Robert Eckard:
Why do I defend DUI's? The
answer to this question lies squarely in the nature of the offense.
A DUI charge based upon the appearance of the motorist is generally
brought with a separate charge based solely upon the motorist's breath
or blood alcohol content. In the first instance, it is the appearance
of the motorist that counts. In other words, did he or she appear
drunk? The second, however, is far more problematic. Based solely
upon the results of a chemical test, it is to my knowledge the only
crime that can be proven entirely by the results of a scientific
test.
Some individuals who are
not intoxicated may naturally tend to exhibit what appear to be signs
of intoxication, such as bloodshot eyes, swaying gait and mumbled
speech. Coupled with the strong odor which even one alcoholic beverage
may produce, the possibility runs strong that, in the ansence of
a chemical test, a sober motorist could be convicted.
If, on the other hand, a
motorist decides to submit to a chemical test, conviction along with
the social and financial problems it entails, frequently depends
upon the accuracy of a breath test.
Is chemical testing always
accurate? Statistically, no. The problm lies in that fact that each
and every test depends upon a presumed relationship between breath
and blood alcohol. Dependant upon a lung-blood ratio reached by the
National Safety Council in 1952, all breath testing ignores the fact
that the ratio varies both with time and the individual tested. For
instance, if the motorist is tested before the alcohol consumed has
been completely distributed throughout the body, it is possible for
the results of a breath test to be three times higher than his or
her actual blood alcohol content. Further, there exists the effect
of other chemicals which are commonly found on the breath of human
beings. The development of modern breath testing equipment is rife
with efforts of designers to minimize the impact of mouth alcohol,
acetone, methane and others.
Not confined solely to science,
breath test difficulties can be found in the manner in which breath
test programs are administered. In 1991, after more than three years
of litigation, I was able to prove to the satisfaction of New York's
highest courts that a Pennsylvania firm which was manufacturing breath
test chemicals was engaged in fraudulently certifying lot verification
and quality control.
Nor has fraud been confined
th breath test chemicals. A study from five precincts in Massachusetts
and California published in 1989 conclusively showed breath test
operators to be setting Breathalyzer test results falsely high. Closer
to home, last spring, a New York State Federal Court overturned the
conviction of an individual convicted of DUI Murder when it found
that two New York Troopers has falsified reports, placed pieces of
the defendant's car at the scene of an accident and attached strands
of the victim's hair to the defendant's automobile while the vehicle
was impounded.
Finally, there exists the
human factor. Because of the nature of the alcoholism, an alchoholic
who is convicted of a DUI is condemned to continually repeat that
offense irrespective of the number of times that he or she is convicted.
A sad fact is that much needed treatment is unavailable following
conviction either as a result of jail or the lack of insurance coverage.
Moreover, when the defendant is the predicate officer, it may very
well be the best interests of society dictate that incarceration
not be imposed. Presently, an individual sentenced to State prison
for felony DUI will serve approximately two years. In the absence
of treatment, all this sentence will do is insure taht the motorist
loses his or her job, loses his or her family and loses any meaningful
efforts toward rehabilitation.
Thus, as unpalatable as
it may seem to some, it is not only proper that the DUI defendant
be afforded a vigorous defense, but such is a Constitutional imperative
if the interests of justice, society, and the defendant are to be
adequately preserved.