Panel Discussion
Strategy and Questions to Win a Breath Test Case
with a High Breath Test Score and a good DVD
Moderator for this panel discussion will be David Burrows.MR. BURROWS: I'm going jump around just a minute, because something struck me while Mark was pontificating.
Final argument, if you try these breath cases and you go talk to the jury after you get your tail beat a couple of times, there's a common theme from the jurors.
The jurors say, The government is not running some conspiracy here.
Okay. That's No. 1 you're going to hear from them.
And then, they'll say, Are you asking us to throw out the entire breath test program?
So my final argument —— and we're going to move forward, back and forth —— when I talk to jurors, I say, We're not here to say this is a conspiracy. We're not here to say throw out the breath test program. We're here to say, For this case, for this set of facts, for this test, we've got a problem. Because if you're trying to throw out the whole breath test program, you've got a program.
Keith Wheeler, are you in the room? You're in a side room, Keith. Keith brought me a question. And I haven't gotten too many questions from you; but I want to read this one, because this is great.
Keith asked the expert, If a person is convicted of a DWI, they have to pay a $3,000 surcharge fine.
I guess the operator would have to say yes.
Keith goes, And you're saying, We don't want to give a test where we spend $1 to preserve the sample.
That's good. That's good. Thank you, Keith. I've got a couple of others.
Okay. Let's talk about this subject. I've had the most success winning my breath test cases on extrapolation. And Maria Tu, last year in Collin County, which we also know is a very tough county, won a 17.
MS. TU: 19.
MR. BURROWS: 19, goodness.
Alan, what was yours?
MR. KAZDOY: 17.
MR. BURROWS: Randy won 17. Dr. Winters was a coconspirator in all those, I think.
The theory is you look at the breath test score, you look at the video, and something is wrong.
Now, the prosecutors are way ahead of you here. Before you ever get to say a word, they're already talking to their experts about tolerance, masking, and how somebody can look good. As you'll see, we're going to talk about that. But if you think you're going to get up there and they're not going to cover that, you're wrong. They're already ahead of that game. If you're going to try to get that information out of their expert, you better get ready to get about a ten—minute discussion on tolerance and masking.
And anyway, what I want to talk to you about first is the voir dire. And I'm going to ask each of you to give us an important point on voir dire, jury selection.
Randy, in this type of case where you're trying to set up the defense of the video with a breath test score, how do you present the voir dire specifically in this issue?
MR. ISENBERG: Sure. One of the good things about going late in the afternoon is that everybody has already addressed it. But the old saying in trial is, "If it's worth saying once, it's worth saying four or five times."
I always like to talk about the completeness of the sentence. And how we talk about that on voir dire is we ask the jurors if they've ever bought a house. If they've ever bought a house, have they ever accepted face value the sellers inspection of the house. Invariably, they will say, No.
Did you require your own independent inspection?
And the answer is, Yes.
And we tie that into the rest of the implied consent law, which the technical supervisor is a police officer. And the breath test operator will never inform the citizen accused of, which is that they have a right two hours after the stop to have their own independent blood test given.
And when you're dealing with a breath test case, what you want to resinate at the very beginning of voir dire is the concept in the jurors.
You ask them, If you're not told all the law —— and of course, the jury panel never knows what the implied consent law is even after the prosecutors have explained it to them —— but you ask them the question, Juror No. 1, was it fair? Is it fair not to be able to have your own independent inspection of your house?
And they say, Well, of course, it's not fair.
And then you tie that in by getting to the answers you know you're going to get. So I think on voir dire that is one great question to always have.
I have two others, and then I'll let someone else say something.
Would you allow your child to be subjected to a medical procedure where the doctor tells you at the very beginning, Doctors disagree as to the accuracy of this procedure?
Jurors always will say, No way. I want the one where the doctors all say it's accurate.
This is the set up question for when you have your technical supervisor on.
And the first question I like to ask them that was mentioned earlier in the program was: Question No. 1. Scientists disagree as to the accuracy of the breath test machine and breath testing using infrared spectroscopy.
The answer is, Yes. Every technical supervisor will say that —— although last year I spoke about the inconsistencies, Allen Finkley still likes to say —— and I bring this up in a transcript that we had —— It depends on what kind of scientist you're talking about, or what do you mean by a "scientist".
And I said, Well, we mean scientist like Dr. Wimbish and Dr. Booker and other people that have Ph.D.s, that have written reports and written novels and written books and testings on the breath test machine; and they all agree that it's not very accurate.
And he says, Well, you know, that's before they became defense witnesses.
Anyway, so that is the second important question.
And then on voir dire, another example, just to bring it home for the jurors that aren't at the same level. They don't have children. But you ask them the thermometer question.
The thermometer question is: Would you want the doctor that you've gone to, to determine whether you have the flu or whether you just have a common cold to use a thermometer that can read these three options: 98.7 —— and I'm using the tolerance of the reference sample .01 —— on a .08 reference sample, that's about 12 percent up or down. So would you want a thermometer that reads 98.7, 109, or 87 degrees? Would you want to use that thermometer?
You ask that question to the jurors; and invariably, they will say, No.
And then you come back and you can get that information from the technical supervisor.
MR. BURROWS: Okay. Excellent.
Maria?
MS. TU: Well, I sort of elaborate on the temperature thing. And what I did was, I would ask somebody who's a mother or who's a father and say, Look, you know, if you're using one of those thermometers, and it shows your baby to have a 101 degree temperature. And you're looking at your baby and you're feeling, you know, her head and there's just no temperature at all. And she's not flushed, she's not sweating, she's not coughing, she's not doing any of those things. So would you believe in what you were looking at in this instrument or this thing that you're sticking in her ear or are you going to believe what you see of your baby?
And that's one way, and you can sort of reverse that and use it another way.
Another thing that I used was the digital watch, which shows —— and I'll ask somebody, you know, from the audience, you know, Is anybody wearing a digital watch?
And I say, you know, What does it show right now?
Okay. 10:00 a.m.
Well, what if it's showing 10:00 a.m. and you're looking outside and, you know, all you see is the moon and the stars. You know, would you think that the digital watch is correct or would you think that your eyes are correct?
And it sort of sets up the theory of what you see is what you believe rather than believing in some machine or some instrument that's telling you something else?
MR. BURROWS: Excellent. And after you ask those questions and you get a couple of good answers, leave it at that. Don't push your luck.
Alan?
MR. KAZDOY: As we all know, picking a jury is crucial to all of these cases, but particularly a breath test case, because the general public is conditioned through the media and elsewhere to believe in this test. And if you ask a person on the street if somebody has a test that's twice the legal limit, they'll say that he's drunk. So you really have almost a presumption of guilt that you have to overcome in this case; and picking the jury is the place to do that.
What I like to try to do is to emphasize to the panel that —— and just have them think of the machine as a witness and just read that portion of the charge where it explains that the jury is the exclusive judge to the facts and the credibility of the witnesses and the weight to be given to their testimony.
And to have them think of the machine as though it was sitting in the witness stand —— and I think that Gary Trichter mentioned earlier —— that the machine is not presumed to be accurate. It's not presumed to be telling the truth.
So you have them think of the machine as a witness and that they are the judges of the credibility; and to get a commitment from all of the panel, even if you have to go down the rows that if they do not —— well, assuming that you have a really good video, which is really what we're talking about —— so, the issue of the normal facilities is not an issue, so it's just the test.
So, you go down the rows and try to get a commitment from these folks that if they don't believe the machine beyond a reasonable doubt, what is their verdict? Not guilty. And have each of them make that commitment, and then you've got a good start.
MR. BURROWS: Let me touch on that. If they don't believe beyond a reasonable doubt, they can't consider the breath test score to convict?
MR. KAZDOY: Right. And then their verdict is going to be not guilty.
MR. BURROWS: You've got to touch on that. And the way I ask it, I say, We know beyond a reasonable doubt applies to not having normal mental or normal physical. And I'll say, Mr. Johnson, does beyond a reasonable doubt apply to the accuracy of the breath test score?
And you'll get a positive answer. He'll say, That's right.
If you have one doubt based on reason as to the accuracy of this breath test score, you can't use it to convict. Start of with that, and then you're going to put your final argument to it.
Alan, do you want to add anything else?
MR. KAZDOY: Not a whole lot more than what I said. You can take all the samples you want on the secondary testing issue. With the advent of our healthcare system in this country —— it's really quite progressive as you—all know —— health insurance requires oftentimes second opinions on services, chat about that a little bit; but also say, If you're going to have a serious, serious procedure done on your child and you have a little bit of hesitation about the true success of that, you would seek a second opinion, would you not?
By the way, would you go to that same doctor to get your second opinion or go to another —— you know —— you're seeking secondary attention about this thing.
And I just think it's —— I think people —— that jurors typically are —— they all want to render a verdict on what they think is fair. And if you can develop things into being an unfair system, the way that they can tell that secondary testing is packed with unfair. But you've got to give an example after example and start the jury selection. You do it in cross.
But there's countless —— just what Randy talked about in the house inspection, that's a good one. Second opinion for a surgical procedure are just as good. And also your jury selection, I like to throw this question in there.
Ms. Smith —— and I talk to normally a lady on the panel —— I say, Let's just assume that you don't get picked on this jury today and you're upset because you're not on the jury and you leave the courtroom today and you go to the bar and you have six beers in one hour. How are you going to look when you leave that restaurant?
Most ladies would say, Well, I couldn't put my key in the car door. I would be stumbling around.
You get the jury to tell you how they would look after six beers in an hour. You know, if you know what you're doing, you're setting up your calculation later. Because if your client scored a 17, that's eight to ten beers in a bar. Okay. So they're telling you that they are a normal person. They're going to be stumbling around.
MR. BURROWS: Let's go to a different subject, specific strategy points.
Maria, can you point —— in the trial —— now, let's just move away from the voir dire and just say —— what's going through your mind as strategy when you try these cases?
MS. TU: Well, as being a very new private attorney —— and actually, I want to sort of just give a little brief history.
I just heard one of the previous speakers saying that he was encouraging his client to go to trial on a very high breath test. Let me just tell you, my client encouraged me to go to trial on this; and I went kicking and screaming. Okay. So don't think that all the attorneys who are trying these wonderful breath test cases that they are insisting them.
I am what you call a prime example of somebody who is out there practicing and winning DWIs with high blood test, and I have probably a less than a 10 percent clue of what Chris Hoover and all the experts that are out here and possibly all my colleagues out here on DWI. You know, it does happen.
One of the strategies that I did when I was preparing for this case was that I went through the videotape over and over and over and over again. And I went through and listened to the police officer and watched all of his physical demeanor. I watched the way that he was treating my client, who's a very beautiful woman and very petite. And I watched the way that he treated her, and I felt uncomfortable. And that was my main thing.
And, yeah, .198, you know, how do you fight that? Well, instead of focusing on the breath test, I focused primarily on the policeman himself. And that strategy actually paid off. Because once we got in trial and started cross—examining the officer and all these little things that came out of how he followed her for half a mile without turning on his traffic lights, how he, you know, got her out of the car, made her do the standardized field sobriety tests three times during his, you know, investigation, and how he handcuffed her and lingered over her hands —— by her hands —— and how he, you know, got her into the intoxilyzer room, and had to do the standardized field sobriety tests one more time.
I mean, all those things started to add up, and by the time I got through with the police officer, I think, you know, the jurors were just waiting. They were waiting to see whether or not there was something else that was just going to clinch it.
MR. BURROWS: Let me pick up on that. Because if you think you're going the get the State's expert to help you out on this defense, you're in a different world than I'm in. They are trained. They know what to say. I've read every transcript that's on that disk; and every lawyer on this panel asked the expert, Now, wouldn't you agree that if you're going to trial people should look drunk or be stumbling, or something to that effect.
And every time, in every trial, the expert goes, No, there are people that drink that much and don't show it.
That's what you're going to get in every trial. So what do you do? If you're going to try a case like this, hopefully in your area, you've got a toxicologist or somebody of intelligence that will come testify for you. In our area, Dr. Wimbish is here, and he is an expert in toxicology. I'm going to read the question; and Dr. Wimbish, I'm going to ask you to answer it as if you were on trial a couple of weeks ago.
This is right out of my trial. I qualified Dr. Wimbish as the expert in toxicology. And here's my exact question:
Dr. Wimbish, would you explain to the jury in your mind if there's a major point of error that could occur where the machine works properly but what goes into the machine; in other words, garbage in—garbage out, is creating a false score?
DR. WIMBISH: Certainly. The instrument assumes that everyone of us are equal in everything we do, especially the way we breathe, the way we metabolize food substance; and we all know we're different in that process. And the intoxilyzer instrument assumes that the amount of breath coming out of the lungs is a direct reflection of the concentration of alcohol in the blood stream in a certain ratio or a certain amount; and it assumes that all of us have that same number.
If you look at the statistics of how that number spreads from one population down to the other side of the population, it goes from a number of 800 up to 3300 with 2100 being in the middle. If you happen to be exactly that person in the middle, it will probably represent the best it can the concentration of alcohol in your blood stream.
However, if you're on the right—hand side, it can take a number —— let's say, it was a .1 —— it could actually be half of that value and it tell you that it was twice that value of .1 simply because your physiology is different than what that instrument is assuming.
MR. BURROWS: And don't press it too hard. I mean, don't oversell the product. That's your defense. And if you put it out there —— and of course, the prosecutor would come back to Dr. Wimbish; and that would be their mistake. You opened the door and let them try to walk into that trap.
Would you add anything?
MR. KAZDOY: Yeah, I'd like to touch a little bit on the issue of having an expert on there. David is absolutely right about —— the State's expert is not going to help you on that. They will discuss issues like masking and tolerance. And I found something very interesting in the case that got me on this panel here and Dr. Wimbish, who was a witness or a coconspirator, if you will, on our case.
And I haven't tried a lot of breath test cases, but I have tried a few others. There's a big difference between this case and some of those others, but the largest difference is that I did not win those cases.
But on this one, Dr. Wimbish was able to —— you know, having reviewed the video and having met with the client and evaluated everything —— was able to discuss the fact that there was no masking; and there were no signs over intoxication.
The one thing that was very interesting, because I talked to a few jurors after the trial, and one juror told me that I —— well, I asked him, Well, what did you think about our witness, Dr. Wimbish?
And he said, "Well, I don't think that either one of the experts was very persuasive.
And I thought about that for a second; and I said, Yeah, that's because we had one.
But I can guarantee you if we didn't have one, they would have found the other expert persuasive.
And so if possible, it certainly is —— you've got to have all the ammunition at your disposal. My client looked cold sober on this video, and it still took the jury an hour an a half to find him not guilty. These case are hard. You have to use every bit of ammunition at your disposal.
MR. BURROWS: I'm going to make two points and I'm going to ask Randy to make a point and then we're going to wrap this part of it up.
If you have the type of client who has no record —— and you've got to be careful on this. Because if your client has a public intoxication or prior DWI and that business and you follow this line of strategy, you've just shot yourself in the foot as the video showed earlier.
You bring in witnesses for your client that will testify they know this individual. This individual is not a heavy drinker. When they go out with this individual —— and hopefully, you can find an honest group of people —— that this person has two or three drinks with two or three of the people in the community. That's what I did in the last trial.
You spend two minutes with them. When this person goes out and drinks, how often do they drink; and what do they drink in those two or three drinks? This is this not the type person that drinks excessively that has acquired a tolerance that could mask, and Dr. Wimbish should pick up on that.
Randy, you're final point?
MR. ISENBERG: My thought is if you don't try these cases —— and frequently, we try them. My law associates and I, we try less than perfect DWI tapes with high breath test scores. You certainly have to have a set number of questions that you're going to ask, I think, that you get a set number of responses to that are safe enough to allow you to set up on voir dire and then to set up in your closing argument where you're going to go with this, which is that, you know, nothing, no machine is perfect. I want to just pick out a few questions and their answers.
Mr. Finkley, do you have time for that?
MR. FINKLEY: I've got three minutes.
MR. ISENBERG: Three minutes. Okay.
We have a machine that was taken out of service about a week after this particular trial, I think we did there in December, so maybe we had a Christmas jury. I don't know. But I asked this question:
The machine was essentially rebuilt back on January 18th. It was taken out of service. Sample chamber lens was replaced. Sample chamber gasket was replaced. Chopper motor was replaced. The motor was rebuilt. The source light was replaced. The filter wheel was cleaned and replaced; is that right?
ANSWER: Sure.
And so that was —— that was kind of a ——
MR. BURROWS: Don't expect that at a trial.
MR. ISENBERG: No, you won't.
Do you have any idea of what the breath test result would be at the time of driving based on this?
Just based on the test alone was the answer, No.
So, the question was: Do you have any idea of what the breath test scores at the time of driving?
The answer is, No, unless there are those facts that can give them the opportunity to do retrograde extrapolation.
MR. BURROWS: We're going to move into that.
MR. ISENBERG: Okay. Well, let's stay out of that then.
Okay. Now, this is a great little series of question and answers.
So the relationship you have with the DA's office and the police is casual enough to where they can just request you to be here and you appear, right, to the technical supervisor, Mr. Finkley.
Historically, it's been that way since before I was employed by Dallas County.
And you're paid by Dallas County; is that correct?
ANSWER: Paid by the taxpayers of Dallas County, yes, I am.
And do you testify for defense lawyers a lot? Do they say, come on down and testify for us, do you do that?
And he says, because we have open records, when a defense attorney asks for some records, we have no problem. The problem with coming down and testifying is that we don't get paid by defense attorneys, because they refuse to pay.
And then my question was: Well, okay. It's not about the money, though, is it?
And of course, he said, Of course not.
MR. BURROWS: These transcripts are on the disk.
We're kind of in a crunch now, so we're going to take a break. When we come back, we'll discuss the garbage in—garbage out theory.
(End of panel discussion)