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Discovering 100 Ways To Beat A DUI Case

National College for DUI Defense 2009 “Discovering What You Need to Win”

Donald J. Ramsell 1-800-342-5384 [email protected]

It is an “empirical fact that breathalyzer tests, while generally valid, are not fool-proof.”

People v Orth, 124 Ill 2d 326, 530 NE2d 210 (1988)

Discovering What YOU Need to Win (6th Amendment)

“[W]e do not believe in the infallibility of human agencies, any more than we believe in infallible technology. Until we are prepared to accept both, we take the view that when the State conditionally requires that a person submit to a breath, blood, or urine test conducted by the State, fundamental fairness requires that an additional sample be available to the person tested for his or her own independent analysis. In the light of present day scientific advances, due process, it seems to us, requires a second sample. Opinion of the Justices 131 N.H. 583, 589, 557 A.2d 1355, 1358 (N.H.1989)

The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

U.S.C.A. Const. Amend. VI-Jury Trials

The Sixth Amendment includes:

1. The right to present a meaningful defense and meaningful evidence

2. The right of compulsory process – subpoenas

3. The right to present expert testimony (indigency)

4. The right to be free from governmental interference with defense witnesses

5. The right to confront evidence – machine or inspector or operator or source code

6. The right of independent testing

1. Right to Present Meaningful Defense

In Trombetta v. California, the court held that the failure to preserve a breath sample that was capable of being captured, so that an independent analysis could be performed, did not violate a Defendant’s right to present a defense. However, in so doing, the Trombetta Court’s ruling proceeded on the assumption that as a general rule, the defendant would still be allowed a fair opportunity to rebut the test results at trial:

“Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender’s Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations. See supra, at 2530. Respondents could have utilized these data to impeach the machine’s reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered. FN11

FN11. Respondents could also have protected themselves from erroneous on-the-scene testing by electing to submit to urine or blood tests, see n. 2, supra, because the State automatically would have preserved urine and blood samples for retesting by respondents. Respondents, however, were not informed of the difference between the various testing procedures when they were asked to select among the three available methods of testing blood-alcohol concentrations. But see Cal.Veh.Code Ann. § 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed that samples will be retained only in urine and blood tests). To the extent that this and other access-to-evidence cases turn on the underlying fairness of governmental procedures, it would be anomalous to permit the State to justify its actions by relying on procedural alternatives that were available, but unknown to the defendant. Similarly, it is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that respondents were aware of this alternative.”

California v. Trombetta 467 U.S. 479, 490, 104 S.Ct. 2528, 2534 – 2535 (U.S.1984)

In Chambers v. Mississippi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) the U.S. Supreme Court held that Mississippi evidentiary rules regulating impeachment and hearsay cannot impair criminal defendant’s right to cross-examine witnesses and present witnesses in his defense.

In State v. Brickhouse, 20 Kan.App.2d 495, 500-02, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995) it was held that hearsay rules and district court discretion cannot be applied unfairly to deprive criminal defendant of the right to present his defense.

The court must ascertain whether a DUI statute and accompanying testing regulations establishing the reliability of breath testing in administrative revocation hearings are contrary to due process. Meehan v. Kansas Dept. of Revenue 25 Kan.App.2d 183, 186, 959 P.2d 940, 943 (Kan.App.,1998)

In State v. Shuler 168 Ohio App.3d 183, 186, 858 N.E.2d 1254, 1257 (Ohio App. 4 Dist.,2006) the Defendant sought to admit a PBT result into evidence on his own behalf. The trial court refused. On appeal, it was held that the results of any preliminary breath test (PBT) was unreliable, and thus exclusion of results of PBT (0.078) from evidence did not violate a defendant’s Fifth Amendment right to due process nor his Sixth Amendment right to compulsory process. “Further, we commend counsel for the state herein for his candor at oral argument regarding the PBT’s use.”

2. Compulsory Process – The Right of Access to Information

Defendants have a constitutional right to investigate their case and of access to evidence. See Crane v. Kentucky, 476 U.S. 683, 690-91 [106 S.Ct. 2142, 90 L.Ed.2d 636] (1986); California v. Trombetta, 467 U.S. 479, 485 [104 S.Ct. 2528, 81 L.Ed.2d 413] (1984); Washington v. Texas, 388 U.S. 14, 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019] (1967); see also Rock v. Arkansas, 483 U.S. 44, 51-53 [107 S.Ct. 2704, 97 L.Ed.2d 37] (1987); Taylor v. Illinois, 484 U.S. 400, 408-09 [108 S.Ct. 646, 98 L.Ed.2d 798] (1988); Chambers v. Mississippi, 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (1973).

In the New York case of People v. Robinson 53 A.D.3d 63, 67, 860 N.Y.S.2d 159, 163 (N.Y.A.D. 2 Dept.,2008), cases allowing access to breath testing evidence were reviewed:

“Indeed, case law has recognized the defendant’s right, in prosecutions charging driving while intoxicated and related offenses, to disclosure of various documents not expressly listed in CPL 240.20 ( see Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611 [records indicating that a machine was not operating properly are discoverable, as are the State Police rules and regulations, the operational checklist, and calibration records]; People v. Crandall, 228 A.D.2d 794, 795, 644 N.Y.S.2d 817 [documents relating to ampoule analysis and simulator solution analysis are subject to disclosure]; People v. Erickson, 156 A.D.2d 760, 762, 549 N.Y.S.2d 182 [breathalyzer operator’s permit and the weekly test record are subject to disclosure]; People v. DiLorenzo, 134 Misc.2d 1000, 1002-1004, 513 N.Y.S.2d 938) [several specific documents are subject to disclosure]; see also People v. Alvarez, 70 N.Y.2d 375, 380, 521 N.Y.S.2d 212, 515 N.E.2d 898 [defendant may not be denied discovery which prevents him from challenging the reliability and accuracy of a breathalyzer machine]) ( see Gerstenzang and Sills, Handling the DWI Case in New York, § 20:39, at 431 [2007-2008 ed]).

Nevertheless, the Robinson court (as many state appeals courts have) denied the defendant access to the source codes, holding that they couldn’t order what the State didn’t possess.

The Nebraska Supreme Court held that admission of breath alcohol analysis results without granting the defendant access to the source code of the breath machine which performed the analysis did not violate Sixth Amendment right to confrontation, according to State v. Kuhl 276 Neb. 497, 755 N.W.2d 389 (Neb.,2008)

In State v. Underdahl 749 N.W.2d 117, 119 (Minn.App.,2008) the Appellate Court denied a defendant access to the source code, requiring a district court’s determination that the computer source code for the Intoxilyzer 5000EN is relevant to a defendant’s guilt or innocence be premised on a showing that an examination of the instrument’s software would show defects in its operation or at least would be necessary to determine whether defects exist. Since such a showing was not made, the district court’s ruling was reversed.

In State v. Bastos 985 So.2d 37 (Fla.App. 3 Dist.,2008), a Florida trial court ruled:

“[C]redible testimony explains that the state has substituted the results of the Intoxilyzer 5000 for the analysis of a forensic chemist. Although defendants cannot cross-examine a machine as they could a chemist, this constitutional right to investigate the evidence against them gives the defendants a right to understand how the machine calculates and reports the breath alcohol reading, how and when the machines does or does not filter out or report the presence of other molecularly similar substances in the breath, and how and when the machine makes all of its other determinations and reports such as mouth alcohol or radio interference…”

Nevertheless, the Bastos appellate court overruled the trial court, finding that there was no showing that any possible errors observed in the operation of the machine necessitated access to the source code itself. State v. Bastos 985 So.2d 37, 42 (Fla.App. 3 Dist.,2008)

Thus, they held, the source code for the breath test machine used in defendants’ cases was not “material,” within the meaning of the provision of the uniform law to secure the attendance of witnesses from within or without a state in criminal proceedings. State v. Bastos 985 So.2d 37 (Fla.App. 3 Dist.,2008)

The Bastos court distinguished its holding from another Florida appeals case involving access to evidence. In State v. Bjorkland 78 U.S.P.Q.2d 1793, 1796 -1797 (Fla.Cir.2005), it was held that the defendants had demonstrated a reasonable necessity for production of the source code. The State therein had failed to establish any record setting forth available alternatives, or lack of materiality, or irreparable harm to the manufacturer of the software. Other than simply asserting that CMI was unwilling to produce the source code, the State in Bjorklund did not present any evidence rebutting reasonable necessity. Based on the record presented in that case, the court made the factual finding that the defendants had established that the source code was material to their theory of defense in these cases. The defendants established through expert testimony that the source code was reasonably necessary to determine whether the Intoxilyzer in fact contained the software approved by the State of Florida; whether it was functioning as per the approved source code, and whether any alterations had affected its operation or reliability. In so allowing, Bjorklund also commented on the following:

Section 316.1932(4), Fla. Stat., (2005), specifically provides that “full information” regarding the test taken “shall be made available” to the persons tested or their attorney. One would assume full information means just that, full information.

Section 90.506, Fla. Stat., (2005), also provides that the trade secret privilege is not allowed where it would “otherwise work injustice” *1797 and that the court may take appropriate measures to protect the holder of the privilege.

Where defendants faces criminal sanctions, including incarceration and loss of driving privileges, it would be contrary to the purpose of sections 316.1932 and 90.506 to permit the state to assert a trade secret privilege on behalf of its contractor and thereby prohibit these defendants from obtaining information relevant to the instrument that is used to prove their guilt.

Where a state enters into a contract with a breathalyzer manufacturer pursuant to which the state obtains a possessory interest in the source codes and other relevant copyrightable material, and concurrently obligates the manufacturer to provide relevant technical information to defense attorneys, that state may make itself subject to statutory disclosure requirements. Since the State of Minnesota entered into such a contract with the manufacturer of the Intoxilyzer, it was obligated to disclose the source codes to a person charged with driving under the influence of alcohol ( see Matter of Commr. of Public Safety, 735 N.W.2d 706, 713 [Minn. 2007] ).

In the Georgia case of Hills v. State 291 Ga.App. 873, 663 S.E.2d 265 (Ga.App.,2008) it was held that a DWI defendant was not entitled to discovery of the source code used in the breath testing machine, since the code was not within the possession, control, or custody of the state; the machine’s software was not created for the state, and the state did not own code and was not otherwise in possession or control of the code.

The Subpoena Duces Tecum Generally

Under the Federal Rules of Criminal Procedure, obtaining a pre-trial subpoena of documents requires satisfaction of a four-prong test:

(1) that the documents are evidentiary and relevant;

(2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence;

(3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and

(4) that the application is made in good faith and is not intended as a general “fishing expedition.”


U.S. v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); U.S. v. Cedeno 496 F.Supp.2d 562, 565 (E.D.Pa.,2007); Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A.

The purpose of Rule 17(c), authorizing a pretrial subpoena of documents, is to allow counsel to inspect documents before trial in order to determine if they intended to use them at all; the thrust of the rule is preventing delays at trial. U.S. v. Cedeno, 496 F.Supp.2d 562 (E.D.Pa.,2007) Fed.Rules Cr.Proc.Rule 17(c), 18 U.S.C.A.


Using the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings for the Production of Records

Because the manufacturers of the breath testing devices are generally beyond the borders of the jurisdiction where a DUI case is pending, frequently access to the evidence is denied. However, the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings can come to defense counsel’s rescue.

The Uniform Act’s purpose was discussed in depth in Ex parte Simmons 668 So.2d 901, 902 -903 (Ala.Cr.App.,1995) as follows:

“The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which was approved by the National Conference of Commissioners of Uniform State Laws in 1931 and amended in 1936, is intended to provide a means for state courts to compel the attendance of out-of-state witnesses at criminal proceedings. In order to accomplish its purpose, the Uniform Act authorizes the issuance of a summons, which is defined to include a ‘subpoena, order, or other notice requiring the appearance of a witness,’ directing a witness to attend and testify at a criminal proceeding.


“While it is clear that the Uniform Act permits the courts of one state to secure the attendance of witnesses from another state to give testimony in a criminal prosecution or grand jury investigation, a question has arisen in a number of cases whether the Act authorizes the issuance of a subpoena duces tecum to compel the production of books and records. In resolving this question, the courts generally have been guided by the purpose of the Act and its relevant language.

“Some courts have taken the position that in view of the remedial purpose of the Act and also in view of the broad construction placed on the term ‘subpoena’ in similar statutes, it is clear that the Act authorizes the issuance of a subpoena duces tecum.”


Annot., Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of Subpoena Duces Tecum, 7 A.L.R.4th 836, 837 (1981).


The majority of states that have been presented with the issue have interpreted the Uniform Act to include the power to issue subpoenas duces tecum. See In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842, cert. denied, 348 U.S. 874, 75 S.Ct. 110, 99 L.Ed. 688 (1954); State v. Harman, 165 W.Va. 494, 270 S.E.2d 146 (1980); In re Bick, 82 Misc.2d 1043, 372 N.Y.S.2d 447 (1975); Application of Grand Jury of State of New York, 8 Mass.App.Ct. 760, 397 N.E.2d 686 (1979); Superior Court of New Jersey v. Farber, 94 Misc.2d 886, 405 N.Y.S.2d 989 (1978).


Massachusetts Court of Appeals in Application of Grand Jury of State of New York, stated the following:

“The Uniform Act makes no mention of subpoena duces tecum or of the power of a court under the Act to order the production of documents. That silence does not necessarily imply a rejection of the power. The powers to compel the testimony of a witness are so similar in nature and so fundamental to the gathering of evidence in judicial proceedings that one is hard put to imagine a reason for permitting the former and rejecting the latter; and one suspects that a conscious intention to differentiate between testimonial and documentary evidence would have found some concrete expression in the words of the Act, rather than mere silence. It is not inconceivable that the question of how the Act would relate to the production of documents simply never occurred to the Commissioners on Uniform State Laws. The record of their deliberations can be read as confirming such a suspicion, for we find therein no reference to the production of documents even in passing, much less as a discrete subject of discussion.” 397 N.E.2d at 688.

We agree with the Massachusetts Court and with the majority of the courts, which hold that the Uniform Act authorizes the issuance of a subpoena duces tecum.”

Ex parte Simmons 668 So.2d 901, 902 -903 (Ala.Cr.App.,1995)


3. Right to Present Expert Testimony

When the state brings criminal charges against an indigent defendant, it must take steps to insure that the accused has a meaningful chance to present his defense. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). While the state need not provide the indigent with all the tools the wealthy may buy, it must provide the defendant with the “basic tools of an adequate defense.” Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971). In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court extended the definition of “basic tools” to include the appointment of a psychiatric expert for a defendant in a capital case when the defendant’s sanity would be a significant issue at trial. Failure to appoint an expert in such a case would be a denial of due process. Justice Marshall, writing for the Court, noted that the defendant’s interest in preventing an inaccurate determination of guilt would outweigh the state’s interest in avoiding the additional cost in a case where the assistance of an expert could reduce the risk of an erroneous outcome. Id. 105 S.Ct. at 1094-95 . Little v. Armontrout 835 F.2d 1240, 1243 (C.A.8 (Mo.),1987)(hypnosis expert to counter state’s hypnosis-induced testimony)

Ake and Caldwell taken together hold that a defendant must show more than a mere possibility of assistance from an expert. Rather, the defendant must show a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial. Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.) (en banc), cert. denied, 481 U.S. 1054, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987); see also Vassar v. Solem, 763 F.2d 975, 977 (8th Cir.1985); but see Stafford v. Love, 726 P.2d 894 (Okla.1986). Little v. Armontrout 835 F.2d 1240, 1244 (C.A.8 (Mo.),1987)

When the state brings criminal charges against an indigent defendant, it must take steps to insure that accused has meaningful chance to present his defense by providing him with basic tools of adequate defense. (Defense hypnosis expert allowed) Little v. Armontrout 835 F.2d 1240 (C.A.8 (Mo.),1987)

4. Government Interference with Witnesses

A defendant in criminal proceedings has a due process right to a fair opportunity to defend against the state’s accusations. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The right to call a witness on one’s behalf is recognized as an essential element to due process. Chambers, 410 U.S. at 294. Therefore, when there is a “substantial government interference with a defense witness’ free and unhampered choice to testify, [the] due process rights of the defendant [are violated].” U.S. v. Hammond, 598 F.2d 1008, 1012 (5th Cir.1979) (citing U.S. v. Henricksen, 564 F.2d 197 (5th Cir.1977)). Such interference may involve “threats of prosecution, or other intimidating conduct, that was designed to intimidate.” U.S. v. Pinto, 850 F.2d 927, 932 (2d Cir.1988) (emphasis in original) (internal citations omitted.)

In Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), a trial court judge who singled out a defense witness for a “lengthy admonition on dangers of perjury” was held to have effectively driven the witness off the stand and deprived the petitioner of due process. During the trial, the judge made statements implying he suspected the witness would lie and assured the witness that if he lied he would be prosecuted. The judge told the witness that a sentence of perjury would be added to witness’s present sentence and reduce his chances for parole. Similarly, in U.S. v. Morrison, 535 F.2d 233 (3d Cir.1976), a prosecutor who threatened a defense witness with criminal charges should she testify was found to have influenced the witness not to testify and deprived petitioner of due process. Grune v. Mazzuca 2006 WL 1313347, 3 (N.D.N.Y.) (N.D.N.Y.,2006)

5. Right to Confront Evidence – machine or inspector or operator or source code

We all know that Crawford v. Washington has created substantial litigation over the admissibility of police reports, laboratory reports, and breathalyzer reports.

Research reveals that courts are split as to whether police lab reports are “testimonial.” See Belvin v. State, 922 So.2d 1046, 1054 (Fla.Ct.App.2006) (breath test affidavit attesting to technician’s procedures and observations was testimonial and inadmissible under Crawford ) appeal docketed, No. SC06-593, 928 So.2d 336 (Fla. 2006); Shiver v. State, 900 So.2d 615, 618 (Fla.Ct.App.2005) (affidavit attesting to proper maintenance on breath test machine was testimonial); State v. Crager, 164 Ohio App.3d 816, 2005-Ohio-6868, 844 N.E.2d 390, 397 (Ohio App.2005) (DNA report was testimonial); People v. Hernandez, 7 Misc.3d 568, 794 N.Y.S.2d 788, 789 (N.Y.2005) (a fingerprint report prepared by police officer was testimonial); People v. Lonsby, 268 Mich.App. 375, 707 N.W.2d 610, 620-21 (2005) (information from lab report intimating that substance on Defendant’s shorts was semen was testimonial and inadmissible under Crawford ); City of Las Vegas v. Walsh, 124 P.3d 203, 207-08 (Nev.2005) (affidavit attesting that proper method of blood testing was followed was testimonial as it was prepared for litigation); Commonwealth v. Carter, 861 A.2d 957, 969-70 (Pa.Super.2004) (without benefit of Crawford, court held that a lab report verifying the presence of cocaine in items seized from defendant was prepared in preparation for litigation and therefore lacked indicia of reliability traditionally found in business records); People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393, 397 (N.Y.App.Div.2004) (report verifying presence of alcohol in victim’s blood was prepared for prosecution and thus testimonial); Smith v. State, 898 So.2d 907, 916 (Ala.Crim.App.2004) (autopsy report should have been excluded under 6th Amendment, but error was harmless); but see People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863, 868-69 (N.Y.2005) (autopsy report not prepared for benefit of prosecution and was not testimonial); Denoso v. State, 156 S.W.3d 166, 182 (Tex.App.2005) (autopsy report not considered testimonial); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 705 (2005) (certificates of analysis showing weight of cocaine not considered testimonial statements, as public records they constituted a recognized exception to Confrontation Clause); People v. Hinojos-Mendoza, No. 03CA0645, — P.3d —-, —-, 2005 WL 2561391, 2005 Col.App. LEXIS 1206 *8 (July 28, 2005) (report confirming that substance seized from defendant was cocaine was non-testimonial and admissible under Crawford); State v. Dedman, 136 N.M. 561, 102 P.3d 628, 636 (2004) (the unavailability of a nurse that drew blood from defendant did not render report documenting results as inadmissible because it was considered non-testimonial as the testing was not done by law enforcement personnel, the report was not testimony for trial or investigative or prosecutorial); Perkins v. State, 897 So.2d 457, 464 (Ala.Crim.App.2004) (autopsy report qualifying as a business record was non-testimonial under Crawford). As the cases cited below demonstrate, courts applying Crawford have reached different conclusions as to whether certain records and reports are testimonial hearsay and thus inadmissible in criminal prosecutions. See, e.g., Desue v. State, 908 So.2d 1116 (Fla. 1st DCA 2005) (holding that Department of Corrections computer printouts are admissible to show a prisoner’s release date); Peterson v. State, 911 So.2d 184 (Fla. 1st DCA 2005) (holding that admission of Department of Corrections business records did not violate defendant’s Confrontation rights); Smith v. State, 898 So.2d 907 (Ala.Crim.App.2004) (holding that admission of autopsy reports, without testimony of medical examiner who performed autopsy, violated defendant’s Sixth Amendment right to confrontation); People v. Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230 (2004) (holding that lab reports are routine and nontestimonial documents); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870 (holding that certified Intoxilyzer test results are business records and do not violate right to confrontation); People v. Durio, 7 Misc.3d 729, 794 N.Y.S.2d 863 (N.Y.2005) (holding that autopsy reports are business records); People v. Hinojos-Mendoza, 2005 WL 2561391, — P.3d —- (Colo.App.2005) (holding that lab report on block of cocaine is not testimonial and not subject to exclusion under Crawford ); People v. Brown, 9 Misc.3d 420, 801 N.Y.S.2d 709 (N.Y.Sup.2005) (holding that lab technician notes and records made in course of conducting DNA testing were not testimonial, and thus their admission as business records did not violate Confrontation Clause); Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347 (2005) (holding that admission of certificate of a blood alcohol analysis based on the result obtained from a breath test did not violate the defendant’s Confrontation Clause rights); cf. Johnson v. State, 31 Fla. L. Weekly D125, — So.2d —-, 2005 WL 3556038 (Fla. 2nd DCA Dec. 30, 2005) (holding that FDLE lab report establishing illegal nature of substance possessed by defendant was testimonial hearsay and was improperly admitted where declarant was available to testify); People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393 (2004) (holding that a victim’s blood report was improperly admitted as a business record in a rape and sodomy prosecution in violation of the Sixth Amendment right to cross-examine witnesses); City of Las Vegas v. Walsh, 124 P.3d 203 (Nev.2005) (holding that nurse’s affidavit regarding withdrawal of blood sample for chemical analysis in DUI case is testimonial under Crawford ). Belvin v. State 922 So.2d 1046, 1052 (Fla.App. 4 Dist.,2006) Laboratory report, identifying as cocaine base the substance seized by police, was testimonial evidence for purposes of Confrontation Clause in prosecution for second-degree drug trafficking; report was prepared at the request of law enforcement solely for purposes of prosecuting defendant, report was offered to prove an element of the charged crime, and report was a sworn and formal statement offered in lieu of testimony by the declarant. State v. March 216 S.W.3d 663 (Mo.,2007)

Confronting the Machine

Several cases have held that the Sixth Amendment does not allow a defendant the right to confront a breath machine, because it is not ‘a person’.

In State v. Ruggles 214 Or.App. 612, 167 P.3d 471 (Or.App.,2007) the court equated an alcohol test to a radar gun. “The inscription here is an assertion not made by a person but by a machine. It is not hearsay.” State v. Ruggles 214 Or.App. 612, 619-620, 167 P.3d 471, 475 (Or.App.,2007)

The Court of Appeals of Virginia recently addressed this issue in Luginbyhl v. Commonwealth, 618 S.E.2d 347, 2005 Va.App. LEXIS 329 (2005). In Luginbyhl, a confrontation clause issue was raised because a blood alcohol certificate was admitted at trial without the testimony of the officer who administered the test, allegedly in violation of defendant’s Sixth Amendment right. The court held that the result of a breath test contained in a certificate of analysis was not hearsay evidence and therefore did not implicate the confrontation clause of the Sixth Amendment. The court held that evidence that is not a statement from a human witness is not hearsay. The breath test result was generated by a machine and did not depend on the administering officer’s veracity or perceptive abilities. Therefore, the court held that the breath test did not implicate the Sixth Amendment.

However, the Luginbyhl court did find that the administering officer’s statements on the certificate as to his license to operate the machine and the proper working of the machine were hearsay, and without the officer present to cross examine, the defendant’s Sixth Amendment rights were implicated. (ultimately holding that because such statements are non-testimonial, the Commonwealth did not have to show unavailability and a prior opportunity for cross examination).

Reports written in German do not Violate the Sixth Amendment

In Mears v. McDonough 2007 WL 809781, 8 (N.D.Fla.) (N.D.Fla.,2007) the defendant claimed that he was denied his Sixth Amendment right to confront the witnesses against him because the court denied his motion for continuance when his attorney could not find a translator for certain articles, written in German, upon which the state’s expert relied in reaching his opinions on the issue of the reliability of the blood/ alcohol test. The defense lost the appeal, where the court mused:

“Petitioner’s counsel did not question the state’s expert concerning his reliance on the German articles. He did not, for example, ask if four of the articles the expert relied on were written in German, or make any attempt to examine the expert’s command of that language. While that approach would have been less than ideal, the Confrontation Clause does not guarantee perfection, only an opportunity for a full and fair cross-examination. Id. Clearly, petitioner had every opportunity to confront the state’s case, and did so, except only as to the mysterious German articles.

The content of those articles goes to the second flaw in petitioner’s case: There is a complete lack of proof of prejudice. That is, petitioner cannot prove prejudice because he cannot show that having an English translation of the German studies would have affected the outcome of the case. As far as this court has been shown, the German articles have never been translated into English, from the date of the verdict in August 2002 until the appellate court affirmed the conviction in March 2004, during which time petitioner was represented by counsel. So this court, like the state courts, is left to speculate that if only petitioner’s counsel had been given time to translate the German articles, the proverbial smoking gun for the defense would have appeared and the result would have been different. Mears v. McDonough 2007 WL 809781, 10 (N.D.Fla.) (N.D.Fla.,2007)

Stupid Is As Stupid Does – the Adequacy of Cross-Examination

Jarrell v. State 852 N.E.2d 1022, 1027 (Ind.App.,2006) the defense complained that when he attempted to question the breath operator regarding the certification of the DataMaster, the officer testified that he had no knowledge regarding the certification process. In denying the appeal, the Jarrell court stated:

“The Confrontation Clause of the Sixth Amendment has long been read as securing an adequate opportunity to cross-examine adverse witnesses. United States v. Owens, 484 U.S. 554, 557, 108 S.Ct. 838, 841, 98 L.Ed.2d 951 (1988). However, there is no guarantee of ” ‘cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985)). The right to cross-examination is satisfied if the defendant has the opportunity to bring out such matters as a witness’ bias, lack of care and attentiveness, poor eyesight, or even bad memory. Owens, 484 U.S. at 559, 108 S.Ct. at 842.”

Jarrell v. State 852 N.E.2d 1022, 1027 (Ind.App.,2006)

The Court of Appeals of Virginia recently addressed this issue in Luginbyhl v. Commonwealth, 618 S.E.2d 347, 2005 Va.App. LEXIS 329 (2005). In Luginbyhl, a confrontation clause issue was raised because a blood alcohol certificate was admitted at trial without the testimony of the officer who administered the test, allegedly in violation of defendant’s Sixth Amendment right. Id. at *5.

The court held that the result of a breath test contained in a certificate of analysis was not hearsay evidence and therefore did not implicate the confrontation clause of the Sixth Amendment. Id. at *6. The court held that evidence that is not a statement from a human witness is not hearsay. Id. at *8. The breath test result was generated by a machine and does not depend on the administering officer’s veracity or perceptive abilities. Id. at *9. Therefore, the breath test does not implicate the Sixth Amendment. Id. at *11.

In this case, Ranger Buxton testified that he administered the Intoxilyzer 5000 test to the defendant on the night in question. Thus, he was available for cross examination at trial as to his qualifications to operate the machine as well as the proper working of the machine. The Ranger testified that he is licensed to operate the Intoxilyzer 5000 in Virginia and that the machine was tested and determined to be in proper working order. Therefore, a due process argument rooted in the confrontation clause also lacks merit. See United States v. McGavock, No. 7:05M404, 2005 U.S. Dist. LEXIS 24615, at *15-17 (W.D.Va. Oct.18, 2005). U.S. v. Mackey 2006 WL 1699736, 3 (W.D.Va.) (W.D.Va.,2006)

6. Independent Testing

In Trombetta, 467 U.S. at 488, 104 S.Ct. 2528. the Court also found that the nature of the evidence did not require preservation of the breath samples. Specifically, the Court said: “[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

The New Hampshire Supreme Court held differently:

“Finally, we think the issue ultimately boils down to this: we do not believe in the infallibility of human agencies, any more than we believe in infallible technology. Until we are prepared to accept both, we take the view that when the State conditionally requires that a person submit to a breath, blood, or urine test conducted by the State, fundamental fairness requires that an additional sample be available to the person tested for his or her own independent analysis. In the light of present day scientific advances, due process, it seems to us, requires a second sample. Opinion of the Justices 131 N.H. 583, 589, 557 A.2d 1355, 1358 (N.H.,1989)

7. What You Can Subpoena – Getting the Government to Help Defend Your Client

Do not forget to request all communications by email text or otherwise that relate to the materials subpoenaed.

Blood Testing Information
Attached is Troy McKinney’s blood test subpoena. Use it wisely.

Firmware and Software Upgrades, Modifications
Attached are materials that I subpoenaed relating to software changes to the EC-IR used in one of my cases.

Dispatch Communications
Most law enforcement agencies use dispatch agencies or facilities with recorded channels for ‘official’ police communications. These records can be obtained by subpoena.
Some very helpful information can be gleaned from contact records. They can include:
Information that the police called for a tow even before the time of the field sobriety tests (pre-judging)
The length of time that the defendant was held at the scene (4 th amendment)
The names and number of other officers who arrived at the scene
Any other prejudicial statements of officers

Mobile Data Terminal Records
Police officers use mobile data terminals for everything nowadays. These ‘laptops’ can tell you how many times a defendant’s plates were run, by whom they were run and the time that they were run. These records also will reveal whether the arrest record or driving record of a person were accessed, and the information that was obtained.

Officer Activity Records
These records can display the number of stops and contacts made by a particular officer, and his general activities for that day.

State or Federal Grant Records
Many police departments run officers on extra shifts based upon grant monies from the federal government. The police department is required to fill out applications both for the grant approval, and afterwards for reimbursement. These programs are usually administered by the State’s highway departments.

Disciplinary records
Police departments are notorious for discipline. As such, many officers receive discipline for such things as improper report writing, mistreating citizens by being rude, lying to a supervisor, etc. If an officer is being disciplined, counsel may be able to argue that he has a need to arrest more people as a way of pleasing his superiors.

Police Department Orders and Operatives
Many departments have protocols or procedures that are recommended for DUI/DWI arrests and processing. These protocols can be used to establish a deviation from established procedure.

8. What You Can Gather to Help Your Case From Anywhere

a) Types of Evidence to Gather

Essentially, there are four categories of evidence that prosecutors use to prove a DUI case, defense attorneys use to disprove the case:

  1. The Manner of Driving
  2. Drivers Personal Actions and Behaviors
  3. Field Sobriety Tests
  4. Chemical Tests

The prosecution will attempt to prove beyond a reasonable doubt that all of these categories of evidence were the result of impairment.

A good defense attorney will attempt to explain, rebut, disprove or discredit that same evidence. A good defense attorney should look at these same categories in gathering the defense’s own evidence to defend the case. Evidence that the driving, even if poor, had nothing to do with alcohol, or proof that the defendant’s behavior that had nothing to do with alcohol, go along way towards winning a DUI case.

A good defense attorney does not just simply respond to the State’s evidence. That would be the same as standing in a boxing ring, and simply taking punches without fighting back. Rather a good DUI defense attorney will pro-actively place evidence into the record that asserts innocence – you punch back.

Preservation Motions/ Motions for Sequestration

When certain evidence in the possession of the government which might be favorable to a defendant is subject to elimination or destruction during the normal course of business within a short period of time, a defense attorney should move to obtain an emergency order to preserve said evidence. Such a motion places the prosecution on notice to take steps to notify appropriate steps to ensure that said evidence is not erased, eliminated or destroyed. If a court order is not possible, or impractical, a subpoena can accomplish the job. I personally use subpoenas, as some judges are reluctant to punish prosecutors who appear in their room on a daily basis, if the evidence is not preserved due to prosecutorial neglect. Of course, using both techniques would be the wisest approach.

Examples of evidence that might disappear unless steps are take to preserve it include telephone recordings to or from the police station or jail, dispatch tapes, booking room tapes, and other recordings that are only held for limited periods of time as a matter of routine, before they are recorded over or deleted from computer hard drives.

Videotaping Defendant or Recording Defendant’s Speech

When a Defendant is released from jail shortly after the alleged incident, then a videotape and audio recording of the defendant’s balance, or speech pattern, or injuries can be helpful in combating the state’s contrary evidence, and preserving actual evidence of the sobriety of the defendant.

Suggesting that the defendant perform balance movements, or say the alphabet, or count during the taping may help counter evidence by the police alleging the defendants inability to perform these activities to the contrary.

The Defendant’s Version of Events

As soon as possible after the event in question, the defendant’s version of events should be preserved with as much detail as can be recalled. Some attorneys have investigators interview the client, others have the client write their own version of events, and other attorneys perform the interview themselves.

A defendant’s ability to recall minute details can rebut evidence that he was intoxicated. Further, details such as the clothes worn, food eaten, time and manner that drinks were ordered or consumed, topics of conversation with friends, can fade easily and quickly following a traumatic incident such as a drunk driving arrest.

A sample client questionnaire is contained in the Appendix of this book.

Make sure to preserve the confidentiality of such statements by advising the defendant not to share this information with anyone other than your office.

Witness Statements

Taking witness statements can be a two-edged sword. In felony cases, Supreme Court Rules require the parties to disclose substantially verbatim statements of witnesses to opposing counsel. (See Supreme Court Rules 412 and 413).

An attorney should consider interviewing:

  • Witnesses to accidents
  • Persons who were with the defendant during the pre-driving activities
  • Persons who live on the street of the stop who may have seen the sobriety tests
  • Store employees if the defendant was stopped in a parking lot
  • Persons who saw the defendant’s driving
  • Persons who can attest to a defendant’s pre-existing disabilities, defects or poor balance, etc.
  • Persons who saw defendant after the driving, such as paramedics or tow truck drivers.

Not all of these people will intend on being helpful. Nevertheless, statements by independent witnesses affirming that the defendant’s balance was fine, or the speech was clear, can have great impact on the defense of a case. Getting these statements prior to the person being contacted by a prosecutor may result in an unbiased recitation of events. After that person is informed by the prosecution of any criminal history, or other DUIs, tends to color the witness’ testimony.

Witness Arrest (and other) Records

Citizen witnesses often have their own criminal or traffic history. Frequently, prosecutors will run criminal and traffic backgrounds on witnesses, and the fact that they have done so is not automatically required to be disclosed, unless the State calls the individual as a witness, and the information that they obtained constitutes impeachable evidence. Depending on your jurisdiction, some judges will upon a defendant’s request, order a prosecutor to run a criminal history on potential witnesses of the State (or defense if you dare). Also, the internet is a wonderful source of information. Many younger witnesses have their own web pages on such sites as myspace or Facebook nowadays.

Medical History

The defendant should provide a complete medical history so that the attorney has access to all information that might explain:

  • Balance difficulties
  • Difficulties with processing alcohol
  • Medical Conditions that may interfere with breath testing
  • Conditions that may interfere with Blood tests
  • Vision problems
  • Hearing problems
  • Psychological problems

A medical history and questionnaire is contained in the Appendix to this book.

Records of Past Medical Treatment

After a Defendant has provided his medical history, the history should be reviewed by the attorney to determine whether any prior medical records should be ordered or obtained.

For example, records of back surgeries, long-term back injuries, and other serious injuries to the head, knees arms, neck or legs will have a direct impact on the value of field sobriety tests. Officers are told during training to ask a person whether they have ever had such injuries or conditions. Further, all police field sobriety training manuals state that such injuries will compromise the validity of field sobriety tests.


In People v. Thomas, 34 Ill.App.3d 578, 340 N.E.2d 174 (1975), the court held that the State failed to prove the defendant guilty beyond a reasonable doubt because the symptoms the State presented to prove defendant’s intoxication might have been the result of defendant’s recent brain injury. Thomas, 34 Ill.App.3d at 582, 340 N.E.2d at 177. In Thomas, the State relied on defendant’s unsteady balance, slurred speech, disoriented mental state, red eyes and face, and the odor of alcohol to prove defendant was intoxicated. Thomas, 34 Ill.App.3d at 580-81, 340 N.E.2d at 176. Because defendant’s brain injury could have produced all the evidence the State presented to prove intoxication, except the odor of alcohol, which alone is insufficient, a reasonable doubt existed as to defendant’s guilt. Thomas, 34 Ill.App.3d at 580, 340 N.E.2d at 176.

Records of medical conditions which may compromise the validity of chemical tests may also prove valuable. For example, it is well known that persons who suffer from acid reflux, or GERD, can have falsely elevated breath alcohol test results. Other persons may suffer from blood conditions which can accelerate the growth of alcohol in blood tubes after they are drawn from the defendant, such as candida Albicans, a microorganism that promotes neo-genesis of alcohol in blood.

These records can be submitted to defense experts, or (perhaps) used during cross-examination of state experts.

Lastly, if the defendant can obtain a paid bill for the services rendered, he may be able to admit the bill under the ‘paid bill’ exception to the hearsay rule.

Ultimately, many prosecutors have challenged the defendant’s veracity as to medical services or conditions, unwittingly opening the door to the admission (or mention) of the records in front of the jury.

Dental Records, Tongue Piercings, Dentures, Bloody Lips

Dental adhesives, dentures, bridgework and other dental work has often been cited as a potential interfering condition for breath testing if it traps alcohol (or food soaked with alcohol) in the mouth cavity. Even tongue piercing has been claimed to affect the validity of a breath test. In Guy v. State, 805 N.E.2d 835 (Ind.App. Apr 02, 2004) the lower court held that a tongue stud was a foreign substance that invalidated a breath test. This decision was later overruled by a higher court. Guy v. State, 823 N.E.2d 274 (Ind. Mar 02, 2005). Nevertheless, any inclination that anything was in the mouth cavity of the defendant within 20 minutes of the test event should be explored by the defense attorney.

In a Rule 23 opinion, People v. Gray (3rd District 1993), Slip Opinion No. 3-93-077, the defendant had been injured in an auto accident and testified that she had a gash to her lower lip which was still bleeding when she submitted to the breath test. The former chief of the Illinois Department of Public Health Division of Alcohol and Substance Testing testified that blood in the mouth would possibly contaminate a breath sample. Further, he stated that when a person has blood in the mouth, the department recommends blood or urine testing rather than a breath analysis even though there is not a rule or regulation requiring such a procedure. The appellate court affirmed the rescission of the summary suspension and the suppression of the breath test analysis.

In People v. Case (2nd District 1996), Rule 23 Slip Opinion No. 2-95-1592, the issue of whether dentures or dental adhesive is a foreign substance and whether its presence affects the results of a breath test was at issue. The record revealed that an IDPH training instructor testified to governmental studies by Colorado and Wisconsin, subfunded by the manufacturers, which showed that dental adhesive will retain alcohol beyond the 20-minute mark and result in inaccurate breath alcohol readings.

The Case opinion stated that the defense of dentures or dental adhesive is valid, so long as a proper foundation for the proof of inaccuracy is made. The Case opinion rejected the state’s argument that experts cannot attack the validity of a breath test, even when the test complies with IDPH regulations.

Vision and Hearing Records

Vision records can be helpful if the defendant has problems with night vision, reading signs, long distance sight, redness or glassiness due to conjunctivitis, and any eye condition which may interfere with horizontal gaze nystagmus testing.

Hearing loss can affect balance. Further, it may interfere with a persons ability to clearly hear or understand field sobriety instructions on noisy streets or when an officer is moving around while verbally instructing the tests.


It is not a defense to a DUI that a person was lawfully prescribed to take drugs or medications that by themselves would impair driving. 625 ILCS 5/11-501(b) However, a person cannot receive a summary suspension based upon a test revealing the presence of lawfully consumed controlled substances. Thus a prescription is an affirmative defense to a summary suspension based upon the presence of drugs.

Further, some medications have been shown to cause falsely elevated breath results even though they do not impair, such as asthma inhalers. People v. Kamide, 254 Ill.App.3d 67, 72, 193 Ill.Dec. 304, 626 N.E.2d 337, 341 (1993) .

The affects that medications may have on a person are well described in the Physicians desk Reference, a medial periodical considered by many to be authoritative in the field of pharmacology. Counsel should be cautioned that many medications are contraindicated with alcohol. Also many medications caution against driving vehicles while taking the medicine.

Psychiatric Records

Psychiatric conditions can help provide a defense based on unusual behavior. Further, some psychiatric conditions will provide explanations as to poor field sobriety test performances.

Field Sobriety tests are described in training manuals as divided attention tests. Therefore, persons who suffer from Attention Deficit Disorder (A.D.D.) or Attention Deficit Hyperactivity Disorder (A.D.H.D.) should be expected to perform poorly (or fail) merely because of their psychiatric conditions. Evidence of a disability (physical or psychiatric) may establish reasonable doubt. For physical disabilities, see e.g. People v. Clark, 123 Ill.App.2d 41, 259 N.E.2d 636. People v. Wheatley 4 Ill.App.3d 1088, 283 N.E.2d 279 (1972),

Photographs of Defendants Injuries

Where a defendant has been injured in an accident or a fight or a fall, or by any other means, photographs of the cuts, scratches, bruises, or other markings should be taken and preserved. Even casts, bandages, gauzes and other items of medical care can be helpful. Injuries of any kind may explain abnormal behavior, or can explain an inability to perform activities. The photos may also impeach an officers insufficient description of a defendant’s true injuries. As discussed in another section, evidence of a disability may entitle the defendant to a not guilty finding as a matter of law. ( See Section _____ Physical Disabilities)

Work Records

Obtaining work records of the defendant can be valuable for many reasons. First, they may create a timeline for the drinking episode. It would be beneficial to show that a person had been working rather than at a bar. Or, the records can establish fatigue if the driver was working substantial overtime, or had been awake for 20 hours prior to driving. Lastly, employment records may establish that the defendant’s job is physically exhausting.

MSDS and Volatiles Records

Exposure to certain chemicals can affect the validity of a breath test result, i.e. interfering substances. Further, these compounds may also cause a person to smell like alcohol, or have bloodshot or glassy eyes, or display classic symptoms of intoxication. The federal government requires companies who manufacture, sell, store, or use such compounds to create and possess records describing these volatiles. These records are referred to as Material Safety Data Sheets (MSDS). If a defendant works with these types of items. The MSDS sheets, and any ingredient labels from such products should be obtained.

The fact that a defendant has been exposed to volatile substances may be used to show that a breath test is invalid.


A ‘mugshot’, which is the term used for a booking room photograph or jail photograph of an arrestee, can help rebut a claim that a defendants eyes were glassy or bloodshot. Also, mugshots may counter police testimony that the defendant was wearing certain clothes. For example, if the defendant was only wearing a T-shirt in inclement weather, but the police testify that the defendant was wearing a sweater, the mugshot would be helpful.

Fingerprint Cards

Simply put, alcohol (when consumed in particular quantities) affects the central nervous system, which in turn affects the muscle control in the human body. When a person is fingerprinted, they generally are required to stand for a long enough period to allow the officer to ‘roll’ the fingers onto a print card or (in more technologically advanced police stations) onto a print screen. The ‘rolling’ requires the arrestee to loosen only certain muscles, such as the wrist and elbow.

A defendant’s ability to be fingerprinted without difficulty requires good balance and good muscle control, which are generally inconsistent with intoxication.

Additionally, if there is an alcohol based hand cleanser in the room, this may affect the validity of a breath test. Most manufacturers recommend that there be no volatiles in the breath testing room.

Handwriting Specimens of Defendant

Alcohol intoxication can affect small motor skills, such as handling small objects. This is also sometimes referred to as ‘fine motor skills’. Evidence that a defendant was able to sign documents, such as bail bonds or Miranda warnings, etc., neatly, legibly, and on the line can contradict a claim of intoxication.

If the State attempts to use a handwriting specimen, defense counsel may consider moving to suppress as a Miranda violation. In People v. Nestrick 45 Ill.App.3d 519, 523, 359 N.E.2d 503, 506, 3 Ill.Dec. 864, 867 (Ill.App. 1977) the court found that a police officer’s request that the defendant provide a handwriting sample violated the defendant’s constitutional rights. The defendant had already refused to answer questions from the same card he was asked to sign.

Jail Records – Jail Admittance Records

In many county jails or local city jails, it is standard procedure (for liability purposes) for all arrestees to undergo an examination by a nurse, guard or other person prior to admittance. Records of such an examination routinely contain a question as to whether the arrestee appears under the influence. Admitting personnel frequently answer said question ‘no’ in order to speed the admitting process. Also, prisoners are often checked upon every 15 minutes (or routinely) and records of that observation are also kept. Such records can be very damaging to the prosecution.

Photographs of Route of Travel

The entire route of travel that was taken by the defendant on the night in question may prove valuable at a later stage of the proceedings. Such photos may establish:

a) that the lines on the road were faded or nonexistent,

b) that the line was yellow instead of white

c) single line instead of double line

d) dashed instead of solid, or

e) that the road was curved

f) or hilly

g) or lacked overhead lighting

h) or was missing proper signage

i) or that the officer’s radar device was blocked by trees, shrubs, highway signs, or

j) photos may help prove that the defendants route of travel required the driver to make many safe maneuvers.

Construction – If there was construction in the area, it is essential to immediately photograph the area before the construction is changed. Also, construction companies frequently take photographs (called progress photos) for contract payment purposes. Counsel may be able to obtain those photographs as well.

Photographs of the route of travel are in integral part of preparing a defense. They may even establish that the claimed violation was impossible for the police to view, or to have occurred.

Photographs of Scene of Field Sobriety Tests

If the defendant took any balance tests or filed sobriety tests, the condition of the are where the tests occurred is critical. The National Highway Traffic Safety Administration Field Sobriety Student Manuals require such areas to be dry, level, and clear of debris. Photographs that show the area was not in compliance with the above are extremely valuable.

Proving Slopes – The Milk Trick and Levels

As described above, if the area where the field sobriety tests were given were not level, proving that it was sloped is very helpful.

There are specific devices used by engineers to measure a slope. However, one can also prove a slope in many inexpensive ways. For example, while using a video camera, one can pour milk onto the ground where the test was performed and film the milk running in a particular direction to prove a slope.

Another method is to take a 3 foot level, and place something under one side until the bubble reaches level. Then take wide photos of the area with the level in it, and closer photographs with the location of the centered bubble visible.

Signage and Compliance with the Uniform Manual on Traffic Control Devices

In Illinois, all signage used on local and State highways must comply with the State manual and specifications for traffic control devices and other traffic signage. See, e.g. 625 ILCS 5/11-301. Illinois has adopted the Uniform Manual on Traffic Control Devices (UMTCD) as the basic manual.

625 ILCS 5/11-305(c) states that nonconforming traffic control devices cannot be enforced if not in a proper position and sufficiently legible to be seen by an ordinarily observant person.

Thus, if a defendant is stopped for violating such a device, it is important to determine whether the device is in conformance with the State Manual.

Also, electronic speed-detecting devices are not admissible if used within 500 feet of an initial speed reduction sign, according to 625 ILCS 11-602 et.cet., except school zones, highway construction zones, and maintenance zones. See also People v. Johannsen, App.1970, 126 Ill.App.2d 31, 261 N.E.2d 551; People v. Russell, 120 Ill.App.2d 197, 256 N.E.2d 468, (2d Dist. 1970)

Village and County Maps

The distance that a defendant drove with the officer following can frequently be employed to establish a substantial length of unimpaired driving, even in spite of 1 or 2 brief violations. A certified government map is self-authenticating, admissible, and frequently has a scale to establish distance.

Maps can also establish jurisdiction of an officer, or other issues relating to speed, time or distance.

Measuring Distances and Lane Widths

Other methods of establishing distance may involve using vehicle odometers,, videotaping the route of travel, or photographs (aerial or street level).

The width of particular lanes can be significant when there is an accusation that the defendant was weaving. Anecdotally, lane width can vary from 10 feet to 16 feet on highways. The width of the vehicle and the width of the lane are important measurements.

Google Earth

Google Earth provides quick access to aerial shots of the vicinity in question. Such photographs may be helpful when describing the route of travel. Such photographs can also put a perspective on an officer’s location for observing the defendant, or proving how close a cop was to the bar when the defendant exited, or the lanes on the roadway et cetera.

Highway Maintenance Records for Roads and Signs

In some case, obtaining records from the Department of Streets and Highways (or a similar division of government) of any work orders, requests, construction orders, and maintenance records might reveal that the road was in less than pristine condition. In one case, it was established that the sidewalk where defendant took his filed sobriety tests had been on the replacement list for 3 years prior thereto.

Highway Design Records

The original design plans for a particular intersection or area may be valuable if an accident was involved, or if the area appears unsafe or insufficiently signed. For example, in one trial case design records established that a ‘hard curve’ sign was intended to be placed at a T-intersection. Instead, maintenance records established that a ‘soft-curve’ sign had been place instead. The defendant’s loss of control over his motorcycle was blamed on government malfeasance, rather than impairment.

Accident Records at Same Location

Some intersections or stretches of roadway are accident-prone or unsafe. In fact, many municipalities apply for federal funds to enforce traffic laws by claiming an area has a high accident ratio. Obtaining any accident reports at that location, or copies of any application for funding from the Department of Transportation where the area is claimed to be unsafe, can be helpful.

Photographs of Vehicles

Photographs of Defendants vehicle are important whenever there has been an accident. Such photos should not only establish any damage, but they should also establish the lack of damage. Also, photographs of any cracked windshield (head injury defense) or airbag deployment (the Tyndall effect on breath tests, or the ‘punch’ effect of an airbag) are important. Therefore, interior shots are important.

Photographs showing any window tinting, or the size of the vehicle (include a tape measure in the photos) or the location of headlights can become valuable, depending on the facts of the case.

Photographs of any other vehicle, if there was an accident involving another vehicle, are important. Often, these kind of photographs can be obtained from an insurance company, if a claim for damage was made.

Vehicle Recalls

Check to see if there have been any vehicle recalls on the internet for the make and model in question. These records can again offer an explanation for what otherwise appears to be impaired driving. These records are accessible at Vehicle Maintenance Records

As described above, a vehicle that is poorly maintained can be a defense to an accident (brakes) or weaving (alignment) and many other issues. Prior complaints to the dealer of mechanical problems may also be valuable.

The Black Box

All vehicles that are equipped with airbag(s) have three (3) basic components. They are as follows:

The Bag itself, which is coated with talc like powder that lubricates the air bag material for storage.

The Inflation System inflates the nitrogen gas (pulsed) via a chemical reaction

The Sensor is an electrical and/or mechanical device, which triggers a firing squib that activates the inflation systems and deploys the airbag(s).

The on-board computer’s data is stored in two types of categories. They are as follows:

An event that is severe enough to gather information from the sensors but NOT severe enough to deploy the air bag(s).

An event that is severe enough to gather information from the sensors and to deploy the air bag(s).

In both types of incidents the vehicle’s processor (RAM) stores in memory, pre and post crash data.

The “Black Box” can record informational data, such as: engine / vehicle speed (5 seconds before impact), brake status (5 seconds before impact), throttle position(s), and even the state of the driver’s seat belt switch (on/off).

Retrieval of this information can establish that the defendant was not driving impaired at the time of an accident. But be careful – it could also hurt.

In a recent vehicle accident case, the State is attempting to use the Black Box to prove that a defendant killed another person in a vehicle race, going 130 mph in the 5 seconds prior to the crash. The defendant is charged with second-degree homicide (i.e. reckless homicide). The defense challenged the scientific reliability of the data.

As reported in the New York Law Journal:

“The court held a so-called Frye hearing, derived from the 1923 ruling in Frye v. U.S., 293 F. 1013, by the U.S. Court of Appeals for the District of Columbia Circuit.

Frye provides for a “general acceptance test” of expert testimony, Honor of noted. It dictates that scientific evidence is admissible only if the underlying methodology or scientific principle is sufficiently established to have gained general acceptance in its field.

Testifying for prosecutors at the hearing was William Russell “Rusty” Haight, director of the Collision Safety Institute in San Diego. He has more than 23 years of experience in the science of accident reconstruction, the judge said.

Haight told the court he has performed more than 100 crash tests with different cars made by the same manufacturer of Soukup’s Corvette. Comparing the data recorded by the black boxes in those tests with objective external instrumentation, Haight found sensing diagnostic modules “extremely reliable,” the judge said.

Honor of ruled that the black box data were admissible, even though the police had obtained it before applying for a search warrant.

Turning back Litman’s argument that his client had a reasonable expectation of privacy in the car and its contents, the judge ruled that Soukup’s operation of the vehicle on a public highway knowingly exposed his behavior to the public. Observed by at least three witnesses, his velocity was not a private matter, the judge said.

He noted that the police searched not only the engine compartment containing the black box, but also the car’s passenger compartment, in which Soukup may have had a reasonable privacy expectation.

Nevertheless, the judge found that because the detectives obtained a warrant based not upon information obtained from the car, but from eyewitnesses and observations at the crash scene, the search was covered by the “independent source rule.”

That rule preserves the admissibility of otherwise tainted proof if it was “obtained independently from lawful activities untainted by the initial illegality,” the judge wrote.”

Andrew Harris, Car’s Black Box Evidence Ruled Admissible, New York Law Journal (January 13, 2005)

Photographs of Damaged Property

If there is other damaged property (mailboxes, fences, et cetera) make sure to have these areas completely photographed. Look for tire marks (or the lack thereof) and measure any distances from the edge of roadways if possible.

Using Skid Marks to Establish Speed

Put simply, a vehicles speed may be estimated based on the length of the skid mark, and the type of surface. Measuring the length of any skid marks may be helpful when the information is reviewed, if ever, by an accident reconstructionist. Also, short skid marks can establish in a more general sense that the vehicle was not going extremely fast, or that the driver reacted properly to the situation.

For a free speed/skid mark calculator, go to

Repair Bills or Estimates

Gather any repair bills or estimates (itemized bills are preferred) as they may be valuable in establishing a minimal impact (less possibility of impaired driving) or a substantial impact (greater possible of injuries to defendant that mimic impairment).

Paid bills are admissible in evidence without any further proof other than proof of payment. “It has been the long-followed rule in Illinois that a paid automobile repair bill is admissible in evidence without other foundation as prima facie evidence of the necessity and reasonableness of such repairs.” ‘ [Citations.]” State Farm Mut. Ins. Co. v. Hervey 353 Ill.App.3d 162, 164, 818 N.E.2d 848, 850, 288 Ill.Dec. 913, 915 (Ill.App. 1 Dist.,2004) citing to Merrill v. Hill, 335 Ill.App.3d 1001, 1007, 270 Ill.Dec. 577, 783 N.E.2d 152 (2002).

Tow Records and Personnel

Whenever a defendant is arrested for DUI, it is substantially likely that the police will tow the vehicle. Tow records frequently help establish the correct location where the arrest occurred. This may be important if it was outside the officers jurisdiction, or to show lack of recall by an officer, or for location of testing.

Additionally, tow personnel may be able to testify as to other issues relevant to a case. In one case, a tow operator testified that a rear license plate was in fact working (basis for stop impeached) and in another case the tow operator established that a large raccoon was lodged between the front wheel and the chassis (animal ran into roadway).

ll) Weather Reports

Certified weather reports may be obtained through the National Oceania and Atmospheric Administration located at Other historical weather records can be obtained at websites including the Chicago Tribune. Another helpful website is Weather Underground at

Obviously, inclement weather can affect field sobriety performance and vehicle control. But weather reports can establish more than just snow or rain. For example, high winds can affect a small car in a lane, fog can affect visibility, and barometric pressure can affect breath testing. Sunrise and sunset can affect a drivers vision when driving.

mm) Cell Phone Records

Cell phone records can be helpful in establishing that a driver’s inattentiveness was due to texting dialing or talking, as opposed to alcohol. They can also be used to establish that a witness heard that the defendant’s speech was clear, and that the conversation was such that he or she believes that the defendant was thinking clearly and was not intoxicated when driving.

nn) Credit Card Records

If the client used his credit card to make various purchases, these records can be helpful to establish a timeline, or to establish other non-drinking activities, such as shopping or working, and can be used to locate possible drinking receipts if the amount consumed is favorable.

oo) Restaurant and Bar Receipts

Again, evidence that a person drank a small amount of drinks, ate food, and was at the establishment only briefly would be favorable.

pp) Independent Blood Alcohol or Urine Tests

If the defendant desires, a person may have the right to an independent blood test. If the defendant is charged with drug use, an independent test can be obtained for up to 30 days to prove that no such drugs or cannabis was consumed. Keep in mind that the cost of proving up the results is likely to include experts to extrapolate back to the time of driving.

qq) Re-testing the State’s Blood or Urine Samples

The ISP is required to obtain two blood vials during a police blood test. One is analyzed by the State – the other is to be kept for a minimum of six months. The defendant has the right to have the second vial analyzed. Additionally, some lawyers have obtained ‘splits’ of the actual tested vials, in order to determine if there are microorganisms present in the blood that may invalidate the result.

Keep in mind that a defendant bears the same chain-of-custody obligations as would the State.

rr) Hospital Records from Incident

If the defendant has been taken to the hospital for a blood draw, there will be hospital records of the visit. If the defendant appeared in a hospital for treatment, there will be records. Have the client get them. There is no requirement that the defense notify the State of the clients personal possession of his own medical records.

ss) Hospital Laboratory Records

If the hospital performed its own alcohol test on the defendant, then ordering the records from the hospital generally will not include any pathology records other than the final result. Counsel will need to order additional records directly to the laboratory, or pathology department.

tt) Using Paid Medical Bills to Prove Treatments

On occasion, defendants receive medical care that is relevant to a DUI, such as back surgery, or GERD, or other such physical conditions. Not every client can afford to hire a doctor to testify that such care or treatment was given. Hence, the law allows for introduction of the ‘paid bill’.

Paid medical bills are generally admissible under common law to prove the reasonableness of the amount, and to prove the reasonableness of the services. “When evidence is admitted, through testimony or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the bill is prima facie reasonable.” Land & Lakes Co. v. Industrial Comm’n, 359 Ill.App.3d 582, 590-91, 296 Ill.Dec. 26, 834 N.E.2d 583, 591 (2005). Babcock v. Martinez 368 Ill.App.3d 130, 146, 857 N.E.2d 911, 923, 306 Ill.Dec. 512, 524 (Ill.App. 4 Dist.,2006)

Prescription Records or Pill Bottles

Sometimes a defendant may suffer from a medical condition that provides a defense to the DUI charges, or to the validity of chemical testing.

For example, in breath testing cases, a person suffering from acid reflux (GERD) has a defense to breath testing devices. See Section ____ (GERD. Bringing proof that the person was prescribed Tagamet, or some other medication, can assist in proving the condition.

Paramedic Reports

When there has been an accident, it is not uncommon for paramedics to be called to the scene. Even if the defendant does not get transported to a hospital, a report will be generated by the paramedics. This report can be subpoenaed through the fire department, in most jurisdictions.

This report may be helpful in establishing time lines, or police conduct observed and memorialized by the paramedics, or it may contain evidence of sobriety.

For example, the repost will generally describe the persons mental status. Boxes such as ‘alert’, ‘oriented’, ‘conscious’ are inconsistent with intoxication. If there is no mention of slurred speech or odor of alcohol , or a lack of a diagnosis of intoxication, this person can become a favorable defense witness, even unwillingly.

ww) Speed Per Feet Conversion Charts

The police officer may that the defendant was travelling at a ‘high rate of speed’, and attempt to give an estimate of the defendants speed based upon his or her observations. This is generally proper, assuming a sufficient foundation, such as length of time observing, etc. Asking the officer to estimate how many feet per second the defendant was travelling is an easy start to impeaching an officer. Another way would be to ask if he saw the defendant cross the lane line, and if so, for how many seconds, and ask then ask the officer how long in distance he travelled. Once you have this information, one can calculate mph based upon feet per second.

For example, lets say an officer ‘claims’ the defendant was travelling at 70mph in a 45mph zone. If the officer then testifies that a defendant crossed the fog line for 2 seconds, and travelled in that position for 130 feet, he has established an actual speed for the vehicle of 45 mph (a vehicle going 45mph travels 66 feet per second).

A court can take judicial notice of the time required to travel a certain amount of feet at a particular rate of miles per hour. Thomas v. Price 81 Ill.App3d 542, 36 Ill.Dec.810, 401 N.E.2d 651 (1980).

Defense counsel should have a handy vehicle speed and stopping distance table available, such as the one sold by Lawyers and Judges Publishing Co. P.O. Box 181676 Coronado, CA 92178.

xx) Radar Lidar and Speed Measuring Devices

If a defendant was stopped for speeding through the use of a radar or lidar device, a defendant may be able to win the entire case if the speeding device was untrustworthy. For example, one appellate court case has held that Lidar (laser) is not admissible because it has not been proven reliable under Frye. People v. Canulli, 341 Ill.App.3d 361, 367, 275 Ill.Dec. 207, 792 N.E.2d 438 (2003) .

yy) _____Operators Manuals/Training Manuals

Defense Counsel should subpoena the officer and/or the police department for a copy of the operator’s manual for any device that was used to measure the speed of the defendants vehicle on the night in question. These manuals contain the recommended accuracy check procedures, weather conditions, and trouble shooting guides for the device. They contain a wealth of helpful information. Just like breath alcohol devices, it takes a knowledgeable operator to prove a speed result.

A foundation must be laid before the results of a radar device can be admitted, such as evidence that the device was properly checked for accuracy either both before and after the use in question or shortly before such use. Village of Schaumburg v. Pedersen 60 IllApp3d 630, 377 N.E.2d 252, 18 Ill.Dec.99 (1978). Other radar foundation cases include People v. Stankovich 119 Ill.App.2d 187, 255 N.E.2d 461 (1970); People v. Burch 19 Ill.App.3d 360, 311 N.E.2d 410, (1974); People v. Wilson 97 Ill.App.3d 505, 423 N.E.2d 272, 53 Ill.Dec. 80 (1981)

Additionally, there are training manuals for the proper operation of radar/Lidar devices. One such manual is “Illinois State Police Cadet Training: radar/Lidar Speed Measurement” prepared by Sgt. Ozee May 220. NHTSA also has a Radar/Lidar Student Manual.

zz) _____Certificates of Warranty/Accuracy

Most radar/Lidar devices come with a certificate of warranty. For example, Decatur Electronics, Inc. generally warranties its Genesis-VP Directional Radar for two years to be free from defects in workmanship and to operate within specification for a period of two years.

Kustom Signals also provides a certification that an individual device is calibrated traceable to the National Institute Standards and Technology (NIST) for a 1 year period.

aaa) _____Maintenance and Repair Records

As with any electronic device, eventually they will break or stop functioning correctly. Radar guns are no different. Make sure to subpoena both the police department, and the village clerk, for any repair records, shipping records, warranty records, or payment records regarding the device used to measure the client’s speed on the date of arrest.

One such time, this author received records that indicated that, after repair, the company was unable to certify the instrument because the antenna and tuning forks were not shipped by the police with the unit. Thus, the unit had been ‘uncertified’ for over two years!

bbb) _____Tuning Forks

Radar Devices recommend the use of tuning forks for accuracy checks. Generally, the manufacturers recommend tuning forks that are certified as accurate as well. These tuning forks come with their own certificate of accuracy for a 1 year period.

ccc) _____Daily Equipment Check Records

In many police departments, when an officer starts the shift, the officer completes a log or form indicating that he/she has checked all of the equipment. This may include records of whether accuracy checks, or tuning fork tests, were performed, . Counsel may wish to obtain copies of these records.

ddd) Dispatch and Communications Recordings

The defendant should subpoena the dispatch communications center for ‘a complete log of the telecommunicator’s notes and audio recordings of radio transmissions and telephone calls; (insert date of arrest) activity, notes, and inquiry transaction reports for (insert names of police officers); related to the apprehension, arrest, and post-arrest interrogation, of (defendant) on (date of arrest)’ to determine whether the basis for and length of a defendant’s stop was reasonable under the Fourth Amendment. See, e.g. People v. Mitchell 297 Ill.App.3d 206, 207, 696 N.E.2d 849, 850, 231 Ill.Dec. 553, 554 (Ill.App. 5 Dist.,1998)

These records may also reveal any other police officers or other government personnel who were at the scene.

On occasion, these records may reveal that the police called for a tow of the defendant’s vehicle before the driver was even given field sobriety tests or ‘arrested’ for DUI.

Mobile Data Terminal Records

Most squad cars are now equipped with computers that access Secretary of State or Department of Motor Vehicles records for a driver and/or the vehicle. Obtaining these records may establish whether the officer had run the defendant’s plates at a time earlier than claimed. Such an event may indicate the length of time that the defendant was followed, or whether there was any predisposition to pull someone over based on a bad criminal or driving record, et cetera.

911 Calls

Obviously, if there has been a call of a ‘drunk driver’, and as a result, your client was arrested, care should be taken to obtain a copy of the call, plus any police communications related to the call.

Booking Room Videos

Most suburban police stations in northern Illinois have cameras and recording in their booking rooms, interview rooms, and breath testing rooms. These ‘recordings are normally stored digitally, and as a result, they are only held for a limited period of time before they are ‘erased’ as new data comes in. The average length of time that digitized recordings exist is 7-10 days. Analog systems are usually held for up to 30 days. Some also record audio, but most do not.

These recordings can provide a wealth of information, from the balance of the defendant, to the 20 minute observation period, to any false or misleading statements by the police. They can also cut the other way.

It is recommended that all subpoenas for this information, because of the time-sensitive nature of the information, be immediately faxed to the department, and then mailed or delivered thereafter. The language that my office uses is below:

1. Any and all in-squad, police station and police video and audio recordings of the Defendant, (Ronald _____), or of the police or of any witness to any events involving or relating to defendant occurring on or about the 4 th day of December, 2007, in a non-proprietary format which is capable of viewing in a DVD, CD or VHS player.

2. If any of the above does not exist, then the subpoenaed individual is requested to provide a written statement as to:

a) whether the above ever existed;

b) the dates that compliance or preservation was attempted; and

c) the reasons said items no longer exist.

In-Squad Videos

Perhaps the most significant evidence available to the defense of the prosecution will be the in-squad video. The squad cars are generally equipped with automated video systems. Some begin recording only when the emergency lights are activated or when manually activated. Other systems are recording at all times, but the device does not ‘download’ the data to a hard drive until the lights are activated. These types of systems also allow the device to back-capture the recording to a fixed time prior to activation of the lights, such as 60, 30, or 15 seconds.

Keep in mind that someone usually edits the video before giving it to defense counsel, so that the beginning and ending of the event are chosen by the person who makes the defense copy. Great care should be taken to ensure that you receive all relevant recording. Whether counsel is entitled to a recording of the entire shift would normally be decided by the trial court.

Although in-squad video recordings are exempt from eavesdropping laws, if the device records the audio only and not the video, it is a violation of the eavesdropping act and therefore inadmissible. (See Section 4.90 “Police Videotapes”)

Always check the police reports to see if mention of a recording is noted. Further, if there is a claim that the recording device failed to record, subpoena the maintenance or repair records, or consider filing a motion for sanctions. (See 3.23 Discovery Sanctions)

State Experts Generally

Under a variety of statutes and Supreme Court Rules discussed elsewhere, if the prosecution is calling an expert, they are required to disclose the expert’s name and address, at a bare minimum. If the matter is a felony, then Supreme Court Rule 412 requires even more.

Make sure to obtain through a court order, or motion for discovery, the resume or curriculum vitae of the witness, plus copies of any documents he intends on relying upon or reviewing, plus any publications or journals that the witness would identify as reliable and supportive of his testimony. It is within the court’s discretion to order such information. Do not file or make court requests that appear onerous or harassing, as you are likely to get less than what you will need.

Additionally, do not be afraid to call the witness and interview them. Sometimes they are actually nice and cooperative. For those who are not, the refusal to speak to you can be raised at trial during cross-examination.

Googling the State Experts

Once you have the State’s experts name, do not hesitate to do a search on the internet. Such tidbits as previous undisclosed jobs, or associations, et cetera can be located. Some lab technicians and others actually have Facebook and myspace pages.

It is also possible that the expert has contributed to discussions of value on blogs or listservs that are accessible to the public at large.


If the State expert claims to have authored any publications, copies of the same are easily available from medical publication companies on the internet. Also, if the expert has listed an authored article which was published in, for example, the Journal of Forensic Sciences, then counsel can obtain other articles from that same publication to cross-examine the expert on.

Memberships in Associations

If the expert is a member of any so-called professional associations, counsel should research the membership qualifications for joining the organization, as well as any other issues about the association. For example, in a case of mine, the blood alcohol chemist prosecution witness had identified a certain organization of forensic toxicologists that she was a member and active. The internet search revealed that any person who worked for a state lab could join, for a fee. The association had not actively met for quite a length of time; they did not publish and their last minutes indicated a substantial drop in membership. This information was good fodder for cross-examination.

Learned Treatises and Peer Reviewed Journal Articles

In the Chapter on DUI evidence, reference is made to a number of medical or scientific or government articles that assist the defense in attacking the reliability, accuracy or validity of breath tests, blood tests, or sobriety tests. Experts may be cross-examined with the contents of these documents, if a proper foundation is first laid for their use. See, e.g. People v. Wagener 196 Ill.2d 269, 752 N.E.2d 430, 256 Ill.Dec. 550 (2001)

A great discussion of the rules and law on cross-examination of experts is found in M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 705.2 (9th ed. 2009). There, the author writes that an expert may be cross-examined based upon views of recognized authorities, expressed in treatises or periodicals written for professional colleagues, if the authors competence as a reliable authority is established.

Sending articles to the expert in advance of trial is a method to consider. Cross-examination of an expert can also be based upon data that he reviewed but disregarded. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 705.2 p. 675. (9th ed. 2009)

Police Officers Generally

Frequently, the only witness for the prosecution in a DUI case is the police officer. Therefore, the officer’s credibility is tantamount. Nevertheless, attacking the officer’s credibility is only one method by which a defendant can be found not guilty. There are many more cases where the officer’s opinion that a person was guilty is based upon a combination of faulty data gathering, faulty training, and faulty interpretation of the data. Garbage in, garbage out. The following are some bare essentials to consider when dealing with the police officer.

Googling the Police Officer

As with every other witness, do an internet search. You may find something interesting, and it only takes seconds.


Many officers see DUI arrests as an opportunity for promotion or recognition amongst their peers. Find out if the officer has received special recognitions for his number of DUI arrests. If so, do not be afraid of it – relish it. If revealed to a jury in the right way, i.e. a need for recognition, a contest, a desire for self-importance, the jury may find the large number of arrests dismaying. It can make an officer look overly aggressive – especially if the outcome of the arrests has no bearing on the awards or recognitions.

Field Sobriety Training Manuals

During the case, find out where and when the officer received his or her filed sobriety training. Specifically determine whether they still have their training manual. Then, subpoena the officer to produce a copy, or to bring his to trial. Additionally, bring your own copy when the cop conveniently ‘forgets’ his. During pre-trial motions, have the police officer acknowledge the his training was in accordance with NHTSA standards, and that he recognizes NHTSA’s standards as ‘authoritative and reliable in the field of DUI detection. This will lead to the ability to use the NHTSA manual on cross-examination in most courts. See Howell v. State 2006 WL 2450920, 6 (Tex.App.-Austin) (Tex.App.-Austin,2006) (holding that the trial court’s exclusion of a portion of the NHTSA manual was error after the officer recognized it as a reliable authority); People v. McKown 226 Ill.2d 245, 249, 875 N.E.2d 1029, 1032, 314 Ill.Dec. 742, 745 (Ill.,2007)( stating that “the National Highway Traffic Safety Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing Instructor Manual sets forth the procedure for administering an HGN test in the field”)

These manuals are available from the government through www,, or at my website

Disciplinary Records

An officer’s disciplinary records may be used in impeachment, provided that they are not based on irrelevant or remote events. If counsel is aware of recent discipline, a subpoena for the records, with the information returnable directly to the court for an in camera review, is the proper procedure. The court will then have the opportunity to determine the ‘impeachability’ of the information. Counsel should ask the court to seal whatever is not turned over and have it placed with the file if there is a possible appeal.

Payroll Records – Overtime

Some police officers are reported to be more than doubling their salaries based upon the overtime they receive for special DUI details and courtroom testimony. A subpoena may be considered to obtain this information. Generally, a witness’ financial compensation for courtroom testimony is proper for inquiry on cross-examination. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 705.2 p. 675. (9th ed. 2009)

Cookie Cutter Report Writing

When a police officer’s reports for every DUI case appear the same, the phrase that is used is ‘cookie cutter’ reports. Most DUI practitioners have seen these types of reports. A good defense attorney would start to build a database for each officer. With the advent of digitized storage, scan reports is cheaper and easier than ever.

Additionally, many defense organizations, such as the DuPage County Criminal Defense Lawyers Association (DCCDLA) have on-line listservs where information is shared between defense attorneys.

Police officers also use word processing and computers to write reports. It is not beyond a realistic imagination to think that some report writing features include ‘cut and paste’. A scrutinizing defense attorney may wish to look for clues of such a technique by finding the mistaken use of ‘she’ instead of he, or dates and times that clearly were not the product of hitting a wrong key.

Village Board Minutes

In most local municipalities, the police chief will appear before the Village Board to report activities. These reports are contained on Village minutes, and then are frequently posted on Village websites. The information there can lead to helpful information.

For example, some local towns in northwest Chicago are charging a $500 impound fee for DUI arrests and for other crimes. In one towns Village minutes, it was reported that the police had collected over $1 million in impound fees alone! The Chief was lauded with compliments. The Police Chief admitted that he had implored his troops to place special emphasis on the impounding of vehicles.

Breath Alcohol Records Generally

Access to the breath testing records about the functioning of the machine is critical in DUI cases. No piece of evidence is more damaging to the defendant. Now that the Illinois State Police have started to rely on the internal memories of the instrument to keep this information, the access issue will soon come to a head. Neither the courts, nor the prosecutors or defense counsel can access the information without the cooperation of the State Police.

Counsel must subpoena and obtain the breath testing information below in order to determine whether, or to what degree, a DUI with a breath test is defendable.

Operators Manuals

Every Breath testing device in Illinois has an operator’s manual. This is the most simplified manual that is produced for use with the device. The operator’s manual should be obtainable by subpoena from the police department as well as the Illinois State Police Alcohol and Testing Section, Springfield Illinois.

Operators License and Operators License Test Records

The Illinois State Police also maintain all of the records for an operators license. This includes renewals, and test results for examinations. A copy of the license can be requested at the time the other information is being subpoenaed.

Technical Manuals

Each breath testing device also has a variety of documents and manuals in order to allow the Illinois State Police to maintain and repair the machines. In addition, the manufacturer runs training classes in order to teach these persons to perform these activities. The Intox EC-IR technical manuals are referred to as ‘Administrators Manuals’ and ‘Workshop Manuals’. Subpoena the Illinois State Police for the manuals. If they respond that ‘they’ do not possess them, and then subpoena each and every breath alcohol technician to appear in court with their copies. I have a copy from each one of them; some have different versions, or additional materials. All but one of these copies is under a protective order, which we agreed to simply to finally get the information after a 9 month series of delays.

Memory Downloads and Logbooks

Copies of logbooks for breath testing devices are generally subpoenaed through the local police department.

Each breath machine has a memory that stores certain activities, such as some breakdowns, some malfunctions, all calibrations, and all subject test results. Subpoena the Illinois State Police Alcohol Testing Section for the information. The ISP store the information in their ‘central repository’.

Malfunction, Breakdowns and Repair Records

If a machine suffers a malfunction, breakdown or repair, there is no guarantee that such an event will be documented anywhere. Under Illinois State Police Rules, they refuse to document breakdowns. And most things that can go wrong with a breath machine are defined by the Illinois State Police as breakdowns. So, for example, if the fuel cell, which is the piece of the device that performs the very test, is replace, no record of it will be made, unless something else goes wrong alongside of it.

However, another source for possible records would be through the village or town or city who owns the device. Subpoena the Village Clerk and Police Chief for any records they may have, including shipping records, purchase records, warranty records, monies spent, etc.

Another possible source of information is emails. There might be evidence of breakdowns from any emails between the ISP and the police department.

Software Revisions and Source Code Issues

Counsel should subpoena the ISP for all records that they may have, including software revisions, firmware revisions, malfunctions, repairs, etc.

Blood Alcohol Testing Records Generally

There is a variety of information that should be obtained from the laboratory where a blood test is performed. This includes:

1. Laboratory Protocols and Procedures

2. Gas Chromatographs and Mass Spectrometer Maintenance Records

3. Proficiency Records for the laboratory itself, and for the Technician

Once this information is received, counsel should forward it to an expert for an independent review, where possible.

National Standards (NCCLS)

There are several organizations that issue guidelines for blood alcohol testing in the laboratory, but the NCCLS Blood Alcohol Testing in the Clinical Laboratory: Approved Guidelines CLSI / NCCLS T/DM06-A, Volume 17 Number 14, (1997) is the gold standard of guidelines.

DNA Testing or Microorganism Testing

Counsel should consider obtaining the second vial of blood and/or a split of the tested vial, and submitting it for an independent analysis. (For further discussion, see sections 4.70 Candida Albicans and 4.75 Independent testing)

Newspaper or Television Reports

If there was any publicity surrounding the case, make sure to obtain copies of any articles that were written. In one case that I handled, the article revealed that the arresting officer was on a “funded DUI patrol”. This Additionally, if there have been articles about increased law enforcement for DUI in that town, or articles regarding the police officer(s) involved in the arrest, those should also be collected.

In one case, the officer had been featured in the Daily Herald as a ‘top cop’ for DUI arrests in the past year. His picture was included with the article. His chief was quoted saying good things about him.

When this author began cross-examining the officer, he claimed that he had never seen the article. His credibility, needless to say, was substantially diminished thereafter.

Inspecting the Breath-Testing and Booking Room

Getting a video of the breath testing and booking room can be helpful. It may show that your client could not have been observed during the mandatory 20 minute observation period, if the ‘observer’ was also trying the defendant’s information into the breath device some 20 feet away with his back to the defendant. It may also reveal steps that the defendant had to traverse, and any alcohols or volatiles in the room (ambient air issue) and radio transmitting equipment (radio frequency interference issue) .

Independently Testing the Breath Device

On occasion, trial courts have allowed the defendant and his expert access to the breath machine to perform independent testing. The expert will generally be interested in determining whether the instrument can pick up interfering substances. The expert will normally prepare a simulator solution that contains the isopropanol or methanol (or other substance).

It can be anticipated that the prosecution will vigorously object to any testing, at the behest of the Illinois State Police. The built-in arguments usually raised by the Illinois State Police Alcohol Testing Section is:

1. The police station needs to be secure, and there is not enough personnel available to allow the defense and the expert to be in the room.

2. The experts proposed experiment will possibly damage the machine (although these tests so far have never damaged the machine, counsel may have to agree to be responsible if something does happen)

3. The State Police need to have personnel in the room to monitor the procedure and the time necessary to do this would be unduly burdensome.

4. The State needs to know all of the exact steps involved in the test, so it can respond whether the test is legitimate.

5. Any experiment would be irrelevant unless it duplicates all of the other facts of that night, which would be impossible, so there shouldn’t be any testing.

These reasons have been raised and rejected many times over the past 20 years. As long as the expert is qualified, the testing method is acceptable, the State can observe the process, and there is an agreement to pay for damages, most courts will allow for limited testing.

If the court authorizes the testing, it would be suggested that the procedure be videotaped to preserve its authenticity.

Roadblock Records

If there was a roadblock involved in the case, the defense should subpoena the IDOT ( discussed in section ____) as well as the police department who ran the roadblock. The information for the roadblock should include:

1. Any and all emails, memorandums, documentation or writings containing the guidelines or outlining the operation of the roadblock at issue.

2. Any and all emails, memorandums, documentation or writings containing the guidelines limiting the amount and/or type of discretion of any field personnel involved in the operation of the roadblock at issue.

3. Any and all emails, memorandums,

4. Documentation or writings containing the guidelines or instructions regarding the purpose of the roadblock DUI violations.

5. Any and all emails, memorandums, documentation or writings containing the guidelines that outline the physical construction of the roadblock.

6. Any and all emails, memorandums, documentation or writings containing the instructions, guidelines, or materials that provides public notice of the roadblock for that day/night.

7. Proof of the actual advance publicity obtained regarding the roadblock in question, such as newspaper ads, stories, television and or radio ads or stories.

8. All memos and other documentation establishing or indicating supervisory approval for any part of the roadblock at issue.

9. Any and all emails, memorandums, documentation or writings created regarding any changes made to the number of vehicles stopped or frequency of vehicles stopped, and the reasons therefore.

10. Any and all emails, memorandums, documentation or writings containing the statistical analysis of the results of the roadblock, or the number of vehicles stopped, or the amount of tickets issued, or the number and kind of arrests made.

11. Any and all emails, memorandums, documentation or writings, containing any request for or application for any state, local or federal funding or grant money for the roadblock at issue.

Government Grants and Funding

Many police departments receive federal funds when they run specialized DUI patrols, The project agreements for these programs generally require the police to make a certain number of ‘police contacts’ per block of time, and write a certain amount of tickets as a goal. Obviously, such records are helpful in establishing possible police bias. These records are generally available by a freedom of information request to the Illinois Department of Transportation, who administers the federal funding programs, and by subpoena to the local police for their applications and project agreements.

Body Mass Index Charts

Body mass index charts can be useful in establishing that a client is 50 or more pounds overweight, as described in NHTSA field sobriety testing manuals. If a person is 50 or more pounds overweight, the sobriety tests are not necessarily valid, according to NHTSA. Charts are available online at

Trade Ingredients Label Exception to Hearsay Rule

On occasion, a defendant may have been exposed to fumes that might interfere with chemical tests, or he might have ingested non-impairing chemicals that interfere with a valid test result. For example, in one particular case that this author handled, the defendant claimed that he used Blistex with alcohol in it before the breath test. The officer admitted that the defendant had used Blistex shortly before taking a breath test. The defense then sough to admit the Blistex ingredients label into evidence as proof that Blistex contained alcohol. Over the prosecution’s objection, the trial court allowed the label into evidence under the ‘trade ingredients inscription exception’ to the hearsay rule.

In People v. Shevock 335 Ill.App.3d 1031, 782 N.E.2d 949, 270 Ill.Dec. 390 (Ill.App. 4 Dist.,2003) the court held that an ingredients label on cold medicine boxes confiscated from a defendant came within trade inscriptions exception to hearsay rule, and thus, were admissible in a prosecution for intent to manufacture methamphetamine as substantive proof that the items inside the container contained pseudoephedrine, a necessary ingredient for manufacturing the illegal drug. The court found that the indicia of trustworthiness to overcome a hearsay objection included the fact that state law required such a cold medicine to list its active ingredients, and violations of the law could have resulted in criminal penalties and destruction of product, and the boxes were unopened, which reduced the opportunity for tampering or adulteration.




NOW COMES the Defendant, LYNN X, by his attorneys, RAMSELL & ASSOCIATES, L.L.C., and moves In Limine and requests that the results of the breath test be excluded from evidence for the following reasons:

1. That the Defendant in the above case submitted to a breath test on an instrument referred to as the Intox EC/IR.

2. That according to the Administrators Manual for the Intox EC/IR, Section 2-2, the instrument was designed to perform two independent analyses on a breath sample before reporting a single result. The first analyses on a breath sample before reporting a single result. The first analysis is a fuel-cell sensors, (EC) and the second uses infrared absorption, (IR). Only the fuel cell is specific to alcohol, while the IR can be affected by several other common breath constituents.

When the federal government approved the Intox EC/IR, it did so when both analytical methods were functioning.

Upon information and belief, the instrument used on the defendant had the fuel cell analyses in a non-functioning state.

5. Further, the infrared analysis system also employs a slope detector, referred to in Sections 2-5 and 2-6, which is designed to monitor the breath sample to ensure end-tidal expired breath results (as opposed to mouth alcohol) and to determine when a fuel sample should be taken, and to ensure whether a chamber has been completely purged after a test. Upon information and belief, the slope detector was turned off on the Intox EC/IR used on the defendant.

6. In addition, the Intox EC/IR employs an interfering substance detector to ensure that the result is free of interfering substances that might falsely be reported as alcohol.

7. Upon information and belief, the interfering substance detector was turned off when the defendant was tested.

9. As a result of any or all of the above, the instrument can no longer be considered reliable, and can no longer be considered the same instrument which was approved by the Federal or State government.

10. Further, defendant demands that the State perform a diagnostic record output test and provide the same to the defendant, pursuant to 625 ILCS 11-501.2.

WHEREFORE, Defendant prays that the results of the breath test be excluded from evidence in the above case.

Respectfully submitted,








Plaintiff, )


Case No. 04 CF 185




Defendant. )


NOW COMES defendant, DAVID ________, by and through his attorneys, RAMSELL & ASSOCIATES L.L.C., and pursuant to 725 ILCS 5/114-2 moves as follows:

1. The defendant is charged with, inter alia, Driving While the Alcohol Concentration in His Blood was .08 or above.

2. The alleged date of Offense is January 21, 2004. The alleged time of the offense is 1:54 a.m.

3. The law requires proof beyond a reasonable doubt of the Alcohol Concentration at the time of driving.

4. However, the blood draw was performed at 729 a.m., some 5 ½ hours later.

5. The state has failed to disclose the manner in which it plans to prove that the Defendant’s Alcohol Concentration was at or above .08 at the time of driving, rendering it impossible for the defendant to prepare a defense or rebuttal to the evidence.

WHEREFORE, the defendant prays for a Bill of Particulars as follows:

1. State within a scientific degree of reasonable certainty the blood alcohol concentration of the Defendant at the time of driving.

2. Describe the manner or method upon which said concentration was determined;

3. Identify any and all persons who will offer said opinions, including;

1. Their qualifications to render said opinions;

2. Any and all basis upon which said opinion was formed

3. Any and all scientific or medical articles that support the manner in which said opinion was formed

4. All facts which were relied upon or assumed in formulating said opinion.

4. Identify any known margin(s) of error associated with the opinion, the manner in which it was formed, or underlying the basis of the opinion(s)

Respectfully Submitted,





128 S. County Farm Road

Suite F

Wheaton, IL 60187


Atty. No. 1133






Plaintiff, )


Case No. 07 CF 2680 )



Defendant. )


NOW COMES, the Defendant, MICHAEL, by and through his attorneys, RAMSELL & ASSOCIATES, LLC, and pursuant to 725 ILCS 5/114-2 moves as follows:

1. Identify the type, make, model, manufacturer and all other identifying particulars regarding the disinfectant which was used to cleanse the defendant’s skin prior to the blood draw or draws in this case.

2. State whether the disinfectant did or did not in fact contain any volatile substances.

Respectfully submitted,





128 S. County Farm Rd., #F

Wheaton, IL 60187


Atty. No. 1133

w/dui/swab motion4bill of


(Videotapes/Audiotape Recordings)

RE: People of the State of Illinois vs Sandra L.

NO: 2008 DT ­­4324

1. Any and all in-squad, police station and police video and audio recordings of the Defendant, Sandra L., DOB: 9-29-62, or of the police or of any witness to any events involving or relating to defendant occurring on or about the 6 TH day of September, 2008, in a non-proprietary format which is capable of viewing in a DVD, CD or VHS player.

2. If any of the above does not exist, then the subpoenaed individual is requested to provide a written statement as to:

a) whether the above ever existed;

b) the dates that compliance or preservation was attempted; and

c) the reasons said items no longer exist.




1. Any and all emails, memorandums, documentation or writings containing the guidelines or outlining the operation of the roadblock at issue.

2. Any and all emails, memorandums, documentation or writings containing the guidelines limiting the amount and/or type of discretion of any field personnel involved in the operation of the roadblock at issue.

3. Any and all emails, memorandums,

4. Documentation or writings containing the guidelines or instructions regarding the purpose of the roadblock DUI violations.

5. Any and all emails, memorandums, documentation or writings containing the guidelines that outline the physical construction of the roadblock.

6. Any and all emails, memorandums, documentation or writings containing the instructions, guidelines, or materials that provides public notice of the roadblock for that day/night.

7. Proof of the actual advance publicity obtained regarding the roadblock in question, such as newspaper ads, stories, television and or radio ads or stories.

8. All memos and other documentation establishing or indicating supervisory approval for any part of the roadblock at issue.

9. Any and all emails, memorandums, documentation or writings created regarding any changes made to the number of vehicles stopped or frequency of vehicles stopped, and the reasons therefore.

10. Any and all emails, memorandums, documentation or writings containing the statistical analysis of the results of the roadblock, or the number of vehicles stopped, or the amount of tickets issued, or the number and kind of arrests made.

11. Any and all emails, memorandums, documentation or writings, containing any request for or application for any state, local, or federal funding or grant money for the roadblock at issue.



Case Name: People v Dale E.

Case No: 07 DT 1236

1. All data records, including but not limited to the print summaries regarding the Intox EC/IR Serial #unknown located at the Naperville Police Department between 01/5/07 and 05/09/07 including inet records, service logs, certifications, subject test, quick tests, calibrations, accuracy checks and all data of any kind stored in the memory of the Intox EC/IR or any other database.

2. All service Records, Repair Records, Maintenance Records Breakdown Records, or records of errors of any kind for the above breath instrument during the above time periods.