By Allison Ramsey and Celeste Campbell
In Department 14 a trial was underway for the charge of driving under the influence. In what should have been a simple DUI trial, Assistant District Attorney Josiah Bournes faced technical difficulty, misplaced exhibit copies for the jury, and appeared flustered throughout the entire week of trial.
However, the lack of Assistant District Attorney organization was just the beginning of the drama. The prosecutor’s lack of organization was overshadowed by what appeared an abuse of authority by two CHP officers use of escalation tactics instead of de-escalation during a simple DUI investigation. After officers escalated a routine traffic stop by drawing an assault rifle, only then did they perform a DUI investigation.
The investigating officer, Huynh, testified to a myriad of concerning details while on the witness stand. It began with the information that CHP officers do not wear body worn cameras when performing their duties. In today’s technology driven world, video footage should be a no-brainer.
After being stopped on the freeway, the police shone a spotlight through the car and saw the defendant’s arms clearly in the air. Officer Andrews approached the stopped vehicle with his hand on his gun, and Huynh also approached the vehicle for back-up so they could avoid an “elevated situation”. The entire situation demonstrates the fear of the police and the power they wield, consciously or not. The defendant had immediately put their hands in the air, which begs the question; what kind of elevated situation where they expecting from someone with their hands in the air?
Huynh next indicated that in the course of an active investigation, it is “not unusual to have an officer put themselves in the vehicle” when describing how officer Andrews opened the passenger side door and leaned inside over the passenger.
After the initial stop, Officers Huynh and Andrews pushed the Defendant beyond his physical limitations. When asked to perform a series of Field Sobriety Tests (FSTs), the defendant indicated that he suffered from shoulder and knee pain, and was even taking over-the-counter medication for relief. His pain was noticeable as the officers repeatedly asked him to perform the “one leg stand” test, where a person is asked to stand on one foot and count to 30. The defendant, frustrated, told the police that he just could not perform due to his knee.
More disturbing is the training procedure in which officers learn to investigate alcohol related crimes. During cross examination Officer Huynh testified he was trained to perform FSTs at the California Highway Patrol academy “wet labs.” During the training, DUI simulations are created, using police cadets as both the control and variable groups. One set of trainees was asked to act as ordinary people, whereas another group was directed on how to behave as a drunk person in the context of each FST. This form of training is insufficient because it clearly does not mirror the conditions of a real-life DUI stop and artificially inflates an officer’s perception of what constitutes a DUI. These tests are essentially performed in a vacuum, by individuals who themselves perform the tests. The structural problems with the FSTs must be reconsidered to avoid injustice.
In addition, Huynh testified that some people will “use less breath, which might lower the number [reflected in the breathalyzer].” To some degree of certainty, his training at the academy is insufficient to make a scientific conclusion about how the breathalyzer test can be manipulated; even if he was trained this way, it does not reflect the fact that police-grade breathalyzers can make accurate determinations even with trace amounts of a sample.
On day three of the trial, the ADA presented an expert witness Natashia Shaw, a San Francisco employee, who is the custodian of the desk-top breathalyzer machine, commonly known as the Draeger machine. The ADA’s questions did not have a clear motive. The ADA seemed very nervous while questioning his expert. His voice was shaking and he was sweating profusely. From the gallery, the line of questioning was almost incoherent. Most of the words were serial numbers and the name of the Draeger machine by its model number followed by an industry term for a report or test produced by a machine.
Shaw could not explain the process of an accuracy test described in simple terms, but the expert for the defense was able to explain that test in simple, understandable language. The expert for the defense, a medical doctor, medical device inventor, and alcohol absorption specialist, agreed with the City’s expert in the manner in which the machine worked but was able to explain how the machine works in a good deal of specificity and also in conjunction with the human body.
Similarly, Shaw could not explain the unique error codes the machine produced. She explained that if there was an error code, they would have “sent the machine to the manufacturer.” The defense expert was able to explain the error codes on the device and the manner in which it performed the tests. The expert also explained where user-error can play a role in the normal use of the device. The expert explained that when using a breathalyzer correctly, the test subject cannot exert too much air into the device.
When there is too much air forced into the machine there is a risk that the contents of the stomach will be forced out with the air too. This poses a huge problem for the officers administering the test because with inaccurate results, they will undoubtedly inaccurately charge citizens with crimes and later find out they made a mistake.
The defense expert noted that the only way to secure an absolutely accurate result of the Blood Alcohol Concentration was to do so with a blood sample. The doctor then pointed out, rather humorously, that he always won the bidding pool at work (Stanford Emergency Room) when guessing what a patient’s blood alcohol level would be after the result of a blood-test. He also noted that alcohol can hide in the mouth of a person for a long time, depending on factors such as the number of fillings, gaps in the teeth, and the type of alcohol consumed.
Additionally, the fight-or-flight response will lessen the amount of saliva the body produces, keeping the alcohol in the mouth even longer when someone is fearful, such as when they are questioned by the police. The expert pointed out that mouth alcohol will also interfere with an accurate B.A.C. with a breathalyzer device.
The Judge, Judge Murphy, asked the expert at one point, “do these [machines] work for anything?” The expert for the defense made it very clear that, when used correctly, the device can produce an accurate B.A.C. reading. However, it is important for officers to follow the correct procedure in observing the test subject and instructing them on the proper way to perform the test. Without following these procedures, as the Judge pointed out, these tests are not good for anything.
The ADA’s cross examination of the witness was just as awkward as the examination of the City’s expert. The Prosecution tried to put words into the defense expert’s mouth and make him seem illogical. However, from the audience, this seemed to only aid in the expert’s credibility.
The trial continued for a fourth day with the testimony of Officer Andrews. Although he had been working an overnight shift, Officer Andrews testified for most of the morning. No new information came to light.
The trial concluded with closing statements from both parties. The ADA went first. After stating that he was going to be done shortly, he spent the next forty-five minutes attacking the credibility and reasonableness of the defense expert.
The defense closed reminding the jury about their experts testimony and that the burden of proof was on the prosecutor to prove his case beyond a reasonable doubt, and that the prosecutor had failed to meet his burden due to a rushed, not Title 17 complaint investigation, presence of mouth alcohol, and bioavailability. The ADA rebutted saying that the defense argument did not make sense, which was interesting given the course of the People’s case.
Spectators of this trial would assume that the performance of the ADA would affect the opinion of the jury. However, the reality is that the State still has the deck stacked in their favor. Consistently the poor performance of the State has little effect on the outcomes of jury trials. The Defense is held to a much higher standard, when it comes to representing clients. The criticism by the Judge here, like most trials, was on the Defense and not on the Prosecution, in a setting that is supposed to be the ultimate showing of our freedom, our right to an impartial jury of our peers.