Evidence in a California DUI Case

Secure the evidence and preserve your shoes!

The first step your DUI attorney should take in preparing your case is to secure the scene and any evidence.

Secure the scene

As soon as you contact your DUI attorney, the attorney should ask you to return to the location where the field sobriety tests were performed. The attorney’s investigator should accompany you if possible. You or the investigator should take photographs of the area to freeze the scene.

Virtually all police reports will claim that the area where the field sobriety tests were administered was a smooth and level area. Often this is not the case. Most field sobriety tests are given at the side of the road or on the sidewalk. Most roads are crowned and most sidewalks are sloped to facilitate water runoff. Rarely is the location truly level. You and the investigator should also check to see what the lighting was like in the area.

Look for phone recordings

Did you make any phone calls from the jail? These calls are often made late at night and the person to whom the call is made is frequently asleep. As a result, all or part of the call may have been recorded on a telephone answering machine or some sort of voice mail.

If any part of the conversation is on the recorder, you should secure the recording immediately. The recording may reveal that your speech was not slurred. When this evidence is available, it proves to be quite powerful in combating any claims of slurred speech.

Check your footwear

Your DUI lawyer should ask about the shoes you were wearing at the time of your arrest. Women sometimes perform field sobriety tests in high heels. Men may have executed the tests in cowboy boots. Balance tests are much more difficult to perform in shoes with an extended heel. Similarly, shoes with little support, such as sandals, also make balance exercises more difficult.

You should keep the shoes in the same condition they were in when you performed the field sobriety tests. If the trial is not going to take place for some time, it may be necessary for you to avoid wearing the shoes again until trial. This preventive step guards against an objection that the shoes are inadmissible because the shoes have changed since the arrest date due to wear.

Find all witnesses

You should provide your DUI lawyer with a list of the names and phone numbers of all persons you had contact with throughout the evening of your arrest. This includes the time period starting a couple of hours before any actual drinking took place.

It is important for your lawyer to contact these persons as soon as possible to inform the potential witnesses of the significance of remembering the evening’s events. Many of the potential witnesses may not know that you were arrested. Asking a witness who was not previously alerted to the arrest to remember the specifics of an otherwise non-descript evening six months after the arrest is asking too much. The prospective witness’s memory must be cemented as soon as possible.

You may be reluctant to have some of the potential witnesses contacted because you do not want them to know you were arrested for drunk driving. This is entirely understandable. However, from a legal perspective, it is preferable for your DUI defense attorney to contact all of the would-be witnesses. If you still decline to let your attorney contact a witness, your DUI attorney may have you sign an acknowledgement that this is against his or her advice.

Evidence Your DUI Attorney Will Seek Through Investigation and Discovery

Beyond preserving evidence at the scene, your DUI attorney will work to obtain additional material either through independent investigation or through formal discovery requests to the prosecution. The following checklists outline the types of materials that may be relevant depending on your case.

Not all of these items will be necessary in every case — your attorney will determine which are most important based on your specific facts. One important strategic consideration: requesting large amounts of discovery through formal channels can have the unintended effect of drawing the prosecution’s attention to your case. Your attorney will weigh the benefit of each request against this risk.

In Breath Test Cases

In cases where a breathalyzer was used, your attorney may seek the following:

• The officer’s training history on the specific machine used — officers who transfer from other departments are sometimes not trained on the breath machine used at their new agency
• The current laboratory license
• The method the laboratory has adopted for breath alcohol testing
• A copy of the manufacturer’s manual for the breath machine used
• Titration records for the simulator solution
• Accuracy-check records for the two months before and after your test date — sometimes called calibration check records, these confirm the machine’s calibration but do not represent an actual recalibration
• Logs showing how many people were tested in the two months surrounding your test date

In Blood or Urine Test Cases

In cases involving a blood or urine sample, your attorney may seek the following:

• A portion of your blood or urine sample — generally called a “split,” allowing your defense team to conduct independent testing
• The methodology used in the analysis — the operating procedure of the laboratory
• The analyst’s bench notes — any notes made during the analysis
• Results of the controls used in the run — known solutions or blanks mixed in with actual samples to verify accuracy
• The result of your specific sample
• The actual chromatograms of your sample’s test
• Any specificity/interference testing — records confirming that other compounds were not mistakenly analyzed as ethanol
• A copy of the run list — identifying which samples and controls were tested, and in what order; automated runs typically involve 40 or more separate samples
• Maintenance records for the testing device — covering three months before and after your sample was analyzed
• The chain of custody for your sample
• Information on the vial your sample was stored in
• Independent proficiency test records from the past year — for both the laboratory and the specific analyst
• Internal proficiency test records for the analyst from the past year
• Accuracy records for any vials purchased from a manufacturer
• The phlebotomist’s instructions or checklist for the blood draw procedure

Exposing the Automated Nature of Blood Analysis

If your case goes to trial, it is important for jurors to understand that blood samples are analyzed through a largely automated process — not by a scientist personally examining your sample under a microscope. Jurors often assume individual attention was given to their sample. The following sample cross-examination addresses this directly:

Defense attorney: You did the analysis of the defendant’s blood?
Analyst: Yes, I did it myself.

Defense attorney: When you say you did the analysis yourself, you mean that you operated a machine that did the analysis?
Analyst: Yes, I used a gas chromatograph.

Defense attorney: When you used this machine, did you only analyze the defendant’s blood, or did you analyze other samples during the run?
Analyst: I am sure there were some others.

Defense attorney: Not just “some others” — weren’t there 40 other samples tested?
Analyst: I think so.

Defense attorney: And this takes a couple of hours?
Analyst: About that.

Defense attorney: And when you are doing these, you are not always in the room the whole time the analysis is being performed, are you?
Analyst: Well, not always the whole time, but it is automated.

Defense attorney: So your answer is, you are not necessarily even in the room when the blood analysis is being done?
Analyst: Technically, that’s correct.

This line of questioning establishes for the jury that the analysis was automated, that 40 or more samples were run simultaneously, and that the analyst may not have been personally present during the analysis of the defendant’s specific sample.

In All Cases

Regardless of whether your case involves breath, blood, urine, or a refusal, your attorney may also seek:

• The police report
• Names, addresses, and statements of any witnesses — including all persons you were with before, during, and after your arrest
• An inspection of the scene — visiting the location allows your attorney to assess whether the officer’s view of your driving was obstructed, whether the FST area was truly level, and whether the driving behavior that led to your stop is common at that location due to road design
• Police dispatch tapes
• Booking photos
• Mechanical inspection of your vehicle — if there is any reason to believe something was wrong with your car
• Prior accident reports at the same location — if other drivers have made the same maneuver that led to your stop, it may show that the road design, not your driving, was the cause
• Prior police reports by the arresting officer — some officers write nearly identical observations in every DUI report, which undermines their credibility. Even without this pattern, reviewing prior reports reveals the officer’s habits — for example, if the officer typically asks about hours of sleep but failed to do so in your case, your attorney can use this to suggest the officer’s investigation was incomplete
• All exculpatory evidence
• Your criminal history and the criminal histories of any witnesses
• Your driving record — your attorney needs your driving history to advise you about the consequences of any plea bargain, including whether a lesser charge might still result in driving points that could trigger a license suspension.