The following is an except from a paper I presented at the “Georgia Defense of Drinking Drivers Institute” seminar on December 1, 2011.
Minimizing our client's expenses requires us to properly prepare ourselves to attack the State's case. Obtaining the education and training needed to defend these cases may enable us to diffuse issues that experts are typically relied upon to clarify. With adequate training, we can address issues with the State's witnesses prior to trial and learn how to attack those issues when we do not have funds for an expert witness. In order to consistently produce results in a cost-effective manner for our clients, we must have a wide breadth of knowledge about the evidence that we confront in DUI cases. This list is by no means exhaustive, but these are some texts that are very useful in developing a basis to address the evidence in DUI cases:
- Garriott's Medicolegal Aspects of Alcohol (James C. Garriott ed., Lawyers & Judges Publishing Company, Inc. 5th ed. 2009);
- National Highway Traffic Safety Administration, U.S. Department of Transportation, “DWI Detection and Standardized Field Sobriety Testing” (2006);
- National Highway Traffic Safety Administration, U.S. Department of Transportation, “Drug Evaluation and Classification Training: ‘The Drug Recognition Expert School'” (2006);
- National Highway Traffic Safety Administration, U.S. Department of Transportation, “Advanced Roadside Impaired Driving Enforcement” (2007); and
- Division of Forensic Sciences, Georgia Bureau of Investigation, “Intoxilyzer 5000 Georgia Operator's Manual” (2009).
Engage in specialized courses regarding the Intoxilyzer 5000, blood testing, urine testing, and field sobriety evaluations. Learn how the tests are supposed to be performed. After immersing yourself in the subject, we will know what issues are significant. With this foundation in place, we can readily recognize deficiencies in Georgia's program and the evidence in our cases.
Open Records Act
(hereinafter, “ORA”) requests are an incredibly useful means of discovering information to attack chemical tests. Attached as Exhibits C through E are ORA requests that may be useful for obtaining some of the information necessary to evaluate your breath and blood test cases. Make it a part of your practice to routinely send out requests. There is a lot of work done at the GBI's Crime Lab that we can take advantage of if we do systematic open records requests and begin learning what information they have. Once we know the protocol for the administration of a test and the limitations of the test, we are in a position to attack the results.
To illustrate the value of conducting ORA requests, consider the information that ORA requests produced with regard to Intoxilyzer Serial No. 68-013057. When the author met with the Defendant regarding his test performed on this machine, the author presumed that the test was performed in a mobile breath alcohol testing trailer. In reality, this particular Intoxilyzer 5000 is mounted in the rear of a Chevrolet Tahoe. It is striking that a “forensic” breath test was actually being performed in the back of a Tahoe where the Defendant was standing up and blowing into an Intoxilyzer that was mounted in the rear of the vehicle. Nothing on the face of the certificates of inspection or in the discovery disclosed this anomaly. Attached as Exhibit F is a report produced by the GBI specifically relating to this machine. Without an ORA request, the author would have not known about this article.
Develop a system to catalog your requests and build upon your prior requests. Share the information and ideas that you assimilate with colleagues. ORA requests are a great way to focus your defense and focus on issues that can really be productive. In so many of our breath test cases, we rely upon generalized issues, such as radio frequency interference, mouth alcohol, and lack of specificity or precision of the machine. If we have a choice between a very specific issue that relates to a specific machine upon which our client was tested and a more general issue of accuracy and reliability of the machine, we invariably choose the more specific issue. Focusing on the test in our particular case through a systematic inquiry on the machine and our client can absolve of us of the onerous task of generally attacking breath testing.
In seeking to minimize the expenses associated with an expert, consider retaining an expert to consult with you in preparation for trial. Paying an expert for a couple of hours of consultation in preparation for pre-trial hearings or trial can be an extremely cost-effective means of preparing your defense. If you can narrow the issue for the expert, most are willing to discuss defense issues with you and whether in-court assistance is necessary or beneficial.
We should be willing to explore alternative sources of experts. Do not feel compelled to resort to the same experts as everyone else. In Georgia, we have numerous sources of potential experts at our various universities and colleges. A local community college professor could be an excellent witness and would most likely come at a sharply reduced rate over our standard experts.
Finally, there are some cases and some issues in which not having an expert can be a wise decision. Restraining the urge to put forward testimony can be difficult, but it is sometimes beneficial. Experts have to concede certain things in order to remain credible. If the expert is unwilling to concede a fact that is evident to everyone in the courtroom, their credibility is lost. You have to know that an expert will be forced to concede certain facts when they take the stand and you must evaluate whether the benefit of the testimony is worth the concessions that must be made.
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