.08 IN FRONT OF A JURY: ATTACK THE MACHINE!
It is a truth universally acknowledged … that a lawyer in possession of a good .08 DWI must be in want of something other than a jury to decide his case.
Yes, lawyers know — or think they know — that trying a DWI to a jury with an alcohol concentration is the proverbial exercise in futility. Like a Trexler case — a one-car accident DWI where the defendant admitted to driving — trying to convince the jury that it can find the defendant not guilty is generally considered impossible … even though there is a strong legal basis for the Trexler defendant never actually having to have the jury make the decision; a true Trexler case would be dismissed at the close of the State’s evidence as the corpus delicti of the offense was never established if there was nothing to corroborate the admission. But, good luck persuading a judge to follow the law and not allowing the case where the only evidence of the defendant’s guilt is the defendant’s admission to go to the jury.
Article 38 of Magna Carta (1215) states: “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” This is the corpus delicti rule. This is the origin of our principle of law that disallows a conviction based on an admission standing alone. And in 1215, the person couldn’t even be brought to trial! Today, he’s brought to trial, his motion to dismiss is denied and he’s subjected to a jury deciding whether he committed the crime he admitted to committing without any other evidence he committed it even though the 800 year-old principle in law says he shoudn’t even be brought to trial.
But this post is not about Trexler. It’s about trying a DWI to a jury where there’s number.
The worst thing about trying a DWI to jury where there’s a number is the jury instruction that tells the jury that: “the results of a chemical analysis shall be deemed sufficient evidence to prove the person’s alcohol concentration.” This instruction sounds like whatever the breath-testing machine says a particular alcohol concentration was is proof of that fact. It sounds like that because that is exactly what the instruction says — which is unconstitutional; the Sixth Amendment’s mandate that it is the function of the jury to determine what has been proven has been taken away from the jury and been allocated to the machine. But in the case of State v. Narron (I don’t do citations on my blog unless I feel like it), the North Carolina Court of Appeals said: no, that language simply means that the machine’s result is prima facie evidence of that fact and no more. The appellate court twisted itself all over the place to tell us that the language merely authorizes, but does not compel, the jury to find the fact to be true. Authorizes but does not compel.
Argue Narron! You are allowed to argue law to the jury so do it. Tell the jury what Narron says. Educate the jury in the ways that appellate courts work. Use Narron. It’s a terrible case because it refused to find that the language of the statute, which is now part of our pattern jury instructions, is an unconstitutional deprivation of the defendan’t’s right to have the jury determine whether a fact has been proven our not, which it clearly is. But because Narron says it’s not unconstitutional, use Narron’s language — Narron’s justification — to explain to the jury why they instruction doesn’t really mean what it sounds like what it means. Narron tells us that the result of the chemical analysis is simply some evidence, along with the rest of the evidence, that the jury can use to determine whether the State has proven guilt beyond a reasonable doubt. In a DWI with a number, you’re going to have to deal with that terrible language, so tackle it head-on; pull out Narron and tell the jury what our appellate court has said that language actually means. Don’t run away from it. Hammer it. The jury is going to get hung up on that language and convict if you don’t hammer it. There is an argument to be made that the defendant is entitled to a special, explanatory, jury instruction. Pursue this approach too, but prepare to be denied; you don’t want to assume you’ll get the instruction you’ve prepared on;y to be told minutes before closing argument that you’re not going to get it. Be ready to take Narron straight on and turn that awful case around to your advantage.
Attack the machine. In no particular order, here are the ways to attack the machine that spits out a piece of paper with a number on it:
THE ACCURACY CHECK
The machine (in NC, we use something called the Intox. EC/IR II) has a built-in margin of error of a fraction under .02. We know this because of the accuracy check that the machine runs on itself prior to the subject being asked to blow into the machine. The accuracy check must register a .07 or .08. The accuracy check is the machine’s dry gas canister “blowing” a known amount of alcohol-infused air into the breath chamber to simulate a person’s blow into the chamber. This known quantity is analyzed by the machine in the same way it analyzes your client’s breath, and so long as the machine analyzes the solution as having an alcohol concentration of .07 or .08 grams of alcohol per 210 liters of “breath” the machine is given the green light to have the subject blow in to it to be similarly analyzed. In North Carolina, the machine is not programmed to go the decimal past the second decimal following the point (a .07 could be a .07000 or a .07999); the machine doesn’t round up or down; it ignores what might be the following decimals; it truncates. So, in order for the machine to be considered accurate it can analyze its known quantity and be anywhere (I’m not a scientist so please forgive the non-scientific way that I think and talk and write about this stuff) between .07000 and .089999. That looks really close to a difference of just under .02. This machine has a built-in margin of error of just under .02. And that’s based on how the machine checks itself. So when our client’s breath was analyzed by the same machine and produced a ticket with a .08, could that not just as easily as the accuracy check’s margin of error have been.07? Or a .09? (It’s important to acknowledge the margin going the other way because it’s true and the fact that it could go either way is enough to create reasonable doubt). Hammer the margin of error.
DHHS FORENSIC TEST FOR ALCOHOL BRANCH
While talking to the person who ran the machine that your client blew into, the so-called “chemical analyst” (usually the cop — get him to acknowledge that he’s neither a chemist nor an analyzer; it’s just a name) get him to talk about the forensic test for alcohol division people. They train the cops to be “chemical analysts,” they do the preventive maintenance on the machine, they check and change that gas canister that proves the machine’s unreliability, they maintain the machines, they know about the inner workings of the machines, they know the science behind the machines, they can tell the jury how these machines work. Ask the jury why the state doesn’t bring someone from the Forensic Test for Alcohol Branch in to talk to them about this very important piece of equipment that tells us what our client’s alcohol concentration was. Ask the jury if the reason for not bringing that witness in to court is because the state doesn’t want the jury know the machine’s weaknesses. Always argue the inference that the state’s choice not to bring in its witnesses is because those witnesses would say something different, something the state doesn’t want the jury to hear. Argue inferences. Argue “what’s the state trying to hide?”
Get the chemical analyst a bit defensive about his lack of knowledge about the machine and if he mentions Henry’s Law, great, he brought it up. If he doesn’t, try to get him to acknowledge that he remembers that Henry’s Law is the science that the whole alcohol concentration principle relies on. If he denies it, attack his fitness to be the chemical analyst and his credibility; he knows Henry’s Law is the science they rely on. Whip out your Operator’s Manual (if you don’t have one get one). Get the chemical analyst to agree with some version of your understanding of Henry’s Law: that, in a sealed environment, measuring the gas or air above a liquid that is a volatile substance (alcohol is volatile substance) will yield the same result as measuring the liquid itself would. The alcohol concentration of the gas above the liquid is equal to the alcohol concentration of the liquid. The problem with Henry’s Law is that it is wholly inapplicable to a human’s breath coming from his non-sealed lungs (obviously) and, unless my client is dying from pneumonia, there’s no liquid above which the gas — my client’s breath-sample — exists. The State wants you to believe that measuring a person’s breath accurately reflects his blood alcohol concentration. And this Henry’s Law is their scientific justification. Mr. Henry, please come forward and answer some questions.
210 LITRES IS 55 GALLONS. More to come …