|
Attacking and Defending
Drunk Driving Tests |
| Back to the book page |
|
To quickly search for key terms, use your browser's 'Find' function, found in the 'Edit' menu. |
|
Table of Contents
Chapter 1: Basic Properties of Alcohol I. General Points: History and Form §1:01 History §1:02 Chemical Structure §1:03 Industrial/Denatured Alcohol II. Sources of Alcohol A. Alcoholic Beverages 1. General Points §1:10 Basic Processes §1:11 Sources 2. Fermented Products §1:20 General Points §1:21 Wine §1:22 Rice Wine §1:23 Ales and Beers 3. Distilled Products §1:30 General Points §1:31 Congeners §1:32 Whiskey §1:33 Gin §1:34 Vodka §1:35 Rum §1:36 Tequila §1:37 Brandy §1:38 Liqueur B. Alcohol From Alternative Sources §1:40 General Points §1:41 Table of Alternative Sources III. Math and Conversion Factors §1:50 Proof vs. Percentage §1:51 Dosage Units IV. Effects on the Body Systems §1:60 General Points §1:61 Blood Constituents §1:62 The Brain §1:63 The Heart §1:64 Gall Bladder §1:65 Kidneys §1:66 Liver §1:67 Lungs §1:68 Pancreas §1:69 Stomach §1:70 Procreation and Childbirth V. National Concern and Legal Response to Alcohol Use §1:80 General Points and History §1:81 The Legislative Response; 0.08% per se §1:82 Role of the Expert
Chapter 2: Alcohol Absorption, Distribution, Elimination, and Effects I. Pharmacology and Toxicology of Alcohol §2:01 Two Subsets Describe Metabolism §2:02 Pharmacokinetics §2:03 Pharmacodynamics II. Pharmacokinetics A. General Points §2:10 Circulation Through the Blood Stream §2:11 Graph of Blood Alcohol Concentration Over Time B. Absorption 1. Methods of Absorption §2:20 Primary Method of Absorption §2:21 Other Methods of Absorption 2. Factors That Affect Absorption a. Common Factors §2:30 General Points §2:31 Food §2:32 Speed of Ingestion of Alcohol §2:33 Cigarette Smoking §2:34 Type and Strength of Alcohol §2:35 Gender §2:36 Stomach Diseases §2:37 Physiological State of the Subject §2:38 Age b. Drugs §2:40 Glycine, Glycylglycine, Glycylglycylglycine and Alanine §2:41 First-Pass Metabolism: Ibuprofen, Ranitidine, Cimetidine, and Asprin §2:42 Cholinergic and Adrenergic Drugs C. Distribution §2:50 General Distribution System §2:51 Volume of Distribution: V(d) §2:52 Arterial vs. Venous Concentration During Absorption and Distribution §2:53 Distribution in the Body Tissues and Fluids D. Elimination 1. General Points §2:60 Elimination by Oxidation §2:61 Average Elimination Rates 2. Metabolism Kinetics §2:70 Three Enzyme Systems for Oxidation §2:71 Alcohol Dehydrogenase (ADH) §2:72 The Microsomal Alcohol-Oxidizing System (MEOS) §2:73 The Catalase System 3. Elimination Kinetics §2:80 The Widmark Hypothesis §2:81 The Michaelis-Menten Model 4. Factors That Affect Elimination §2:90 General Points §2:91 Food in the Stomach §2:92 Racial Genetics §2:93 Fructose §2:94 Age and Sex §2:95 Chronic Alcoholism §2:96 Pathological Factors: Disease E. Estimating Peak Alcohol Concentration 1. Normal Patterns §2:100 Over-Simplification Is a Hazard to Estimating §2:101 Conservative Estimates Are Statistically More Accurate §2:102 BA Levels Can Change or Plateau 2. Anomalies in BA Concentrations §2:110 Curve May Fluctuate §2:111 “Zig-Zag” Effect §2:112 Inter- and Intra-Subject Variation III. Pharmacodynamics A. General Points §2:120 Drugs Alter Normal Functions §2:121 Distinction Between Effects and Impairment §2:122 Response to Effects May Vary B. Affects of Alcohol §2:130 Alcohol Affects Many Body Sites §2:131 BAC vs. Effects Charts §2:132 Effects Are Progressive and Cumulative §2:133 Effects on the Brain §2:134 Impairment Does Not Correlate With BAL §2:135 Blackouts C. Factors That Affect Level of Impairment §2:140 Many Factors Affect Impairment §2:141 Time of Day §2:142 Tolerance §2:143 Acute Tolerance §2:144 Hangover §2:145 Environment §2:146 Performance Enhancement at Low Levels §2:147 Food D. Driving Impairment §2:150 Accident Risk Analysis §2:151 National Highway Traffic Safety Administration (NHTSA) Studies §2:152 Summary
Chapter 3: Legal Standards: Implied Consent I. Implied Consent §3:01 Implied Consent to Test Laws Are Upheld §3:02 Every State Has an Implied Consent Law II. Constitutional Challenges A. United States Supreme Court Decisions §3:10 Unconscious Driver; No Statute §3:11 Conscious Driver; No Statute §3:12 Implied Consent Statute B. State Challenges §3:20 Due Process §3:21 Self-Incrimination §3:22 Illegal Search Cases III. Successful Attacks §3:30 Attack Compliance With Procedure §3:31 Untimely Warning §3:32 Misinformation in Warning §3:33 Refusal to Sign Hospital Release Is Not a Lack of Consent §3:34 Failure to Notify of Intent to Revoke License §3:35 Delay to Contact Attorney Is Not a Lack of Consent IV. Delay Tactics §3:40 Generally Delay Equals Refusal §3:41 Equivocation Equals Refusal §3:42 Conditional Consent Equals Refusal §3:43 Change of Mind After Refusal Equals Refusal
Chapter 4: Search and Seizure: Police Procedures I. General Points §4:01 William Pitt Quotation §4:02 Evaluate the Detention Systematically §4:03 The Fourth Amendment II. The Basis for the Stop A. Reasonable Suspicion of a Violation §4:10 General Points §4:11 Did the Officer Personally Observe a Violation? §4:12 Pretext Stops §4:13 Weaving Within the Lane §4:14 Weaving Across the Lanes §4:15 Driving Too Slowly §4:16 Equipment Violations §4:17 Squealing Tires B. Tipsters §4:20 Did a Tipster Observe Improper Driving? §4:21 Anonymous Informants §4:22 Identified Informants C. Roadblocks §4:30 Eliminate Other Reasons for Detention §4:31 Constitutionality of Checkpoints—Sitz §4:32 Constitutionality of Checkpoints—Edmond §4:33 Constitutionality of Checkpoints—Lidster §4:34 Sample Questioning at Suppression Hearing D. Community Caretaker Doctrine §4:40 The Basic Doctrine §4:41 Implementation of the Doctrine §4:42 Limiting the Doctrine III. Maximizing Prospects of Winning §4:50 File the Motion §4:51 Focus on the Officer’s Testimony §4:52 Determine Speed in Feet per Second §4:53 Know the Statute §4:54 Remain Positive §4:55 Checklist for Suppression Motions
Chapter 5: Discovery and Investigation I. Constitutional Authority for Discovery §5:01 Federal Constitution Provides Discovery Rights §5:02 Lead Cases: Brady and Agurs §5:03 No Duty to Preserve Evidence Unless it Is Exculpatory: Trombetta §5:04 State Applications in Drunk Driving Cases II. Sequence and Priorities §5:10 Investigation First, Discovery Second §5:11 Planning for Sanctions §5:12 Traditional Discovery §5:13 Discover How the Other Side Rates the Case §5:14 Checklist for Discovery and Investigation III. Methods of Investigation §5:20 Administrative Hearings §5:21 Your Investigator §5:22 Public Record Requests §5:23 Depositions in Civil Lawsuits §5:24 Retesting IV. The Desired Information §5:30 General Points §5:31 Breath Cases §5:32 Blood and Urine Cases §5:33 All Cases V. Discovery by the Prosecution §5:40 Obligation of Defense to Provide Discovery §5:41 Make Request Early
Chapter 6: Retaining and Using Experts I. General Points §6:01 Hiring an Expert Is an Important Process §6:02 Checklist for Selecting an Expert II. Experts for the Prosecution §6:10 Using the Expert Who Comes With the Case §6:11 Using a Rebuttal Expert §6:12 Using an Expert Other Than the Analyst §6:13 Use a Good Expert III. The Defense’s Review of the Prosecution’s Expert Choice §6:20 Determine Why the Expert Was Chosen §6:21 Be Wary if the Expert Is Not the Analyst §6:22 Effect of Crawford v. Washington on Hearsay Exceptions §6:23 Application of Crawford to Blood Alcohol Tests IV. Defense Experts §6:30 Finding the Right Expert §6:31 Educational Background §6:32 Experience in the field §6:33 Professional Training V. Retaining the Expert §6:40 Finding the Expert §6:41 Fee Agreements §6:42 Formality of the Agreements VI. Preparing the Expert for Trial §6:50 Sending the Necessary Discovery §6:51 Reviewing the Case §6:52 The Golden Rule §6:53 General Trial Preparation §6:54 Preparing for Cross-Examination
Chapter 7: Field Sobriety Tests I. General Points §7:01 Field Tests Are Less Reliable Than Chemical Tests §7:02 Value of Field Tests §7:03 Test Settings and Studies §7:04 Types of Tests §7:05 Standardized and Non-Standardized Tests §7:06 Not All Tests Have Been Studied II. Studies of Alcohol Use and Tests A. Studies in Research Settings §7:10 Environmental and Situational Factors are Controlled §7:11 Determination of a Baseline §7:12 Increased Understanding of the Effects of Alcohol §7:13 Correlation Studies and the Correlation Coefficient B. Field Studies 1. Driving Behavior §7:20 Epidemiological Studies §7:21 Correlation of Driving Behaviors with Alcohol Level 2. Self or Third Party Assessment §7:30 Self Assessment §7:31 Clinical Assessment §7:32 Layman Assessment 3. “Objective” Signs of Intoxication §7:40 Odor of Alcohol §7:41 Slurred Speech §7:42 Red/Watery Eyes III. Pre-Field Sobriety Test Questioning §7:50 Tests Are Preceded by Interrogation §7:51 Check for Impediments §7:52 Assess Divided Attention Ability IV. Non-Standard Field Sobriety Tests (Exercises) A. Romberg Test §7:60 History and Use §7:61 Mechanics of the Test §7:62 Baseline Is Critical §7:63 Varying Results Show Test Is Unreliable B. Other Tests §7:70 Finger to Nose §7:71 Alphabet, Count Down, and Finger Count Tests §7:72 Handwriting and Tracing §7:73 Hand-Pat and Picking up Coins V. The Standardized Field Sobriety Test Method (SFST) A. History and Studies 1. Development of Standard Tests §7:80 NHTSA Commission SCRI Research §7:81 The 1977 Report §7:82 The 1981 Report 2. Large-Scale Field Validations §7:90 The 1983 Study §7:91 Colorado, Florida, and California Studies 3. Correlation Studies §7:100 The 1998 Validation Study §7:101 The 1997 Validation Study 4. Critiques of the Validation Studies §7:110 Studies Not Peer-Reviewed §7:111 Officers Do Not Comply With SFST Procedure §7:112 Nystagmus Measurement Inexact §7:113 Use of Correlation Coefficients is Misleading §7:114 California Study Conclusion Is Flawed §7:115 Officers in Studies More Experienced Than Normal §7:116 Reliability Claims Are Misleading §7:117 Age and Weight Not Taken Into Account §7:118 Clues Were Not Independently Evaluated §7:119 Comparison to Estimated BAC Is Invalid B. Administering and Scoring the Tests 1. General Points §7:130 Three Pre-Arrest Tests §7:131 Standardization Is Critical 2. Horizontal Gaze Nystagmus a. Definition and Types of Nystagmus §7:140 Definition and General Points §7:141 Types of Nystagmus b. Causes of Nystagmus §7:150 Alcohol Metabolites §7:151 Pathological Disorders and Diseases §7:152 Medications §7:153 Circadian Rhythms/Biorhythms §7:154 Natural End-Point Nystagmus §7:155 Congenital Nystagmus §7:156 Fatigue §7:157 Alcohol §7:158 Rising or Falling Alcohol Level c. Measuring Nystagmus §7:160 Angle of Onset Not a Reliable Indicator §7:161 Nystagmus at Low Levels §7:162 Administration of the Test §7:163 Scoring the Test 3. Walk and Turn §7:170 Administration of the Test §7:171 Scoring the Test 4. One Leg Stand §7:180 Administration of the Test §7:181 Scoring the Test C. Evaluating the SFST §7:190 Lack of Establishment of Normal Performance §7:191 Using Clues to Indicate a “Failure” §7:192 SFSTs Do Not Determine Driving Impairment §7:193 Non-Chemical Tests Have Unreliable Aspects
Chapter 8: Attacking and Defending Field Sobriety Tests and Evaluations I. Preparation and Investigation §8:01 Secure the Scene §8:02 Look for Phone Recordings §8:03 Check Footwear §8:04 Find All Witnesses §8:05 Get the Police Report §8:06 Get DUI Training Instructions II. Jury Selection §8:10 Jurors’ Physical Characteristics §8:11 Ask About Field Tests §8:12 Jurors With Specialized Training III. Attacking Field Sobriety Tests A. The Legal Standards §8:20 General Points and Historical Background §8:21 Daubert & Kumho Tire Admissibility Standards §8:22 Failure to Comply With NHTSA Criteria §8:23 The Horizontal Gaze Nystagmus B. Cross-Examination of the Arresting Officer 1. General Points §8:30 The First Confrontation §8:31 Tips for Cross-Examining Police Officers §8:32 The Phrase “Field Sobriety Tests” §8:33 The Cross-Contamination Dynamic 2. Objective Factors §8:40 Clarify That “Objective Factors” Are Subjective §8:41 Bloodshot Eyes §8:42 Odor of Alcohol §8:43 Slurred Speech §8:44 Flushed Face 3. Field Sobriety Tests §8:50 Horizontal Gaze Nystagmus §8:51 The Romberg or Modified Position of Attention Test §8:52 One Leg Stand §8:53 Walk the Line §8:54 The Alphabet Test C. Maximizing Prospects of Winning &nb |
