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The Tactic That May Compromise DUI Cases in California, Elsewhere

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By William Peacock, Esq. on July 22, 2013 12:54 PM

A novel defense by a twice-convicted drunk driving law student may provide a template for DUI defense lawyers, and a massive headache for prosecutors. The window of opportunity, however, is closing fast.

The San Jose Mercury News reports on the case of Jaskaran Gill, a Santa Clara University law student and two-time offender. While he was on probation for his first offense, he was caught driving 100 mph on the interstate with a blood alcohol concentration of 0.14.

Normally, this sort of case would plead out. That wouldn’t work for Gill, however, as he was hoping to clear the character and fitness exam and someday practice law. His defense team instead tried a new tactic, one that had previously worked in Washington state courts: challenging the measure of uncertainty in the test itself.

Washington's Three Year Breathalyzer Ban

There are no certainties in science. Everything is theories, probabilities, and measured certainty. Even Breathalyzers and blood tests are subject to a margin of error when measuring a subject's blood alcohol content. Yet, for some reason, it had never been a requirement to disclose that margin of error to the defense.

It is now, at least in Washington.

Way back in 2008, a King County District Court banned the admission of all Breathalyzer results statewide after finding that the state lab that handled most of the testing was plagued with issues in "ethical lapses, systematic inaccuracy, negligence, and violations of scientific principles." When the ban was lifted two years later, the court also required that all future readings be accompanied by a measure of certainty calculated from the machine itself.

California's Status Quo

The prosecutor in Gill's case, Christopher Boscia, eventually emerged triumphant, as Gill's BAC was so high that any measure of uncertainty, disclosed or undisclosed, would have made no difference. (Practitioner's note: The typical terms of probation in California include a legal limit of 0.04 and no drinking to excess at any time.) Gill was sentenced to 210 days in jail and still has not been admitted to the state bar, reports the Mercury News.

The same prosecutor, Boscia, is now sounding the alarm, both by writing an article about the issue in an upcoming issue of the Santa Clara Law Review, and by training other prosecutors, throughout the state, on ways to defeat the novel strategy.

Changes Coming, Slowly

In Washington, the once maligned laboratory cleaned up its act, had the ban lifted, and became the fourth lab in the world to achieved international accreditation, reports the Examiner.

California, meanwhile, faces a host of other issues. Not only are the individual labs lagging on change, but the group that accredits crime labs, which pushed for uncertainty measurements in 2011, pushed back that deadline until the end of this year. Meanwhile, the state regulations haven't been updated.

Even if the labs meet the accreditation standards, they'll be conflicting with state standards. Resolving the problem would seem to require action by the labs and by the legislature, all before the end of the year.

In the meantime, borderline BAC test readings could be subject to attack.

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