Lawrence Taylor, California DUI Attorney (Interview Transcript):

 

The Nature of the Crime

 

I: Hi, I am Richard Jacobs from MyDUIAttorney.org, and I am here with Lawrence Taylor, the number one DUI attorney in the entire United States. A lot of people call him the dean of DUI. He’s been involved with DUI for 29 years exclusively at his law firm based out of California. And I am very pleased and very proud to have the opportunity to interview him today.

 

LT: Thank you, Richard. Thank you very much.

 

I: Okay, well, we’ll get right to it with the first question. Mr. Taylor, from your blog posts, one might get the impression that you are anti-law enforcement and against drunk driving. What is your overall stance on DUI? Is it wrong? Is it not as bad as everyone makes it out to be?

 

LT: I mean, drunk driving – and we’re talking about two different things, understand -- DUI and driving over .08, and they are not the same thing. Drunk driving is dangerous, and it kills people. I have a son, I have a wife, I don’t want some drunk driver injuring or killing them. We need laws punishing drunk driving and punishing it severely. We always have. When I started practicing, there was a very good law, just basically said thou shall not drive under the influence of alcohol, the degree that it’s going to impair your driving and render you dangerous. That’s not the law anymore. Now the focus is upon blood alcohol content. Mothers Against Drunk Driving have been very effective at changing the law, or adding a law, so that the prosecution has two ways to try to prosecute the defendant, one of which is not being under the influence. They don’t care if you’re under the influence or not. They don’t care if you’re in danger or not. All they care about is the blood alcohol content, and the individual tolerance to the alcohol, assuming the level is accurate, is irrelevant.

 

I: So now someone when they’re faced with a DUI is actually faced with two criminal cases is what you are saying.

 

LT: Yes, unless there is a case where the defendant or the suspect refuses to take a breath or blood test, in which case there is no blood or breath test, they can’t charge you with .09, they can only charge you with DUI. By the way, otherwise, they are always going to charge you with both offenses. It not only gives the prosecutor two ways to convict, and you can be convicted of both by the way—

 

I: Really?

 

LT: But it also gives him a very unique tactical advantage. And that is, when you go to jury trial, jurors often can’t make up their mind. Now that’s supposed to be reasonable doubt and you get acquitted. What happens is, they have a compromise because not everybody agrees, and they can’t get a uniform verdict, so they decide to acquit the client on one and convict him on the other as a compromise. What they don’t realize is it’s no compromise. Now the person that’s convicted is going to be punished the same as if there were two convictions.

 

I: Another question I have is: You recently made a blog post that tied in your 2005 predictions on the future of DUI and a lot of them have largely come to pass, it seems. Has DUI become a convenient cash cow for cities and states so they can earn more money under the guise of public safety?

 

LT: Well, there has been that. There’s no question that in many municipalities is a source of considerable municipal revenue. And MADD has been very influential and effective in their political pressures on local municipalities as well as certain members of the bench, such as judges and prosecutors and so on. A classic example of this is roadblocks, DUI roadblocks. Those were permitted in a 5 to 4 vote by the Supreme Court, but only for DUI. It cannot be used for anything. Now these roadblocks have been set up, and they have found that they’re not terribly effective. Not nearly as effective as roaming patrols, but in fact, have even expanded and the reason is not difficult to figure out. If you look at some of these roadblocks, there may be a thousand people stopped. And out of that thousand, they’ll make 1 or 2 DUI arrests, but they’ll make 70, 80, 100 citations for registrations out of date, drivers license not current, tinted windows, registration on the license plate, defective tail light, anything. Of those, about a third of them might get impounded with further fees and monies going to the local government. So of course they like that, and they call it a DUI roadblock because that’s the only way they can legally stop people.

 

I: I see. In that circumstance, it’s hard to say that they’re doing it to stop drunk drivers. It’s more obvious that it’s to raise revenue through all those methods.

 

LT: Well, you can see in terms of the efficacy of finding DUIs and taking them off the highway, it’s not very effective. There have been all kinds of studies that say that simple roaming patrols, officers, patrol officers in cars or motorcycles, are far more effective than putting the money into road blocks.

 

What Is Wrong with Today's Drunk Driving Laws and Law Enforcement?

 

I: You often talk about the inaccuracy of breathalyzers, field sobriety tests, and possibly blood and urine tests. And at times, corruption with police in destroying evidence, photocopying from one case to another or hiding evidence. Are you saying that the DUI system is corrupt in any way?

 

LT: No, I think corrupt is the wrong term. I think inefficient would be a good characterization. I think unfair and unjust, commonly. I think certainly violations of Constitutional rights are routinely existing in these kinds of cases. These cases rely heavily on first of all, breath machines and blood analysis. These are relatively unreliable, particularly with breath analysis, unreliable and inaccurate methods. A lot of the evidence is dependent very heavily on the honesty and the credibility of the officer. What is under the influence? Well, it’s what the officer says. It’s the field sobriety tests he administers and his decision of whether you pass or not. It’s what he says that you told him about what you’ve been drinking. It’s his assessment of what your driving looked like. In other words, they are his opinions, his observations, and, with a lot of police officers, and I’m not saying all, there are good police officers and bad, but among those officers, it’s human nature to fudge here and there to strengthen your case. And it’s uniquely easy to do. There are no witnesses. There’s no type of evidence you often see in those types of cases. So it lends itself to inaccuracies in the machines, in the blood analysis, and some let’s just say subjective approaches by the police officer, bearing in mind that we’re talking about a competent police officer. And there are an awful lot of them out there that aren’t very competent doing field sobriety tests and so on.

 

I: So it sounds like what you are saying that a lot of the prosecution’s case falls on a human being, this police officer, and they have their faults.

 

LT: Absolutely. Bearing in mind again, most officers are honest. Most officers are generally competent, although we get into things like horizontal gaze nystagmus test, which is one of the three standard field sobriety tests, I’ve never seen a police officer able – and I have cross examined many of them, hundreds of them – who really understood or were able to competently administer the test. Studies have been done at major universities trying to assess the abilities of police officers, taking groups of police officers comparing them to groups of bartenders, groups of social drinkers, and so on, such as having video tapes shown to the different group, such as real suspects in the field, asking questions and doing sobriety tests and so on. The conclusions in all three of the major studies was the difference between the three types of groups was almost nonexistent. In other words, the trained police officer was no better at recognizing levels of intoxication than you or I, or a bartender who is used to seeing people at a bar.

 

I: Very interesting.

 

LT: It is.

 

Many Years Ago You Decided to Represent DUI Clients Exclusively: Why?

 

I: My last question for you is why have you decided to focus on DUI exclusively for so long, for so many years? Do you feel like it’s too narrow a field?

 

LT: Oh, no. Far from narrow. It’s endlessly challenging. I’m still learning. I’ve written two textbooks, 7 editions of one. 1200 pages long, and still learning about the complexities of the DUI field and will continue to do so. The reasons I switched, become a practitioner of DUI defense exclusively many years ago – there were a number of reasons. One: When I left the DA’s office, I practiced general criminal for quite a few years. And frankly I really got tired of my clients. I didn’t find that I was really accomplishing a whole lot or felt really good about myself defending people who were accused of rape, or murder, or drug dealing, or whatever. I’m not even talking about innocence or guilt. It’s just the clients were not the kind of people that I really was comfortable or --

 

I: Felt good about representing?

 

LT: Feeling like I was accomplishing something in my life. I found that the DUI clients I represented were different. They’re just like you and I. Just ordinary guys, ordinary woman. And they got in trouble, innocent or guilty, they were in trouble. They were usually frightened, unlike most criminal types, and they needed help. And they’d done nothing that I thought was intrinsically wrong, in terms of habitual criminal conduct. I liked them. They were human beings. They were people in trouble. And I felt like I could accomplish something. I could help them if they did have a drinking problem, and at this firm, we do offer alcohol rebhabilitation and consultations with both a shrink and a psychologist, if the client looks like he or she may have an alcoholic problem and wants to recognize it and do something about it. Now that’s separate from the criminal cases. It’s just something we do because I think it’s the right thing to do. So first of all, I like the clients. Secondly, I like the challenge.

 

It is an extremely complex field, endlessly complex, endlessly challenging. I like that. It wasn’t the same thing over and over and over again. Each case was truly unique. And it was a continuing education and still is. So I find that to be rewarding. I guess the third one is – I’ll try to explain this – I feel like I’m wearing a white hat. When I was a general criminal defense attorney, my job was to blow smoke, try to get the jury to say, “I’m not real sure.” Because most of the time your client is guilty and your job is to try to create reasonable doubt. And that’s perfectly ethical and accepted. That’s the job, the duty of the defense attorney. But it’s not always, again, very rewarding. I’ve found that in defending DUI cases, I realized that first of all, I was defending attacks on the Constitution over and over again. There were more and more cases and Supreme Court decisions and statues and laws and procedures that were simply unconstitutional. They were wrong. And even when they weren’t the laws, judges or prosecutors or whatever would try to get away with things. And so I felt I was the one who was defending the Constitution, not just for the client but as a document – as a living document, the Constitution. And secondly, I was seeking truth which is a novel concept for a defense attorney. Usually you’re not, you’re trying to blow that smoke. But in my case, I was trying to show the jury that this machine was giving false information. That it was not truthful and reliable. I was trying to show the jury that these field sobriety tests are not what they purport to be. In other words, and this police officer is not the cool, calm, collected professional that he appears to be on the stand. That’s not what he was out on the field that not. In other words, I’m trying to get the truth to the jury, rather than blow smoke. And I found that to be kind of refreshing.

 

I: It sounds like being a DUI attorney is fulfilling in a lot of different ways, so actually emotionally, you’re helping people, you’re defending the Constitution. There’s just a whole host of reasons.

 

LT: Exactly.

 

I: Okay. Very good.

 

LT: And, uh, it still feels that way.

 

I: Well, that concludes the interview. I really appreciate you taking the time to speak with me. This has been a really great interview.

 

LT: Well, it was my pleasure. I enjoyed it actually. I always like getting on a soap box.

 

I: Thank you, Mr. Taylor.

 

LT: My pleasure.

How Have You Become the Best-Knowing DUI attorney in the Country?

I: What advice do you have for people who are social drinkers? Who like to go out every once and while and have a drink? What advice to you have for them when they’re about to get in their car and drive or when they’re being pulled over and maybe arrest for DUI?

 

LT: Well, those are two different questions. First, don’t drink and drive. It is not illegal to drink and drive. And we have to pound that into juries sometimes. Because MADD has done such a good job at indoctrinating them, don’t drink and drive. Driving and alcohol don’t mix. It doesn’t matter if you’ve only had one drink. Well, that’s not true. But having said that, I understand how the system works. I understand how the cop is going to think when he stops me and smell that alcohol on my breath. I know I’m halfway home to the jail cell by then, simply for that reason alone. Everything else he sees is going to be colored by the fact that he smells alcohol on your breath. Personally, then, my wife is a teetotaler, thank God, and if I have a single drink. If I have alcohol on my breath, she drives. I don’t need an officer smelling alcohol on my breath. And I would suggest if you are a social drinker find some other way than driving if you can. Having said that, if you do get stopped, it’s a complex situation again. What would be my advice? First of all, right off that bat, don’t flunk the attitude test. And I think you know what I mean. Don’t have an attitude. Be cooperative. Cops are human beings. They don’t appreciate it if you don’t submit to their authority and do what they say and be nice about it. So be respectful, follow those directions as much as possible, and I’ll get to that in a second. But don’t flunk that attitude test. Not only is that going to upset him, it’s going to color what he sees. And it’s going to color what he puts on that police report.

 

I: Again, you’re dealing with a human being, and if you piss them off—

 

LT: You’re dealing with a human being.

 

I: You’re not going to be in a good way.

 

LT: And most police officers I’ve encountered, not in the field necessarily, but as an attorney, don’t like having their authority challenged and don’t – there’s a saying in the police departments about administering field punishments, such as putting the cuffs on a little too tightly so that’s it’s painful for an hour or so. Being a little rough. There are things that can be done to adjust attitudes, as well as having a different slant on the facts. So don’t flunk the attitude test. That doesn’t mean when I say be cooperative that you have to do everything he says. You have absolutely no legal requirement to take the field sobriety test. Don’t. I don’t care how sober you are. You’re not going to pass them. They are not passable. They are simply three exercises that the officer uses and he decides what he wants to do with those. So if you do well, it’s not going to look that way. If you do badly, it’s going to still look bad. You’re not going to pass. There’s a saying among experienced DUI attorney, you cannot pass a field sobriety test.

 

It’s not passable. So, uh, there’s no legal obligation to do it. Don’t do it. But be respectful about it. Say thank you but I’d rather speak to an attorney first, or whatever. But be cooperative. When he starts asking questions: How much have you had to drink? Where were you? What did you drink, when, where? I would suggest again respectfully ask to speak to an attorney first. He’s going to tell you that you don’t have a right to an attorney, and surprisingly he’s right. That’s one of those Constitutional rights that fly out the window with DUI cases. You don’t have a right, so don’t argue it. He’s right. But that doesn’t mean you have to answer these questions. Why shouldn’t you? Because it’s not going to come out in the report the way you said it. If it helps you, he’s not going to put it in the report. Why should he? If it hurts you in any way, can be seen that way, it is going to be in the report. It’s important because it tells the DA whether to file the charges or not. And this police officer six months from now when he’s testifying can’t remember this case, can’t remember a thing about the case. He’s going to testify based on what he wrote in the report, and there will be nothing but the incriminating things in there. The exonerating things, the things the client did right, he can honestly testify it didn’t happen. In the sense that he can’t remember because it’s not in the report.

 

I: So anything you say essentially becomes crib notes later on for the officer in court.

 

LT: Like the FSTs – the field sobriety tests – tends to work in one direction only. And the third thing is – this gets a little more complicated – don’t take the PAS test. The PAS/PBT. PAS is the passive alcohol sensor. PBT is preliminary breath test. Same thing. Different terms are used. In California, it’s usually called the PAS test. This is complicated because increasingly, as I said, PAS devices are permitted into evidence. In Orange County, for example. That means you do have to take it after you’ve been arrested. If it’s being given before, then it’s being used as a screening device and you have no legal obligation to take it – and don’t. They are highly inaccurate. They cannot help you. If they come in low and he wants to arrest you, he’s going to arrest you anyway. And then take you to the station and give you a breath or a blood test. So don’t take it unless you are under 21 years of age. The law permits the PAS test as a primary evidentiary breath test. And refusing to take it is a refusal, which carries a lot of consequences you don’t want.

 

What Tips Do You Have for Attorneys Representing a DUI Client Today?

 

I: What elements in the DUI punishment have the most negative effect on the people being punished, the defendants, and why? For instance, license suspension, or the shame, or the fine, or?

 

LT: Again, it’s like the average man. For each person, for each client, it’s different. For some, they are absolutely terrified of spending a single night in jail. I understand, much less 30 nights or 6 months. I understand, it would be terrifying for me. For many others, it’s the driver’s license. That is critical in California particularly. We live in our cars. We don’t have public transportation to speak of. Or at least we don’t in Southern California. That not only is highly inconvenient. But it also means, possibly depending on the circumstances, your job. If you don’t have a job, you might lose custody of the child, it goes on and on. The driver’s license is critical. We have clients saying I don’t care if I spend a year in jail, I have to have that license. That’s an exaggeration of course, because they would lose their job probably for spending the year in jail. The point is it depends on the individual, what that person’s needs are. If I have a person, say a West Point graduate, or a doctor, or a lawyer, a person with security clearance, it’s the conviction itself that is critical, because they will lose not only their job, their licensing, their profession. You get a marine from Camp Pendleton here. He’s history if he has a DUI conviction. So each client is different. And what is most critically important to them is unique to that individual.

 

What Is the “DUI Exception to the Constitution”?

 

I: What are some of the most important and fruitful defenses that a DUI lawyer can assert for their clients to help them?

 

LT: Well, again, we don’t create defenses. We don’t make up facts. We don’t support perjury. We deal with each case on a case by case basis. Each case is unique. Each client is a unique human being. Each police officer is different. And so on. And we need to look into each of those cases and find where the weaknesses are. And there are always going to be weaknesses. There are always going to be holes in the DA’s case. And it’s our job to find those, and hopefully find a lot of little ones or one big one or whatever, with which we can plea bargain from a position of strength and have the ability to go to trial to back up our position. Now in any given case, it might be a question of, like I said gird. Perhaps our client has a gird condition. We’ll bring a physician in to testify the fact that it might be a question of tolerance, not a DUI issue. And that this individual had high tolerance to alcohol. It might be any number of things. One common one, see it over and over again, is mouth alcohol. Mouth alcohol refers to the phenomenon of the individual having alcohol in their mouth. Alcohol stays in the mouth for about 15 minutes after ingesting an alcoholic drink. It can stay for hours if there are other things present. For example, if you have periodontal disease. If you have false teeth. If you have things like bread in your mouth, it has absorbed the alcohol and is keeping it. You can burp or belch alcohol from the stomach into the mouth. Now what does this mean? It means the alcohol is being breathed directly from the mouth into the machine. Not from the lungs, but from the mouth, or possibly the stomach. I told you earlier that that machine is multiplying the amount of alcohol it reads by 2100 times, because it assumes its coming through the lungs, the blood. It’s not. It’s getting a straight shot of alcohol. So a very infinitesimal, tiny amount of alcohol in the mouth can have a huge result, multiplies by 2100 times, it doesn’t take much alcohol to send that machine up pretty high.

 

I: That’s important to know.

 

LT: That may be a defense in a given case.

 

I: I’ve known people that get pulled over and they get nervous so they get breath spray and spray their mouths.

 

LT: Yeah, most breath sprays, breath fresheners, gargling, Listerine, whatever, are going to have alcohol in them. And that’s mouth alcohol. And that’s going to stay there – worst possible time to have breath fresheners is just before you’re being stopped or as you’re being stopped by a police officer. Because, yeah, you’re going to be breathing that alcohol directly into the machine.

 

How Can an Attorney Become More Effective at Defending DUI Cases?

 

I: You spoke about not being an average human being. About the Chinese, female, and dead. How does that help a good, knowledgeable DUI attorney defend their clients more effectively.

 

LT: We did touch on that. And I mentioned Don Nickles and his argument, which I thought was terrific because it is so accurate. The DUI field is just rife with all kinds of example of this average man. For example, the average man is also a woman. Women and men have not only different metabolism rates, but they actually have, women, for example, have chemicals in their system that causes alcohol to be processed a little differently than we do. It gives them a different kind of tolerance, for example, generally speaking. Racially. Lots of studies have indicated that different races have different levels of tolerance to alcohol, generally on average, for example. These are all factors. Absorption, elimination, and tolerance, we talked about. Medical conditions, if you have gird condition, acid reflex, if you have diabetes, if you have been on a heavy diet. These things are all going to create for example, acid aldehyde or acetone on your breath, which the machine is going to read as alcohol. The machines don’t read alcohol by the way. People don’t realize that. They detect a group of chemicals in the compound and assume it is alcohol. In fact, there are all kinds of compounds - acid aldehyde or acetone are common. Calamine, which is glue. If you smelled glue, if you were painting a house, if you were pumping gasoline in your car, these all contain compounds what the machine detects with their infrared analysis. So you can go on all day with this stuff.

 

I: Wow.

 

How Hard Is It to Get a DUI Charge Reduced?

 

I: Do you see the potential of a legal slippery slope with the erosion of protections, such as the DUI exception to the Constitution, the right to trial by a jury, and Double Jeopardy, and other things you’ve spoken about on your blog?

 

LT: Yes, I did. I coined that term “the DUI exception to the Constitution” about 20 years ago, and it hasn’t gotten any better. It’s been an unending series of decisions from the US Supreme court as well as the state Supreme court taking away Constitutional rights. We could spend the rest of the day discussing that. There is a slippery slope, and first of all, DUI is a politically incorrect crime, along with child molesting, those are the two probably socially unacceptable, politically incorrect types of offenses, and that means that prosecutors and legislators and judges can get away with not following the rules and the Constitution if they want to. In fact, there’s a lot of pressure on them not to if they wanna get reelected. It is a slippery slope, partly because we’re a nation of legal precedent. We are a common law country. Our laws, our legal system is based on the British legal system and were just practiced in the common wealth and the colonies. The rest of the world follows the French and the Napoleonic civil code. They’re different. The primary difference is that we are a nation of precedent, not statues.

 

We do have statutes, but we have certain courts that interpret them. And when they interpret, it becomes law. So if the Supreme Court of Alabama says it’s okay not to give Miranda rights in a DUI case until after he’s in jail and after all the processes, three or four hours after he’s been arrested, well, that’s precedent. It’s not just precedent for DUI, and that’s the slippery slope. It’s politically easy to derogate to take away Constitutional rights in a DUI cases. Fine, but they’re not going to use that in other areas. When a person is arrested for theft, when a person is arrested for any number of different offenses, they can now to a considerable degree use that precedent. For example, when they legalized road blocks, when the Supreme Court voted 5 to 7 that roadblocks were okay, and I have yet to find an exception I the 4th amendment where it makes an exception for roadblocks. It doesn’t. And the Supreme Court justice Rehnquist admitted it. He said, yeah, it’s a violation of Constitutional rights, but it’s a just little violation. And government has a big interest in stopping DUIs. So what did they do with that? After that, of course, the slippery slope kicked in, as you say, and state law enforcement agencies started stopping people at roadblocks for drugs, for example, to search the car for drugs, to check for registration and license, for all sorts of things. That’s what happens. You set precedent; you start opening it up into other fields.

 

Can You Get a Fair Trial in a Drunk Driving Case?

 

I: What do DUI lawyers that want to be successful have to do now and have to do in the future to provide a solid defense? To not end up in a situation where they are just a lame duck for their clients?

 

LT: Well, I think we’re touched on it. First, they’ve got a steep learning curve. They’ve got to learn a lot. They’ve got to read books. They’ve gotta go to seminars. They’ve got to join organizations like the National College for DUI Defense. They’ve gotta to learn. Secondly, they’ve got to start specializing. They can’t handle divorces, and wills, and drunk driving cases. They can’t even as criminal lawyers handle drug cases, and murder cases, and DUI cases. They’ve got to increasingly – to be able to that experienced, that focused, that specialized, that knowledgeable. You’ve got to focus on the one type of case. That’s critical. The second thing is they’ve gotta learn to investigate, to prepare their case. They’ve gotta learn to get all this information to the crime lab. To get all this information from the police department and the DA. And the DMV. This information is critical. It takes a lot of time. They’ve gotta do independent investigation with their own lawyers and expert witnesses, in terms of visiting the scenes, investigating witnesses and so on. The problem is that too many attorneys don’t know what to look for and charge such a low fee that they don’t have the time to justify doing these kinds of things. Those are the things that have to be done if you are going to be successful in this field. And by successful, I don’t mean making money, I mean bringing results.

 

I: Helping people win.

 

What Are the Best DUI Defenses?

 

I: Do you believe the existing and future DUI legal system quirks – maybe that’s the best word I can use – such as losing your right to trial by jury, things like that, will at some point render a lot of DUI attorneys unable to really defend their clients well?

 

LT: Yes and no. They’re always going to make it more and more difficult. They’re always going to try to facilitate or railroad, depending on your term or preference, cases of DUI. There’s tremendous pressure from MADD and others to facilitate convictions. There are two things that really work in our favor. One is the police officer will always be a human, subject to human error and levels of competence and so on. That is not going to change. Second is – I should say there are three things – secondly, they have proven over time – they being local governments – that they are going to take the cheapest, easiest course. For example, breath machines now instead of these big, expensive, relatively accurate in terms of some of the simpler ones, machines are being phased out in terms of handheld units in the field. That are highly inaccurate that they call PAS or PBT devices and using those in evidence. They’ve never been permitted in evidence before, and now in Orange County and other areas of California and the country they are being used increasingly. They’re cheap, they’re quick, they’re easy. They get an immediate result. Never mind that they’re not accurate. So that’s one thing. The human body, the other factor, is not going to change. The human body will always be a very complex variable. Two human beings are not the same. You are not the same as I am, in for example, our tolerance to alcohol, our absorption of alcohol, our elimination of alcohol, our metabolism of alcohol. It’s different. Your variability biologically, such as metabolism, such as partition ratio, and perhaps we’ll talk about that in a moment, I don’t know. But these things are variables, and they always will be. And they will be to a high degree unpredictable. And that’s going to be the same. So the weakness of the police officer, his inability to do what he’s supposedly an expert at, and the variability of the human body are always going to be factors that are going to work in your favor.

 

I: It sounds like you’re saying that the variability of the human body is as variable as I am tall to you are short, or I’m fat and you’re skinny, or all those things. So there’s tremendous variation.

 

LT: Right, for example, partition ratio, I mentioned earlier I think, is just a classic example. Certainly not the only variable. Essentially the partition ratio involves breath test. The breath test is not measuring the alcohol in your body going to your brain. It’s supposed to. That’s what they want to find out. That’s what the statute says. But it doesn’t. What it does is measure the alcohol in your breath of course. Well, that’s fine, but what was it in the blood? Well, they use what they call a partition ratio. For every 2100 parts of alcohol in the blood, there’s going to be one part in the blood. Why? Where did they get that ration? It’s an average. You could be for example, a 1600 or 1500 to 1 right now. In an hour, your partition ratio may vary. It could go up to 1800 to 1. It’s going to be different for mine. And it’s going to be different for you at different times. The result, blood alcohol levels on a breath machines can vary as much as .03 to .04.

 

I: Wow.

 

LT: So if it says you’re guilty, it says you had a .10, let’s say when in fact, you were an innocent man at .06. Why? Why are you going to be convicted and tried in a court without a really good lawyer? Because you weren’t average.

 

I: A non-knowledgeable lawyer wouldn’t even present that to court that there’s that much of variation.

 

LT: He wouldn’t even know what the term partition ratio means. There was a very good, one of the original pioneers, Don Nickles in Minneapolis, one of the top DUI lawyers in the country, and was a very good friend of mine. He would, in arguing to juries, look at the jury and point to his client and say, “My client is Chinese. My client is a female. And my client is dead. And I’m going to prove it to you.” Of course, his client was none of those. He said the average person on the planet is Chinese. The average person is a female. And the average person died some time ago. And that’s what the government is doing. My client is not average, but they are going to convict him for fictitious innocent average man. That’s true. That’s exactly true. That’s what goes on.

 

I: That’s a very powerful argument.

 

LT: They have to deal with the defendant as an average man because otherwise they’d have no idea what all these variables in that person is.

 

What Are the Most Serious Consequences of a Drunk Driving Conviction?

 

I: Why do you think you’ve achieved such tremendous success in your field when other attorneys, you know, don’t seem to? What is it that you feel that distinguishes you and makes you the top guy in the DUI field?

 

LT: Well, experience certainly is a major factor. Specialization is very important. Very few, even today, very few DUI lawyers are specialized in the field, even though the American Bar Association the National College for DUI Defense, a 900 member professional organization that meets at Harvard University every year in July, has authorized them to grant specialization, after a rigorous testing procedure. There are very few people who have been able to comply with them. Very few people who limit their practice, very few attorneys who limit their practice to DUI. The legal profession is becoming more and more like the medical profession. A general practitioner should not be performing brain surgery. An orthopedic surgeon should not be delivering babies or having open heart surgery. It is a time of specialization, particularly because the DUI field is far more complex, far more technical with scientific evidence that the average murder case, believe it or not. Murder cases are actually quite simple. Did he shoot the person or not? Do we have anybody who saw it? It’s really quite simple. Very rarely, once in a long while, you might get DNA or something. Blood alcohol involves, to be really good at it, and this is the other part, you’ve got to learn. I mean, I went to law school because I didn’t understand physics and all that stuff. Well, surprise, now I have to learn electrical engineering, biophysics, biochemistry, some very technical difficult issues in the field. I have to understand blood alcohol analysis. I have to understand what’s behind field sobriety tests and horizontal gazes and how the eye operates and so on. The good thing is the DA, as I said, is not going to know it. And usually, the police officer is not going to have the level of expertise in these areas. So it takes specialization. It takes a lot of hard work. It takes experience.

 

I: Now it makes a lot more sense why you say that DUI is so complicated, even as compared to murder.

 

LT: It is one of the most complex – ironically, one of the most common, but at the same time, one of the most complex areas to understand.

 

What Advice Do You Have for Drivers Who Are Stopped for a Possible DUI?

 

I: When you’re trying DUI cases, you’re working on behalf of your defendants, how often is it possible to get even a fair trial. With things like being denied a jury trial, not having the ability to confront your accusers, these types of things, does it make it very difficult to have what you would call a fair trial?

 

LT: Well, that’s a huge question, and I could take about an hour to answer it. Uh, first of all, in terms of a jury trial in California and in most cases, we still get a jury trial. In some states such as Nevada, Louisiana, Hawaii, and a growing number of states, you cannot get a jury trial for at least a first time offense. That’s a disturbing trend, and I think unfortunately we’re going to see more and more of that over time. For now, in California at least and in most states, you do have the right to a jury trial. Is it a fair trial? Well, no, frankly, it’s not. And there are a lot of reasons for that. The laws have been changed to favor the prosecution and to facilitate convictions. For example, if the blood alcohol says .08, you are presumed to be guilty of DUI. You may be found guilty of .08 but you can also be found guilty of DUI because they presume you are under the influence. In other words, they disregard your personal tolerance entirely. Just to put the nail in the coffin, they presume that if the blood test says for example, .09, two hours after driving. By law, it’s presumed to be the same at the time of driving which is of course ridiculous. Any scientist on the planet will tell you that’s impossible, because of the elimination, absorption rates of the body, and so on, it’s never going to be a straight line, not even for a few minutes, much less for two or three hours. So why do they do it? Because the prosecution has no way of proving what it was at the time of driving. All they can say is two hours later or three hours later at the station it was .09. So the law comes along and says we’re going to help you with that. You don’t have to prove it. We’ll make the defendant disprove it. We’ll presume he’s guilty and let him show it. Well, of course, how do you show that? How do you show what your blood alcohol three hours earlier?

 

I: It’s a fundamental difference from innocent until proven guilty.

 

LT: Yeah, it puts the presumption; first of all, it puts the burden of proof on the defendant rather than the prosecution. And it takes that presumption of innocence and makes it a presumption of guilt. Now I’ve just given one example, but there’s lots of examples in DUI cases where the rules are not the same. Does that mean you can’t get a fair trial? Does that mean you can’t win? No, it doesn’t. Quite simply, you’ve gotta be better at what you’re doing. You’ve gotta be better prepared. Your experts have got to be better than the prosecution’s. The DA is rarely going to be a specialist in DUI. His expert witnesses are not very expert from their crime lab. They’re civil servants so they get paid very little. So, uh, and he is not going to have the preparation and investigation involved in the case that you are.

 

Are Tougher DUI Laws Making It Harder to Defend a DUI Client?

 

I: When your firm represents DUI defendants, how often is yourself or the attorney that worked for you able to get DUI charges reduced, for instance?

 

LT: Well of course, every case is different. And any attorney who tells you, when they come in to be represented, any attorney who says I can get this reduced to reckless driving or to whatever, walk out of the office as quickly as you can, because you cannot predict in advance anything before you find the evidence and see, for example, the police reports, the DMV reports, the calibration records, the maintenance records, the usage logs for the machine, for example, unless you have all of that information and you know a lot about your client and his background, and who the prosecutor and judges are – there are so many variables that you cannot do that. Having said that, we are very successful obviously in what we do and our profession, we’re very good at getting charges reduced. And that depends essentially on two things: first, discovery and investigation. You’ve got to put a lot of time in and find the records. The DA’s not going to turn them over to you. You’ve gotta get a court order in most cases. You’ve got to get the blood from their lab and take it to your independent lab and have it reanalyzed. You need the calibration records, the maintenance records, the usage logs, as I indicated, and the video tapes possibly from the security camera in the jail cell area. These can be very useful to show whether you are staggering and having difficulty with balance, speech is slurred. These kinds of things. So you have to do your background. You may want to go back over where the field sobriety tests was administered. Is there video tape? The course where the officer was following you in the car. There are a lot of things that you need to do.

 

The second part – the variable that permits you to get a good plea bargain or not is simply your own credibility as an attorney, your own experience, in the eyes of the judge and, most importantly, in the eyes of the DA. Does this DA have respect for you? If he doesn’t and he knows you’re never going to try a case, you don’t know what you’re doing, you’re brand new, or you simply aren’t going to do the work necessary. He’s not worried about you. He knows you’re going to plead guilty, and he’s not going to deal with you. If on the other hand, he knows you’re with a firm that’s specialized and that has a reputation for going to trial when necessary and does the work, and is expert in these areas, he knows who you are. I mean I used to be a DA. I know how that game is played, and you assess not just the facts, you assess the attorney that you’re going to be facing in trial if it comes to that. And that is most definitely a factor in your decision on how to resolve that case.

 

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