. CLAIM: The defendant is not guilty because he was using an over-the-counter or lawfully prescribed drug. RESPONSE: Entitlement is not a legally recognized defense. An entitlement defense encompasses the mens rea of “I didn’t do anything wrong, or at least I didn’t know that I was doing anything wrong.” It amounts to the defendant offering a seemingly valid excuse for his behavior. An entitlement defense occurs when the defendant presents a valid prescription or OTC purchase to the jury as justification for the medications found in his system. In doing so, the defendant asserts to the jury that he has done nothing unlawful by consuming the medicine and driving. Dissected: the de- fendant focuses the jury’s attention on the reason for the impairment and not on his deci- sion to drive. He can justify the impairment but the prosecutor needs to point out that the defendant still can’t justify the decision to drive while impaired. How a defendant came to be impaired is not an element of proof in a DUI case. However, the prosecutor should make strategic and tactical efforts to satisfy a jury’s curi- osity of how impairment occurred. The prosecutor must also