lee a. mccoy, esq. santa barbara, california dmv-writs

1. Lee A. McCoy, Esq.Santa Barbara, Californiawww.dmv-writs.com

3. Additional materials www.dmv-writs.com/cpda Table of contents for Handbook Copy of these slides

4. The PAS Problem Why do we care about the PAS test? Allows prosecution to double-up on alcohol tests Makes a (b) count inevitable Only evidence in Zero Tolerance

5. The PAS Problem In the words of the defense attorney in People v. Sullivan, “[The prosecutors] get two chemical tests that put him over … 08 and it’s almost a no brainer for the jury. There is just no—we’re left with absolutely no ability to refute.”

6. What is a PAS device? Preliminary May be used only before arrest But what about EPAS and ASIV POA? Alcohol Fuel cell detects only ethyl alcohol But isopropyl alcohol (ketones) will react as well Screening Can use it only to make arrest decision But the number is often admissible to prove BAC

7. Reasons for Inconsistencies PAS caselaw develops along two tracks Criminal prosecutions for DUI Civil actions for DMV writs Contribution of bad lawyering Some cases uphold admissibility of PAS results based on waiver of objections Caselaw favors institutional players Prosecutors and DMV have long-term perspectives Resources dwarf those of defendants/licensees

8. Historical Context PAS device is a stepchild of evidential breath tests PAS law is an application of EBT law First stable breath test machine? Rolla Harger, Ph.D. (1931) Indiana University “Drunk-o-meter”

9. The 1931 “Drunk-o-meter”

10. The “Drunk-o-meter” Officially sanctioned by New York courts in 1954 People v. Kovacik (1954) 128 NYS2d 492 Upheld evidential use against constitutional and scientific challenges

11. Video Daily Double

12. Borkenstein follows suit 1954 Indiana State Police Lt. Robert Borkenstein invents “Breathalyzer” at IU

13. California Passes Implied Consent 1966 law required chemical test Applicable only after lawful arrest No impact on pre-arrest PAS law (Adams at p. 562.)

14. California Quickly Follows NY Relying on Kovacik, a unanimous California Supreme Court approved breath testing in People v. Sudduth (1966) 65 Cal.2d 543 Refusal case The actual holding allowed a suspect’s refusal to be admitted as evidence of guilt, even though it occurred immediately after advisement of rights

15. Regulatory dilemma Implied consent brought an explosion of evidential breath testing in California State needed a way to ensure this new breath testing was done according to scientific principles

16. Regulatory solution 1969 Legislature enacted Health & Safety Code § 436.63, requiring the Public Health Department to promulgate required procedures for determining concentration of EtOH.

17. Title 17 was Born 1975 passed 17 CCR 1215 et seq. Regulated “breath alcohol analysis” Defined “breath alcohol analysis” as anything measuring the “concentration” of EtOH in breath BAA may be done “only per this article” (section 1221)

18. Title 17 was Violated Well, if BAA may be done “only per this article,” What happens when EBT is not done per Title 17?

19. Title 17 was Ignored No bar to admissibility in criminal prosecution so long as scientific foundation is laid (People v. Adams (1976) 59 Cal.App.3d 559.) Goes to “weight not admissibility”

20. Title 17 was Amended 1985 Legislature passes buck to feds Section 1221.2 allowed BAA to be done by any device capable of conforming to NHTSA’s Model Specifications for evidential breath testing

21. PAS devices come online Early 80’s saw purchases of pre-arrest PBTs, or “screening devices” 1989 The CHP asked the AG for an opinion on the legality of using PBTs [slide] And remember, if you put them in a coffin, it will be too late to subpoena the officer and correct it at a continued hearing. This was the implicit holding in the unpublished Nazerian appeal we won last year. The defense lawyer at the DMV hearing rebutted the presumption that the DS 367 was prepared properly, so the public employee records exception to the hearsay rule did not apply (prong #3 trustworthiness failed). DMV was thus unable to use the DS 367 to lay the foundation for the breath test, because the boilerplate form was the only evidence of foundation introduced in the hearing. What else commonly appears only once in a case so that it cannot be the sole evidence of a finding? [slide] And remember, if you put them in a coffin, it will be too late to subpoena the officer and correct it at a continued hearing. This was the implicit holding in the unpublished Nazerian appeal we won last year. The defense lawyer at the DMV hearing rebutted the presumption that the DS 367 was prepared properly, so the public employee records exception to the hearsay rule did not apply (prong #3 trustworthiness failed). DMV was thus unable to use the DS 367 to lay the foundation for the breath test, because the boilerplate form was the only evidence of foundation introduced in the hearing. What else commonly appears only once in a case so that it cannot be the sole evidence of a finding?

22. 1989 AG Opinion “A California peace officer may lawfully use a breath testing device which determines the existence but not the concentration of ethyl alcohol in a person’s blood in making prelimin-ary determinations of sobriety prior to an arrest . . .”(72 Ops. Cal. Atty. Gen. 226.)

23. California passes Zero Tolerance law 1993 Legislature rejects use of EBTs for Zero Tolerance enforcement Despite questions of reliability, Sacramento adopts PAS devices as the preferred test

24. DMV Caselaw begins to develop Taylor v. DMV (1995) 36 Cal.App.4th 812 (under 21 motorist cannot be subjected to PAS until lawfully detained) Court affirms superior court writ reversing Zero Tolerance suspension

25. DMV Caselaw begins to develop Coniglio v. DMV (1995) 39 Cal.App.4th 666 (PAS that measures only presence of alcohol need not comply with Title 17 to be admissible in Zero Tolerance action) Court says “official duty presumption” does not apply because there are no governing statutes on which to base it

26. Title 17 becoming moot Despite noncompliance, by 1995 EBT results admissible in criminal trials (Adams) PAS results admissible in Zero Tolerance actions (Coniglio) And it’s the second Daily Double.And it’s the second Daily Double.

27. PAS crosses over into criminal courts in 1996 People v. Bury, 41 Cal.App.4th 1194 PAS admissible in criminal prosecution as sole evidence of BAC Defines PAS as device to measure “presence or concentration” of EtOH If concentration, Title 17 applies Attorney waived hearsay, due process and Adams foundation claims

28. Adams Part II 2002 People v. Williams, 28 Cal.4th 408 PAS admissible in DUI prosecution despite noncompliance with Title 17 Based on Adams and Bury Note: Court remarks that neither Adams nor Bury defendants argued the noncompliance affected the result Some examples of these defects are [slide]Some examples of these defects are [slide]

29. Recap of law pre-Wilson PAS that measures concentration of EtOH is subject to Title 17 (Bury & Williams) PAS is admissible in DUI prosecution and may be sole evidence of BAC (Bury) Just like EBT, PAS foundation may be laid by Adams test (Williams) And then in honor of Judge Gordon, Keep Solovij Alive!! Look for the cases where the defect is a DS 367 that is either unsigned or completely missing something. Then they can’t use the unsworn report to “supplement a technical omission” as MacDonald authorized because there’s nothing there to supplement. Okay that’s two of the coffin scenarios. Number three . . .And then in honor of Judge Gordon, Keep Solovij Alive!! Look for the cases where the defect is a DS 367 that is either unsigned or completely missing something. Then they can’t use the unsworn report to “supplement a technical omission” as MacDonald authorized because there’s nothing there to supplement. Okay that’s two of the coffin scenarios. Number three . . .

30. Prosecution gets two tests People v. Wilson (2003) 114 Cal.App.4th 953 Rejects search/seizure argument against forced blood draw following PAS Creates new category of scientific evidence: the “less reliable” category PAS is not scientific equivalent of an EBT Come full circle

31. Where does it leave us? Must eliminate one of the tests Try to exclude PAS based on Statutory challenge Constitutional (search/seizure) challenge Scientific unreliability If PAS comes in, try to eliminate EBT under Fiscalini.

32. Statutory challenges Title 17 still lives Roze v. DMV (2006) 141 Cal.App.4th 1176 DMV suspended on an 0.08 case based solely on a PAS result that violated Title 17 Roze upheld writ based on noncompliance Remember Williams and Bury left open the issue of noncompliance affecting results

33. Statutory challenges Evidence Code 352 People v. Odom (2003 WL 21300014) Strange case Rejects 352 claim to exclude PAS because the PAS results tended to corroborate the EBT (If PAS did not corroborate EBT, it probably would not rise to a 352 claim)

34. Constitutional Challenges Re-argue Wilson based on Fiscalini People v. Hill (2003 WL 1440181) Lawyer waived search/seizure argument by failing to raise it at trial This is actually a way to exclude the EBT Subdivision (a) of this section requires good cause to be shown for a continuance.Subdivision (a) of this section requires good cause to be shown for a continuance.

35. Scientific reliability Fun with mouth alcohol arguments No way to test for mouth alcohol Can’t have slope detector w/out slope Usually no 15 minute waiting period

36. Scientific reliability Fun with Simulator Solution arguments Kapsack’s Henry’s Law trap Simulator solution increases in % with temp Failure to test simulator solution

37. DMV Issues Zero Tolerance cases require Adams foundation Beware Cole v. Gorley (2002 WL 31087840) official duty presumption applies to PAS Means testimony from PAS coordinator DS 367 is hearsay and legal conclusions

38. Sir Winston Churchill, speech, 1941 “Never give in -- never, never, never, never, in nothing great or small, large or petty -- never give in except to convictions of honor and good sense.  Never yield to force;  never yield to the apparently overwhelming might of the enemy.”