DWI: A Crime of Opinion

I just returned from Boston, specifically the summer session of the NCDD (National College of DUI Defense) held at Harvard Law School. It was an incredible learning experience to be amongst the authors of most of the prominent DUI Defense Books.  These leading DUI trial lawyers shared openly and gave freely of their time.  

There were lectures as well as interactive workshops where they (the masters of DUI Trial Practice) videotaped us doing cross examination of police, opening statements, closing arguments, etc. They critiqued our performances and gave great feedback. The speakers were some of the best I have seen or heard. From a Circuit Court Judge doing a presentation about how to understand Judges (he called it behind the curtain of Oz, as in the Wizard) to a twenty year veteran of the FBI crime labs. This Phd/lawyer/scientist spoke of all the problems with forensic lab testing (can anyone say Breathalyzer) and law enforcement's failure to often follow proper protocols. Everything was focused, and geared on DUI defense and practice.

One thing that stuck with me was something that I heard again and again, that DWI is a crime based purely upon Opinion. The opinion of police officers and the opinion of a machine are used to obtain a conviction. This opinion evidence is fraught with problems. The police subjectively give and grade performance on field sobriety exercises. Their is usually a police bias in the record. Every person pulled over has the odor of alcohol, slurred speech, glassy-bloodshot eyes, and an unsteady gait. The machine takes a "breath" sample and magically yields an "accurate" blood alcohol level. The BAC is often an invalid number hanging in space which has no relation to the true BAC at time of driving. In a nutshell, that is why we do what we do. Protect the rights (the ones that come from that grand old document called the Constitution) of those accused of the crime of DWI.  

Anyway, Boston is over, on a negative note, it was very humid, but the food service at Harvard Law School was top notch. It is time to go back to the real day to day work and nuts and bolts of DWI defense, and of course enjoying a rather cool 2009 Ithaca summer.