Strategies in Defending DWI and DUI Cases

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Strategies in Defending DWI and DUI Cases Powered By Docstoc
					                      TABLE OF CONTENTS



I. MOTIONS IN LIMINE


     A. EXCLUDE P.A.S. TEST RESULTS:

       1)    P.C. §1538.5 Motion to Exclude PAS Test Result Because Consent (if
             any) to Said Search Was Expressly Limited to Assisting in determining
             Whether the Driver Was under the Influence: There was no knowing and
             voluntary Consent to a Search for the amount of alcohol in Defendant’s
             blood.

       2)    Foundational Motion to Exclude PAS Results Absent Sufficient Proof of
             Proper Procedures, Accuracy, and Reliability. (Evid.C. § 403).

       3)    Secondary Evidence and Hearsay: the PAS Test Results Were Not
             Printed Out: Exclusion Required Under E.C. §§1522 & 1523.

       4)    Motion to Exclude PAS Test Results Due to Violation of Due Process [No
             Waiver or Right to Preserve Evidence].
B.   OTHER CREATIVE MOTIONS


     1)    Exclude Heresay Evidence of the Amount of Preservative and Anti-
           Coagulant in the Vial Due to Right of Confrontation (6th Am.) and
           Request That the Court Exclude Blood Test Results Because No
           Foundation That Test is Accurate

     2)    Exclude Evidence Of “Tolerance”

     3)    Motion in Limine to Exclude Offering the PAS Test (the Officer Told
           Defendant He Had the Right to Refuse the Test)

     4)    Exclude Trombetta Evidence (Offering Blood Test if Breath Taken)

     5)    Eliminate Prosecutorial Misconduct (No Vouching, Arguing Outside
           Record Facts, No Appeals to Public Safety, Etc.)

     6)    Exclude Prosecution Questioning or Argument Re “Alibi”

     7)    Cannot lower Burden of Proof by Comparing it to “Getting Married,” etc.

     8)    Admit “Partition Ratio Evidence” in Breath Case on V.C. 23152(a)
           Charge

     9)    If No Choice of Test, Exclude Cop’s Chosen Chemical Test Because
           “Unreasonable” Under 4th Amendment [Violates Statutory Right of
           Choice of Test]

     10)   Motion to Admit Polygraph Evidence to Rebut Prosecution Efforts to
           Characterize Defendant as Mendacious
II. JURY INSTRUCTIONS



     A. POINTS AND AUTHORITIES

       1.    Points and Authorities Special Jury Instructions

       2.    The Jury Must “Disregard The Chemical Test” If Foundational Facts
             Not Proved Beyond A Reasonable Doubt [Williams, Evid.C. §403(c)]



     B. SPECIAL INSTRUCTIONS

       1.    People Must Prove the Preliminary Facts of Foundation or Jury Must
             Disregard The Chemical Test Results (See Memo of Points and
             Authorities above – procedures followed, cop trained, etc.)

       2.    “Permissive Inferences” (Presumptions) Cannot Be Given under Cal.
             Crim. 2110 and 2111 if There Is Evidence to Support the Driver was Less
             Than .08%

       3.    “Under the Influence” is defined as Driving Ability Impaired to an
             Appreciable Degree

       4.    Viewing Less Satisfactory Evidence with Distrust

       5.    Title 17: continuous Observation Period

       6.    Regulations of Title 17 for Breath Testing, Including Training

       7.    Training of Operator

       8.    Standards Re Breath Testing per Title 17

       9.    Periodic Accuracy Standards and Required Training of an Operator

       10.   Labs Must Keep Training Records
     11.    Choice of Tests

     12.    Character Evidence

     13.    A PAS Test is a Field Sobriety Test and Is Not as Reliable as the
            Chemical Test to Determine the Alcohol Content of Blood

     14.    Factors Re Credibility of Police Officers

     15.    Mistake of Fact

     16.    Failure to Give Trombetta Affects Credibility




C.   REFUSAL INSTRUCTIONS - See Memo: The Court Cannot Give CALJIC
     16.i834 (Refusal Is “Consciousness of Guilt”) Because the State Canno9t Punish
     a Person That Does Not Consent to a Police Requested Search for the Amount of
     Alcohol in His/Her Blood. Further, the Defendant Has a Privilege to Be Free
     from Comment upon Assertion of a Constitutional Right (4th and 5th Amendments
     and Due Process)

     1.     Four Elements of Willful Refusal

     2.     State of Mind Other than Consciousness of Guilt

     3.     Police Must Advise Refusal Used in Court

     4.     Blood Sample Can Be Taken by Police Without Defendant’s Consent

     5.     V.C. §13384 and 23612 Allows for Urine Test

     6.     Willingness to Take Urine is Not a Refusal
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                     I. A. 1
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant ____________________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                              FOR THE COUNTY OF LOS ANGELES
10                               (Southwest District – Torrance Courthouse)
11   THE PEOPLE OF THE STATE OF                              )   Case No.: _____________
     CALIFORNIA,                                             )
12                                                           )   MOTION PER P.C. §1538.5 TO EXCLUDE
                            Plaintiff,                       )   PAS TEST RESULT BECAUSE CONSENT, IF
13                                                           )   ANY, TO SAID WARRANTLESS SEARCH
            v.                                               )   WAS EXPRESSLY LIMITED TO HELPING
14                                                           )   THE OFFICER DETERMINE WHETHER THE
                                                             )   DRIVER WAS UNDER THE INFLUENCE;
15   _____________________,                                  )   THERE WAS NO CONSENT TO A SEARCH
                                                             )   FOR B.A.C. (SEE E.C. §403)
16                          Defendant.                       )
                                                             )   Date: February 22, 2008
17                                                               Time: 8:30 a.m.
                                                                 Dept: 6
18
19   TO THE COURT:
20                                                      I.
21                             STATEMENT OF THE CASE AND FACTS
22          The defense has no objection to the preliminary alcohol screening test used for its
23   intended purpose, i.e., to determine the presence of alcohol as opposed to B.A.C. The
24   prosecution has blood test results in this case.
25          The PAS test results are the poisonous fruit of a warrantless search of the defendant’s
26   body for the amount of alcohol in the defendant’s blood. The warrantless search cannot be
27   justified by an exception, e.g., “implied consent,” “under arrest,” “emergency,” etc. The
28   warrantless search for the amount of alcohol in defendant’s blood was without a knowing and

                                                        1
                      MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   voluntary consent, and violates the Fourth and Fourteenth Amendments to the United States
 2   Constitution. Further, the warrantless search violates defendant’s RIGHT TO PRIVACY, right
 3   to COUNSEL, and RIGHT TO A FAIR TRIAL.
 4          On August 31, 2007 at approximately 1:41 a.m., the arresting officer contends he
 5   observed the driver make an illegal u-turn in the 16900 Normandy block southbound. He
 6   followed the driver and claims that she almost hit the right curb. Thereafter, he followed her for
 7   approximately one mile without any further alleged violations and without attempting to stop
 8   the driver. The driver lawfully made a right turn onto Redondo Beach Blvd. and thereafter
 9   turned left onto Budlong and turned into a parking lot located at 1250 Redondo Beach Blvd.
10   She parked her car. She exited her car and walked to Kragen Auto Parts. The officer then
11   detained her (the Gardena officer characterizes it as he “conducted a traffic stop of the vehicle
12   and contacted Choi” (Arrest Report, p. 2). Since the driver was Korean, he asked for backup
13   officers that spoke Korean. At approximately 2:02 a.m., 21 minutes after the detention, an
14   interview was conducted of the driver. A PAS test was administered by M. Sargent at
15   approximately 2:31 and 2:32 (50 minutes post-driving) with results of .14%, .14%. A PAS test
16   can be used “in order to establish reasonable cause to believe . . .” the person was d.u.i.
17   (reasonable cause is not a jury issue). The driver was arrested; she cooperated with the officer’s
18   request and submitted to a blood test at approximately 2:55. The prosecution has blood test
19   results of .13%.1/
20          Regarding advising a subject of a PAS test, many cops say: “Blow into this or you’re
21   going to jail” or similar words of coercion. Sometimes officers actually advise the driver about
22   the “preliminary alcohol screen information” as per V.C. 23612(i):
23                  “P.A.S. Admonition: I am requesting that you take a preliminary alcohol
                    screening test to further assist me in determining whether you are under
24                  the influence of alcohol. You may refuse to take this test; however, this is
                    not an implied consent test and if arrested, you will be required to give
25                  a sample of your blood, breath or urine for the purpose of determining
                    the actual alcoholic and drug content of your blood.”
26
27   1/
         This is not a case where the defendant refused a test. Parenthetically, based on the defendant’s
28   drinking pattern, Ms. Choi was in the absorptive phase from 1:30 to 2:30. She reached her peak
     BAC at around 2:30 (.14%) and metabolized .01% from 2:30 to 2:55.
                                                          2
                      MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1
              In either event this citizen was never informed that the PAS test result would be used
 2
     by the police to determine his B.A.C. The warrantless search of the Defendant’s body and the
 3
     seizure of his breath by way of a PAS test to determine the amount of alcohol in his blood
 4
     was secured without a “knowing and voluntary consent” that the police would use the P.A.S.
 5
     results to determine B.A.C. Consent to a search by way of a P.A.S. test is not “implied.”
 6
     Consent, if any, to the PAS test was EXPRESSLY LIMITED to “assist” the officer “in
 7
     determining” if there was sufficient probable cause to arrest for d.u.i., a non-jury issue.
 8
              The United States Supreme Court has held that “the general rule that a Non-Consentual
 9
     Search Is Unconstitutional If Not Authorized by a Valid Warrant” (see point III, p. 5
10
     below), holding that a person cannot legally give consent unless he is fully informed about
11
     his/her Constitutional Rights as standards of ‘knowing waiver’ require (see point IV, p. 6).
12
     “Full information” was not provided to this citizen, i.e., that the P.A.S. test results could be
13
     used as a measurement of her B.A.C. In fact, the police advised about implied consent at the
14
     time of the search which reasonably led the 1) to believe the PAS test would not be used to
15
     determine her BAC, stating “your obligation to submit to . . . ‘a chemical test (implied consent)
16
     to determine’ the alcohol . . . content of your blood is not satisfied by submitting to a
17
     preliminary alcohol screening test.”
18
                                                     II.
19
                   THE UNCONTROVERTED LEGAL PRINCIPLES TO BE APPLIED
20
              The Fourth Amendment to the United States Constitution states that “The right of the
21
     people to be secure in their persons, houses, papers and effects, against unreasonable searches
22
     and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
23
     supported by Oath or affirmation, and particularly describing the place to be searched, and the
24
     persons or things to be seized.” This is the cornerstone of any inquiry regarding governmental
25
     acquisition of evidence from the accused. To determine this matter, certain immutable principles
26
     apply.
27
              1.     “For the Fourth Amendment protects people, not places. ...what he seeks to
28
                                                      3
                       MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   preserve as private, even in an area accessible to the public, may be constitutionally protected.”
 2   (Katz v. United States 389 U.S. 347, 351-352 (1967) [ internal citations omitted].)
 3          2.      “ . . . searches conducted outside the judicial process, without prior approval by
 4   judge or magistrate, are per se unreasonable under the Fourth Amendment --subject only to a
 5   few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S.
 6   347, 357 fns. omitted (1967).)
 7          3.      A Chemical Test Is a Search Under the Fourth Amendment. The Court stated “it
 8   is well settled that the taking of a person’s blood, breath or urine is a search and seizure within
 9   the meaning of the Fourth Amendment to the U.S. and California Constitutions citing
10   Schmerber v. California (1966) 384 U.S. 757 at 767.” The “implied consent” law of V.C.
11   23612(a) is an exception to the Fourth Amendment. “It is not disputed that the administration
12   of a breath test is a search within the meaning of the Fourth Amendment and therefore subject
13   to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of
14   Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)
15          4.      “To pass constitutional muster under the Fourth Amendment a search must be
16   reasonable. Generally, a search must also be supported by probable cause, and must be backed
17   up by a warrant, or the circumstances must fit an exception to the warrant requirement.”
18   (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
19          5.      “In considering [warrant requirement exceptions], we must not lose sight of the
20   Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his
21   opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct.
22   524, 535, 29 L.Ed. 746:
23                  ‘It may be that it is the obnoxious thing in its mildest and least
                    repulsive form; but illegitimate and unconstitutional practices get
24                  their first footing in that way, namely, by silent approaches and
                    slight deviations from legal modes of procedure. This can only be
25                  obviated by adhering to the rule that constitutional provisions for
                    the security of person and property should be liberally construed.
26                  A close and literal construction deprives them of half their
                    efficacy, and leads to gradual depreciation of the right, as if it
27                  consisted more in sound than in substance. It is the duty of courts
                    to be watchful for the constitutional rights of the citizen, and
28                  against any stealthy encroachments thereon.’” (Coolidge v. New
                                                      4
                      MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1                   Hampshire 403 U.S. 443, 453-454 (1971) reh. den’d [footnote
                     omitted, emphasis added].)
 2
             6.      The California legislature has enacted a statutory scheme re driving under the
 3
     influence and chemical testing for blood alcohol content. The legislature passed “implied
 4
     consent” (a legal fiction) in order to be able to lawfully secure the best evidence of blood
 5
     alcohol content. In balancing the rights of individuals to be free of government searches versus
 6
     society’s right to be protected against drunk driving, the legislature determined that “consent” to
 7
     a chemical test can be implied only of persons that drive and are arrested for d.u.i. There is no
 8
     implied consent to take a PAS test. Vehicle Code §23612 (a)(1)(A) provides that “any person
 9
     who drives a motor vehicle is deemed to have given his or her consent to chemical testing of
10
     his or her blood or breath for the purpose of determining the alcohol content of his or her
11
     blood if lawfully arrested . . .” V.C. §23612 (a)(1)(C) provides in essence that “the testing
12
     shall be incidental to a lawful arrest” . . . for d.u.i. V.C. §23612(a)(1)(A) and V.C.
13
     23612(a)(1)(C) does not apply to the P.A.S. test because the defendant was not lawfully
14
     arrested when the police searched defendant.
15
             7.      No choice was offered by the cop er the P.A.S. test. V.C. §23612(2)(A) provides
16
     that “if the person is lawfully arrested for driving under the influence of an alcohol beverage,
17
     the person has the choice of whether the test shall be of his or her blood or breath and the
18
     officer shall advise the person that he or she has that choice...”
19
             There was no knowing and voluntary consent by this defendant to the requested search
20
     of defendant’s body by the police for the amount of alcohol in the citizen’s blood.
21
             When there is a lawful arrest for d.u.i., the legislative requirement to submit to a chemical
22
     test is triggered, and there are lawful sanctions (e.g. losing a license, jail, etc.). The police are
23
     limited by law to the legislative exception to the Fourth Amendment per the Vehicle Code, i.e., if
24
     lawfully arrested, consent to the test is implied.
25
                                                       III.
26
                  THE U.S. SUPREME COURT HAS HELD: “THE GENERAL RULE
27
                  THAT A NON-CONSENTUAL SEARCH IS UNCONSTITUTIONAL
28
                                                        5
                       MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1                          IF NOT AUTHORIZED BY A VALID WARRANT”
 2          In Ferguson v. Charleston (2001) 121 S.Ct. 1281 the court reviewed whether a state
 3   hospital’s performance of a diagnostic test to obtain evidence of a patient’s possible criminal
 4   conduct for law enforcement purposes constituted an unreasonable search if the patient did not
 5   knowingly and voluntarily consent to the procedure. Under the facts of Ferguson, patients
 6   provided urine tests to a state hospital which used drug screens on the samples under the
 7   procedures implemented by the hospital and the police. Arguably, the patient was on notice
 8   that the hospital would be using the urine test to determine drug use and would thereafter submit
 9   positive results to the police for prosecution. The ultimate goal of the program was laudable:
10   the “immediate objective of the searches was to generate evidence for law enforcement
11   purposes in order to reach that goal.” (Ferguson v. Charleston, id.) The Court held that Fourth
12   Amendment’s general prohibition against non-consentual, warrantless searches” applied
13   (Ferguson, i.d.).
14          In Ferguson, the prosecution argued the evidence of drug use was admissible because the
15   search was not done by the police. In our case, the search of defendant’s body for evidence of
16   his blood alcohol content by the PAS device was done directly by the police. Therefore, this is a
17   stronger case for application of the Fourth Amendment’s prohibition against warrantless
18   searches.
19                                                   IV.
20                       THE U.S. SUPREME COURT RULED THAT A PERSON
21                  CANNOT LEGALLY GIVE CONSENT UNLESS THEY ARE
22               FULLY INFORMED ABOUT THEIR CONSTITUTIONAL RIGHTS
23                       AS STANDARDS OF “KNOWING WAIVER” REQUIRE
24          When citizens undertake to obtain such evidence for the specific purpose of
25   incriminating those patients, they have a special obligation to make sure that the patients are
26   fully informed about their constitutional rights, as standards of knowing waiver require,
27   c.f. Miranda v. Arizona, 384 U.S. 436 (1966).” (Emp. added) Ferguson, id. at 2842. All the
28   more does this requirement of a “knowing waiver” apply when the police obtain the evidence.
                                                      6
                         MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   Given the misleading advice (not the test for B.A.C.), the prosecution cannot argue in this case
 2   that there was a “knowing waiver” to the search.
 3                                                    V.
 4                      THE PROSECUTION HAS THE BURDEN OF PROOF
 5                                   ON THE ISSUE OF CONSENT
 6          The United States Supreme Court held in Bumper v. North Carolina (1968) 391 U.S.
 7   543, 88 SC 1788, 20 LE2, 797 (68), that the government has the burden of proving consent
 8   “was, in fact, freely and voluntarily given.” If not, the evidence will be suppressed as the result
 9   of an illegal search and seizure. In People v. Shandloff (1985) 170 Cal.App.3D 372, 215 CR
10   916, the court held that the people’s burden is to prove that the consent was the product of free
11   will and not a mere submission to an express or implied assertion of authority.
12                                                   VI.
13            IF THE LANGUAGE OF THE COP THAT SECURED CONSENT FOR
14               THE SEARCH WAS GIVEN, THE P.A.S. TEST WAS TO ASSIST
15               A DETERMINATION OF WHETHER THERE WAS “PROBABLE
16                    CAUSE” TO BELIEVE THE DRIVER WAS UNDER THE
17             INFLUENCE; THERE WAS NO CONSENT TO DETERMINE B.A.C.
18          The admonition of V.C. 23612 if given by the police officer clearly informed the driver
19   that the purpose of the test was only for establishing reasonable cause to arrest for driving under
20   the influence, i.e., V.C. § 23152(a). The driver was told that, if arrested, he or she would then
21   have to submit to the implied consent test to determine the alcohol content of his or her blood.
22   The cop advised the defendant that the chemical test for blood alcohol is different than the PAS
23   test and you will have to take a test to determine B.A.C. if arrested.
24          The content of the admonition defines the extent of the consent that was obtained.
25   The defendant consented to the PAS, if at all, only for the purpose of allowing the officer to use
26   the test to assist him in determining whether the driver was under the influence. The driver
27   consented to nothing more; there was only a limited consent to the search of his body; and there
28   was no consent to use the results of the search to determine blood alcohol content.
                                                      7
                      MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   ///
 2   ///
 3
 4                                                   VII.
 5                   THE SEARCH IS LIMITED BY THE EXPRESS TERMS OF
 6                         THE CONSENT AND CANNOT BE EXPANDED
 7          In People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 89 CR 316, the police
 8   asked the defendant if they could enter the house to search for a suspect seen to enter with a
 9   crowbar. Defendant said that there were persons in the house and that the officers could enter.
10   The consent was implicitly limited to look for a suspect. The police entered and found a crowbar
11   in the closet. The 1538.5 Suppression ruling was affirmed on appeal because the police conduct
12   exceeded the limited expressed consent requested. The same rule applies to the purpose of the
13   PAS test. The consent is limited to the express purpose of helping the officer determine whether
14   the driver is under the influence and expressly is not to determine B.A.C.
15          In People v. Timms (1986) 179 Cal.App.3d 86, 224 Cal. Rptr. 434, the defendant made a
16   homicide call to the police and told the officers that intruders shot the victim. The police
17   searched for suspects. The premises were secured. At the police station, the defendant said the
18   gun was in the closet. A 38 was found in a jacket in the closet. The court held that the
19   defendant’s non-objection to the search is not consent. Citing Arketa, supra, 10 Cal.App. 3d
20   122.
21          Another limited consent case analogous to the PAS test scope of consent issue is People v.
22   Superior Court (Kenner) (1977) 73 Cal.App. 3d 65, 139 CR 343, in which consent was given the
23   police to enter the home to “talk” to Kenner. Even though there was a consent to enter, the
24   limited consent for purposes of having a “talk” did not permit the immediate arrest of Kenner
25   without an arrest warrant. The 1538.5 Suppression was affirmed.
26          To the same force and effect is In re Johnny V., (1978) 85 Cal.App. 3d 120, 149 CR 180,
27   in which the police made an arrest after consent was given for the limited purpose of entering the
28   premises to “talk.” The police found blood stained shoes. A 1538.5 Denial was reversed by the
                                                      8
                      MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   Court of Appeal.
 2                                                                              VIII.
 3                                                                     CONCLUSION
 4               The police, armed and in uniform, searched evidence of the crime of d.u.i. Prior to an
 5   arrest, and without the benefit of “consent” implied by law, they searched for the amount of
 6   alcohol in the defendant’s blood by way of a PAS test. The cops later got a blood test with .09%
 7   results. Ordinarily, to justify a search the police must have a warrant. There The prosecution
 8   has the burden to justify the warrantless search. is no exception for the warrantless search by
 9   way of a P.A.S. test in this case, e.g., no arrest, no emergency, no “implied consent,” etc. The
10   police did not advise the citizen of the scope of the search. In fact, the cops misled the citizen
11   (e.g., this is “not a test to determine your blood alcohol content”). The defendant did not
12   “knowingly” and voluntarily consent to the search of his body by way of a PAS test to
13   determine the amount
14   of alcohol in his blood. The PAS test result must be suppressed. This Court has a duty to
15   enforce the Constitution.
16   Dated: December 14, 2007                                                Respectfully submitted,
17
18
19
20                                                                           _______________________________________
                                                                             JON BRYANT ARTZ, Attorney for Defendant
21
     C:\Data\0Seminar SF 0309\IA1 motion per pc 1538 to exclude PAS test results.wpd
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                                                                                   9
                                MOTION PER P.C. 1538.5 TO EXCLUDE P.A.S. TEST RESULT
 1   JON BRYANT ARTZ, ESQ., SBN 52187                                              I. A. 2
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1506
 3
     Telephone: (310) 820-1315
 4   Facsimile: (310) 820-1691
 5   Attorney for Defendant _____________
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                                    COUNTY OF LOS ANGELES
10
11   PEOPLE OF THE STATE OF CALIFORNIA, )                     Case No.:
                                        )
12                         Plaintiff,   )                     POINTS AND AUTHORITIES TO
                                        )                     EXCLUDE PAS TEST FOR
13               v.                     )                     PURPOSES OF BLOOD ALCOHOL
                                        )                     CONTENT (B.A.C.)
14                                      )                     [NO FOUNDATION THAT THIS TEST IS
     _____________,                     )                     RELIABLE]
15                                      )
                           Defendant.   )                     Date:
16                                      )                     Time:
                                        )                     Dept.:
17
18   TO THE COURT:
19                                                    I.
20                         THE PAS TEST RESULT IS NOT ADMISSIBLE
21                            IF THE PROPONENT DOES NOT PROVE
22                EITHER COMPLIANCE WITH TITLE 17 OR A FOUNDATION,
23                    i.e. THAT THE TEST WAS ACCURATE AND RELIABLE
24          The issue is whether the proponent of the evidence can demonstrate a foundation for the
25   chemical test results, i.e., the accuracy and reliability of the PAS result for blood alcohol
26   content. If the People cannot demonstrate that the result is accurate and reliable, e.g. if proper
27   procedures were not followed, the test result is not relevant. The defense has no objection to
28   the PAS test used for its intended purpose, i.e. the presence of alcohol. If not relevant, it is not
                                                  1
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   admissible. See People v. Williams (2002) 28 Cal.4th 408. Also, the trial judge has a duty
 2   (“special obligation”) under Kumho Tire Company v. Carmichael (1999) 526 U.S. 137 to ensure
 3   that all scientific testimony is not only relevant, but reliable.
 4                                                     II.
 5                          THE WILLIAMS’ DECISION REQUIRES THAT
 6          THE PROSECUTION DEMONSTRATE THAT THE TEST IS RELIABLE,
 7                   AND THEREFORE RELEVANT, AND THUS ADMISSIBLE.
 8           A PAS machine used in the field (as opposed to the breath test analyzed by a licensed
 9   and regulated instrument maintained by a licensed crime lab under directions and procedures
10   approved by the Department of Health) does not have a slope detector, one of the safeguards to
11   guard against mouth alcohol, contamination, and false high test results.
12           So, contrary to the evidence in Williams, supra, in which the court found the test was
13   reliable, the evidence in this case may be that the test was not properly administered and the
14   personnel involved in the test were not qualified and/or competent. (Who knows, without
15   compliance to discovery, whether the prosecution can meet the third element of Adams and
16   demonstrate that the breath testing device was in proper working order and operating
17   accurately at the time.)
18           The duty of the prosecution is to demonstrate that “all three foundational elements
19   must be established for the evidence to be admissible; the chain is no stronger than its
20   weakest link.” People v. Williams, 28 Cal.4th 408 at 417 fn.5. Those three requirements are
21   the formulated rules “by which the reliability and thus the relevance of scientific evidence is
22   determined” People v. Williams, 28 Cal.4th 408 at 414. The prosecution must “demonstrate
23   that correct scientific procedures were used in a particular case.” People v. Williams, Id.
24   Admissibility depends on the reliability and the consequent relevance of the evidence.
25           The Williams court noted that compliance with Title 17 demonstrates a standard of
26   competency and sufficient compliance with the regulations. If there is non-compliance with
27   Title 17 (as in this case), the prosecution can obtain admission of the breath test results but it
28   “then must qualify the personnel involved in the test, the accuracy of the equipment used,
                                                   2
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   and the reliability of the method followed before the results can be admitted.” People v.
 2   Williams, id. at 416. As noted by the California Supreme Court and as the facts per Adams, 59
 3   C.A.3d 559, the test results were admitted in Adams because they were reliable (they met the
 4   foundational requirements not withstanding noncompliance with one technical regulation). In
 5   Adams, there was no question raised as to accuracy and reliability, and “noncompliance (a
 6   minor violation of Title 17) goes merely to the weight of the evidence.” People v. Williams,
 7   supra at 416. The Williams court found it significant that in Adams the defendants did not
 8   “attempt any showing that the noncompliance affected the test results in any way, let alone
 9   rendered the results inaccurate.” People v. Williams, supra, at 417. The Williams court agreed
10   with the holding of Adams that breath test results are admissible upon either a showing of
11   compliance with Title 17 or the foundational elements of: 1) properly functioning equipment;
12   2) a properly administered test; and 3) a qualified operator. All three elements must be
13   proved.
14          In Williams, the court found that the machine always performed within the acceptable
15   range and any variance was to the benefit of the defendant. The court found that there was a
16   record of reliability that the trial court could have utilized. However, without proof of the three
17   elements, there can be false high results (differing from the facts of Williams).
18          The California Supreme Court concluded with the statement that it shared the Court of
19   Appeals “concern that laxity in complying with the regulations may undermine the reliability
20   of the test.”....Furthermore, compliance (with the regulations) will insure that the tests retain
21   their reliability, and their relevance and admissibility...” People v. Williams, supra, at 418.
22                                                    III.
23             THE TESTING OF BREATH SAMPLES FOR B.A.C. MUST COMPLY
24                 WITH STATUTES AND REGULATIONS WHICH MANDATE
25        THE PROCEDURES TO BE USED BY LAW ENFORCEMENT IN ORDER TO
26     ESTABLISH A FOUNDATION FOR THE TEST’S ACCURACY AND RELIABILITY
27          Health & Safety Code §100715 reads:
28                  “The testing of breath samples by or for law enforcement
                                                  3
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1                  agencies for purposes of determining the concentration of ethyl
 2                  alcohol in the blood of persons involved in traffic accidents or in
 3                  traffic violations shall be performed in accordance with
 4                  regulations adopted by the department.
 5                  “The regulations shall establish the procedure to be used by law
 6                  enforcement agencies in administering breath tests for the
 7                  purpose of determining the concentration of ethyl alcohol in a
 8                  person’s blood. . . .”
 9          Health & Safety Code §100720 reads in part:
10                  “Each laboratory in the state that performs the test referred to in
11                  sections 100710 and 100715, shall be licensed by the director.”
12          The regulations are the detailed standards for the licensing and operation of forensic
13   alcohol laboratories, the training of personnel, the collection and analysis of samples in general,
14   and for breath testing, and the manner of expressing results (Title 17, §§1215-1220.4).
15          “The foregoing regulations establish a standard for the competency of the results of
16   blood alcohol tests (People v. Adams, [1976] 59 Cal.App.3d [559,] 567.) Compliance with the
17   regulations establishes both a foundation for admission of test results into evidence in any
18   proceeding and a basis for finding such results to be legally sufficient evidence to support the
19   requisite findings in such proceeding. (Ibid.)” (Davenport v. Department of Motor Vehicles
20   (1992) 6 Cal.App.4th 133, 141-142,)     All the more does this reasoning apply in this criminal
21   matter because Davenport was a civil matter involving a mere DMV license.
22          “An ‘official duty’ is imposed upon law enforcement agencies and their officers and
23   employees under section 100715 et seq of Health and Safety Code and regulations promulgated
24   thereunder to perform blood alcohol analyses by methods devised to assure reliability.
25   Section 100715 provides: ‘The testing of breath samples by or for law enforcement agencies for
26   purposes of determining the concentration of ethyl alcohol in the blood of persons involved in
27   traffic accidents or in traffic violations shall be performed in accordance with regulations
28   adopted by the State Department of Health Services. The rules and regulations shall establish
                                                 4
                     EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   the procedures to be used by law enforcement agencies in administering tests for the purposes
 2   of determining the concentrations of ethyl alcohol in a person’s blood. The “shall” wording of
 3   the statutes make clear that the procedures established by the rules are mandatory and that
 4   compliance constitutes a duty imposed upon the agencies and individual officers and civilian
 5   employees who administer, analyze, and report the test.” Pursuant to Health and Safety Code
 6   section 100715, supra., the Department of Health Services has promulgated Title 17.
 7                                                   IV.
 8                       THE POLICE DEPARTMENT IS NOT LICENSED
 9                          FOR PAS TESTING TO DETERMINE B.A.C.;
10                 IT DOES NOT FOLLOW THE REGULATIONS OF TITLE 17
11                    OR COMPLY WITH HEALTH & SAFETY CODE §100700
12          Per §100700 of H&S Code, “The Department (of Health) shall adopt and publish
13   regulations to be used in approving and governing the operation of laboratories engaged in the
14   performance of...” chemical tests for B.A.C. Under §100715, the Legislature has decreed that
15   “the testing of breath samples by or for law enforcement agencies for purposes of determining
16   the concentration of ethyl alcohol...shall be performed in accordance with regulations adopted
17   by the department. The regulations shall establish the procedures to be used by law enforcement
18   agencies in administering breath tests for the purposes of determining the concentration of ethyl
19   alcohol in a person’s blood.”
20          §100720 provides that “each laboratory in the state that performs the test referred to
21   above, shall be licensed by the director.” Thereafter, the statutory scheme of the Health and
22   Safety Code deals with licensing, fees, inspections by DOH, suspension of licence, etc.
23          The police agencies are not licensed to maintain and calibrate breath testing devices,
24   conduct training, or do periodic accuracy testing. Title 17, Section 1216(a) requires a
25   laboratory to be licensed. Section 1217.4 states that a “[l]icense issued under these regulations
26   shall not imply approval of anything carried out by a laboratory other than what is specified on
27   the document.”
28          The substance of all these regulation is that breath testing can only be conducted by or
                                                 5
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   under the direction of a laboratory licensed to use the particular breath testing machine used in
 2   the subject case. No Crime Laboratory is licensed to train on or use this machine. In letters
 3   from the Department of Health Services, the state agency in charge of breath testing stated that
 4   before a PAS device can be used for the purpose of determining a BAC, the laboratory must
 5   become licensed to use the device in a manner approved by the State. This has not been done
 6   by the police agency.
 7          §1221 provides “breath alcohol analysis shall be performed in accordance with
 8   standards set forth in this article.”
 9          Ҥ1221.1 Authorized Procedures (a) Breath alcohol analysis shall be performed only
10   with instruments and related accessories which meets the standards of performance set forth in
11   these regulations. (b) Such instruments may be used for the analysis of breath samples in places
12   other than licensed forensic alcohol laboratories and by persons other than forensic alcohol
13   supervisors, forensic alcohol analysts, and forensic alcohol analyst trainees only if such places
14   and persons are under the direct jurisdiction of a governmental agency or licensed forensic
15   alcohol laboratory.” Again, the PAS devices and the police operators are not under the direct
16   jurisdiction of a Crime Lab.
17                                                    V.
18    THE FAILURE OF THE POLICE DEPARTMENT TO BE LICENSED FOR BREATH
19          TESTING FOR B.A.C. BY THE PAS DEVICE AND/OR HAVE APPROVED
20   PROCEDURES FOR SOME MEANS THE PAS TEST RESULTS ARE INADMISSIBLE
21          In Coombs v. Pierce (1991), 1 Cal.App.4th 568, the court was faced with a similar
22   situation. The Kern County Criminalistics laboratory was not licensed to use the IR 3000, the
23   machine used to test the driver’s breath. In this case, the PAS machine is not approved or
24   licensed to test breath for blood alcohol content. At the hearing on the petition for a writ of
25   mandate in the Superior court, the respondent, the DMV, requested the court take judicial notice
26   the IR 3000 was on the list of conforming products contained in the Federal Register. The trial
27   court granted this motion and used the Federal Register as the basis for finding the test result was
28   reliable and non-compliance with licensing requirements went only to the weight and not
                                                  6
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   admissibility of the test result. The Appellate court reversed, finding that the court erred in
 2   taking judicial notice. The Appellate Court held “The court’s comments missed the mark not
 3   only because the evidence was inadmissible and lacked in probativeness: under these
 4   circumstances the failure of the Kern County laboratory to obtain licensure from the state for its
 5   Intoximeter 3000 did go to the issue of admissibility of the test result.” (Coombs v. Pierce,
 6   supra, at 580)
 7          The bottom line is that licensed laboratories must be utilized for breath testing
 8   devices as well as approved procedure by the Department of Health for breath testing. The
 9   police cannot use devices that do not comply with the regulations and that do not have the
10   minimum safeguards required by law. Williams did not address this issue. Coombs is
11   controlling.
12          The machine was not used in compliance with the regulations based solely on the
13   licensing issue. In addition, there is a failure to establish to follow approved procedures. The
14   evidence must be excluded because there can be no foundation.
15                                                   VI.
16                    THERE ARE MINIMUM STANDARDS OF PERFORMANCE
17                           AND PROCEDURE WHICH ARE NOT MET.
18          There is no compliance with §1215.1(b) in which there must be “trained laboratory
19   personnel to measure” alcohol concentrations in breath. The procedure is not licensed per
20   §1217 and there is no proof of passing the proficiency test of the Department of Health per
21   §1217.7. There is no proof of training program approval as required under §1218. There is no
22   proof of §1219 in which breath samples shall be collected and handled in a manner approved
23   by the Department. There is no proof under §1221.2(a)(1) that the instrument qualifies with the
24   standard of performance and/or proof that the machine is an approved instrument per
25   §1221.3(a). There is no proof of “written descriptions of procedures”as required per §1220.2
26   entitled Standards of Procedure. There is no compliance with §1220.2(a)(2) and §1220.2(a)(3).
27   There is no proof of compliance with the “quality control program” per §1220.3. There is no
28   compliance with §1222 et seq. regarding records.
                                                 7
                       EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1             Title 17 §1219.3, provides:
 2                    “A breath sample shall be expired breath which is essentially
 3                    alveolar in composition. The quantity of the breath sample shall be
 4                    established by direct volumetric measurement. The breath
 5                    sample shall be collected only after the subject has been under
 6                    continuous observation for at least fifteen minutes prior to
 7                    collection of the breath sample, during which time the subject must
 8                    not have ingested alcoholic beverages or other fluids, regurgitated,
 9                    vomited, eaten, or smoked.”
10             PAS devices do not have a reliable method of collecting a sample of alveolar sample
11   breath.
12             §1221.2 Standards of Performance. (a) Instruments for breath alcohol analysis shall
13   meet the following standards of performance:
14                        (1) The instrument and any related accessories shall be capable of the
15   collection and analysis of breath specimens which are essentially alveolar in composition;
16                        (2) The instrument shall be capable of analyzing a blank sample and of
17   analyzing a suitable reference sample, such as air equilibrated with a reference solution of
18   known alcohol content at a known temperature;
19                        (3) The instrument shall be capable of the analysis of a reference sample of
20   known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams %
21   of the true value.
22                        (4) The instrument shall be capable, in a controlled experiment, of breath
23   alcohol analysis which results in a determination of a subject’s blood alcohol concentration
24   which has correlation with his actual blood alcohol concentration as measured on a blood sample
25   taken at approximately the same time as the breath sample.
26                        (5) The instrument shall be capable of breath alcohol analysis which results
27   in a concentration less than 0.01 grams of alcohol per 100 milliliters of blood when alcohol-free
28   subjects are tested.
                                                    8
                       EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1          §1221.4 Standards of Procedure. (a) Procedures for breath alcohol analysis shall meet
 2   the following standards:
 3                      (1) For each person tested, breath alcohol analysis shall include analysis of
 4   two separate breath samples which result in determinations of blood alcohol concentrations
 5   which do not differ from each other by more than 0.02 grams per 100 milliliters;
 6                      (2) The accuracy of instruments shall be determined.
 7                                 (a) ... such determination of accuracy shall consist, at a minimum,
 8   of periodic analysis of a reference sample as described in §1221.2(a)(3) and which is provided
 9   by a forensic alcohol laboratory.
10                                 (b) Such analysis shall be performed by an operator as defined in
11   §1221.4 (a) (5), and the results shall be used by a forensic alcohol laboratory to determine if
12   the instrument continues to meet the standard of accuracy set forth in §1221.2 (a) (3).
13                                 (c) For the purposes of such determinations of accuracy,
14   “periodic” means either a period of time not exceeding 10 days or following the testing of
15   every 150 subjects, whichever comes sooner.
16                      (3) Breath alcohol analysis shall be performed only with instruments for
17   which the operators have received training, such training to include at minimum the
18   following schedule of subjects:
19                                 (a) Theory of operation;
20                                 (b) Detailed procedure of operation;
21                                 (c) Practical experience;
22                                 (d) Precautionary checklist;
23                                 (e) Written and/or practical examination.
24                      (4) Training in the procedures of breath alcohol analysis shall be under the
25   supervision of persons who qualify as forensic alcohol supervisors, forensic alcohol analysts
26   or forensic alcohol analyst trainees in a licensed forensic alcohol laboratory.
27                      (5) An operator shall be a forensic alcohol supervisor, forensic alcohol
28   analyst, forensic alcohol analyst trainee or a person who has completed successfully the training
                                                  9
                     EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   described under §1221.4 (a) (3)...
 2                      (6) Records shall be kept for each instrument to show the frequency of
 3   determination of accuracy and the identity of the person performing the determination of
 4   accuracy.
 5                                 (a) Records shall be kept for each instrument at a licensed forensic
 6   alcohol laboratory showing compliance with this Section.
 7          §1222.2 Breath Alcohol Analysis Records. (a) Each agency shall keep the following
 8   records for breath testing instruments...
 9                      (1) Records of instrument determinations of accuracy;
10                      (2) Records of analyses performed, results and identities of the persons
11   performing analyses;
12                      (3) At the location of each instrument, the precautionary checklist to be
13   used by operators of the instrument.
14                                                      VII.
15                              THE POLICE AGENCY WILL FAIL TO
16                                    ESTABLISH A FOUNDATION
17   A.     THE PROSECUTION MAY HAVE INSUFFICIENT EVIDENCE OF THE MACHINE’S PROPER
18   WORKING ORDER.
19          The prosecution must show that the breath machine is timely checked for accuracy and
20   such periodic accuracy checks are “to be performed by certain persons employed by a
21   forensic alcohol laboratory or by persons who have successfully completed training in using
22   the instrument being tested and who are called upon to use a breath testing instrument in the
23   performance of their duties” (Title 17, §1221.4(a)(2)(A), (a)(5). “Such training must include
24   instruction in the theory of the device’s operation, detailed procedure of operation, practical
25   experience, use of a precautionary checklist, and a written and/or practical examination.” (Id.
26   and 1221.4(a)(2) subds. (A)(3)(A), (B), (C), (D), (E).) The results of the periodic accuracy
27   checks are to be used by a forensic alcohol laboratory to determine if the instrument operates
28   as required by Title 17.” (Id. subd. (1)(2)(A).)
                                                  10
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1          In this case, the prosecution, at best, will have a police officer (not a qualified lab
 2   employee) attempt to lay a foundation regarding the accuracy of the machine. In addition to a
 3   lack of personal knowledge regarding the preparation of the calibration solution, the results of
 4   period accuracy checks are not forwarded or used by a forensic alcohol laboratory for
 5   determination of the device’s compliance with the Title 17’s accuracy standards as required by
 6   §1221.4 of Title 17. None of the accuracy tests were performed by employees of an alcohol
 7   forensic laboratory.
 8   B.     THE TEST WAS NOT ADMINISTERED PROPERLY.
 9          Title 17 requires a breath sample be “collected only after the subject has been under
10   continuous observation for at least 15 minutes prior to the test...” (Title 17 §1219.3).
11   Furthermore, “all results are to be expressed in terms of alcohol concentration in blood”
12   (Title 17, §1220.4(a)).
13          The officer may testify he believed the number provided by the PAS device was a
14   measurement of blood alcohol level, but that testimony will be insufficient to establish
15   whether the breath device in fact measured alcohol content in blood. Adams, supra, 59
16   Cal.App.3d at p. 561, reasoned that “Absent a controlling statute, the test results must be
17   interpreted at the trial by an expert witness...” A police officer is not qualified to interpret
18   the results as a measurement of alcohol content in defendant’s blood.
19   ///
20   C.     THE OPERATOR IS (MOST LIKELY) NOT COMPETENT AND QUALIFIED.
21          The training of a law enforcement officer for breath testing “must be under the
22   supervision of qualified forensic alcohol supervisors in a licensed forensic laboratory.” (Title
23   17, §1215.1.) There cannot be “proper training” when the training and operation and procedures
24   is from a police sergeant who is not a licensed forensic alcohol supervisor. Most likely, the
25   operator’s training “did not include instruction on the theory of the device’s operation or an
26   examination.” (Title 17, §1221.4, (a)(3)).
27                                                     VIII.
28               THE “PROPONENT” MUST ESTABLISH THE “PRELIMINARY
                                                  11
                     EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1                      FACT” THAT THE BREATH TEST RESULTS WERE
 2                       ACCURATE AND RELIABLE (Evidence Code §403)
 3          Under Evidence Code §403, the proponent must demonstrate a foundation that the
 4   breath test results are accurate and reliable prior to admitting the tests into evidence. The
 5   proponent has the burden of producing evidence as to the existence of the preliminary fact that
 6   the test results are accurate and reliable. Such proffered chemical test result is inadmissible
 7   unless there is sufficient evidence to demonstrate that the test was properly administered, the
 8   personnel involved in the test were qualified, and that the breath testing device was in proper
 9   working order and accurate. Evidence Code §405(a) requires the exclusion of “proffered
10   evidence” where there is no showing the “preliminary fact” which is a pre-requisite to its
11   admissibility.
12          In combination, §§401 through 405(a) of the Evidence Code is a legislative mandate of
13   the long-standing rule that evidence is inadmissible, notwithstanding its relevance, where its
14   authenticity requires a foundation which is not laid. Witkin, California Evidence (2d ed.
15   1966), §1083 [pages 1003-1004] and 1089 [pages 1009-1010]. The sum of the sections is an
16   exception “provided by statute” to the general rule of admissibility of relevant evidence. §351 of
17   the Evidence Code provides that all relevant evidence is admissible “except [where] otherwise
18   provided by statute”. If there is “proffered evidence” for which a foundation is required, but
19   not laid, it is inadmissible because it is “otherwise provided by statute” in §§401 and 405(a).
20   People v. Adams, supra.
21          As stated by Justice Jefferson, Evidence Benchbook, Second Edition, Volume I, Section
22   24.6 dealing with Evidence Code §403(c):
23                “For such test results to be relevant and admissible, ..., the
24                preliminary facts to make proffered evidence of the test result
25                relevant and admissible consists of properly functioning equipment,
26                properly administered tests, and qualified operator. People v.
27                Adams, supra, 59 Cal.App.3d 559 at 567.”
28          In People v. Kelley (1976) 17 Cal.3d 24, 30, the California Supreme Court stated that the
                                                  12
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   reliability of scientific evidence must be demonstrated by the proponent of the evidence, i.e., the
 2   proponent “must demonstrate that correct scientific procedures were used in a particular case”.
 3   The Court in Adams, supra, 59 Cal.App.3d 559, 567, stated that:
 4                “In accordance with prior case law, the validity of the test itself is to
 5                be determined in accordance with general scientific standards as to the
 6                foundational elements of properly functioning equipment, properly
 7                administered test, and qualified operator”. Adams, supra, 59
 8                Cal.App.3d 559, 567. (Emphasis added).
 9          “The passage of Proposition 8 (Cal. Const. Art. I § 28(d) did not abrogate generally
10   accepted rules by which the reliability and thus the relevance of scientific evidence is
11   determined. The reliability of scientific techniques is determined under the requirement of
12   Evidence Code section 350, that ‘[n]o evidence is admissible except relevant evidence,’ a
13   provision necessarily incorporate by reference into Evidence Code section 352, which is
14   expressly preserved by section 28(d). (Citation)” California Courtroom Evidence, Haight and
15   Cotchett 23-11.
16                                                     IX.
17              THE “SYSTEMATIC” FAILURE OF THE LAW ENFORCEMENT
18                            AGENCY TO ADVISE PER CVC §23157.5
19                REQUIRES THAT THE PAS TEST RESULT BE SUPPRESSED.
20          Every time in which a PAS is administered, the officer does not give the citizen an
21   opportunity to provide a contemporaneous fluid sample. V.C. §23157.5, based upon Due
22   Process of Law and Trombetta, requires the officer to advise the driver that the breath testing
23   equipment does not retain a retestable sample. The intent of the legislature was that a driver
24   who elects a breath test should have an opportunity to obtain a chemical test sample which he
25   or she can test independently of the law enforcement test. Such a blood or urine test sample
26   should be obtained contemporaneously or as close in time to the breath test as possible. In this
27   PAS test, this is not done. For this reason alone, the PAS test result cannot be used as the
28   equivalent of a chemical test for B.A.C. The defendant would be denied due process because he
                                                  13
                       EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   is not allowed to obtain a contemporaneous sample of a body fluid which he can have tested
 2   independently, a right he does have when the approved breath test is performed at the police
 3   station.
 4                                                        X.
 5              EVIDENCE OF A PAS TEST RESULT SHOULD BE EXCLUDED UNDER
 6                                           EVIDENCE CODE §352
 7              Evidence Code § 352 provides: The court in its discretion may exclude evidence if its
 8   probative value is substantially outweighed by the probability that its admission will (a)
 9   necessitate undue consumption of time or (b) create substantial danger of undue prejudice of
10   confusing the issues, or of misleading the jury.
11              The court should exclude evidence of the PAS B.A.C. under Evidence Code § 352 for the
12   following reasons:
13   A.         UNDUE CONSUMPTION OF TIME:
14              The production of PAS evidence will require an undue consumption of time. There are
15   many issues which will have to be brought out under cross-examination and by affirmative
16   evidence to show that the laboratory is not licensed, that proper procedures were not followed,
17   the machine is not specific for alcohol, not reliable, etc.
18              The issue of machine reliability is critical to the defense. The exclusion of partition ratio
19   evidence to explain the defense theory is a denial of the right to present evidence on a crucial
20   issue violates due process and the right to a fair trial.
21   B.         UNDUE PREJUDICE:
22              The values of the PAS test results are questionable at best given all the circumstances of
23   this case. However, it is highly likely that the jury will give undue weight to this evidence
24   notwithstanding the noncompliance with regulations, thus creating a substantial probability of
25   undue prejudice.
26   C.         CONFUSION OF THE ISSUES:.
27              Does the presumption contained in CVC §§ 23152(b) and 23155 apply to the PAS test?
28   The presumptions apply only to the “chemical test” which was administered post-arrest in
                                                     14
                         EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   compliance with the implied consent laws (and not to a “field sobriety test”). This position is
 2   supported by the terms of V.C. §23612(i) which requires the officer to advise the driver the PAS
 3   test does not satisfy the obligation to take a “chemical” test for “actual” B.A.C.
 4                                                      XI.
 5              IF THE TRIBUNAL ALLOWS THE PAS TEST TO BE ADMITTED,
 6               PARTITION RATIO (AND/OR ARTERIAL-VENOUS EVIDENCE)
 7                                            IS ADMISSIBLE
 8          If PAS B.A.C. is allowed, such evidence opens the door for partition ratio evidence, in
 9   order to show why the PAS machine reading can be higher than the defendant’s true B.A.C. at
10   the time of the PAS result. Partition ratio evidence in this case is relevant and necessary to show
11   the PAS test will overstate the driver’s BAC at the time of the test because it was administered
12   in the defendant’s absorptive phase. The defendant has a constitutional right to present his
13   defense. Breath testing devices test only arterial blood. Measuring alcohol in arterial blood
14   will produce a higher BAC than in venous blood unless it is established the driver’s arterial
15   and venous blood were in equilibrium at the time of the test. The defendant should be
16   allowed to present evidence of these facts.
17          Decisions regarding the admission of partition ratio evidence address that issue based on
18   the approved and licensed breath test administered pursuant to the implied consent law and
19   which conforms to the regulations and state law for breath testing. No case has ever addressed
20   the issue of the admissibility of partition ratio evidence as to a PAS test. Most likely this is
21   because most jurisdictions do not admit PAS evidence for alcohol concentration.
22          The rationale for the exclusion of partition ratio evidence applies only to the
23   evidential test and is based on the statutory construction of Veh. Code § 23152. That rationale
24   does not apply here. The only statutory reference to the PAS test is Veh. Code § 23162. This
25   section was enacted after the modification of section 23152 concerning the basis for the ruling re
26   ratio evidence. Had the legislature intended the PAS test result to be controlled by the same
27   admissibility standards they could have said so; they did not.
28                                                   XII.
                                                   15
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1               THE PAS TEST RESULT SHOULD BE EXCLUDED AS A DENIAL
 2                         OF DUE PROCESS AND EQUAL PROTECTION
 3          In Coniglio v. DMV, 39 Cal.App.4th 666 the court noted that protections of due process
 4   are triggered when the state acts to deprive a citizen of a predictable property right or to impose
 5   a criminal penalty. A person is afforded considerable protection when required to take an
 6   evidential chemical test because substantial compliance with Title 17 is and/or foundational
 7   requirements are required before a test result is admissible. To require less than this standard
 8   for the admissibility of a PAS test when the person agrees to take such a test for the purpose of
 9   assisting the officer is clearly a denial of due process.
10          The purpose of the licensing statutory scheme by the Department of Health is to put in
11   place a procedure whereby an independent State agency determines the laboratory has the
12   ability to properly administer, train and maintain procedures for breath testing. The
13   laboratory is not competent to pass on its own competency. The court should not allow the
14   admission of a PAS test result unless and until the laboratory which is charged with
15   administration, training and maintenance for the device has become licensed to do so. To allow
16   the PAS test result would subject the defendant to proof of a BAC by a device which has not
17   been proven reliable in the hands of a person not trained and certified by the D.O.H.
18                                                      XIII.
19                                             CONCLUSION
20          The PAS test was approved by the legislature only as a screening test for the presence of
21   alcohol as a field sobriety test to help the officer determine reasonable cause to arrest, not as an
22   accurate measurement of blood alcohol levels. In order to admit the results, the proponent must
23   demonstrate by expert testimony (not police officers) that the scientific community (e.g. crime
24   lab expert) opines that the results are accurate and reliable. The proponent must demonstrate by
25   a qualified expert that the particular apparatus was in proper working order, the test was
26   properly administered, and that the operator was competent and qualified. A failure to
27   establish a foundation of all three elements means there is a failure of accuracy and reliability
28   and the test results are inadmissible according to the California Supreme Court.
                                                   16
                      EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   Dated: February 22, 2010                                       Respectfully submitted,
 2
 3
                                                                    JON BRYANT ARTZ, Attorney for Defendant
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                                                              17
                          EXCLUDE PAS TEST FOR PURPOSES OF B.A.C.: NO FOUNDATION
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                    I. A. 3
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant [Defendant]
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                              FOR THE COUNTY OF LOS ANGELES
10
11   THE PEOPLE OF THE STATE OF                             )   Case No.:
     CALIFORNIA,                                            )
12                                                          )   OBJECTION TO PAS TEST RESULTS
                            Plaintiff,                      )   (SECONDARY EVIDENCE AND
13                                                          )   HEARSAY): THE PAS TEST
            v.                                              )   RESULTS WERE NOT PRINTED OUT
14                                                          )   AND TESTIMONY MUST BE
                                                            )   EXCLUDED UNDER E.C. §§1522 &
15   [DEFENDANT]                                            )   1523
                                                            )
16                          Defendant.                      )
                                                            )
17
18                                                     I.
19                                            INTRODUCTION
20          The PAS machine is capable of printing out the breath test results. The print out of the
21   results is a “writing” as per E.C. §250. Under E.C. §1520 “the content of a writing may be
22   proved by an otherwise admissible original.” The prosecution would have the officer testify to
23   breath test results without offering the original statement (print out) of said results.
24          E.C. §1521, entitled Secondary Evidence Rule, requires that the court exclude
25   “secondary evidence of the content of writing if the court determines: 1) a genuine dispute
26   exists concerning material terms of the writing and justice requires the exclusion or 2) admission
27   of the secondary evidence would be unfair. Under 1521(b) “nothing in this section makes
28   admissible oral testimony to prove the content of a writing if the testimony is inadmissible

                                                        1
       OBJECTION TO PAS TEST RESULTS UNDER GROUNDS OF BEST EVIDENCE RULE AND HEARSAY
 1   under §1523 (oral testimony of the content of a writing). As stated in the law revision
 2   commission comments, (b) explicitly establishes that §1523, not §1521, governs the
 3   admissibility of “oral testimony” to prove the content of a writing. Subdivision (c) makes clear
 4   that secondary evidence is admissible only if it is properly authenticated, i.e. the proponent must
 5   authenticate the original writing as well as establish that the proffered evidence is secondary
 6   evidence of the original.
 7          E.C. §1522, entitled “Additional Grounds for Exclusion of Secondary Evidence” states
 8   that in addition to the grounds for exclusion per 1521, in a criminal action the court shall
 9   exclude secondary evidence of the content of the writing if the court determines that the
10   original is in the proponent’s possession, custody, or control and the proponent has not made the
11   original reasonably available for inspection at or before trial. As stated in the law revision
12   commission comments, the concept is fluid. “For example, making the original available
13   moments before using secondary evidence may suffice if a defendant is rebutting a surprise
14   contention, but not if the prosecution is presenting its case in chief.”
15          §1523 entitled “Oral Testimony of the Content of a Writing; Admissibility” (a) states
16   “Except as otherwise provided by statute, oral testimony is not admissible to prove the
17   content of a writing.” (As noted in the law revision commission comments, “oral testimony of
18   the content of a writing is less reliable than other proof of the content of a writing.”
19          Proffering testimony about what the officer claims he saw instead of introducing the data
20   from the machine “is analogous to proffering testimony describing security camera footage of
21   an event to prove the facts of the event instead of introducing the footage itself.” See U.S. v.
22   Bennett, April 9, 2004, 2004 DJDAR 4449. As stated by the Bennett court, Id., “this is precisely
23   the kind of situation in which the best evidence rule applies. See e.g. L.A. News Service for
24   CBS Broad, Inc. 9th Circuit 2002 305 f3d 924 (“we think that Fox’ report of what he saw on the
25   label...was inadmissible under the best evidence rule”). The Bennett court also noted the fact
26   that the government did not offer any evidence that it would have been impossible or even
27   difficult to download or print out the data...” Printing out the data from the PAS machine was
28   possible.

                                                       2
       OBJECTION TO PAS TEST RESULTS UNDER GROUNDS OF BEST EVIDENCE RULE AND HEARSAY
 1              Additionally, the statement by the officer of the purported PAS test results is an out of
 2   court statement (not under oath) of a “statement” made by a machine, offered for its truth, i.e.
 3   classic hearsay upon hearsay.
 4                                                                             II.
 5                                                                  CONCLUSION
 6              For all the reasons stated above, the court should exclude the PAS test results.
 7   Dated: February 22, 2010                                              Respectfully submitted,
 8
 9                                                                         _______________________________________
                                                                           JON BRYANT ARTZ, Attorney for Defendant
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                                                                                3
        OBJECTION TO PAS TEST RESULTS UNDER GROUNDS OF BEST EVIDENCE RULE AND HEARSAY
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                     I. A. 4
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for ________________________
 5
 6
 7                      SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8                               FOR THE COUNTY OF LOS ANGELES
 9
10   THE PEOPLE OF THE STATE OF                             )   Case No.:
     CALIFORNIA,                                            )
11                                                          )   MOTION IN LIMINE TO EXCLUDE
                             Plaintiff,                     )   PAS TEST RESULTS DUE TO
12                                                          )   VIOLATION OF DUE PROCESS
                                                            )   [NO WAIVER OF RIGHT TO
13                                                          )   PRESERVE EVIDENCE]
             v.                                             )
14                                                          )   [TO BE HEARD IN CONJUNCTION WITH
                                                            )   1538.5 MOTION TO EXCLUDE PAS RESULT
15   _____________________,                                 )   BECAUSE NO “CONSENT” TO SEARCH FOR
                                                            )   B.A.C.]
16                           Defendant.                     )
                                                            )   Trial Date:   August 15, 2005
17                                                          )   Time:         9:00 a.m.
                                                                Dept.:        75
18
19   I.
20   INTRODUCTION
21           The defendant submitted to a search of his/her body by way of a PAS test at the request
22   of the officer prior to his/her arrest. The defendant did not knowingly and intelligently waive
23   his/her right to Due Process rights (includes right to collect evidence) due to the submission to a
24   P.A.S. test.
25           The process due this defendant, by the same enactment which granted the
26   liberty/property interest in the first instance, is that he/she had a right to choose a test to
27   determine the “alcoholic content of his blood...” [V.C. §§23612(a)(1)(A) and 23612(a)(2)(A)]
28   and, if the chemical test chosen was breath, to have the Due Process right to obtain a back-up

                                                        1
                     EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   test of blood or urine to protect the due process right of preservation of evidence. This statutory
 2   right, a choice of blood or breath, was never offered re the P.A.S. test as well as the due process
 3   requirement of the opportunity to preserve evidence.
 4          “The denial of an opportunity to procure one’s own evidence on a charge of
 5   intoxication prevents the accused from obtaining evidence necessary to his defense, and is a
 6   denial of due process of law.” Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 361
 7   [emphasis added); see also In re Newbern (1959) 175 Cal.App.2d 862, 864-865.
 8          The due process arguments are supported in People v. Superior Court (Scott) (1980) 112
 9   Cal.App.3d 602, 605; People v, O’Hearn (1983) 142 Cal.App.3d 566, 570-571; People v. Hitch
10   (1974) 12 Cal.3d 641, 652-653 (and its state due process dimension retained by Raven v.
11   Deukmejian (1990) 52 Cal.3d 336, 352-355); and, inter multa alia, People v. Johnson (1976) 62
12   Cal.App.3d Supp. 1, 10-11. Due Process was implicated by the officer’s purposeful non-
13   collection of necessary evidence, a “process” made “due” by statute.
14          The prosecution has the burden to demonstrate there was sufficient advice as well as a
15   knowing waiver of a citizen’s rights. In this case, there was no warning that the police would
16   use the P.A.S. test to determine B.A.C. There also was no advisement of the right to a choice of
17   test to determine B.A.C. [V.C. §23612(a)]. There was no advisement of the Due Process right of
18   a sample to preserve evidence of B.A.C. as required by Hitch and Trombetta.
19                                                      II.
20               THE OFFICER FAILED TO ADVISE THIS CITIZEN OF HIS/HER
21                        DUE PROCESS RIGHT TO COLLECT EVIDENCE
22          As our Supreme Court has noted, but in a different setting, “where the right to due
23   process has attached, we must inquire into what process is due...” People v. Hansel (1992) 1
24   Cal.4th 1211, 1219.1 The “process” “due” herein is that where a person is administered a breath
25   test, it is a mandatory “process” that he be advised that he has a right to a back-up test of blood
26   or urine because a breath test does not provide a retestable sample. This “right to evidence” is
27   based upon the Hitch decision and Due Process of Law. In People v. Hitch, (1974) 12 Cal.3d 641,
28
     1
         Credit is given to Captain Motion, a Deputy Public Defender in Riverside for Points II and III.
                                                         2
                     EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   the California Supreme Court held that since it was scientifically possible to capture a breath sample (by

 2   indium tubes) at the same time as the analysis of breath for blood alcohol content by the cops, which

 3   could later be re-tested by the defense, the failure to do so violated Due Process. The decision was

 4   disapproved by the U.S. Supreme Court. However, the highest court emphasized the due process

 5   concern of maintaining evidence and/or securing a knowing waiver of same, which led to the so called

 6   “Trombetta” advisement, one of the issues herein per V.C. §23614 and due process of law.

 7           Where a sample-testing legislative scheme has been established by state law in order to
 8   avoid due process concerns and the police fail to follow it, as occurred here, it is a violation of
 9   due process. People v. Superior Court (Scott) (1980) 112 Cal.App.3d 602, 605; see also People
10   v. O’Hearn (1983) 142 Cal.App.3d 566, 570-571 [dismissal appropriate where evidence
11   preservation scheme violated] and People v. Hitch (1974) 12 Cal.3d 641, 652-653. Where police
12   conduct prevents a defendant from obtaining his own chemical evidence (as manifestly occurred
13   here because no sample to be preserved offered), due process is violated, and exclusion of
14   evidence is the appropriate remedy. People v. Johnson (1976) 62 Cal.App.3d Supp. 1 10-11.
15   This is a simple California state due process motion to estop the government from proceeding
16   where the defendant’s rights have been violated. The People should not focus on federal due
17   process cases because California due process remains a viable and enforceable doctrine,
18   providing greater protection than federal due process. Raven v. Deukmejian (1990) 52 Cal.3d
19   336, 352-355. Hitch, of course, is a state due process case on that particular issue. See, e.g.,
20   Hitch at 653, fn. 7, citing In re Newbern (1959) 175 Cal.App.2d 862; then see Id. at 864-865.
21                                                       III.
22          THIS CITIZEN HAS A DUE PROCESS RIGHT TO COLLECT EVIDENCE
23                     OR BE PROPERLY ADVISED AND WAIVE SAID RIGHT
24           It is hornbook law that once government confers an interest on People to enjoy (whether
25   or not it had to confer that interest in the first instance), it cannot then pull back or restrict that
26   interest without providing due process. L.H. Tribe, American Constitutional Law 678- (2d ed.
27   1988). Conservative commentators also recognize the distinction between “Substantive due
28   process” (a contradiction in terms) and “Procedural due process” (a semantical redundancy), and

                                                          3
                      EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   they note that “due process” contemplates protections of granted liberty interests unless there are
 2   “procedures” in place for their deprivation which are followed. J.H. Ely, Democracy and
 3   Distrust; A Theory of Judicial Review 18-21 (1980) .
 4          It is well-established that the “due process” clause applies to the state’s infringement of
 5   licensed “privileges.” Bell v. Burson (1971) 402 U.S. 535, 539 (91 S.Ct. 1586, ---]; Mackey v.
 6   Montrym (1979) 443 U.S. 1, 10, fn. 7 [99 S.Ct. 2612, ---]; see also Barry v. Barchi (1979) 443,
 7   U.S. 55, 64 [99 S.Ct. 2642] 61 L.Ed.2d 365; see also Board of Education v. Loudermill (1985)
 8   470 U.S. 532, 541 [public employment protected by a “process” which is “due”], Goldberg v.
 9   Kelly (1970) 397 U.S254, 267 [welfare benefits protected by a “process” which is”due”] ; Perry
10   v. Sinderman (1972) 408 U.S. 593, 602 (junior college teaching contract non-renewal protected
11   by a “process” which is “due”]; Memphis Light and Gas v. Craft (1978) 436 U.S. 1, 9-12 [public
12   utilities customers’ service protected by “process” which is “due”].
13          “We have repeatedly held that state statutes may create liberty interests that are entitled
14   to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Vitek v.
15   Jones (1980) 445 U.S. 480, 488. See also Bell, and Mackey, supra [state licensing/ unlicensing
16   scheme protected by federal constitution]. (But, of course, state due process is a viable doctrine
17   of protections anyway; see Raven, infra.)
18          So, again, it is uncontroversial that where one has a protection from government which
19   he enjoys, the protection cannot be avoided without violating due process. The question is “what
20   process is due.” People v. Hansel (1992) 1 Cal.4th 1211, 1219.
21          What is at issue here is the same thing at issue in Bell and in Mackey and in, inter alia,
22   Barchi, the right to continue enjoying a privilege granted an individual by his government, the
23   privilege to collect evidence [in order to prepare a defense to critical evidence]. The arresting
24   officer arbitrarily and unilaterally, and hence illegally, deprived the defendant of that right if the
25   court allows the PAS test result to be used for B.A.C.. There was no voluntary and
26   understanding waiver of said right to evidence.
27          In drunk driving litigation, we have slipped into a MADD, MADD, MADD, WORLD, and
28   we need to return to constitutional and evidentiary propriety, lest the promise that we are

                                                       4
                     EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   governed by law devolve into merely a quaint and nostalgic anachronism. That would be the first
 2   step down the slippery slope toward anarchy.2
 3            The defendant had a right to certain protections; that right was arbitrarily denied him by
 4   the same government which wants to convict him and suspend his license, based on evidence
 5   surrounding the right the police denied him. The state’s PAS test for blood alcohol content
 6   should be excluded.3
 7                                                             IV.
 8                            THERE WAS NO WAIVER OF A KNOWN RIGHT
 9                                  WHEN THE DEFENDANT SUBMITTED
10                                            TOA PAS TEST FOR B.A.C.
11            The officer, by statute, V.C. §23612(i) was required to ADVISE the driver of the
12   following admonition, which, if given,4 explained that the P.A.S. test was only a preliminary
13   alcohol screening test to be used for determining probable cause and the P.A.S. was not a test to
14   determine the person’s blood alcohol content:
15                     “I am requesting that you take a preliminary alcohol screening test
16                     to further assist me in determining whether you are under the
17                     influence of alcohol. This is not an implied consent test. If
18                     arrested, you will be required to give a sample of your blood,
19                     breath, or urine for the purpose of determining the actual
20                     alcoholic (and/or drug content) of your blood.”
21            The prosecution now wants to admit B.A.C. from the P.A.S. test, but the officer misled
22   the citizen when securing the evidence. If the officer advised as required by V.C. §23612(i)
23
     2
24       Personal grief should not drive the criminal justice system to criminal injustice.

25   3
        There could be special jury instruction given to address the police officer’s violation of the law, and its impact
     on the defendant’s inability to collect the best evidence of his innocence. That instruction should read something
26   like: “The officer violated the law when he failed to inform the defendant that he had a right to a back-up test of
     blood or urine. It is well understood by the police that a breath test does not collect a sample which can be tested by
27   someone accused of drunk driving, and it is also well understood that a breath test is less reliable than a blood test.
     The failure of the officer to follow the law on this matter may be considered by you in determining the accuracy of
     the test results introduced in this matter as well as for determining the credibility of this officer’s testimony.”
28
     4
         Many officers say something like: “Take the test or you’re going to jail” with no further advice.
                                                                5
                        EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   [that the purpose of the PAS screening test was to assist the officer in determining whether the
 2   driver was under the influence of alcohol and the P.A.S. test was not the test for the amount of
 3   alcohol in the blood] to admit the P.A.S. result would violate due process. If the officer did not
 4   advise correctly, all the more should the evidence be excluded.
 5                                                     V.
 6                        THE PROSECUTION HAS A HEAVY BURDEN TO
 7                      ESTABLISH A WAIVER OF THE CITIZEN’S RIGHT
 8                                          TO DUE PROCESS
 9          The court are under a duty to indulge every reasonable presumption against waiver of
10   fundamental constitutional rights. Due Process and the right to collect evidence is a
11   fundamental right. The courts are under the duty “to indulge every reasonable presumption
12   against waiver” of fundamental constitutional rights and defined “waiver” as an intentional
13   relinquishment or abandonment of a known right or privilege” (Johnson v. Zerbest (1938) 304
14   U.S. 458, 464.) The court shall “not presume acquiescence in loss of fundamental rights, “Ohio
15   Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307.
16          One cannot waive his Due Process right unless fully informed. Federal law is
17   controlling over the definition of a constitutional right (e.g. Due Process). As stated in Boykin
18   v. Alabama, 380 U.S. 415, 422, “the question of an effective waiver of a federal constitutional
19   right in a state criminal proceeding is governed by federal standards.” If the advisement of
20   the due process right is not full and complete, the waiver of the right is not knowing,
21   intelligent, and voluntary.
22                                                    VI.
23                                THERE IS A “LIBERTY INTEREST”
24                                 IN A CHOICE OF TESTS FOR B.A.C.
25          The implied consent law of California creates a liberty interest of a choice of tests
26   (blood or breath) to determine B.A.C. that is entitled to the procedural due process
27   protection of the Fourteenth Amendment. The policy of the arresting police officer deprives
28   this citizen of due process, i.e. the choice of tests for B.A.C. and the right to a preservable

                                                       6
                     EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   sample if there is a breath test for B.A.C.
 2                                                                            VII.
 3                                                                  CONCLUSION
 4              The PAS test result violates Due Process and must be excluded.
 5
 6   Dated: _______________                                                Respectfully submitted,
 7
 8                                                                         _______________________________________
                                                                           JON BRYANT ARTZ, Attorney for Defendant
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                                                                                7
                             EXCLUDE PAS TEST RESULTS DUE TO VIOLATION OF DUE PROCESS
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                              I. B. 1
     12400 Wilshire Blvd., 4th Floor
 2   Los Angeles, CA 90025
     Telephone: (310) 820-1315
 3   Facsimile: (310) 820-1691
 4   Attorney for Defendant _________
 5
 6
 7                    SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8                               FOR THE COUNTY OF SAN DIEGO
 9                            (North County Division, Vista Regional Center)
10
11   THE PEOPLE OF THE STATE OF                  )            Case No.: ________
     CALIFORNIA,                                 )
12                                               )            EXCLUDE HEARSAY EVIDENCE OF
                           Plaintiff,            )            THE AMOUNT OF PRESERVATIVE AND
13                                               )            ANTI-COAGULANT IN THE VIAL DUE
                                                 )            TO RIGHT OF CONFRONTATION (6TH
14          v.                                   )            AM.) AND REQUEST THAT THE COURT
                                                 )            EXCLUDE BLOOD TEST RESULTS
15                                               )            BECAUSE NO FOUNDATION THAT TEST
     ______________________,                     )            IS ACCURATE
16                                               )
                           Defendant.            )
17                                               )
                                                 )
18
                                                         I.
19
                                            INTRODUCTION
20
            There is a blood test result in this case. The blood vial was manufactured out of state.
21
     Some unknown person at some unknown time apparently put some “stuff” in the vial which was
22
     used to collect defendant’s blood. There will be no admissible evidence regarding who
23
     measured and placed the alleged preservative and anticoagulant in the vial, when it was done,
24
     how it was measured, and other foundational facts. If there is not sufficient preservative, the
25
     alcohol in the blood vial can ferment and biological growth occurs, causing a false high result.
26
     At most, the prosecution will present hearsay statements regarding the purchase of the blood
27
     vials from some out of state manufacturer and what the witness believes that company does.
28
                                                     1
                 MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                         C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1          No one with personal knowledge per Evidence Code section 702 will testify regarding
 2   foundational facts. Under Evidence Code §405, the People have the burden of proof of the
 3   preliminary facts upon which admission of evidence depends. There is a rule of evidence
 4   that preliminary foundational facts must be established prior to introduction of evidence.
 5   Otherwise, the evidence is neither admissible or relevant. People v. Herrera (2000) 83
 6   Cal.App.4th 46, 61. Evidence Code §310 states it is a question of law whether the evidence is
 7   admissible. If there is insufficient proof of the foundational facts, the court must rule the blood
 8   test results are inadmissible.
 9          The facts regarding whether proper procedures were followed and whether
10   minimum scientific requirements were met regarding the required amount of preservative and
11   anticoagulant are critical. Every lab has procedures and protocol for a minimum amount of
12   preservative and anti-coagulant that must be in the vial. The defense has the right to confront
13   and cross-examine the person that measured the materials and test his expertise,
14   qualifications and procedures.
15                                                      II.
16                  THE SIXTH AMENDMENT’S CONFRONTATION CLAUSE
17                  PROVIDES THAT “[I]N ALL CRIMINAL PROSECUTIONS
18                     THE ACCUSED SHALL ENJOY THE RIGHT . . . TO BE
19                  CONFRONTED WITH THE WITNESSES AGAINST HIM.”
20          "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
21   witnesses against him." (U.S. Const. Amend. VI.). This right to confrontation is fundamental and
22   essential to a fair trial in a criminal prosecution. Pointer v. Texas, (1965) 380 U.S. 400, 403-
23   404.) "[A] major reason underlying the constitutional confrontation rule is to give a defendant
24   charged with crime an opportunity to cross-examine the witnesses against him." (Id. at 406-407.)
25   As a result, "[I]t cannot seriously be doubted at this late date that the right of cross-examination
26   is included in the right of an accused in a criminal case to confront the witnesses against
27   him."(Id. at 404.) In fact:
28
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                 MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                      C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1           “There are few subjects, perhaps, upon which this Court and other courts have been more
 2   nearly unanimous than in their expressions of belief that the right of confrontation and cross-
 3   examination is an essential and fundamental requirement for the kind of fair trial which is this
 4   country's constitutional goal. Indeed, we have expressly declared that to deprive an accused of
 5   the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's
 6   guarantee of due process of law.” (Pointer v. Texas, supra, at 405.)
 7           In Crawford v. Washington (2004) 541 U.S. 36, our highest court held that:
 8                   “If a hearsay statement is “testimonial” in nature, it cannot be used
 9                   against the criminal defendant unless the declarant is unavailable
10                   and the defendant has had an opportunity to cross-examine.1/”
11           The bedrock procedural guarantee of the Sixth Amendment applies to both federal and
12   state prosecutions. (Pointer v. Texas, (1965) 380 U.S. 400, 406; Crawford v. Washington,
13   supra, 541 U.S. at 42.)
14           In a recent case, Slovik v. Yates (2008) DJDAR 15438 (October 6, 2008), the conviction
15   was reversed due to a denial of the right to confront witness. Although the facts of that case are
16   different, the court reasoned that the Supreme Court has explained that the right of confrontation
17   means "[t]he main and essential purpose of confrontation is to secure for the opponent the
18   opportunity of cross-examination.” Davis v. Alaska (1974) 415 U.S. 308, 315-16.
19           A.      CRAWFORD REJECTED THE “RELIABILITY” APPROACH FOR
20                   TESTIMONIAL HEARSAY.
21           The Crawford Court reviewed the historical background to the Confrontation Clause, and
22   specifically the development of the common-law bar against admitting extrajudicial and
23   uncross-examined testimony against a criminal defendant. supra, at 42-50. The Court found that
24   "[t]his history supports two inferences about the meaning of the Sixth Amendment." supra, at 50.
25   "First, the principal evil at which the Confrontation Clause was directed was the civil-law mode
26
     1/
27       Overruling Ohio v. Roberts (1980) 448 U.S. 56 and that hearsay is permitted when it fell under a
     firmly rooted exception “or was trustworthy” because that test “often fails to protect against paradigmatic
28   confrontation violations.” Crawford, supra.
                                                      3
                  MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
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 1   of criminal procedure, and particularly its use of ex parte examinations as evidence against the
 2   accused." Second, "the Framers would not have allowed admission of testimonial statements of
 3   a witness who did not appear at trial unless he was unavailable to testify, and the defendant had
 4   had a prior opportunity/or cross-examination. supra, at 53-54.
 5          B.      THE COURT ADOPTED AN ABSOLUTE BAR TO STATEMENTS THAT
 6                  ARE TESTIMONIAL, ABSENT A PRIOR OPPORTUNITY TO
 7                  CROSS-EXAMINE THEM.
 8          The Court held that the Framers – at least where an out-of-court statement is testimonial
 9   – did not intend to "leave the Sixth Amendment's protection to the vagaries of the rules of
10   evidence, much less to amorphous notions of reliability.'" supra, at 61. Rather, “[w]here
11   testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
12   constitutional demands is the one the Constitution actually prescribes: confrontation.”
13   supra, at 68-69. In short, "[w]here testimonial evidence is at issue ... , the Sixth Amendment
14   demands what the common law required: unavailability and a prior opportunity for cross-
15   examination." supra, at 68.
16          Our cases have thus remained faithful to the Framers' understanding: Testimonial
17   statements of witnesses absent from trial have been admitted only where the declarant is
18   unavailable, and only where the defendant has had a prior opportunity to cross-examine.
19   Crawford v. Washington, supra, at 39.
20                                                     ...
21                  Where testimonial statements are involved, we do not think the
22                  Framers meant to leave the Sixth Amendment's protection to the
23                  vagaries of the rules of evidence, much less to amorphous notions
24                  of "reliability." ... Admitting statements deemed reliable by a
25                  judge is fundamentally at odds with the right of confrontation. To
26                  be sure, the Clause's ultimate goal is to ensure reliability of
27                  evidence, but it is a procedural rather than a substantive guarantee.
28
                                                   4
                 MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                       C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1                  It commands, not that evidence be reliable, but that reliability be
 2                  assessed in a particular manner: by testing in the crucible of cross-
 3                  examination. The Clause thus reflects a judgment, not only about
 4                  the desirability of reliable evidence (a point on which there could
 5                  be little dissent), but about how reliability can best be determined.
 6                                                     ...
 7                  The Roberts test allows a jury to hear evidence, untested by the
 8                  adversary process, based on a mere judicial determination of
 9                  reliability. It thus replaces the constitutionally prescribed method
10                  of assessing reliability with a wholly foreign one. In this respect, it
11                  is very different from exceptions to the Confrontation Clause that
12                  make no claim to be a surrogate means of assessing reliability.
13                  Crawford v. Washington, supra, at 62.
14                                                     ...
15                  The unpardonable vice of the Roberts test, however, is not its
16                  unpredictability, but its demonstrated capacity to admit core
17                  testimonial statements that the Confrontation Clause plainly meant
18                  to exclude. Crawford v. Washington, supra, 541, at 63.
19                                                     ...
20                  The Constitution prescribes a procedure for determining the
21                  reliability of testimony in criminal trials, and we, no less than the
22                  state courts, lack authority to replace it with one of our own
23                  devising. Crawford v. Washington, supra, at 67.
24          The hearsay statement, if any, on a document prepared by the manufacturer and provided
25   to the sheriff’s crime lab that the vial was prepared with certain precise amounts of chemicals
26   (whether sworn or not) is an “extrajudicial statement . . . “a pretrial statement that declarants
27   would reasonably expect to be used prosecutorially.” The Crawford court reasoned a statement
28
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                 MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                      C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1   is considered testimonial “if it was made under circumstances which would lead an objective
 2   witness reasonably to believe that the statement would be available for use at a later trial.”
 3   Crawford, 124 S.Ct. at 1364. Any declaration re the proper amount of preservatives and
 4   anticoagulant is a formal statement made to government officials (the Sheriff’s Dept.) in support
 5   of a criminal prosecution. Crawford, supra, at 51 defined the term: “‘Testimony’ . . . is typically
 6   ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some
 7   fact.’”
 8             Although the People might argue that a statement that the vials contain the proper amount
 9   of certain chemicals is reliable, the confrontation cause “commands not that evidence be reliable,
10   but that reliability be assessed in a particular manner: by testing in the crucible of cross-
11   examination” Crawford, supra, at 61. “Dispensing with confrontation because testimony is
12   obviously reliable is akin to dispensing with jury trial because a defendant is obviously
13   guilty. This not what the Sixth Amendment prescribes.” Crawford, supra, at 1371.
14             Supporting this rule of law are the cases of State v. Berezansky, (2006) 386 N.J. Super.
15   84; 899 A. 2nd 306; followed by State v. Renshaw, (2007) 390 N.J. Super. 456; 915 A. 2nd 1081
16   (holding that testimony of the nurse who drew the blood is testimonial in nature and subject
17   to Crawford confrontation rights objection).
18             In State v. Kent, (2007) 391 N.J. Super. 352; 918 A.2d 626 the court said:
19                    [W]e reaffirm our holdings in State v. Berezansky, 386 N.J. Super.
20                    84, 899 A.2d 306 (App.Div.2006) (ruling that a State Police
21                    chemist's lab report is "testimonial" under Crawford and thus
22                    must be excluded unless defendant has an opportunity to cross-
23                    examine the chemist), and in State v. Renshaw, (2007) 390 N.J.
24                    Super. 456; 915 A. 2nd 1081 (holding that a blood test certificate
25                    issued pursuant to N.J.S.A. 2A:62A-11 is likewise "testimonial"
26                    under Crawford), particularly in light of the United States Supreme
27                    Court's most recent explication of the Crawford testimonial
28
                                                    6
                   MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                       C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1                 standard in Davis v. Washington, 547 U.S., 126 S. Ct. 2266, 165 L.
 2                 Ed. 2d 224 (2006).
 3          Hinojos-Mendoza v. People, (2007) 169 P. 3rd 662.
 4                 Turning to the specific lab report at issue in this case, we hold that
 5                 it is testimonial. The lab report was prepared at the direction of the
 6                 police and a copy of the report was transmitted to the district
 7                 attorney's office. There can be no serious dispute that the sole
 8                 purpose of the report was to analyze the substance found in
 9                 Hinojos-Mendoza's vehicle in anticipation of criminal
10                 prosecution. The report states "offense: 3530 -- cocaine -- sell"
11                 and lists Hinojos-Mendoza as the suspect. Moreover, the report
12                 was introduced at trial to establish the elements of the offense with
13                 which Hinojos-Mendoza was charged. Under such circumstances,
14                 the lab report is testimonial in nature. Crawford, 541 U.S. at 52
15                 including in the core class of testimonial statements those made
16                 under circumstances "which would lead an objective witness
17                 reasonably to believe that the statement would be available for use
18                 at a later trial") (internal quotation omitted); Thomas, 914 A.2d at
19                 12-13 (same); Caulfield, 722 N.W.2d at 309 (same); March, 216
20                 S.W.3d at 666 "A laboratory report, like this one, that was
21                 prepared solely for prosecution to prove an element of the crime
22                 charged is 'testimonial' because it bears all the characteristics of an
23                 ex parte affidavit.").
24          A statement re the amount of preservative and anti-coagulant is testimonial because it is a
25   statement made as evidence for litigation. See, e.g., City of Las Vegas v. Walsh (Nev. 2004) 91
26   P3d 591 (nurse’s chain-of-custody affidavit concerning method of conducting and preserving
27   blood alcohol test is testimonial). People v. Rogers (N.Y.App. June 24, 2004) WILLIAMS
28
                                                  7
                MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                      C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1   1405875 in which report of blood is testimonial.
 2           There is also a due process right to fair trial. By analogy, Evidence Code, section 712
 3   deals with an affidavit of the method used in taking blood samples but in such a case the
 4   prosecution must give the affidavit at least 10 days prior to trial and the opposing party can
 5   still object at the time of trial.
 6           The “statement,” if any, of a representative of the manufacturer functions as the
 7   equivalent of in-court testimony, i.e. “I’m qualified. I know the chemicals, I made a batch of
 8   preservative and anti-coagulent, and I used proper procedures to measure the chemicals.” This
 9   out of court statement differs from notes of a biologist working under the supervision of a lab
10   director that actually testifies in court regarding testing and results based upon the employee’s
11   notes, protocol, data and report. There is no supervisor or other witness that can testify to the
12   protocol forms, data, notes, or reports of the manufacturer of the vial.
13           The U.S. Supreme Court in Melendez-Diaz v. Massachusetts, 07-591 on March 18, 2008
14   “agreed to decide if forensic lab reports can be introduced at trial if the lab expert is not made
15   available for cross-examination by the defense.” See Exhibit “A,” article from the Los Angeles
16   Daily Journal of March 18, 2008.
17                                                      III.
18                                             CONCLUSION
19            The Court should exclude any testimony regarding the alleged amount of preservative
20   and anti-coagulant in the vial unless the prosecutor presents a witness that can be cross-
21   examined on how the materials were measured and whether proper procedures were followed in
22   making the substances. Further this Court should not allow the blood test results into evidence
23   unless the people can lay a proper foundation, i.e., that proper and necessary procedures were
24   followed so that the blood test result is accurate. If there is insufficient proof of the proper
25   amount of preservative and anti-coagulant in the vial, a blood test result is not considered
26   accurate. If there is insufficient proof of accuracy, the test result is not admissible.
27   ///
28   ///
                                                    8
                  MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                        C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1   Dated: February 12, 2009                 Respectfully submitted,
 2
                                              _______________________________________
 3                                            JON BRYANT ARTZ
                                              Attorney for Respondent
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                                              9
                MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                               C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
     S
 5          On February 9, 2009, I served the foregoing documents described as POINTS AND
     AUTHORITIES TO EXCLUDE HEARSAY EVIDENCE OF THE AMOUNT OF
 6   PRESERVATIVE AND ANTI-COAGULANT IN THE BLOOD AND TO EXCLUDE
     BLOOD TEST RESULTS BECAUSE NO FOUNDATION THAT TESTS ARE
 7   ACCURATE on the interested parties in this action as follows:
 8
     Laurie L. Hauf
 9   Deputy District Attorney
     325 S. Melrose Dr.
10   Vista, CA 92083
11
12   [ ]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
            hand to the interested party[ies] as listed above.
13
     [x]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
14          and processing correspondence for mailing. Under that practice it would be deposited
            with U.S. postal service on that same day with postage thereon fully prepaid at Los
15          Angeles, California in the ordinary course of business. I am aware that on motion of the
            party served, service is presumed invalid if postal cancellation date or postage meter date
16          is more than one day after date of deposit for mailing in affidavit.
17   []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
            All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
18          all pages were sent without error.
19   [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
            the above is true and correct.
20
     [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
21          court at whose direction the service was made.
22          Executed on February 9, 2009, at Los Angeles, California.
23
24
                                                         __________________________________
25                                                       JON BRYANT ARTZ
26
27
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                                                  10
                MOTION IN LIMINE TO EXCLUDE HEARSAY EVIDENCE AND BLOOD TEST RESULTS
                                                                    C:\Data\0Seminar SF 0309\IB1 ExcludeHeresay Evid. 02-09-09.wpd
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                   I. B. 2
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorneys for Defendant ____________
 5
 6
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                      SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8
                                 FOR THE COUNTY OF SAN DIEGO
 9
                             (North County Division, Vista Regional Center)
10
     PEOPLE OF THE STATE OF CALIFORNIA,                   )   Case No.: ________
11                                                        )
                           Plaintiff,                     )   MOTION IN LIMINE #3: MOTION IN
12                                                        )   LIMINE #2:
            v.                                            )   TO EXCLUDE EVIDENCE OF
13                                                        )   “TOLERANCE”
                                                          )   1. No Evidence That Defendant Is
14   ______________,                                      )   “Tolerant” to Alcohol
                                                          )   2. No Foundation That DefendantIs
15                         Defendant.                     )   Tolerant (Preliminary Fact)
                                                          )   3. The Right to a Fair Trial,
16                                                        )   Presumption of Innocence, Assuming
                                                          )   Facts Not in Evidence, Speculation, and
17                                                        )   E.C. 352
                                                          )   4. “Blueprint” or “Profile” Evidence Is
18                                                        )   Inadmissible
                                                          )   5. Propensity Evidence Violates Due
19                                                        )   Process
                                                          )   6. Character Trait Evidence Is
20                                                        )   Inadmissible
21                                                   I.
22                      “TOLERANCE” IS THE ABILITY TO “MASK THE
23                    EFFECTS OF ALCOHOL.” THERE IS NO EVIDENCE
24                       THAT DEFENDANT HAS SUCH AN ABILITY.”
25          Defendant is presumed to be not guilty of DUI or driving with a .08% or higher. In an
26   attempt to convict him of those charges, the prosecution may desire to introduce evidence of
27   “tolerance,” e.g., have an expert opine that Defendant may have a “tolerance” to alcohol, i.e.,
28   “the ability to mask the effects of alcohol.” However, the prosecutor lacks any admissible

                                                     1
                  MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1   evidence to support such a claim. A “tolerance” to alcohol is ordinarily developed as a result
 2   of drinking significant amounts of alcohol on a regular basis. “Tolerance” is a euphemism to
 3   describe that a person has a prolonged history of excessive drinking and from that he has
 4   learned the “ability to mask the effects of alcohol.”
 5                                                     II.
 6                   THE PROSECUTION MUST PRESENT FOUNDATIONAL
 7                EVIDENCE THAT MR. HICKER HAS THE ABILITY TO “MASK
 8            THE EFFECTS OF ALCOHOL” OR THE EVIDENCE IS IRRELEVANT
 9           Unless the People can show Defendant has a tolerance to alcohol, the evidence that some
10   people may have such a tolerance is not relevant. The general statement that “some” people
11   may have developed a tolerance to Alcohol has no relevance unless all defendants are tolerant
12   or this defendant is tolerant. Preliminary foundational facts must be shown prior to the
13   introduction of evidence. The prosecution must show as a “preliminary fact” that Mr. Hicker
14   has the “ability to mask alcohol’s effects.”
15          Evidence must “pass the court’s scrutiny before it is submitted to the jury – intended to
16   forestall the jury’s uncritical acceptance of scientific evidence...” Given the facts of this
17   defendant, the only way one could conclude Defendant may have such an ability is to assume
18   that he may have that trait: the reasoning is circular. Such an assumption is “insidious.”
19   Tolerance is not relevant unless the prosecution can prove that the defendant has such a
20   tolerance.
21          Under Evidence Code §403 and People v. Herrera (2000) 83 Cal.App.4th 46, 61, “until
22   the preliminary fact is established, the evidence depending on it is neither relevant nor
23   admissible.” (People v. Lucas (1995) 12 Cal.4th 415, 466; People v. Collins (1975) 44
24   Cal.App.3d 617, 628 (evidence of threatening telephone call made to witnesses not relevant until
25   preliminary fact of caller’s identity is established). If the prosecution cannot establish the
26   critical link between“tolerance” and Defendant, then it is inadmissible per Evid.C. §403. The
27   People have the burden of proof on all issues under Evid.C §501 and Pen.C. §1096.
28          Reference to the ability of “some people” to “mask the effects of alcohol” creates a

                                                       2
                   MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1   substantial danger of misleading the trier of fact. Reference to Defendant as having a
 2   “tolerance” to alcohol, would be an improper assumption.
 3          The prosecution argument’s first premise is that some people have learned to mask the
 4   effects of alcohol. From this premise, so the prosecution argument goes, is that since the
 5   Defendant is guilty of being under the influence, the reason the defendant did not demonstrate
 6   significant impairment during driving and/or the field sobriety tests is because he may have a
 7   tolerance to alcohol. The argument assumes facts; it works backwards from effect to cause.
 8                                                  III.
 9                        FURTHER GROUNDS TO EXCLUDE TOLERANCE
10          A.      To allow the prosecution to present “general” evidence of tolerance, inferring
11   that the defendant’s conduct and response to alcohol might be in conformity therewith, would
12   violate Due Process and the Right to a Fair Trial.
13          B.      The citizen is presumed innocent. To admit “tolerance” evidence violates the
14   Constitutional presumption of innocence and violates the burden of proof. The people have
15   the burden of proof of all facts that point towards Defendant guilt. See, e.g., Pen.C. §1096. By
16   allowing the prosecutor to inform the jury that tolerance is an admissible topic of discussion, the
17   court tacitly approves may be some basis for that evidence. Such a communication potentially
18   lightens the prosecution’s burden of proving the defendant’s guilt, a violation of Due Process.
19          C.      To allow the prosecution to admit “general” evidence of “tolerance” without
20   connecting it to the defendant would assume facts not in evidence.
21          D.      Any evidence of “tolerance” would constitute an improper hypothetical, i.e.
22   there is no evidence of said facts. Hypos must be based on evidence, not speculation.
23   Tolerance evidence would be improper expert testimony imputing facts to this defendant
24   without any basis.
25          E.      General evidence that the defendant might be a person that drinks excessively on
26   a regular basis (thereby allowing an inference of conduct in conformity thereof) is highly
27   prejudicial and without any basis in evidence, and should be excluded under Evid.C. §352.
28          F.      Any claims that this defendant may have developed tolerance to alcohol is

                                                     3
                  MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1   objected to on the grounds of speculation.
 2                                                  IV.
 3           BLUE PRINT AND/OR “PROFILE EVIDENCE” CANNOT BE ADMITTED
 4           The prosecution would use a “blue print,” e.g., some “people have developed a tolerance
 5   to alcohol (due to prolonged and excessive drinking), and the defendant could be one of those
 6   persons.” Because “criminal prosecutions cannot be blueprinted, but must be tailored to the
 7   facts of each case in consideration of the individual rights of each defendant,” such a method of
 8   imputing tolerance lacks any probative value and is impermissible. See United States v.
 9   Vallejo 9th Cir. (2001) 237 F.3d. 1008. The prosecution’s theory is that some people that commit
10   a D.U.I. have a high tolerance, the defendant may have a high tolerance, and thus the defendant
11   is guilty.
12           In People v. Robbie (2001) 92 Cal.App.4th 1075, the court held that the trial court
13   abused its discretion in admitting expert testimony constituting profile evidence. The
14   prosecution, in a case alleging sexual crimes, called an “expert” of sexual offenders from the
15   Department of Justice “in the area of the behavior and conduct of persons who commit sexual
16   assaults. The testimony was that “not all rapes involve violence or injury to the victim” and the
17   expert described various kinds of conduct engaged in by rapists that were consistent with
18   the facts of the prosecution’s case, e.g. the offender returns the victim to her neighborhood,
19   engages in small conversation, and other behaviors of the defendant that the expert testified
20   were all consistent with sex offenders. The Robbie Court noted that admitting expert testimony
21   will not be disturbed on appeal unless a manifest abuse of discretion is shown and the expert’s
22   testimony constituted improper profile evidence. “Profile” is conduct and characteristics
23   commonly displayed by those who commit a certain crime. The court noted that “profile
24   evidence is generally inadmissible to prove guilt.” As stated by the Robbie court, Supra, 92
25   Cal.4th 1075:
26                   “profile evidence is inherently prejudicial because it requires
27                   the jury to accept an erroneous starting point in its
28                   consideration of the evidence. The syllogism is that “criminals

                                                      4
                   MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1                  act in a certain way; the defendant acted that way; therefore,
 2                  the defendant is a criminal. Guilt flows ineluctably from the
 3                  major premise to the minor premise to the conclusion. The
 4                  problem is that the major premise is faulty. It implies that
 5                  criminals, and only criminals, act in a given way. In fact, certain
 6                  behavior may be consistent with both innocent and illegal
 7                  behavior, as the People's expert conceded here.” (Robbie, supra,
 8                  92 Cal.App.4th at p. 1085.)
 9          Drug courier profiles have been held to be “inherently prejudicial because of the
10   potential they have for including innocent citizens as profile drug couriers...” A defendant
11   has a right to be tried based on the evidence against him, not on theories. Profile evidence is
12   nothing more than the opinion of officers. (U.S. v. Beltran-Rios, (9th Circuit 1989) 878 F.2d
13   1208, 1210, quoting United States v. Hernandez-Cuartas (11th Cir. 1983) 717 f.2d 552, 555.)
14          In People v. Martinez, (1992) 10 Cal.App.4th 1001, the court rejected the use of profile
15   evidence regarding driving a stolen truck. It was error for the trial judge to allow police
16   investigators to testify in general about the operation of auto theft rings which happened to
17   match the defendant’s circumstances (the driver’s denying knowledge that the vehicle was
18   stolen). The clear thrust of the evidence was to establish that the defendant “fit a certain
19   profile.” (Id. at 1006.) The court held that “profile” evidence should not be considered the issue
20   of guilt because of the potential of including innocent people as well as the guilty.
21          Similar, in People v. Castaneda (1997) 55 Cal.App.4th 1067 at 1072, testimony that the
22   defendant fit the profile of a heroin dealer was inadmissible: “every defendant has the right to
23   be tried based on the evidence tying him to the specific crime charged, and not on general
24   facts accumulated by law enforcement regarding a particular criminal profile.”
25          Drivers that are not under the influence can drive fairly well, do field sobriety tests
26   pretty good, or otherwise not show gross impairment.
27                                                   V.
28                     PROPENSITY EVIDENCE VIOLATES DUE PROCESS

                                                      5
                  MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1          To allow “tolerance” into evidence and suggest that Defendant may have the ability to
 2   mask the effects of alcohol would deny him a fair trial and due process. The prohibition
 3   against character evidence is based on Fourteenth Amendment principles of “fundamental
 4   fairness.” (Cooper v. Oklahoma (1996) 517 U.S. [134 L.Ed.2d 498]; see also McKinney v. Rees
 5   (9th Cir. 1993) 993 F.2d 1378.) The courts have also held that propensity evidence violates an
 6   accused’s right to due process. (Boyd v. United States (1892) 142 U.S. 450; Michelson v.
 7   United States (1948) 355 U.S. 469; Estelle v. McGuire (1991) 502 U.S. 62; and McKinney v.
 8   Rees (9th Cir. 1993) 993 F.2d 1378.)
 9                                                  VI.
10         CHARACTER EVIDENCE OF EXCESSIVE AND PROLONGED DRINKING
11               (I.E., TOLERANCE) IS PROHIBITED BY EVIDENCE CODE §1101
12          Division 9 of the Evid. Code is entitled “Evidence Affected or Excluded by Extrinsic
13   Policies.” Chapter 1 deals with evidence of character, habit, or custom. If the prosecution had
14   evidence that the defendant was a habitual excessive drinker, that evidence would be excluded
15   under Evid.C. §1101. Yet, without any evidence of excessive drinking habits of Defendant,
16   the prosecution wants to present general evidence of “tolerance” and would ask the jury to
17   infer (without a factual basis) that this defendant may have acquired an ability to mask the
18   effects of alcohol. E.C. §1101(a) provides that evidence of a trait of his character (whether in
19   the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is
20   inadmissible when offered to prove his conduct on a specified occasion. If there was opinion
21   evidence or specific acts of excessive drinking, it would be excluded. Here, there is no such
22   evidence.
23                                                  VII.
24                                           CONCLUSION
25          The court must exclude “tolerance” to alcohol unless the People can show a foundation
26   that connects that evidence to Defendant. The prosecution cannot “assume’ facts, i.e.,
27   Defendant “may be tolerant.” The prosecution cannot use profile evidence. (See Exhibit re
28   “flight risk” this page.) The admission of such irrelevant, prejudicial and speculative

                                                     6
                  MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1   evidence that Defendant could be tolerant could render the trial fundamentally unfair and deny
 2   defendant due process.
 3
 4   Dated: February 5, 2009                                         Respectfully submitted,
 5
 6
 7                                                                   _______________________________________
                                                                     JON BRYANT ARTZ, Attorney for Defendant
 8
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                                                                        7
                          MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On February 5, 2009, I served the foregoing documents described as MOTION IN
     LIMINE #3: MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 6   on the interested parties in this action as follows:
 7
     District Attorney
 8   325 S. Melrose Dr.
     Vista, CA 92083
 9
10
     [ ]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
11          hand to the interested party[ies] as listed above.
12   [ ]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
            and processing correspondence for mailing. Under that practice it would be deposited
13          with U.S. postal service on that same day with postage thereon fully prepaid at Los
            Angeles, California in the ordinary course of business. I am aware that on motion of the
14          party served, service is presumed invalid if postal cancellation date or postage meter date
            is more than one day after date of deposit for mailing in affidavit.
15
     []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
16          All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
            all pages were sent without error.
17
     [X]    (BY OVERNIGHT COURIER): I caused such envelope to be placed for collection and
18          delivery on this date in accordance with standard FEDERAL EXPRESS delivery
            procedures.
19
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
20          the above is true and correct.
21   [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
            court at whose direction the service was made.
22
            Executed on January 5, 2009, at Los Angeles, California.
23
24
25                                                       __________________________________
                                                         Deborah Stone
26
27
28

                                                     8
                  MOTION IN LIMINE #3: TO EXCLUDE EVIDENCE OF “TOLERANCE”
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                 I. B. 3
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorneys for Defendant ______
 5
 6
 7
                       SUPERIOR COURT OF THE STATE OF CALIFORNIA
 8
                                  FOR THE COUNTY OF SAN DIEGO
 9
                              (North County Division, Vista Regional Center)
10
     PEOPLE OF THE STATE OF CALIFORNIA,                )   Case No.: ________
11                                                     )
                            Plaintiff,                 )   TO EXCLUDE OFFERING THE PAS
12                                                     )   TEST(THE OFFICER TOLD
            v.                                         )   DEFENDANT HE HAD THE RIGHT
13                                                     )   TO REFUSE THE TEST) AND
                                                       )   DEFENDANT’S RESPONSE
14   ____________________,                             )   (EXERCISING HIS RIGHT TO
                                                       )   DECLINE
15                          Defendant.                 )
                                                       )   1. Defendant has a statutory right to
16                                                     )   decline the proposed search for the
                                                       )   amount of alcohol in his blood (by way of
17                                                     )   a PAS test) (V.C. §23612(i));
                                                       )
18                                                     )   2. Defendant’s exercise of his
                                                       )   Constitutional rights and choice not to
19                                                     )   consent to the proposed warrantless
                                                       )   search for alcohol in his blood is
20                                                     )   inadmissible – and would violate the
                                                       )   Fourth and Fifth Amendments.
21
                                                      I.
22
                                             INTRODUCTION
23
            Defendant was stopped for a violation of V.C. 24409 (use of multiple beams) and V.C.
24
     §24250 (lighting during darkness) and then investigated for driving under the influence. Prior to
25
     an arrest, but during the detention (“not free to go”) the officer asked Defendant if he was willing
26
     to submit to a Preliminary Alcohol Screening (P.A.S.) test. The officer told Defendant he
27
     “was not required by state law to submit to the test.” Instinctively, exercising his Fourth
28

                                         1
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1   Amendment right, Defendant declined to take the PAS test.1/ The defendant will not raise any
 2   issues concerning the PAS advisement, and it is not an issue and not relevant.
 3           The express right to refuse a P.A.S. test is granted by V.C. 23612(i). Also when the
 4   officer asked Defenant to submit to a PAS test, he was asking for consent to a warrantless
 5   search for the amount of alcohol the subject’s blood. Said consent is not required and there is
 6   no consent expressed or implied by law. Thus, the police request to search Defendant for the
 7   amount of Alcohol in his blood by way of PAS test and his exercise of his right to not submit is
 8   inadmissible. The exercise of the privilege provided by the Fourth Amendment cannot be used
 9   against the defendant.
10                                                      II.
11        THE DEFENDANT HAS THE STATUTORY RIGHT TO REFUSE THE PAS TEST
12           Vehicle Code §23612(i) reads in pertinent part:
13                   "If the officer decides to use a preliminary alcohol screening test,
14                   the officer shall advise the person that he or she is requesting
15                   that person to take a preliminary alcohol screening test to assist the
16                   Office in determining if that person is under the influence of
17                   alcohol . . . and the officer shall advise the person . . . of the
18                   person's right to refuse to take the Preliminary alcohol screening
19                   test."
20           The prosecution cannot advise a person that it is permissible to refuse the test and then
21   penalize that choice at trial.
22                                                      III.
23               THE UNCONTROVERTED LEGAL PRINCIPLES TO BE APPLIED
24           The Fourth Amendment to the United States Constitution states that “The right of the
25   people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be
26   violated . . . .” This is the cornerstone of any inquiry regarding governmental acquisition of
27
     1/
         During the encounter, Defendant was cooperative. After his arrest for DUI, he submitted to a
28   chemical test (per implied “consent” and V.C. 23612(a)). Thus, there was no exigency to secure
     evidence of BAC by way of the PAS test.
                                         2
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1   evidence from the accused. To determine this matter, certain immutable principles apply.
 2          1.      “For the Fourth Amendment protects people, not places . . . what he seeks to
 3   preserve as private, even in an area accessible to the public, may be Constitutionally protected.”
 4   (Katz v. United States 389 U.S. 347, 351-352 (1967) [internal citations omitted].)
 5          2.      “ . . . searches conducted outside the judicial process, without prior approval by
 6   judge or magistrate, are per se unreasonable under the Fourth Amendment --subject only to a
 7   few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S.
 8   347, 357 fns. omitted (1967).). It is a cardinal principle that “searches conducted outside the
 9   judicial process, without prior approval by judge or magistrate, are per se unreasonable.”
10   (Mincey v. Arizona (1978) 437 U.S. 385, 390.)
11          3.      “It is not disputed that the administration of a breath test is a search within the
12   meaning of the Fourth Amendment and therefore subject to the requirements of that
13   amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449
14   (9th Cir. 1986). [Citation omitted.].)
15          4.      “In considering [warrant requirement exceptions], we must not lose sight of the
16   Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his
17   opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct.
18   524, 535, 29 L.Ed. 746:
19                  ‘It may be that it is the obnoxious thing in its mildest and least
20                  repulsive form; but illegitimate and unconstitutional practices get
21                  their first footing in that way, namely, by silent approaches and
22                  slight deviations from legal modes of procedure. This can only be
23                  obviated by adhering to the rule that Constitutional provisions for
24                  the security of person and property should be liberally construed. A
25                  close and literal construction deprives them of half their efficacy,
26                  and leads to gradual depreciation of the right, as if it consisted more
27                  in sound than in substance. It is the duty of courts to be watchful
28                  for the Constitutional rights of the citizen, and against any

                                         3
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1                  stealthy encroachments thereon.’” (Coolidge v. New Hampshire
 2                  403 U.S. 443, 453-454 (1971).)
 3          6.      There are many cases on the subject of exigent circumstances permitting the
 4   withdrawal of a blood sample in a drunk driving case. A search warrant is not required if the
 5   defendant is lawfully under arrest and withdrawal of the blood is done in a medically approved
 6   manner. See Schmerber v. California (1966) 384 U.S. 757; People v. Superior Court (Hawkins)
 7   (1972) 6 Cal. 3d 757; Schneckloth v. Bustamonte (1973) 412 U.S. 218. Here, Mr. Hicker was not
 8   under arrest at the time of the proposed search by way of a PAS test. Also, there was no
 9   exigency in this case because the police timely secured evidence of B.A.C. as a result of the blood
10   draw obtained after arrest pursuant to “implied” consent.
11                                                   IV.
12                   THERE IS A PRIVILEGE TO BE FREE FROM COMMENT
13                     UPON ASSERTION OF A CONSTITUTIONAL RIGHT.
14          There is a privilege to be free from comment upon the assertion of a Constitutional
15   right. See Jenkins v. Anderson (1980) 447 U.S. 231
16          An individual’s refusal to consent to a warrantless search (e.g. an entry of his
17   residence), may be open to various interpretations and is not encouraged, however the assertion
18   of the right itself cannot be a crime nor can it be evidence of a crime. (Camara v. Municipal
19   Court (1967) 387 U.S. 523, 528-529; District of Columbia v. Little (1950) 339.) The Fourth
20   Amendment protects a person’s ultimate authority to passively withhold consent to a
21   government intrusion, despite any legal justification there may be for it.
22          A defendant may not be “penalized” when he does not agree to a pre-arrest search,
23   especially when the right to refuse a PAS test is provided by V.C. 23612(i).
24          In People v. Wetzel (1974) 11 Cal.3d 104, 113 Cal.Rptr. 32, the California Supreme Court
25   reasoned that when a citizen does nothing more than merely deny consent to an officer who is
26   seeking permission to conduct a search without a warrant, it is settled that his denial of
27   consent cannot be the basis for any criminal penalty. The essence of the Wetzel case is that
28   legal justification for the search without a warrant, if any, does not make resistance to the

                                         4
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1   search, in the form of mere refusal to consent, an act that can be punished. The court stated its
 2   holding in Wetzel, id., at 110 as follows:
 3                  “She had the right to withhold consent to enter and, as long as
 4                  entry was not sought on any other ground than with her consent, she
 5                  committed no impropriety and certainly not a violation of section
 6                  148. (See District of Columbia v. Little (1950) 339 U.S. 1, 5-6, 94
 7                  L.Ed. 599, 602-603, 70 S.Ct. 468; Miller v. United States (5th Cir.
 8                  1956) 230 F.2d 486, 487-488. (Emphasis added.)
 9          In People v. Keener (1983) 148 Cal.App.3d 73 (Keener), officers testified “how they tried
10   to coax Keener out of the apartment” and how he responded. (Id. at p. 78.) “Evidence of the siege
11   was offered to show a consciousness of guilt; i.e., if defendant was not guilty he would have
12   immediately surrendered.” (Ibid.) Keener held that admission of evidence of the defendant’s
13   refusal to consent to a warrantless entry of his residence violated the privilege to be free
14   from comment upon the assertion of a Constitutional right. (Ibid.)
15          Keener derived the privilege primarily from two opinions of the United States Supreme
16   Court: Griffin, California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610,
17   619 (Doyle). Griffin, supra; precluded the prosecution from commenting on the silence of an
18   accused who asserts his right to remain silent during the trial. (Id at p. 614.) Doyle held that the
19   due process clause of the Fourteenth Amendment forbids prosecutors from using a defendant’s
20   post arrest, post Miranda’ silence for impeachment purposes.
21          Keener explained that “Presenting evidence of an individual’s exercise of a right to
22   refuse to consent to entry in order to demonstrate a consciousness of guilt serves to punish the
23   exercise of the right to insist upon a warrant. It is of no consequence that police had a right to
24   enter without a warrant here, nor does it matter that defendant spoke to the police during the
25   siege. ‘The right to refuse [entry] protects both the innocent and the guilty, and to use its exercise
26   against a defendant would be, as the court said in Griffin, a penalty imposed by courts for
27   exercising a Constitutional right’ (United States v. Prescott [(9th Cir. 1978)] 581 F.2d 1343,
28   1352.)” (Keener, supra, 148 Cal.App.3d 73, 79.)

                                         5
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1          Conclusions similar to Keener have been reached in many other jurisdictions that have
 2   addressed similar issues. (Eg., State v. Palenkas (Ariz. Ct. App. 1996) 933 P.2d 1269, amended
 3   by I CA-CR 95-0752, 1996 Ariz. App. LEXIS 267 (Dec. 19, 1996) [prosecutor’s use of
 4   defendant’s contacting his attorney and his invocation of his right to refuse a warrantless
 5   search as evidence of his guilt denied due process and required a new trial]; United States v.
 6   Thame (3d Cir. 1988) 846 F.2d 200, 206 [error for the prosecutor to argue that defendant’s
 7   refusal to consent to search of his bag constituted evidence of his guilt); United States v. Tare
 8   (9th Cir. 1976) 540 F.2d 961 [prosecutor’s comments on defendants’ refusal to consent to a
 9   search of their trucks was “misconduct”]; United States v. Rapanos (E.D. Mich. 1995) 895
10   F.Supp. 165, 168, reversed on other grounds, 115 F.3d 367 (6th Cir. 1997) [error to insinuate I
11   that defendant’s refusal to consent to warrantless entry onto his land was evidence of concealment
12   of a crime]; Padgett v. State (Alaska 1979) 590 P.2d 432, 434, [right to refuse to consent to
13   warrantless search of car would be effectively destroyed if, when exercised, it could be used as
14   evidence of guilt].)
15          The defendant’s words and mental processes involve his Fifth Amendment Right. The
16   words cannot be improperly used for the not very probative purpose of showing he had a
17   consciousness of guilt. Keener supra 148 Cal.App.3d 73 at 78. In effect, such evidence would
18   punish the defendant for exercising his right to not consent to the search (Keener, supra, 148
19   Cal.App.3d 73, 78).
20                                                     V.
21               ADDITIONAL BASES TO EXCLUDE OFFERING THE PAS TEST
22          A.      The admission of the evidence of the offering of the PAS Test and the response
23   thereto by necessity will call for an explanation by the defendant, thereby denying the defendant
24   his right not to be compelled in a criminal case to be a witness against himself as guaranteed by
25   the Fifth Amendment of the United States Constitution. See Miranda v. Arizona (1966) 384
26   U.S. 436, 460 11 . . . the privilege [against self incrimination] is fulfilled only when the person is
27   guaranteed the right to remain silent unless she chooses to speak in the unfettered exercise of
28   his/her own will." The prosecution's use of the fact that the defendant did not consent to the PAS

                                         6
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1   test is analogous to commenting on the defendant's exercising his right to remain silent in the
 2   face of interrogation, which is prohibited by Miranda, id. at 468.
 3          B.      Defendant was detained (“not free to go”) and never waived his "Miranda"
 4   rights prior to the questioning by the police officer about whether he would submit to a PAS test
 5   which, of course, required a response by the subject. Accordingly, the defendant's response to
 6   the PAS Advisement is inadmissible due to the Fifth Amendment and must be suppressed.
 7          C.      Similar to the Fifth Amendment's protection from being required to give
 8   incriminating testimony which prevents a prosecutor from commenting upon the post-arrest
 9   silence of a defendant, the right to remain silent carriers an implicit assurance that silence
10   will carry no penalty. Doyle v. Ohio (1976) 426 U.S. 610, 619; United States v. Newman (1991)
11   943 F.2d 1155, 1157.
12          D.      The PAS advisement and any response thereto is irrelevant or, in the alternative,
13   such evidence is of little probative value and substantially outweighed by those factors as
14   enunciated in Evid.C. §352.
15                                                  VI.
16                                            CONCLUSION
17          Defendant has the statutory right to decline the proposed search by way of the PAS test
18   pursuant to V.C. 23612(i). There was no consent, expressed or implied, to that search. A passive
19   refusal to not consent to a proposed warrantless search cannot be admitted into evidence. The
20   Court must exclude the offering of the PAS test and the citizen’s response thereto.
21
22   Dated: February 5, 2009                      Respectfully submitted,
23
24                                                _______________________________________
                                                  JON BRYANT ARTZ, Attorney for Defendant
25
26
27
28

                                         7
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1                                        PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On February 5, 2009, I served the foregoing documents described as MOTION IN
     LIMINE NO. 2: TO EXCLUDE OFFERING THE PAS TEST(THE OFFICER TOLD
 6   HICKER HE HAD THE RIGHT TO REFUSE THE TEST) AND MR. HICKER’S
     RESPONSE (EXERCISING HIS RIGHT TO DECLINE on the interested parties in this
 7   action as follows:
 8
     District Attorney
 9   325 S. Melrose Dr.
     Vista, CA 92083
10
11
     [ ]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
12          hand to the interested party[ies] as listed above.
13   [ ]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection and
            processing correspondence for mailing. Under that practice it would be deposited with
14          U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles,
            California in the ordinary course of business. I am aware that on motion of the party
15          served, service is presumed invalid if postal cancellation date or postage meter date is
            more than one day after date of deposit for mailing in affidavit.
16
     []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
17          All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed all
            pages were sent without error.
18
     [X]    (BY OVERNIGHT COURIER): I caused such envelope to be placed for collection and
19          delivery on this date in accordance with standard FEDERAL EXPRESS delivery
            procedures.
20
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
21          the above is true and correct.
22   [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
            court at whose direction the service was made.
23
            Executed on February 5, 2009, at Los Angeles, California.
24
25                                                       __________________________________
                                                         Deborah Stone
26
27
28

                                         8
             MOTION IN LIMINE NO 2: TO EXCLUDE OFFERING THE PAS TEST
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                     I. B. 4
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant __________________
 5
 6
 7
 8                      SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                              FOR THE COUNTY OF LOS ANGELES
10                              (Southwest District – Torrance Courthouse)
11   THE PEOPLE OF THE STATE OF                            )   Case No.: _______________
     CALIFORNIA,                                           )
12                                                         )   MOTION IN LIMINE TO
                            Plaintiff,                     )   EXCLUDE TROMBETTA
13                                                         )   ADVISEMENT AND RESPONSE BY
            v.                                             )   DEFENDANT
14                                                         )
                                                           )
15   ________________________,                             )
                                                           )   Date: June 23, 2006
16                          Defendant.                     )   Time: 8:30 a.m.
                                                           )   Div.: 2
17
18   TO THE COURT :
19                                                    I.
20                                          INTRODUCTION
21          The Defendant was arrested for d.u.i. and thereafter submitted to a breath test to measure
22   blood alcohol content (B.A.C.). He/she had cooperated with the “implied consent” test, an
23   exception by statute (V.C. 23612, which provides for a chemical test if lawfully arrested at the
24   pain of loss of license – a civil sanction. The police secured the “best evidence” of the driver’s
25   level of intoxication. The defendant was in custody at the police station; he/she did not waive
26   Miranda rights. The police officers then gave the defendant an advisement regarding the
27   voluntary due process right to provide an additional sample for analysis of his/her blood
28   alcohol content.

                                                      1
                        MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1          The request for such an additional sample is in effect, an additional request to search the
 2   subject for the amount of alcohol in his/her blood. Such a warrantless search requires
 3   “consent.” (There is no “implied” consent). The defendant chose not to consent to further
 4   searches. The defendant declined any further searches of her body.
 5          The Defendant requests an order instructing the Prosecution and its witnesses to abstain
 6   from any reference and/or evidence that relates to the Trombetta advisement and/or that the
 7   Defendant exercised his/her rights and declined to consent to any further searches of his/her
 8   body for blood alcohol content. The Defendant is under no statutory or other legal duty to
 9   take any additional tests. He/she is only required to take a chemical test as required by V. C.
10   §23612(a). This was done.
11          The officer failed to inform the Defendant that his/her election to not submit to
12   another chemical test would be utilized as evidence against him/her at his/her trial. Thus, to
13   punish this Defendant by that evidence would violate Due Process.
14          The prosecution’s use of the fact that the Defendant did not submit to an additional
15   chemical test and to use the Defendant’s own words post-arrest as evidence against him is
16   analogous to commenting on the Defendant’s exercising his/her right to remain silent in the
17   face of interrogation, which is prohibited by Miranda, id. at 468.
18          Any evidence admitting the Trombetta advisement and the answer thereto would
19   substantially prejudice the Defendant, creating a false “consciousness of guilt” argument.
20          Under Evid.C. § 352, the Trombetta advisement and the Defendant’s election to not
21   submit to a further test would lead to an undue consumption of time, e.g. did the cop tell the
22   Defendant that “breath testing is inaccurate, that blood testing is more accurate, etc.” The
23   Defendant’s failure to submit to a further test has no relevance unless one presupposes the
24   Defendant’s knowledge of the breath result and the potential inaccuracy of the breathalyzer
25   machine and testing procedures.
26   ///
27   ///
28

                                                      2
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1                                                   II.
 2                     THE DISCUSSION OF PROVIDING AN ADDITIONAL
 3                      SAMPLE SEEKS CONSENT FOR SUCH A SEARCH
 4          “It is well settled that the taking of a person’s blood, breath or urine is a search and
 5   seizure within the meaning of the Fourth Amendment to the U.S. and California Constitutions.
 6   Schmerber v. California (1966) 384 U.S. 757 at 767.” The “implied consent” law of V.C.
 7   23612(a) is an exception to the Fourth Amendment.
 8          The U.S. Supreme Court held that “the administration of the blood test is not free of the
 9   constraints of the Fourth Amendment.” Such testing procedure plainly constitutes searches of
10   persons and depends antecedently upon seizures of persons within the meaning of that
11   amendment. Schmerber v. California, id., at 767.
12                                                  III.
13               THE UNCONTROVERTED LEGAL PRINCIPLES TO BE APPLIED
14          The Fourth Amendment to the United States Constitution states that “The right of the
15   people to be secure in their PERSONS, houses, papers and effects, against unreasonable searches
16   and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
17   supported by Oath or affirmation, and particularly describing the place to be searched, and the
18   persons or things to be seized.”
19          This is the cornerstone of any inquiry regarding governmental acquisition of evidence
20   from the accused. To determine this matter, certain immutable principles apply.
21          1.      “For the Fourth Amendment protects people, not places. ...what he seeks to
22   preserve as private, even in an area accessible to the public, may be constitutionally protected.”
23   (Katz v. United States 389 U.S. 347, 351-352 (1967) [ internal citations omitted].)
24          2.      “ . . . searches conducted outside the judicial process, without prior approval by
25   judge or magistrate, are per se unreasonable under the Fourth Amendment --subject only to a
26   few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S.
27   347, 357 fns. omitted (1967).)
28          3.      “It is not disputed that the administration of a breath test is a search within the

                                                      3
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   meaning of the Fourth Amendment and therefore subject to the requirements of that
 2   amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449
 3   (9th Cir. 1986). [Citation omitted.].)
 4          4.      “Generally, a search must also be supported by probable cause, and must be
 5   backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.”
 6   (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
 7          5.      “In considering [warrant requirement exceptions], we must not lose sight of the
 8   Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his
 9   opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct.
10   524, 535, 29 L.Ed. 746:
11                  ‘It may be that it is the obnoxious thing in its mildest and least
                    repulsive form; but illegitimate and unconstitutional practices get
12                  their first footing in that way, namely, by silent approaches and
                    slight deviations from legal modes of procedure. This can only be
13                  obviated by adhering to the rule that constitutional provisions for
                    the security of person and property should be liberally construed.
14                  A close and literal construction deprives them of half their
                    efficacy, and leads to gradual depreciation of the right, as if it
15                  consisted more in sound than in substance. It is the duty of courts
                    to be watchful for the constitutional rights of the citizen, and
16                  against any stealthy encroachments thereon.’” (Coolidge v. New
                    Hampshire 403 U.S. 443, 453-454 (1971) reh. den’d [footnote
17                  omitted, emphasis added].)
18                                                   IV.
19         THE UNITED STATES SUPREME COURT HAS RECENTLY CONFIRMED
20               “THE GENERAL RULE THAT A NON-CONSENTUAL SEARCH IS
21          UNCONSTITUTIONAL IF NOT AUTHORIZED BY A VALID WARRANT”
22          In Ferguson v. Charleston (2001) 121 S.Ct. 1281 the court reviewed whether a state
23   hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for
24   law enforcement purposes constituted an unreasonable search if the patient did not knowingly
25   and voluntarily consent to the procedure.
26          Under the facts of Ferguson, patients provided urine tests to a state hospital which used
27   drug screens on the samples under the procedures implemented by the hospital and the police.
28   Arguably, the patient was on notice that the hospital would be using the urine test to determine

                                                      4
                       MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   drug use and would thereafter submit positive results to the police for prosecution. The ultimate
 2   goal of the program was laudable: the “immediate objective of the searches was to generate
 3   evidence for law enforcement purposes in order to reach that goal.” (Ferguson v. Charleston,
 4   id.) The Court held that Fourth Amendment’s general prohibition against non-consentual,
 5   warrantless searches” applied (Ferguson, i.d.).
 6          In Ferguson, the prosecution argued the evidence of drug use was admissible because the
 7   search was not done by the police. In our case, the search of defendant’s body for evidence of his
 8   blood alcohol content by the PAS device was done directly by the police. Therefore, this is a
 9   stronger case for application of the Fourth Amendment’s prohibition against warrantless searches.
10                                                   V.
11        THE U.S. SUPREME COURT RULED THAT A PERSON CANNOT LEGALLY
12          GIVE CONSENT UNLESS THEY ARE FULLY INFORMED ABOUT THEIR
13    CONSTITUTIONAL RIGHTS AS STANDARDS OF “KNOWING WAIVER” REQUIRE
14          When citizens undertake to obtain such evidence for the specific purpose of
15   incriminating those patients, they have a special obligation to make sure that the patients are
16   fully informed about their constitutional rights, as standards of knowing waiver require, c.f.
17   Mirandan v. Arizona, 384 U.S. 436 (1966).” (Emp. added) Ferguson, id. at 2842. All the more
18   does this requirement of a knowing waiver apply when the police obtain the evidence. The
19   prosecution cannot argue in this case that there was a “knowing waiver” or consent to the search.
20                                                   VI.
21                      THE PROSECUTION HAS THE BURDEN OF PROOF
22                                   ON THE ISSUE OF CONSENT
23          The United States Supreme Court has held in Bumper v. North Carolina (1968) 391 U.S.
24   543, 88 SC 1788, 20 LE2, 797 (68), that the government has the burden of proving consent
25   “was, in fact, freely and voluntarily given.” The evidence will be suppressed as the result of an
26   illegal search and seizure.
27          In People v. Shandloff (1985) 170 Cal.App.3D 372, 215 CR 916, the court held that the
28   people’s burden is to prove that the consent was the product of free will and not a mere

                                                     5
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   submission to an express or implied assertion of authority.
 2                                                   VII.
 3    THERE IS A PRIVILEGE TO BE FREE FROM COMMENT UPON ASSERTION OF A
 4      CONSTITUTIONAL RIGHT, I.E., RIGHTS UNDER 4TH AND 5TH AMENDMENTS.
 5          The defendant’s words and mental processes in response to the officer’s questions about
 6   an additional chemical test involve Defendant’s Fourth and Fifth Amendment Rights, (e.g. “I do
 7   not consent to your proposed search” or “No, I don’t want needles.”). The statements would
 8   improperly be used to show that Defendant had something to hide and/or demonstrating his/her
 9   consciousness of guilt. Such evidence would punish the defendant for asserting his/her right to
10   not submit to further searches of his/her body and/or right to remain silent. To admit into
11   evidence the fact that the Defendant did not agree to further searches (submit to any additional
12   tests), which was at his/her election, would lead to inescapable prejudice that the jurors might
13   believe that the Defendant was attempting to hide something, or had a consciousness of guilt.
14          In People v. Keener (1983) 148 Cal.App.3d 73, the officers testified during the
15   prosecution case-in-chief “how they tried to coax Keener out of the apartment” and his response
16   (which was not cooperative) (id. at p. 78). The prosecution theory was that “Evidence of the
17   siege was offered to show a consciousness of guilt; i.e., if defendant was not guilty he would
18   have immediately surrendered.” (Ibid.) The Keener Court held that admission of evidence of
19   the defendant’s refusal to consent to a warrantless entry of his residence violated the privilege
20   to be free from comment upon the assertion of a constitutional right. (Ibid.)
21          Keener derived the privilege primarily from two opinions of the United States Supreme
22   Court: Griffin v. California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610,
23   619 (Doyle). Griffin, supra, precluded the prosecution from commenting on the silence of an
24   accused who asserts his right to remain silent during the trial. (Griffin at p. 614.) Doyle held that
25   the due process clause of the Fourteenth Amendment forbids prosecutors from using a
26   defendant’s postarrest, 148 C.A.3d 73, 79 post Miranda’ silence for impeachment purposes.
27          Keener, supra, explained that:
28           “presenting evidence of an individual’s exercise of a right to refuse to

                                                       6
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1          consent to entry in order to demonstrate a consciousness of guilt serves to
 2          punish the exercise of the right to insist upon a warrant. It is of no
 3          consequence that police had a right to enter without a warrant here, nor does it
 4          matter that defendant spoke to the police during the siege. ‘The right to refuse
 5          [entry] protects both the innocent and the guilty, and to use its exercise against a
 6          defendant would be, as the court said in Griffin, a penalty imposed by courts
 7          for exercising a constitutional right’ (United States v. Prescott [(9th Cir.
 8          1978)] 581 F.2d 1343, 1352.)”
 9          Conclusions similar to Keener have been reached in many other jurisdictions that have
10   addressed similar issues. (Eg., State v. Palenkas (Ariz. Ct. App. 1996) 933 P.2d 1269, amended
11   by I CA-CR 95-0752, 1996 Ariz. App. LEXIS 267 (Dec. 19, 1996) [prosecutor’s use of
12   defendant’s contacting his attorney and his invocation of his right to refuse a warrantless
13   search as evidence of his guilt denied due process and required a new trial]; United States v.
14   Thame (3d Cir. 1988) 846 F.2d 200, 206 [error for the prosecutor to argue that defendant’s
15   refusal to consent to search of his bag constituted evidence of his guilt); United States v. Tare
16   (9th Cir. 1976) 540 F.2d 961 [prosecutor’s comments on defendants’ refusal to consent to a
17   search of their trucks was “misconduct”]; United States v. Rapanos (E.D. Mich. 1995) 895
18   F.Supp. 165, 168, reversed on other grounds, 115 F.3d 367 (6th Cir. 1997) [error to insinuate I
19   that defendant’s refusal to consent to warrantless entry onto his land was evidence of
20   concealment of a crime]; Padgett v. State (Alaska 1979) 590 P.2d 432, 434, [right to refuse to
21   consent to warrantless search of car would be effectively destroyed if, when exercised, it could
22   be used as evidence of guilt].)
23                                                  VIII.
24                    NO SHOWING OF VOLUNTARY, KNOWING WAIVER
25          The decision by the Defendant to decline to submit to any further chemical test is not a
26   valid waiver of the right to collect evidence unless it is voluntarily, knowingly, and
27   intelligently made. In the case of an additional chemical test , a “knowingly and intelligently”
28   made decision requires the Defendant to have knowledge of the breath test result and its

                                                      7
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   potential inaccuracies. This information was not given to the Defendant at the time he was
 2   advised of his/her Trombetta rights. Absent a showing that Defendant’s decision to decline an
 3   additional chemical test was knowing and intelligent, the statements in response to the police
 4   request for additional evidence while in custody must be suppressed. See People v. Bradford
 5   (1997) 14 Cal.4th 1005, 929 P.2d 544, Cal.Rptr. 2d 225 (where Defendant did not knowingly
 6   and intelligently waive her right to counsel, her statements must be suppressed despite the fact
 7   that the statements were made voluntarily).
 8           The admission into evidence that the defendant declined to take an additional blood/urine
 9   test, by necessity, would call for an explanation by the Defendant, thereby denying the
10   Defendant of his/her right not to be compelled in a criminal case to be a witness against himself
11   as guaranteed by the Fifth Amendment of the United States Constitution. See Miranda v.
12   Arizona (1966) 384 U.S. 436, 460. “... the privilege [against self incrimination] is fulfilled only
13   when the person is guaranteed the right to remain silent unless he chooses to speak in the
14   unfettered exercise of her own will.”
15                                                   IX.
16                                            CONCLUSION
17           The Defendant will not raise any issues concerning the Trombetta advisement as being
18   the subject of any improper police conduct. Trombetta is therefore not an issue and not relevant
19   in the case.
20           Based upon due process concerns as generated by Hitch, the police give a “Trombetta”
21   advisement which informed the subject that a breath sample is not preserved and if they want a
22   preservable sample, they can provide a blood or urine sample for blood alcohol content. This is
23   a right of the defendant. The testing for blood alcohol content by blood, breath, or urine
24   constitutes a search. When there is probable cause and the defendant is under lawful arrest, the
25   legislature has declared that the person is deemed to have given consent by implication. That
26   “consent” does not apply to the Trombetta request for a search. The fact that a citizen declines
27   further testing (searches), which is her right, cannot be used to punish her.
28           Any relevance go to the Trombetta advisement and her response while in custody

                                                      8
                      MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   violates Miranda. Could the police ask her, while under arrest and at the police station, and
 2   absent Miranda, “Do you think you are under the influence of alcohol?”
 3              The relevance of the Trombetta advisement and response would have to be on a
 4   foundation that the defendant knew the inherent problems of breath testing (contamination,
 5   mouth alcohol, etc.) and/or that she was contesting the accuracy of the measurements at the time
 6   of the breath test. That is not the case.
 7   Dated: May 18, 2006                                               Respectfully submitted,
 8
 9
10
11                                                               _______________________________________
                                                                 JON BRYANT ARTZ, Attorney for Defendant
12
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                                                                   9
                               MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, Suite
 4   500, Los Angeles, California 90025-1033.
 5        On May 18, 2006, I served the foregoing documents described as MOTION IN
     LIMINE TO EXCLUDE TROMBETTA ADVISEMENT AND RESPONSE BY
 6   DEFENDANT on the interested parties in this action as follows:
 7          Deputy D.A. Jill Jadon
            District Attorney - Torrance
 8          825 Maple Avenue, Suite 190
            Torrance, CA 90503
 9
     [ ]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
10          hand to the interested party[ies] as listed above.
11   [x]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
            and processing correspondence for mailing. Under that practice it would be deposited
12          with U.S. postal service on that same day with postage thereon fully prepaid at Los
            Angeles, California in the ordinary course of business. I am aware that on motion of the
13          party served, service is presumed invalid if postal cancellation date or postage meter date
            is more than one day after date of deposit for mailing in affidavit.
14
     []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
15          All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
            all pages were sent without error.
16
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
17          the above is true and correct.
18   [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
            court at whose direction the service was made.
19
            Executed on May 18, 2006, at Los Angeles, California.
20
21   Rita Pollak                           __________________________________
     Typed or Printed Name                       Signature
22
23
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                                                     10
                     MOTION IN LIMINE TO EXCLUDE TROMBETTA ADVISEMENT
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                  I. B. 5
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant ___________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                                  FOR THE COUNTY OF SAN DIEGO
10                               (North County Division, Vista Regional Center)
11
     THE PEOPLE OF THE STATE OF                            )   Case No.: __________
12   CALIFORNIA,                                           )
                                                           )   DEFENSE MOTION IN LIMINE TO
13                          Plaintiff,                     )   ELIMINATE PROSECUTORIAL
                                                           )   MISCONDUCT
14          v.                                             )
                                                           )
15                                                         )
     ________________,                                     )
16                                                         )
                            Defendant.                     )
17                                                         )
18   TO THE COURT:
19          Defense counsel requests that the Court order the prosecuting attorney to refrain from
20   making any comment, insinuation, or statement at any time during the trial of this matter with
21   respect to the following:
22          1.      Vouching for prosecution witnesses. Any expression whereby the prosecuting
23                  attorney renders an opinion as to the integrity or credibility of any witness or any
24                  other personal opinion of the prosecutor;
25          2.      Any reference to facts, opinions, or any implications that other facts exist, aside
26                  from facts presented by the evidence;
27          3.      Questioning of a witness whether “other witnesses are lying”;
28          4.      Discrediting defense counsel or suggesting “common tactic” of the
                                                       1
                   MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   defense, e.g., an attempt to “confuse”, an attempt to “raise red herrings”, an attempt to use
 2   “smoke and mirrors”;
 3   5.     Any comment with respect to the conduct of the trial by defense attorney,
 4   defense strategy or potential motive of defense attorney with respect to such conduct and
 5   strategy.
 6          6.         Any comment calculated to cause prejudice and/or evoke emotional
 7   response from the jury;
 8   7.     Any comment whereby the jury is requested to “send a message” to the defendant and/or
 9   general public;
10          8.         Any comment with respect to the defendant’s right to hire an attorney and/or right
11   to remain silent;
12                                               ARGUMENT
13          Each attorney in a criminal trial has an overriding duty as an officer of the Court to
14   conduct his/herself in a professional manner thereby creating the atmosphere of a fair and
15   impartial trial before an impartial jury. A defendant has a right to not be deprived of life, liberty
16   of property without due process of law. See ABA Standards for Criminal Justice Section 3-5,
17   8(c), California State Bar Rule 5-200, the Constitution of the United States, Fifth and Sixth
18   Amendments thereto.
19   1.     MISCONDUCT FOR THE PROSECUTOR TO “VOUCH” FOR HIS
20          WITNESSES OR IMPLYING OTHER FACTS (OUTSIDE RECORD) EXIST
21          On May 6, 2005, in U.S. v. Weatherspoon, attached hereto as Exhibit “A”, the court held
22   the prosecutor made improper statements, e.g. during argument he stated that the police officers
23   were credible and the officers
24           “had no reason to lie in this case or not tell the truth, if you believe the
            defense attorney, the officers must have lied at the scene, lied in court, lied to
25          me, lied to the dispatcher, and lied to everyone. These officers risk losing their
            jobs, risk losing their pension, risk losing their livelihood and risk being
26          prosecuted for perjury. That does not make sense. They told you the truth.”
27          The Court condemned these statements as “vouching”, which is placing the prestige of
28   the government behind a witness through personal assurances of the witness’ veracity.
                                                        2
                    MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   Vouching also suggests that information not presented to the jury supports the witness’
 2   testimony. It was error for the prosecutor to suggest the existence of legal and professional
 3   repercussions which served to insure the credibility of the officers. The court held these
 4   statements constitute improper vouching, are based upon matters outside the record, and skew
 5   the jury’s ability to determine credibility.
 6          The court recognized that prosecutors must have a reasonable latitude to fashion closing
 7   arguments and can argue reasonable inferences based on the evidence, but even when grounded
 8   in an inference from the evidence, a prosecutorial statement can be impermissible vouching
 9   if it places the prestige of the government behind the witness by providing personal
10   assurances of a witness’ veracity.    In U.S. v. Kerr (9th Cir.) (1992) 981 F.2d 1050, 1053, “a
11   prosecutor has no business telling the jury his individual impressions of the evidence.”
12   Vouching is dangerous precisely because a jury “may be inclined to give weight to the
13   prosecutor’s opinion in assessing the credibility of witnesses instead of making the
14   independent judgement of credibility to which the defendant is entitled.”      “It is up to the
15   jury – and not the prosecutor – to determine the credibility of a witness testimony.”
16          The prosecutor’s vouching for the credibility of witnesses and expressing personal
17   opinion concerning guilt of the accused presented two dangers: conveying an impression of
18   evidence not presented to the jury, but known to the prosecutor, thus jeopardizing the
19   defendant’s positive right to be tried solely on the basis of the evidence presented to the jury;
20   and the prosecutor’s opinion carries with it the imprimatur of the government and may induce
21   the jury to trust the government’s judgment rather than it’s own view of the evidence.” See
22   Berger v. United States 295 U.S. 88-89.
23          The court noted that “the ethical bar is set higher for the prosecutor than for the
24   criminal defense lawyer, a proposition that has been clear for at least 7 decades (see Berger v.
25   U.S. (1935) 295 U.S. 78-88 and also U.S. v. Modica (1981) 663 Eps 2d 1173 and the ABA
26   Standard for Criminal Justice §3-5.8(b).) The difference is that a private lawyer’s impropriety
27   carries no implication of official governmental support. The court stated that prosecutors occupy
28   a different and special place in the criminal justice system and the prosecutor’s role as
                                                       3
                    MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   representative of the government demands the exercise of better restraint and judgment than
 2   defense attorneys.
 3   2.     ANY REFERENCE TO FACTS NOT IN EVIDENCE
 4          See U.S. v. Weatherspoon, supra. (Exhibit “A”) “It is axiomatic that counsel may not
 5   state or assume facts in argument that are not in evidence. See People v. Stankewitz (1990)
 6   51 Cal.3d 72 @ 102, where defense counsel argued that the jury should give great consideration
 7   to the fact that certain people were absent from trial when they were available, inferring that
 8   there were 3 other potential witnesses. The prosecutor objected, noting there was “no evidence”
 9   in the record indicating the witnesses were available. The California Supreme Court held that
10   counsel cannot make remarks in argument that are unsupported by the record evidence. Also
11   see U.S. v. Ivy 83 F 3rd 1266 (1996) in which prosecutor claimed in closing that trial witness
12   delivered drugs to Defendant although no testimony occurred to that effect. U.S. v. Molina-
13   Guevara 96 F 3rd 698 (3rd Circuit) where prosecutor, in closing, informed jury of other potential
14   witnesses, even though not called.
15   3.     IMPROPER FOR PROSECUTOR TO ASK DEFENDANT (OR ANY WITNESS)
16          IF “OTHER WITNESSES ARE LYING”.
17          In People v. Zambrano (2004) 124 Cal.App. 4th 228, a prosecutor’s “were they lying”
18   questions to the defendant were improper...because they sought defendant’s inadmissible lay
19   opinion about the officers’ veracity, invaded the province of the jury to determine the credibility
20   question, and were irrelevant to any issue in the case.” The court held that the questioning was
21   objectionable and misconduct.
22   4.     DISPARAGING REMARKS ABOUT DEFENSE COUNSEL
23          AND/OR DEFENSE “TACTICS”
24          U.S. v. Hickman 113 F 3rd 499 (4th cir. 1997). Improper for prosecution closing by
25   indicating Defense counsel had “coached” several Defense witnesses. It is improper to accuse
26   defense witnesses of perjury or to suggest jury should consider integrity of prosecutor’s office in
27   assessing credibility of prosecution witnesses. People v. Ellis (1966) 65 Cal.2d 529, 539; People
28   v. Perez (1962) 58 Cal. 2d 29; People v. Reese (1963) 200 Ca2d, 43, 146-147. Improper and

                                                      4
                   MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   misconduct for the prosecutor to impugn the integrity of defense counsel. People v. Bain (1971)
 2   5 Cal. 3d 839, 847. People v. McCracken (1952) 39 Cal.2d 336, 348 (“what some people won’t
 3   do for a fee”). People v. O’Farrell (1958) 161 C.A.2d 13, 19. (Defense attorneys say “for a
 4   reasonable fee, I will give you reasonable doubt. (People v. Pick (1981) 114 C.A.3d 824).
 5   Defense counsel has no obligation to ascertain or present the truth.
 6   5.     APPEALS TO PASSION, PREJUDICE AND FEARS
 7          Mendoza (1974) 37 C.A3d at 726. “Take child molesters off the street. Children are
 8   killed everyday and it is small minded people like the defendant who sexually molest everyday.”
 9   In urging the jury to keep him off the streets the prosecutor implied that the jury should consider
10   punishment as well as guilt or innocence. Punishment is a court determination.
11          U.S. v. Manning 23 F.3rd 570. Prosecutor urged jury to “take responsibility for
12   yourselves, take responsibility for your community.” The prosecutor can not invite the jury to
13   convict based on protecting society or on any grounds other than those presented by the
14   evidence. See People v. Mendoza (1974) 37 C.A. 3d 717, 727. People v. Purris (1963) 60
15   Cal.2d 323, 343. The prosecution can not make emotional appeal, e.g., that the jurors have the
16   power to enforce the law and to help victims. People v. Turner (1983) 145 C.A. 3d 672. The
17   prosecutor can not invite the jury to convict in order to deter crime. U.S. v. Lester (9th Cir.,
18   1984) 749 F.2d 1288. Prosecutor said in his closing remarks that every man should choose
19   between good and evil: conjuring religious symbolism. U.S. v. Codero 67 F.3rd 1002 (1st cir.
20   1995). (also People v. Pitts, 223 Cal.App.3rd 606 (1990))
21   6.     ARGUMENT THAT A DISSENT OF ONLY ONE JUROR WOULD WIPE OUT MANY
22          MONTH’S OF EVERYONE’S EFFORT

23          People v. Pitts (1990) 223 Cal.App 3rd 606 . Misconduct when prosecutor made
24   argument that if one person dissented, it would wipe out many months of everyone’s effort as if
25   it never existed.
26   ///
27   ///
28   ///

                                                       5
                    MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   7.          EXALTING THE ROLE OF THE PROSECUTOR
 2               United States v. Castle 77 F.3rd 1497 (1996) Prosecutor’s attempt to solicit testimony
 3   from witness that she is “prosecutor of the year” was improper.
 4
 5   Dated: February 9, 2009                                                 Respectfully submitted,
 6
                                                                             _______________________________________
 7                                                                           JON BRYANT ARTZ, Attorney for Defendant
 8
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                                                                                  6
                            MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On February 9 , 2009, I served the foregoing documents described as DEFENSE
     MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT on the
 6   interested parties in this action as follows:
 7
     Laurie L. Hauf
 8   Deputy District Attorney
     325 S. Melrose Dr.
 9   Vista, CA 92083
10
11   [x]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
            hand to the interested party[ies] as listed above at Trial.
12
     [ ]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
13          and processing correspondence for mailing. Under that practice it would be deposited
            with U.S. postal service on that same day with postage thereon fully prepaid at Los
14          Angeles, California in the ordinary course of business. I am aware that on motion of the
            party served, service is presumed invalid if postal cancellation date or postage meter date
15          is more than one day after date of deposit for mailing in affidavit.
16   []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
            All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
17          all pages were sent without error.
18   []     (BY OVERNIGHT COURIER): I caused such envelope to be placed for collection and
            delivery on this date in accordance with standard FEDERAL EXPRESS delivery
19          procedures.
20   [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
            the above is true and correct.
21
     [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
22          court at whose direction the service was made.
23          Executed on February 9, 2009, at Los Angeles, California.
24
                                                         __________________________________
25                                                       JOHN BRYANT ARTZ
26
27
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                                                     7
                   MOTION IN LIMINE TO ELIMINATE PROSECUTORIAL MISCONDUCT
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                    I. B. 6
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant ______________
 5
 6
 7
 8                    SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                               FOR THE COUNTY OF SAN DIEGO
10                           (North County Division, Vista Regional Center)
11
     THE PEOPLE OF THE STATE OF                           )   Case No.: ___________
12   CALIFORNIA,                                          )
                                                          )   POINTS AND AUTHORITIES TO
13                         Plaintiff,                     )   EXCLUDE EVIDENCE AND/OR
                                                          )   ARGUMENT RE FAILURE OF
14          v.                                            )   DEFENSE TO INFORM THE
                                                          )   PROSECUTOR OF “ALIBI” OR
15                                                        )   OTHER DEFENSE
     __________________,                                  )
16                                                        )
                           Defendant.                     )
17                                                        )
18
19          “The defendant has a Constitutional right to remain silent and to not discuss his alibi
20   or defense with the prosecutor or the police” (People v. Lindsey (1998) 205 Cal.App.3d 112 at
21   117). The defendant also has a “judicially-bestowed right to withhold any advance notice of
22   the alibi defense” (Lindsey, Id., at 117, citing Reynolds v. Superior Court (1974) 12 Cal.3d
23   834). As stated by the Lindsey court, supra, at 117:
24                  “These rights would be stripped of much of their meaning and
25                  effect if the prosecutor were permitted to use their exercise
26                  against the defendant at trial. The prosecutor’s use of Lindsey’s
27                  pretrial silence through his counsel concerning the alibi unfairly
28                  infringed his exercise of the right not to speak to the
                                                      1
                      POINTS AND AUTHORITIES TO EXCLUDE EVIDENCE RE ALIBI
 1                          prosecutor or the police and thus was a violation of due
 2                          process.”
 3              The Lindsey court, supra, at 117 analogized to People v. Galloway (1979) 100
 4   Cal.App.3d 551, in which the defendant testified and presented an alibi defense. The prosecutor
 5   cross-examined the defendant about his failure to mention the alibi previously, and argued
 6   such a failure in closing argument. The court held the cross-examination and argument violated
 7   Doyle v. Ohio (1976) 426 U.S. 610, 619, which held impeachment of a defendant’s post-arrest
 8   silence is a violation of due process. See Galloway, supra, 100 Cal.App.3d at 556-559.
 9   Additionally, if the prosecutor commented on defense counsel not revealing the alibi, it is an
10   “improper disparagement of counsel” and is prejudicial under People v. Watson (1956) 46
11   Cal.2d 818, 836. The “Galloway-like error was of “Constitutional dimension” (People v.
12   Galloway, supra, 100 Cal.App.3d at 559). Therefore, any judgment would be reversed (unless
13   the error is considered harmless beyond a reasonable doubt).
14              The court reasoned that the prosecutor’s argument to the jury is unfair because the
15   unstated premise which may be plausible to non-lawyers is that the prosecutor simply would
16   drop all charges because the defense informed the prosecution of the alibi defense.
17   Alternatively, the comments improperly implied defense counsel did not believe the alibi or
18   had participated in its fabrication. See Lindsey, supra, at 117.
19
20   Dated: February 9, 2009                                                  Respectfully submitted,
21
22
23                                                                            _______________________________________
                                                                              JON BRYANT ARTZ, Attorney for Defendant
24
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                                POINTS AND AUTHORITIES TO EXCLUDE EVIDENCE RE ALIBI
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                             3
     POINTS AND AUTHORITIES TO EXCLUDE EVIDENCE RE ALIBI
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On February 9 , 2009, I served the foregoing documents described as POINTS AND
     AUTHORITIES TO EXCLUDE EVIDENCE AND/OR ARGUMENT RE FAILURE OF
 6   DEFENSE TO INFORM THE PROSECUTOR OF “ALIBI” OR OTHER DEFENSE on
     the interested parties in this action as follows:
 7
 8   Laurie L. Hauf
     Deputy District Attorney
 9   325 S. Melrose Dr.
     Vista, CA 92083
10
11
     [X]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
12          hand to the interested party[ies] as listed above at Trial.
13   [ ]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
            and processing correspondence for mailing. Under that practice it would be deposited
14          with U.S. postal service on that same day with postage thereon fully prepaid at Los
            Angeles, California in the ordinary course of business. I am aware that on motion of the
15          party served, service is presumed invalid if postal cancellation date or postage meter date
            is more than one day after date of deposit for mailing in affidavit.
16
     []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
17          All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
            all pages were sent without error.
18
     []     (BY OVERNIGHT COURIER): I caused such envelope to be placed for collection and
19          delivery on this date in accordance with standard FEDERAL EXPRESS delivery
            procedures.
20
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
21          the above is true and correct.
22   [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
            court at whose direction the service was made.
23
            Executed on February , 2009, at Los Angeles, California.
24
25                                                       __________________________________
                                                         JON BRYANT ARTZ
26
27
28

                                                     4
                      POINTS AND AUTHORITIES TO EXCLUDE EVIDENCE RE ALIBI
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                  I. B. 7
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant _____________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                              FOR THE COUNTY OF LOS ANGELES
10
11   THE PEOPLE OF THE STATE OF                           )   Case No.:
     CALIFORNIA,                                          )
12                                                        )   THE PROSECUTOR MAY NOT
                            Plaintiff,                    )   LOWER THE PROSECUTION’S
13                                                        )   BURDEN OF PROOF BY EXPLAINING
            v.                                            )   “REASONABLE DOUBT” IN
14                                                        )   LANGUAGE OF THE “REASONABLE
                                                          )   MAN,” e.g. CANNOT DESCRIBE
15   _____________,                                       )   BEYOND A REASONABLE DOUBT IS
                                                          )   LIKE GETTING “MARRIED”
16                          Defendant.                    )
                                                          )
17
18          In People v. Johnson (2004) 115 Cal.App.4th 1169, Cal.Rptr.3d, the court held
19   unanimously that it is reversible error (even if no objection at the time) for the court or
20   prosecutor to “amplify about reasonable doubt.” In the Johnson case, the court, during voir
21   dire, discussed reasonable doubt, told the jury that there is a “possible doubt whether we will be
22   here tomorrow” and that “we take vacations, we get on airplanes... we go to Hawaii....” The
23   Appellate Court held that it is error to compare reasonable doubt to “situations where people
24   make serious decisions in spite of possible reservations about the outcome.” Such comparisons
25   cannot be equated to the level of conviction necessary for finding guilt in a criminal case.
26          The Johnson court cited with approval People v. Nguyen (1995) 40 Cal.App.4th 28, 35
27   [40 Cal. Rptr.2d 840], in which the prosecutor argued: “‘The standard is reasonable doubt. That
28   is the standard in every single criminal case. And the jails and prisons are full, ladies and

                                                      1
                 THE PROSECUTOR MAY NOT LOWER THE PROSECUTION’S BURDEN OF PROOF
 1   gentlemen. It’s a very reachable standard that you use every day in your lives when you
 2   make important decisions, decisions about whether you want to get married, decisions that
 3   take your life at stake when you change lanes as you’re driving. If you have reasonable doubt
 4   that you’re going to get in a car accident, you don’t change lanes. So it’s a standard that you
 5   apply in your life. It’s a very high standard...”
 6              The Nguyen court reasoned that the prosecutor’s argument that people apply a
 7   reasonable doubt standard every day trivializes the reasonable doubt standard. That court
 8   held that analogizing reasonable doubt to choosing a partner for marriage is also misleading
 9   since the decision to marry is often based on a standard far less than reasonable doubt, as
10   reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]
11   (People v. Nguyen, id., Cal.App.4th at p. 36.)
12              “The judgment of a reasonable man in the ordinary affairs of life, however
13   important, is influenced and controlled by the preponderance of evidence. Juries are
14   permitted and instructed to apply that rule to the determination of civil actions involving rights
15   of property only. But in the decision of a criminal case involving life or liberty, something
16   further is required. “(People V. Brannon (1873) 47 Cal. 96, 97.)”
17              The Johnson court also cited to People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7 for the
18   proposition that a defendant can properly raise the issue that the prosecutor trivialized
19   “Reasonable Doubt” under Penal Code §1259 which provides in part that an Appellate Court
20   may review any “instruction,” even though no objection was made because the “substantial
21   rights” of the defendant were affected. Any explanation or argument by a prosecutor that
22   lowers the reasonable doubt standard violates this citizen’s “substantial rights” and is reversible
23   error (even without objection). By filing this brief the defense objects to any trivialization or
24   lowering of the reasonable doubt standard in this trial.
25   Dated: February 22, 2010                                              Respectfully submitted,
26
27                                                                         _______________________________________
                                                                           JON BRYANT ARTZ, Attorney for Defendant
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                                                                                2
                     THE PROSECUTOR MAY NOT LOWER THE PROSECUTION’S BURDEN OF PROOF
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                  I. B. 8
     12400 Wilshire Blvd., Suite 500
 2   Los Angeles, CA 90025
     Telephone: (310) 820-1315
 3   Facsimile: (310) 820-1691
 4   Attorney for Defendant ______________________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                              FOR THE COUNTY OF LOS ANGELES
10                              (Central District – Metropolitan Courthouse)
11   THE PEOPLE OF THE STATE OF                            )   Case No.: ____________________
     CALIFORNIA,                                           )
12                                                         )   MOTION IN LIMINE TO ADMIT
                            Plaintiff,                     )   “PARTITION RATIO EVIDENCE” RE
13                                                         )   COUNT I: DRIVING UNDER THE
            v.                                             )   INFLUENCE; V.C. 23152(a)
14                                                         )
                                                           )   Date:        August 15, 2005
15   ___________________                                   )   Time:        9:00 a.m.
                                                           )   Dept.        75
16                          Defendant.                     )
                                                           )
17
18                                                    I.
19                       RELEVANT EVIDENCE MAY NOT BE EXCLUDED
20          “Except as provided by statute hereinafter enacted by a two-thirds vote of the legislature,
21   relevant evidence shall not be excluded in any criminal proceeding;...” (Cal.Const., Art. I,
22   §28)
23   A.     Partition ratio evidence is relevant to the charge of driving under the influence [V.C.
24   23152(a)] and would show the jury that a breath test overstates the driver’s true B.A.C. at the
25   time of the test if the breath test is administered while the subject is in the absorptive phase.
26   The defendant must be able to present this evidence in order to present a defense to “under the
27   influence” as alleged in Count I. [It is conceded the evidence is not admissible to Count II, V.C.
28   23152(b)]. The prosecution wants to use a presumption as to Count I which states that if there is

                                                       1
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1   a chemical test with .08% or more, the jury may infer the Defendant was under the influence
 2   at the time of driving. (See CalJIC 12.61) People v. Bransford (1994) 8 Cal.4th 885, which
 3   eliminated ratio evidence, does not apply to driving under the influence, but only to driving with
 4   .08% or higher.
 5   B.     Barring the defendant from introducing partition ratio evidence as to Count I, which
 6   would explain why the Defendant’s blood alcohol content was lower than .08% as applied to
 7   “under the influence” would constitute a denial of the Constitutional rights of cross-
 8   examination, equal protection, and due process.
 9                                                    II.
10                     DUE PROCESS INSURES THE DEFENDANT’S RIGHT
11                          TO PRESENT “EVIDENCE” IN HIS DEFENSE
12          A defendant charged with criminal violations has a federal guaranteed right to present
13   evidence and witnesses in his behalf. (Taylor v. Illinois 484 U.S. 400, 408 (1988); Chambers v.
14   Mississippi 410 U.S. 284, 302 (1973).) “As a general matter, the ordinary rules of evidence do
15   not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover,
16   a traditional and intrinsic power to exercise discretion to control the admission of evidence in the
17   interests of orderly procedure and the avoidance of prejudice.” [Citation.] (People v. Jones
18   (1998) 17 Cal.4th 279, 305.)
19          The right to a fair trial as a due process concern is found in the Fourteenth Amendment
20   to the United States Constitution. “... a judge, as well as a prosecutor, can improperly interfere
21   with an accused’s right to a fair trial. (Id. at p. 788, 278 Cal.Rptr. 237.)” (Reid v. Superior Court
22   (1997) 55 Calliope.4th 1326, 1332.)
23   ///
24   ///
25   ///
26   ///
27   ///
28

                                                       2
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1                                                   III.
 2                         V.C. §13610 PROVIDES FOR THE ADMISSION
 3                  OF “OTHER COMPETENT EVIDENCE BEARING UPON...”
 4                  WHETHER THE DRIVER WAS UNDER THE INFLUENCE
 5                          AT THE TIME OF THE ALLEGED OFFENSE
 6          The prosecution will request an instruction, CalJIC 12.61, which is a presumption of
 7   intoxication based on a test of .08% or more in an attempt to prove the driver was under the
 8   influence. V.C. §23610(c) states that the law dealing with presumptions of blood alcohol does
 9   not limit “the introduction of any other competent evidence bearing upon the question of
10   whether the person... was under the influence of an alcoholic beverage at the time of the
11   alleged offense.” “Partition ratio evidence” bears upon the question of whether the defendant
12   was really a .08% or more, i.e., was under the influence of an alcoholic beverage at the time he
13   drove. Such evidence is expressly permitted by the statute dealing with the presumptions.
14                                                   IV.
15               “PARTITION RATIO EVIDENCE” IS RELEVANT TO DRIVING
16                           “UNDER THE INFLUENCE”, V.C. §23152(a)
17          The prosecution will introduce a breath test result to prove the defendant’s blood alcohol
18   concentration at the time of the test, and by inference, at the time of driving, and also as
19   evidence that the defendant was “under the influence” of alcohol at the time of driving. (See
20   CALJIC 12.61: Inference of Intoxication – permissive inference that defendant is under the
21   influence if test of .08% or higher blood alcohol content.) Partition ratio evidence can establish
22   that the breath testing device overstates a person’s true B.A.C. if the subject was absorbing
23   alcohol (absorptive phase) at the time of the driving. This evidence is relevant to controvert the
24   People’s evidence on Count I.
25          Attached hereto as Exhibit “A” is a copy of the Supreme Court of Vermont’s decision in
26   State v. Hanks, 772 A.2d 1087, which held the use of partition ratio evidence is required in a
27   DUI case where the defendant is charged, as in this case, with a charge of driving under the
28   influence of alcohol and the per se violation. The Vermont statutory scheme is the same as

                                                      3
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1   California’s. The Hanks court discussed the California case of People v. Bransford (1994) 8
 2   Cal.4th 885 and expressly stated that the Bransford court did not decide the ratio issue with
 3   regard to the driving under the influence charge of V.C. §23152(a). The Hanks court
 4   correctly reasoned that Bransford rule excluding ratio evidence applies only to the charge of
 5   violation of Vehicle Code §23152(b), the per se law which prohibits a .08% or more amount
 6   whether measured by blood or breath.
 7          The issue of whether the exclusion of partition ratio evidence constituted a denial of the
 8   right of cross-examination in relation to Vehicle Code §23152(a) was not discussed in
 9   Bransford. (See fn. 10.) The Bransford court held it’s a crime to drive with a .08% or higher,
10   whether measured by blood or by breath. The court did not address whether “ratio” evidence
11   can be considered as to “under the influence”, a different charge than the “per se” allegation.
12          In the case of People v. Acevedo, (2001) 93 Cal.App.4th 757, the court discussed the
13   exclusion of partition ratio evidence where a defendant is charged with violations of V.C.
14   §§23152(a) and (b). The case involved a urine test. The Court discussed the line of cases which
15   have dealt with “ratio” evidence and concluded that the exclusion of partition ration evidence
16   constituted a denial of the Constitutional right of cross-examination. The Acevedo Court
17   discussed People v. Bransford and stated with respect to prior case law:
18                  “The court in Bransford did not disapprove of the above line of
19                  cases; it merely found they were no longer applicable when the
20                  defendant was charged with violation of Vehicle Code §23152
21                  subdivision (b) and sought to challenge the partition ratios of
22                  breath tests.”
23          After finding that excluding the partition ratio evidence in regard to the subdivision (b)
24   constituted a denial of the right of cross-examination and such denial was prejudicial, the
25   Acevedo Court stated, at page 772, “That Defendant “was also prejudiced as to the driving
26   under the influence count (Veh. Code §23152(a)).”
27          “The Sixth Amendment guarantees the right of an accused in a criminal prosecution to
28   be confronted with the witnesses against him.” Alvarado v. Superior Court (2000) 23 Cal.4th

                                                      4
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1   1121, 1137. The right of confrontation, “means more than being allowed to confront the witness
 2   physically.” Id. Indeed, “[t]he main and essential purpose of confrontation is to secure for the
 3   opponent the opportunity of cross-examination.” Id. This last right was strengthened by the
 4   U.S. Supreme Court in Crawford.
 5                                                    V.
 6                      THE STATUTORY SCHEME DEALING WITH THE
 7                      “PRESUMPTION” ALLOWS EVIDENCE TO REBUT
 8                                         THE PRESUME FACT
 9          E.C. §600(a) states that “...a presumption is not evidence.” Further, E.C. §607 dealing
10   with presumptions in a criminal case expressly states that “the defendant need only raise a
11   reasonable doubt as to the existence of the presumed fact (that the jury may, but is not
12   required to, infer that the driver was under the influence if you find that there was a chemical test
13   result of .08% or more within 3 hours of driving).” The use note states in E.C. §607 “that a
14   presumption if rebutted by any evidence that raises a reasonable doubt as to the presumed
15   fact.” “The defendant does not have the burden to disprove of disproof on the presumed fact by
16   a preponderance of the evidence...”
17          The use note to E.C. §607 refers to E.C. §604. The comment to E.C. §604 states that a
18   presumption “is merely a preliminary assumption in the absence of contrary evidence.” If
19   contrary evidence is introduced that would support a finding of the non-existence of the
20   presumed facts, the trier of fact shall determine the issue “from the evidence and without regard
21   to the presumption.”
22          The jury instruction fo the “presumption” of a person with a blood alcohol content of
23   .08% or greater being “under the influence” of intoxicating liquor will be requested by the
24   People. The defendant is entitled to raise a “reasonable doubt” as to the existence of the
25   presumed fact. Evidence of partition ratio variability has long been used in this state to rebut
26   this presumption in the §23152(a) context. See People v. Campos 188 Cal.Rptr. 366 (1982). It
27   is clear, under both Acevedo and Hanks, that Bransford does not render this evidence
28   inadmissible to defend against §23152(a) prosecutions.

                                                      5
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1                                                                               VI.
 2                                           RATIO EVIDENCE MUST BE ALLOWED
 3               The California Constitution states that all relevant evidence shall be admitted. Partition
 4   evidence is relevant to the charge of V.C. 23152(a), driving under the influence. This defendant
 5   is entitled to a fair trial. This driver has the constitutional protections of the right to present
 6   evidence, right of cross examination, equal protection, and due process of law. An
 7   appropriate instruction limiting the ratio evidence to the charge of driving under the influence of
 8   alcohol, V.C. 23152(a) can be prepared.
 9   Dated: August 10, 2005                                                   Respectfully submitted,
10
11
12                                                                            _______________________________________
                                                                              JON BRYANT ARTZ,
13                                                                            Attorney for Defendant
14
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                                                                                   6
                           P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1                                         PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, Suite
 4   500, Los Angeles, California 90025-1033
 5        On August 15, 2005 I served the foregoing documents described as MOTION IN
     LIMINE #4: POINTS AND AUTHORITIES IN SUPPORT OF ADMISSIBILITY OF
 6   “PARTITION RATIO EVIDENCE” RE COUNT I: DRIVING UNDER THE
     INFLUENCE; V.C. 23152(a)
 7
     on the interested parties in this action as follows:
 8
            Office of the City Attorney
 9          1945 South Hill Street, Room 501
            Los Angeles, CA 90007
10
11
     [X ]   (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
12          hand to the interested party[ies] as listed above.
13   [ ]    (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
            and processing correspondence for mailing. Under that practice it would be deposited
14          with U.S. postal service on that same day with postage thereon fully prepaid at Los
            Angeles, California in the ordinary course of business. I am aware that on motion of the
15          party served, service is presumed invalid if postal cancellation date or postage meter date
            is more than one day after date of deposit for mailing in affidavit.
16
     []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos..
17          All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
            all pages were sent without error.
18
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
19          the above is true and correct.
20   [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
            court at whose direction the service was made.
21
            Executed on August 15, 2005, at Los Angeles, California
22
23   _Jon Bryant Artz                                       _________________________________
     Typed or Printed Name                                  Signature
24
25
26
27
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                                                        7
                   P&A’s IN SUPPORT OF ADMISSIBILITY OF PARTITION RATIO EVIDENCE
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                 I. B. 9
     12400 Wilshire Blvd., Suite 500
 2   Los Angeles, CA 90025
     Telephone: (310) 820-1315
 3   Facsimile: (310) 820-1691
 4   Attorney for Defendant _____________
 5
 6
 7
 8                    SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                                      COUNTY OF LOS ANGELES
10
11   PEOPLE OF THE STATE OF CALIFORNIA,                )   Case No.:
                                                       )
12                         Plaintiff,                  )   MOTION TO EXCLUDE THE BLOOD
                                                       )   TEST FOR VIOLATION OF FOURTH
13                                                     )   AMENDMENT; UNREASONABLE
            v.                                         )   SEARCH AND SEIZURE OF
14                                                     )   MEASUREMENT OF AMOUNT OF
                                                       )   ALCOHOL IN DEFENDANT’S
15   _____________,                                    )   BLOOD; DECLARATION OF JON
                                                       )   BRYANT ARTZ; DECLARATION OF
16                         Defendant.                  )   _____________.
                                                       )
17
18   TO THE COURT:
19          The defendant will move the Court to suppress the blood test results because the
20   warrantless, non-consentual search of defendant’s person and seizure of his blood was
21   unreasonable and violated the Fourth Amendment. The police did not honor the defendant’s
22   chemical test rights pursuant to Vehicle Code §23612(a)(2)(A) which guarantees that the
23   person “has the choice of whether the test shall be of his blood or breath and the officer shall
24   advise the person that he or she has that choice”. The officer, instead, compelled his own
25   preferred blood test. Since the compelled blood test was obtained without a warrant and was
26   obtained without consent, it was unreasonable, and violated the Fourth and Fourteenth
27   Amendments to the U.S. Constitution and Article I, Section 13 of the California Constitution,
28   Nelson v. City of Irvine (1998) 143 F.3d 1196, Ferguson v. City of Charleston, 532 U.S. 67, 121

                                                  1
            MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   Supreme Court 1281.
 2                                                     I.
 3                                           INTRODUCTION
 4           The defendant was pulled over for a minor vehicle code violation and thereafter taken to
 5   the Placentia Police Department. He was not offered a choice of blood or breath test. The
 6   police officer told him “We’re going to take a blood test from you and we are getting a lady
 7   here to do it” or words to that effect. This nice gentleman cooperated fully. However, he was
 8   never given a choice of tests nor did he ever consent to the withdrawal of the blood from his
 9   body.
10           The motion to exclude the blood test results is based upon Nelson v. City of Irvine (1998)
11   143 F.3d 1196, which held that requiring a DUI arrestee to submit to a warrantless test of the
12   officer’s choosing and/or forcing the officer’s preferred blood test violates the Fourth
13   Amendment’s general prohibition against non-consentual, warrantless searches. This
14   prohibition is now even stronger under Ferguson v. City of Charleston, 532 U.S. 67, 121 Sup.
15   Ct. 1281.
16                                                     II.
17        WHERE POLICE SEARCH OR SEIZE A PERSON AND OBTAIN EVIDENCE
18   WITHOUT A WARRANT THE PEOPLE HAVE THE BURDEN, UPON MOTION BY
19   THE DEFENDANT, TO PLEAD THEIR JUSTIFICATION FOR THE WARRANTLESS
20   SEARCH AND SEIZURE. THE PLEADING MUST BE SERVED WITH SUFFICIENT
21   TIME BEFORE THE HEARING TO PERMIT THE DEFENDANT TO RESPOND.
22                Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96-97, cited app.
23                         People v. Williams (1988) 45 Cal.3d 1268, 1304, fn.3.
24           The police seized defendant’s blood without consent and without a warrant. In People v.
25   Williams, (1999) 20 Cal.4th 119, 130 [Williams II]: the California Supreme Court held that all
26   the defense has to do in a 1538.5 motion to raise the issue of the unconstitutionality of a search is
27   “simply assert the absence of a warrant and make a prima facie case to support that assertion.”
28   Consequently, the burden of proof to justify the warrantless search is on the prosecution.

                                                   2
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   The Williams Court stated “defendants need not guess what justifications” the prosecution will
 2   argue. Instead, defendant's can wait for the prosecution to present a justification. Moreover,
 3   in specifying the inadequacy of the prosecution's justification, defendants do not have to help
 4   the prosecution to make its case. Attached hereto is a Declaration of Jon Bryant Artz which
 5   makes a prima facie case that there was no arrest and/or search warrant in this case.
 6           It is a First Principle of criminal advocacy that the People have the burden to justify a
 7   warrantless search and seizure, Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, People
 8   v. Williams (1988) 45 Cal.3d 1268, 1297 because WARRANTLESS searches and seizures are
 9   PRESUMPTIVELY ILLEGAL. Katz v. United States (1967) 389 U.S. 347, 357, People v.
10   Laiwa (1983) 34 Cal.3d 711, 725. They are “per se unreasonable,” People v. Osband (1996) 13
11   Cal.4th 622, 673 [internal cite and quotation marks omitted], unless the People can show the
12   narrow exception which applies thereto. Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750.1/
13           In service to that allocation of burdens, a procedural device has been recognized: the
14   major pleading effort, upon motion by the defendant, is initially on the People to advance its
15   justification for a warrantless liberty infringement. Wilder (1979) 96 Cal.App.3d 90 @96-97,
16   accord People v. Palmquist (1981) 123 Cal.App.3d 1, 12, fn. 7, People v. Sedillo (1982) 135
17   Cal.App.3d 616, 619 623, People v Britton (1984) 156 Cal.App.3d 689, 699, hearing denied.
18   The defense requests full compliance with the law which requires that the prosecution file a
19   pleading stating the facts and justification for the search and seizure.
20           Naturally, “[if the prosecution fails to carry its burden [of justification for the warrantless
21   infringement], the defendant need do nothing more to be entitled to suppression of the primary
22   evidence.” People v. Williams, (1986) 45 Cal.3d 1268 @ 1300 [emphasis added].
23           So, even though the moving party has the initial responsibility of raising the suppression
24   issue, “when [he so raises], he makes 'a prima facie case' when he establishes that the arrest or
25   search was made without a warrant and... “the burden then rests upon the prosecution to show
26   proper justification.'” People v. Manning (1973) 33 Cal.App.3d 586, 600; see also People v.
27
28   1/
       Credit is given to “Captain Motion” for some of the language of this motion (Michael J. Kennedy, Public Defender
     v. Victorville).
                                                         3
              MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   Villalva (1973) 33 Cal.App.3d 362, 366 and People v. Prewitt (1959) 52 Cal.2d 330, 335. [The
 2   bizarre rumor circulating locally that Wilder has been “overruled” is not based on any authority.
 3   Williams, supra 45 Cal.3d. @1304, fn.3.]
 4           It has long been understood that “[p]ower is a heady thing; and history shows that the
 5   police acting on their own cannot be trusted. And so the Constitution requires a[n]
 6   [independent!] magistrate to pass on the desires of the police before they violate [one's]
 7   privacy...” McDonald v. United States (1948) 335 U.S. 451, 456.
 8           The People's burden has to be carried, of course, with “evidence” (Penal Code section
 9   1538.5(c)), which has the same meaning for suppression motions as for trials. Hewitt v. Superior
10   Court (1970) 5 Cal.App.3d 923, 927.2/
11                                                            III.
12                          CONSTITUTIONAL AND STATUTORY GROUNDS
13           This motion is based on violation of defendant's rights as guaranteed by the Fourth, Fifth
14   and Fourteenth Amendments to the United States Constitution, and Art. I, §§ One, Ten and
15   Thirteen of the California constitution.
16   ///
17           A. FOURTH AMENDMENT:
18           The Fourth Amendment of the Constitution of the United States (adopted nearly intact by
19   the Constitution of California, Article I, Section 13, provides):
20               “The right of the People to be secure in their persons, houses, papers, and
21           effects, against unreasonable searches and seizures, shall not be violated, and no
22           warrant shall issue, but upon probable cause, supported by Oath or affirmation,
23           particularly describing the place to be searched and the persons or things to be
24           seized.”
25
     2/
       That is, the law properly understood, there is no “Oh, just to explain why the officer did what he did” nor “for
26   probable cause purposes' exceptions to the Evidence Code for these motions. Indeed, the former rationale would
     invite irrelevant evidence: the “objective rule” is so pronounced that what the cop thought on the subject is flatly
27   irrelevant. People v. Hull (1995) 34 Cal.App.4th 1448, 1455, People v. Limon (1993) 17 Cal.App.4th 524, 538-539,
     rev. denied, People v. Gonzales (1989) 216 Cal.App.3d 1185, 1190, rev. denied. “Subjective intentions play NO
     role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States (1996) --- U.S. ---, --- [116
28   S.Ct. 1769, 1774] [emphasis added]. What part of “no” and “role” causes any confusion here?

                                                          4
              MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1          1.      “For the Fourth Amendment protects people, not places. What a person
 2   knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
 3   Amendment protection. But what he seeks to preserve as private, even in an area accessible to
 4   the public, may be constitutionally protected.” (Katz v. United States 389 U.S. 347, 351-352
 5   (1967) [ internal citations omitted].)
 6          2.      “ . . . searches conducted outside the judicial process, without prior approval by
 7   judge or magistrate, are per se unreasonable under the Fourth Amendment --subject only to a
 8   few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S.
 9   347, 357 fns. omitted (1967).)
10          3.      “It is not disputed that the administration of a breath test is a search within the
11   meaning of the Fourth Amendment and therefore subject to the requirements of that
12   amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449
13   (9th Cir. 1986). [Citation omitted.].)
14          4.      “To pass constitutional muster under the Fourth Amendment a search must be
15   reasonable. Generally, a search must also be supported by probable cause, and must be backed
16   up by a warrant, or the circumstances must fit an exception to the warrant requirement.”
17   (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
18          5.      “In considering [warrant requirement exceptions], we must not lose sight of the
19   Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his
20   opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct.
21   524, 535, 29 L.Ed. 746:
22                  ‘It may be that it is the obnoxious thing in its mildest and least
23                  repulsive form; but illegitimate and unconstitutional practices get
24                  their first footing in that way, namely, by silent approaches and
25                  slight deviations from legal modes of procedure. This can only be
26                  obviated by adhering to the rule that constitutional provisions for
27                  the security of person and property should be liberally construed.
28                  A close and literal construction deprives them of half their

                                                   5
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                  efficacy, and leads to gradual depreciation of the right, as if it
 2                  consisted more in sound than in substance. It is the duty of courts
 3                  to be watchful for the constitutional rights of the citizen, and
 4                  against any stealthy encroachments thereon.’” (Coolidge v. New
 5                  Hampshire 403 U.S. 443, 453-454 (1971) reh. den’d [footnote
 6                  omitted, emphasis added].)
 7          B. THE EXCLUSIONARY RULE:
 8          Evidence obtained by law enforcement officers in violation of the Fourth Amendment is
 9   inadmissible in criminal prosecutions. Weeks v. United States (1914) 232 U.S. 383; Mapp v.
10   Ohio (1961) 367 U.S. 643.
11          The Fourth Amendment is applicable to the states by virtue of the Fourteenth
12   Amendment to the United States Constitution. Mapp v. Ohio, supra, 367 U.S. at 654. California
13   must apply the federal Exclusionary Rule to illegally obtained evidence in criminal proceedings.
14   In re Lance W., supra, 882-883.
15          C. TANGIBLE AND INTANGIBLE EVIDENCE AND POTENTIAL THIRD
16   PARTY TESTIMONY ARISING OUT OF AN UNLAWFUL SEARCH OR SEIZURE
17   ARE INADMISSIBLE AGAINST AN ACCUSED IN A CRIMINAL PROCEEDING.
18          Evidence obtained as a direct result of the detention, arrest, search, seizure, or entry
19   violative of the Fourth Amendment is inadmissible. The Exclusionary Rule applies to intangible
20   evidence as well as tangible evidence. The Exclusionary Rule applies not only to objects seized
21   unlawfully, but to the “fruits” of that illegality as well. Wong Sun v. United States (1963) 371
22   U.S. 471, 83 S.Ct. 407.
23          Testimonial evidence is intangible evidence within the meaning of Penal Code section
24   1538.5 and may be suppressed if it is the product of an illegal search even though no tangible
25   evidence was seized. Rockridge v. Superior Court (1970) 3 Cal.3d 166, 169; Kirby v. Superior
26   Court (1970) 8 Cal.App.3d 591.
27          It is to be recalled that “a search is not to be made legal by what it turns up. In law it is
28   good or bad when it starts,” wrote our insightful prosecutor at Nuremberg, Justice Jackson, “and

                                                    6
            MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   does not change character from its success.” United States v. Di Re (1947) 332 U.S. 581, 595.
 2   Justice Jackson, recently dealing with the history of unprincipled, “emergency”-based
 3   jackbootism at Nuremberg, had this conduct in mind with those utterances.
 4          D. PENAL CODE SECTION 1538.5 IS THE PROPER VEHICLE TO SUPPRESS
 5   EVIDENCE.
 6          Penal Code section 1538.5 is the proper vehicle for challenging the legality of a search
 7   and seizure pursuant to a search warrant. Section 1538.5 is utilized to suppress evidence which
 8   is the subject of the search and seizure or was the fruit of any search and seizure. In re Lance W.
 9   (1984) 37 Cal.3d 873, 896; Penal Code section 1538.5(a).
10                                                     IV.
11                     THE POLICE OFFICER DID NOT GIVE DEFENDANT
12                            A CHOICE OF BREATH OR BLOOD TEST
13          After Mr. _____________ was arrested by the police, he was taken to the police
14   department. He was told that he would “have to take a blood test.” (See his attached
15   Declaration.) Thereafter, a nurse arrived and took his blood from him. As demonstrated in the
16   attached declaration of defendant incorporated herein referenced Mr. _____________ was never
17   advised or otherwise informed that he had the right to a choice between whether to take a
18   blood or a breath test to satisfy his obligation to take a chemical test. Furthermore, if given a
19   choice, he would in fact have taken a breath test.
20          Vehicle Code §23612(2)(A) provides that “if the person is lawfully arrested for driving
21   under the influence of an alcohol beverage, the person has the choice of whether the test shall be
22   of his or her blood or breath and the officer shall advise the person that he or she has that
23   choice...”
24          Mr. _____________ was deprived of the option to take a breath test and was coerced
25   into submitting to a blood test. Requiring the DUI arrestee to submit to a warrantless search
26   of the officer’s preferred, more invasive blood test violates the Fourth Amendment's warrant
27   requirement.
28                                                     V.

                                                   7
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                   NELSON v. CITY OF IRVINE STATES THAT REQUIRING
 2      A DUI ARRESTEE SUBMIT TO A WARRANTLESS TEST OF BLOOD AND NOT
 3       ALLOWING THE CITIZEN TO A CHOICE OF BREATH IS UNREASONABLE
 4                                UNDER THE FOURTH AMENDMENT
 5          In Nelson v. City of Irvine (1998) 143 F.3d 1196 the court noted that the defendant's
 6   therein were “deprived of the option to take breath or urine tests and were coerced into
 7   submitting to a blood test.” The Court held that arrestees who were forced to undergo a certain
 8   test preferred by the police (in Nelson, the more invasive blood test as in our case), had a Fourth
 9   Amendment claim.
10          The Court further held that requiring the DUI arrestee to submit to a warrantless test of
11   the officers choosing, after the arrestee has consented to one of the available test as provided by
12   statute, violates the Fourth Amendment's warrant requirement. Lastly the court held that
13   arrestees who consented to a certain test did not impliedly consent to a blood test.
14          A.      Facts of the Nelson Case:
15          There were numerous arrestees who filed a class action. Arrestee Nelson was not
16   advised of his choice of a chemical test and the officer simply asked him if he “had a
17   problem with taking a blood test.” He subsequently alleged he would have selected a breath or
18   urine test if so advised as does this moving party.
19          Mr. Fernandez was told of his three options, took a preliminary breath test, was thereafter
20   informed that the police were “going to get a blood sample”. He likewise alleged that he would
21   have selected a breath or urine test.
22          Arrestee Tyler was not informed that he had choice of tests and was told that if he did not
23   cooperate in the taking of a blood test he would be held in jail over the week-end.
24          Arrestee Chancellor was told that if he submitted to a blood test he would be released in
25   four hours, but if he selected a urine test he would not be released for at least 17 hours. He
26   submitted to a blood test.
27          As the court noted, a search must be reasonable, citing Ohio v. Robinette, (1996) 519
28   U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347. (id. at p.1200.)

                                                   8
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1          The court noted that the issue is whether the blood tests were reasonable and whether
 2   “exigent circumstances” or some other exception to the warrant requirement existed to excuse
 3   the police from obtaining warrants.
 4          B.      Holding of the Nelson Case:
 5          The Nelson Court, held that in California (at that time) a chemical analysis of blood,
 6   breath, or urine is provided for by statute, V.C. § 23155(a), and therefore breath and urine tests
 7   are equally effective as a blood test. (Nelson v. City of Irvine, id., at p.1201). Furthermore, the
 8   Nelson Court noted that “California law requires that blood and urine tests be available: a DUI
 9   arrestee has the choice of whether the test shall be of his . . . blood, breath, urine, and the
10   Officer shall advise the person that he or she has that choice.” (Nelson v. City of Irvine, id.,
11   at p.1201).
12          The Nelson Court held that when a DUI arrestee consents to undergo a given test, e.g.
13   breath or urine, “the government has available to it an effective alternative to the test
14   preferred by the police. The Nelson Court looked at prior cases and, quoting from Schmerber v.
15   California (1966) 384 U.S. 757 at 760, which approved the withdrawal of blood without a
16   warrant to determine the alcohol level, noted it “would be a different case” if the police had
17   refused to respect the citizen's choice... “ to undergo a different form of testing (e.g. asking for
18   urine instead of blood).
19          The Nelson Court noted that Judge Kozinski in Hammer v. Gross (1991) 932 F.2d 842 at
20   851 (9th Cir. en banc) reasoned that it is unreasonable when a subject agrees to submit to an
21   alternative alcohol test and yet is forced to submit to the extraction of his blood:
22                  “If an alternative test is readily available and a suspect requests it,
23                  police officers may not arbitrarily refuse to administer it simply
24                  because the suspect did not have the presence of mind to make a
25                  decision more promptly or because he changed his mind. The
26                  standard, as always, under the Fourth Amendment, is
27                  reasonableness. Defendants (the police) have offered no
28                  explanation for the officer's refusal to comply with (the arrestee)'s

                                                    9
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                  request.” (Nelson v. City of Irvine, id., at p.1202).
 2          The Hammer Court noted that the need for the blood alcohol test was critical but because
 3   the arrestee had consented to one of the tests as provided by law, “the government had no need
 4   for the... test preferred by the police.” As stated by Judge Kozinski, “If the suspect requests a
 5   breath or urine test and it will do the job just as well, it must be used in lieu of a blood test
 6   even where the suspected crime is murder in the first degree.” (Nelson v. City of Irvine, id,
 7   at p.1202.)
 8          If a suspect is not advised of his choice of tests, it is unreasonable and in violation of
 9   the Fourth Amendment for police officers to insist upon their preferred blood test.
10          The Nelson Court rejected numerous arguments of the government, holding
11                  “When an arrestee requests but is denied the choice of an available
12                  breath or urine test, the exigency used to justify the warrantless
13                  blood test continues only because of the City's failure to perform
14                  the requested alternative test. Whenever a DUI arrestee consents
15                  to a breath or urine test, and such test are available, the
16                  administration of either the breath or urine test would preserve the
17                  evidence and end the exigency. In such case, because the sole
18                  justification advanced to excuse the officers from obtaining a
19                  warrant disappeared when the exigency ended, the blood tests
20                  were not only unnecessary and unreasonable, but violated the
21                  Fourth Amendment's warrant requirement.” (Nelson v. City of
22                  Irvine, id, at p.1205.)
23                                                    VI.
24     THE UNITED STATES SUPREME COURT HAS RECENTLY CONFIRMED “THE
25          GENERAL RULE THAT AN OFFICIAL NON-CONSENTUAL SEARCH IS
26          UNCONSTITUTIONAL IF NOT AUTHORIZED BY A VALID WARRANT”
27          In Ferguson v. City of Charleston, 532 U.S. 67, 121 Supreme Court 1281, the court
28   reviewed whether a state hospital’s performance of a diagnostic test to obtain evidence of a

                                                    10
            MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   patient’s criminal conduct for law enforcement purposes constituted an unreasonable search if
 2   the patient did not knowingly and voluntarily consent to the procedure.
 3          Under the facts of Ferguson, patients provided urine tests to a state hospital which used
 4   drug screens on the samples under the procedures implemented by the hospital and the police.
 5   Arguably, the patient was on notice that the hospital would be using the urine test to determine
 6   drug use and would thereafter submit positive results to the police for prosecution. In our case,
 7   the police officer misinformed the citizen, informing the driver that the results of the PAS test
 8   would be used for a limited purpose, i.e. to determine reasonable cause. Furthermore, the officer
 9   expressly told the defendant that consent to the PAS test would not satisfy the requirement of
10   providing a sample of blood, breath, or urine to determine actual alcohol content if arrested,
11   implying the PAS is not a test to determine blood alcohol levels.
12          The court stated that while the ultimate goal of the program was laudable, the “immediate
13   objective of the searches was to generate evidence for law enforcement purposes in order to
14   reach that goal.” (Ferguson v. Charleston, id. at 2842.) The court held that Fourth
15   Amendment’s general prohibition against non-consentual, warrantless searches” applied
16   (Ferguson, i.d. at 2842).
17          In that case the prosecution argued the evidence of drug use was admissible because the
18   search was not done by the police. In our case, of course, the search of defendant’s body for
19   evidence of his blood alcohol content by the PAS device was done directly by the police and
20   therefore is a stronger case for application of the Fourth Amendment’s prohibition against
21   warrantless searches.
22                                                  VII.
23     THE U.S. SUPREME COURT RULED (FOR THE FIRST TIME) THAT A PERSON
24      CANNOT LEGALLY GIVE CONSENT UNLESS THEY ARE FULLY INFORMED
25                ABOUT THEIR CONSTITUTIONAL RIGHTS AS STANDARDS
26                               OF “KNOWING WAIVER” REQUIRE
27          The U.S. Supreme Court reasoned that while it is true that citizens “may have a duty to
28   provide the police with evidence of criminal conduct that they inadvertently acquire in the

                                                   11
            MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   course of routine treatment, when they undertake to obtain such evidence from their patients for
 2   the specific purpose of incriminating those patients, they have a special obligation to make
 3   sure that the patients are fully informed about their constitutional rights, as standards of
 4   knowing waiver require, c.f. Mirandan v. Arizona, 384 U.S. 436 (1966).” (Emp. added)
 5   Ferguson, id. at 2842. All the more does this requirement of a knowing waiver apply when the
 6   police obtain the evidence. The prosecution cannot argue that there was a “knowing waiver” or
 7   consent to the PAS search.
 8                                                  VIII.
 9           THE POLICE VIOLATED MR. _____________’S DUE PROCESS RIGHT
10                                     AND LIBERTY INTEREST
11           Additionally, defendant contends that the implied consent law of California creates a
12   liberty interest that is entitled to the procedural due process protection of the Fourteenth
13   Amendment and that the policy of the arresting officer deprives him of his right to due
14   process and is directly contrary to California statutes.
15           The Nelson Court also noted, that since V.C. §23157(a)(2)(A) [now 23612(a)(2)(A)]
16   permits DUI arrestees a choice of tests, and the California law has been construed to provide that
17   an arrestee in entitled to just one test, (Kessler v. DMV (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348),
18   and therefore only consent to the selected test need be implied under the statute. (Nelson v. City
19   of Irvine, id, at p.1207.)
20   ///
21
22                                                   IX.
23                     IT IS UNREASONABLE TO EXTRACT BLOOD UNDER
24                                THE CONDITIONS OF THIS CASE
25           The U.S. Supreme Court stated in Schmerber that the questions “are whether the police
26   were justified in requiring petitioner to submit to the blood test and whether the means and
27   procedures employed in taking his blood respected relevant Fourth Amendment standard of
28   reasonableness.” Schmerber, Id. at 918.

                                                  12
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1          In Schmerber, the defendant was involved in an accident while driving an automobile,
 2   was in a hospital, he and his companion were injured, and as a result, the police had authority to
 3   arrest for a felony and the driver refused to consent to a test. Schmerber, Id. at 912.
 4          The U.S. Supreme Court stated that it reached its judgment “only on the facts of the
 5   present record,” and that its holding in no way indicates that the Constitution “permits...
 6   intrusions under other conditions.” Schmerber, Id. at 772.
 7          The U.S. Supreme Court stated “it would be a different case if the police... refused to
 8   respect a reasonable request to undergo a different form of testing . . . .” Schmerber, Id. at 760
 9   n.4. In the present case, the police conduct is even more unreasonable because the police
10   violated their mandatory duty under V.C. §23612(a)(2)(A): “shall advise” of “choice of blood
11   or breath.”
12          The court noted that “the procedure involves virtually no risk . . .”Schmerber, Id. at 920.
13   Since that decision (1996), society has become aware of AIDS and other infectious diseases that
14   can be transmitted by a needle. The “no risk” factor is no longer true.
15          Factors relative to the intrusiveness of a blood test must now consider that “special
16   precautions should be employed in procedures involving exposure to bodily fluids.” Nelson,
17   Id. at 1201. As the footnote to this court states:
18                     “See, e.g., Centers for Disease Control, U.S. Dep’t of Health
19                     and Human Services, Guidelines for Prevention of
20                     Transmission of Human Immunodeficiency Virus and
21                     Hepatis B Virus to Health-Care and Public-Safety Workers,
22                     17-18 (1989) (“Blood from all individuals should be
23                     considered infective,” and the “[u]se of needles and syringes
24                     should be limited to situations in which there is no
25                     alternative”); Centers for Disease Control and Prevention,
26                     U.S. Dep’t of Health and Human Services, Update:
27                     Provisional Public Health Service Recommendations for
28                     Chemoprophylaxis After Occupation Exposure to HIV, 276

                                                    13
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                     JAMA 90 (1996) ( “preventing blood exposures is the
 2                     primary means of preventing occupationally acquired
 3                     human immunodeficiency virus (HIV) infection”); Ronald
 4                     L. Nichol, Percutaneous Injuries During Operation: Who is
 5                     at Risk For What?, 267 JAMA 2938 (1992) (“[N]eedle stick
 6                     and other sharp injuries . . . account for greater than 80% of
 7                     occupationally acquired cases of HIV infection in [health
 8                     care workers]”).”
 9          In Schmerber:
10                     “Petitioner is not one of the few who grounds of fear, concern
11                     for health, or religious scruple might prefer some other
12                     means of testing, such as the “breathalyzer” test petitioner
13                     refused, see n.9, supra. We need not decide whether such
14                     wishes would have to be respected.” Schmerber, Id. at 920.
15          Also this citizen preferred a breath test and did not refuse a “breathalyzer” test . Additionally,
16   Mr. Moriarty had a concern for his health and did not want a blood test to be performed at the police
17   station. (See Declaration of Moriarty attached to original Motion to Suppress.)
18          The Schmerber court stated that “ . . . the test was performed in reasonable manner.
19   Petitioner’s blood was taken by a physician in a hospital environment according to accepted
20   medical practices. We are thus not presented with the serious questions which would arise if a
21   search involving the use a medical technique, even of the most rudimentary sort, were made by
22   other than medical personnel or in other than a medical environment – for example, if it were
23   administered by police in the privacy of the stationhouse. To tolerate searches under these
24   conditions might be to invite an unjustified element of personal risk of infection and pain.”
25   Schmerber, Id. at 920.
26          The court held that:
27                     “the present record shows no violation of petitioner’s right
28                     under the Fourth and Fourteenth Amendments to be free of

                                                    14
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                      unreasonable searches and seizures. It bears repeating,
 2                      however, that we reach this judgment only on facts of the
 3                      present record. The integrity of an individual’s person is a
 4                      cherished value of our society. That we today hold that the
 5                      Constitution does not forbid the States minor intrusions into an
 6                      individual’s body under stringently limited conditions in no
 7                      way indicates that it permits more substantial intrusions or
 8                      intrusions under other conditions.” Schmerber, Id. at 920.
 9          In this case, there was a poking of the skin of the person under “other conditions,” e.g. there
10   was no refusal to take a breath test, the primary factor that created the emergency and need for the
11   compelled blood test. Additionally, the police did not abide by their duty to inform the citizen of his
12   statutory right of a choice of tests. He was so advised in Schmerber. In our case, the blood test was
13   administered, not by a physician, but by “police in the privacy of the stationhouse.”
14          Society is presently aware of far more risk of needles, including the risk of infection. The
15   blood test was not taken in the hospital by a physician but was done in the police station. Because
16   the compulsory extraction of blood was taken under these “other conditions,” it was unreasonable.
17          As stated in Ferguson, supra, at 2842, when seeking evidence from citizens, the authorities
18   “have a special obligation to make sure that the (citizens) are fully informed about their
19   Constitutional rights, as standards of knowing waiver require. Cf. Miranda v. Arizona, 384 U.S.
20   436 (1966).” In other words, the U.S. Supreme Court in its most recent pronouncement stated that
21   when the State is obtaining incriminating evidence, the person must be “fully informed” regarding
22   their “Constitutional rights” and analogized it to the standards of “knowing waiver.” It is hornbook
23   Constitutional law that a knowing waiver must be express and voluntary and that the law presumes
24   against waiver of fundamental rights.
25          Since the only exigency was the need to secure evidence of blood alcohol content which
26   would have been satisfied by the officers following their duty to inform the citizen of right to a
27   choice of tests, and the citizen would have chosen breath, and such a breath test is safer and less
28   intrusive than a blood test, compelling the blood test without a warrant and without consent is

                                                    15
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   unreasonable.
 2                                                       X.
 3      THE JUSTIFICATION FOR THE SEIZURE OF THE BLOOD, EXIGENCY, WAS
 4    CREATED BY THE POLICE CONDUCT AND THEREFORE THE EXTRACTION OF
 5             BLOOD, WITHOUT A WARRANT AND WITHOUT CONSENT WAS
 6                                          UNREASONABLE.
 7          As stated in Schmerber, “in light of all these considerations, and of the fact that “the
 8   integrity of an individual’s person is a cherished value of society,” the reasonableness of the search
 9   must be considered. Schmerber, Id. 772, citing Hammer at 846.
10          The question in this case, given that the police compelled and extracted blood, without
11   warrant, and without consent, is whether the officer’s actions are “objectively reasonable” in light
12   of the facts and circumstances confronting them. Graham v. Conner (1989) 490 U.S. 386, 109 S.
13   Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989).n1. Such a test balances the intrusion on the individual’s
14   Fourth Amendment right against the governmental interests at stake. Graham, Id. at 1871.
15          The Nelson Court rejected numerous arguments of the government, holding:
16                   “When an arrestee requests but is denied the choice of an available
17                   breath or urine test, the exigency used to justify the warrantless
18                   blood test continues only because of the City's failure to perform the
19                   requested alternative test. Whenever a DUI arrestee consents to a
20                   breath or urine test, and such test are available, the administration
21                   of either the breath or urine test would preserve the evidence and
22                   end the exigency. In such case, because the sole justification
23                   advanced to excuse the officers from obtaining a warrant
24                   disappeared when the exigency ended, the blood tests were not
25                   only unnecessary and unreasonable, but violated the Fourth
26                   Amendment's warrant requirement.” Nelson, Id. at 1205.
27                                                    XI.
28          MR. MORIARTY HAD A LIBERTY INTEREST IN A CHOICE OF TESTS

                                                    16
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                                     AND THE POLICE VIOLATED DUE PROCESS
 2              Additionally, defendant contends that the implied consent law of California creates a liberty
 3   interest that is entitled to the procedural due process protection of the Fourteenth Amendment and
 4   that the policy of the arresting officer deprives him of his right to due process and is directly
 5   contrary to California statutes.
 6              The Nelson Court also noted, that since V.C. §23157(a)(2)(A) [now 23612(a)(2)(A)] permits
 7   DUI arrestees a choice of tests. The California law has been construed to provide that an arrestee
 8   in entitled to just one test, Kessler v. DMV (1969) 1 Cal.3d 74, 81 Cal.Rptr. 348, and therefore only
 9   consent to the selected test need be implied under the statute. Nelson, Id. at1207.
10                                                                            XII.
11                 SYSTEMATIC FAILURE VIOLATES EQUAL PROTECTION RIGHTS
12                          A systematic failure to advise of the choice of tests violates Federal Equal Protection
13   Rights. The court held In re Garinger (1987) 188 Cal.App.3 1149 that proof of a systematic failure
14   to give the advice required by V.C. §13353 (now V.C. §23612) might violate federal equal
15   protection rights and the breath test should be suppressed as a remedy for violation of said
16   constitutional requirements.
17                                                                           XIII.
18                                                                  CONCLUSION
19              The policy of the arresting officer to compel a blood sample, preferred by the police, without
20   advising the citizen of his statutory right to a choice of tests, violates the Fourth Amendment. It
21   is unreasonable. Furthermore, the defendant’s right to due process and his liberty interests were
22   violated. The blood test results must be suppressed as a result of these constitutional violations.
23   Dated: February 22, 2010                                               Respectfully submitted,
24
25                                                                          _______________________________________
                                                                            JON BRYANT ARTZ, Attorney for Defendant
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                 MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
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                                  18
     MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                             DECLARATION OF JON BRYANT ARTZ
 2
 3           I, JON BRYANT ARTZ, declare:
 4           1.      That I am an attorney at law, duly licensed to practice before all of the courts of the
 5   State of California. I am the attorney for the defendant _______________, charged with a DUI
 6   stemming from an arrest on August 14, 2002.
 7           2.      I have been an attorney since June 1972. I specialize in DUI cases. I have lectured
 8   over the last twenty years on this topic, both state wide and locally. I am licensed by the Supreme
 9   Court of the United States of America as of 1976. I am certified by the United States Court of
10   Appeals, 9th Circuit, since 1974. I have been an adjunct professor at Pepperdine School of Law,
11   teaching pretrial litigation. I graduated from UCLA School of Law with a degree of Juris Doctor
12   in December 1971. I am familiar with the facts and circumstances surrounding this matter and if
13   called as a witness, could and would competently testify thereto.
14           3.      Based on information and belief, there was no arrest and/or search warrant in this
15   case.
16           I declare under penalty of perjury under the laws of the State of California that the foregoing
17   is true and correct.
18           Executed this 27th day of September, 2002, at Los Angeles, California.
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                                                    JON BRYANT ARTZ, DECLARANT
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                                                    19
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1                           DECLARATION OF ______________________
 2           I, _____________, declare:
 3           1.      I reside out of the state of California. I have a valid license outside of California.
 4   I showed the officers my license on the night of my arrest.
 5           2.      On the night of my arrest, I was not aware of my rights to take a breath test when
 6   arrested by a police officer. The police officer that arrested me did not inform me of my right to
 7   take a breath or blood test. No other officer informed me of said right.
 8           3.      After I was taken to the police station, the police officer told me that “he was going
 9   to take a blood test” or words to that effect. He never sought my permission to agree to a blood test.
10           4.      Had I been advised of a choice of taking either a blood or breath test, I would have
11   taken a breath test. A breath test is less invasive and has less risk of disease.
12           I declare under penalty of perjury under the laws of the State of California that the foregoing
13   is true and correct.
14           Executed this ____th day of September, 2002, at ___________________________.
15
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17                                                  _____________, Declarant
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                                                    20
             MOTION TO EXCLUDE THE BLOOD TEST FOR VIOLATION OF FOURTH AMENDMENT
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                 I. B. 10
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant _______________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                               FOR THE COUNTY OF SAN DIEGO
10                            (North County Division, Vista Regional Center)
11   THE PEOPLE OF THE STATE OF                            )   Case No.:
     CALIFORNIA,                                           )
12                                                         )   MOTION TO ADMIT POLYGRAPH
                           Plaintiff,                      )   EVIDENCE TO REBUT
13                                                         )   PROSECUTION EFFORTS TO
            v.                                             )   CHARACTERIZE DEFENDANT AS
14                                                         )   MENDACIOUS; DEFENDANT’S
                                                           )   CONSTITUTIONAL RIGHTS TRUMP
15   ____________________________,                         )   EVID. C. §351.1; OFFER OF PROOF
                                                           )   AND DECLARATION OF DR.
16                         Defendant.                      )   ROVNER THAT THE METHOD AND
                                                           )   PROCEDURES OF DEFENDANT’S
17                                                             POLYGRAPH EXAM ARE RELIABLE
                                                               AND THAT POLYGRAPH TESTING IS
18                                                             GENERALLY ACCEPTED IN THE
                                                               RELEVANT SCIENTIFIC FIELD
19
20
                                                      I.
21
                      POLYGRAPH EVIDENCE TO REBUT PROSECUTION
22
                           EVIDENCE IS RELEVANT AND ADMISSIBLE
23
                                               A. Overview.
24
            Defendant will testify at Trial. The prosecution will cross-examine him. Once the
25
     prosecution attacks Defendant’s credibility, then the defense, as rebuttal evidence, has the right
26
     to present the testimony of Dr. Rovner that Defendant is credible and that he passed a polygraph
27
     examination regarding those events. See Declaration of Dr. Rovner and confidential report
28
     attached hereto as Exhibit A.

                                                  1
                                  M OTION TO ADM IT POLYGRAPH TEST
 1            The testimony of the expert regarding the polygraph exam will be offered after
 2   Defendant has testified and has been cross-examined; thus the evidence will be presented after
 3   evidence has been presented by the People that Defendant is mendacious. The polygraph
 4   evidence will rebut the prosecution evidence and will be offered as part of the right to
 5   present a defense, due process right to a fair trial, and other Constitutional rights as specified
 6   below.
 7            It is difficult to understand the glaring inconsistency between our government’s
 8   dedicated faith in polygraph examinations in the sensitive context of criminal investigations
 9   and national security and its rejection of such evidence in a case that provides relevant
10   evidence on the defendant’s state of mind and which rebuts the prosecution’s evidence that
11   suggests that Defendant is lying when he testifies under oath at the trial. Polygraphs are used on
12   a regular basis throughout the United States and world. In the United States, polygraphs are
13   used by the Department of Defense, the FBI, CIA, NSA, DEA, and Secret Service; all
14   branches of the military; and numerous state and local law enforcement agencies throughout
15   the country. The annual budget for the Department of Defense for polygraph testing alone is
16   approximately $50 million. In doing so, the governmental agencies accept the value and validity
17   of the polygraph test process. This is a court trial. There is no jury that could be falsely swayed
18   by the scientific evidence.
19            If the courts honestly believed polygraph evidence to be unreliable, why would they
20   permit juries to use it as a basis for important factual determinations in civil cases and when there
21   has been a pretrial agreement of the parties in criminal cases? Surely, courts of law would not
22   countenance using the results of trial by combat or the testimony of a Ouija board interpreter, no
23   matter how much advance stipulation by the parties had taken place. The polygraph stipulation
24   approach is an unprincipled anomaly in the law of evidence.
25            The issue of Defendant’s truthfulness will be raised by the People. The Polygraph Exam
26   is relevant evidence regarding Defendant’s credibility. Defendant passed a polygraph
27   examination by a recognized expert in the field. The exam and the opinion of the expert will be
28   offered as relevant rebuttal evidence to contradict the prosecution evidence that Defendant is


                                                   2
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   not truthful.
 2           The defense will demonstrate, that as of the year 2009, polygraph examinations
 3   performed by a trained and qualified expert with “hands on” knowledge of polygraph testing
 4   are accepted in the relevant scientific community as a valid and accurate technique for
 5   determining whether a statement is truthful or not. Further, Defendant has Constitutional
 6   rights that allow him to present the evidence (as discussed hereinbelow).
 7            B. To Exclude Relevant Rebuttal Evidence Violates Due Process, the Right
 8                   to Present a Defense, Right to a Fair Trial, and Equal Protection.
 9           As explained below in II, the California legislature cannot limit the U.S. Constitution,
10   due process, right to a fair trial, right to present evidence, right to testify, right to rebut evidence,
11   etc. Barring the defendant from introducing reliable evidence to rebut prosecution evidence
12   would constitute a denial of the Constitutional rights of cross-examination, equal protection,
13   due process, and right to a fair trial. The Constitutional rights of a criminal defendant cannot
14   be abrogated by a state statute. In a civil case (if able to lay a foundation) polygraph evidence is
15   admissible. See In Re Kathleen W. (1987) 190 Cal.App.3d 68. (In a dependency hearing, mother
16   of molested daughter should have been allowed to establish that she had undergone favorable
17   Polygraph Examination.) Ev. Code 351.1 does not apply to civil cases. See also Rufo v.
18   Simpson (2001) 86 Cal.App.4th 573 (wrongful death action, court held defendant was not
19   prejudiced by plaintiff’s cross-examination implying that defendant had taken and failed
20   polygraph tests). Equal protection requires admission of the polygraph evidence.
21                                                        II.
22               FEDERAL CONSTITUTIONAL RIGHTS TRUMP EVID.C. §351.1.
23            BARRING THE DEFENSE REBUTTAL EVIDENCE WOULD VIOLATE
24     CONSTITUTIONAL RIGHTS, INCLUDING THE RIGHT TO A FAIR TRIAL, DUE
25       PROCESS, COMPULSORY PROCESS, AND RIGHT TO PRESENT EVIDENCE.
26           Under the facts of this case, barring the defense from presenting favorable polygraph
27   evidence would violate defendant’s Federal and state Constitutional rights: the right to a fair
28   trial; the state and federal constitutional right to Due Process; to compulsory process; and, to


                                                      3
                                    M OTION TO ADM IT POLYGRAPH TEST
 1   testify on one’s own behalf. If the court excludes favorable polygraph evidence, it would violate
 2   the federal constitutional right that the trier of fact consider all relevant evidence. The
 3   polygraph evidence “promotes the ascertainment of truth...,” the purpose of a trial. The
 4   prosecution has no legitimate interest in falsely characterizing Defendant as mendacious.
 5          The United States Supreme Court has held the application of state evidentiary rules
 6   governing the admissibility of evidence can be inconsistent with the federal constitutional
 7   right to due process, to compulsory process, and to testify on one’s own behalf. See Rock v.
 8   Arkansas (1987) 483 U.S. 44 [97 L.Ed.2d 37, 107 S.Ct. 2704]; Green v. Georgia (1979) 442
 9   U.S. 95 [60 L.Ed.2d 738, 99 S.Ct. 2150] [hereafter Green]; Chambers v. Mississippi (1973) 410
10   U.S. 284 [35 L.Ed.2d 297, 93 S.Ct. 1038]; Washington v. Texas (1967) 388 U.S. 14 [18 L.Ed.2d
11   1019, 87 S.Ct. 1920].) A defendant charged with criminal violations has a federal guaranteed
12   right to present evidence and witnesses in his behalf. (Taylor v. Illinois 484 U.S. 400, 408
13   (1988); Chambers v. Mississippi 410 U.S. 284, 302 (1973).)
14          State evidentiary rules may so seriously impede the discovery of truth, “as well as the
15   doing of Justice,” that they preclude the “meaningful opportunity to present a complete
16   defense” that is guaranteed by the Constitution, Crane v. Kentucky, (1986) 476 U. S. 683, 690
17   (internal quotation marks omitted).
18                     “Whether rooted directly in the Due Process Clause of the
                    Fourteenth Amendment, Chambers v. Mississippi,(1973) [410 U.
19                  S. 284], or in the Compulsory Process or Confrontation clauses
                    of the Sixth Amendment, Washington v. Texas, (1967) 388 U. S.
20                  14, 23; Davis v. Alaska, (1974) 415 U. S. 308 , the Constitution
                    guarantees criminal defendants `a meaningful opportunity to
21                  present a complete defense.’ California v. Trombetta, (1984) 467
                    U. S. [479, 485 ]; cf. Strickland v. Washington, (1984) 466 U. S.
22                  668, 684-685. (`The Constitution guarantees a fair trial through the
                    Due Process Clauses, but it defines the basic elements of a fair trial
23                  largely through the several provisions of the Sixth Amendment.’)
                    We break no new ground in observing that an essential component
24                  of procedural fairness is an opportunity to be heard. In re Oliver,
                    (1948) 333 U. S. 257, 273; Grannis v. Ordean, (1914) 234 U. S.
25                  385, 394. That opportunity would be an empty one if the State
                    were permitted to exclude competent, reliable evidence bearing on
26                  the credibility of a confession when such evidence is central to the
                    defendant’s claim of innocence. In the absence of any valid state
27                  justification, exclusion of this kind of exculpatory evidence
                    deprives a defendant of the basic right to have the prosecutor’s
28                  case encounter and `survive the crucible of meaningful adversarial
                    testing.’ United States v. Cronic, (1984) 466 U. S. 648, 656 . See

                                                   4
                                  M OTION TO ADM IT POLYGRAPH TEST
 1                  also Washington v. Texas, supra, at 22-23.” Crane v. Kentucky,
                    (1986) 476 U. S. 683, 690-691.
 2
 3          In Chambers v. Mississippi,(1973) 410 U. S. 284, 302, the U.S. Supreme Court held that
 4   “where constitutional rights directly affecting the ascertainment of guilt are implicated, the
 5   hearsay rule may not be applied mechanistically to defeat the ends of Justice.”
 6                     “Few rights are more fundamental than that of an accused to
                    present witnesses in his own defense. E.g., Webb v. Texas, (1972)
 7                  409 U. S. 95; Washington v. Texas, (1967) 388 U. S. 14, 19; In re
                    Oliver, (1948) 333 U. S. 257. In the exercise of this right, the
 8                  accused, as is required of the State, must comply with established
                    rules of procedure and evidence designed to assure both fairness
 9                  and reliability in the ascertainment of guilt and innocence.
                    Although perhaps no rule of evidence has been more respected or
10                  more frequently applied in jury trials than that applicable to the
                    exclusion of hearsay, exceptions tailored to allow the introduction
11                  of evidence which in fact is likely to be trustworthy have long
                    existed. The testimony rejected by the trial court here bore
12                  persuasive assurances of trustworthiness and thus was well within
                    the basic rationale of the exception for declarations against interest.
13                  That testimony also was critical to Chambers’ defense. In these
                    circumstances, where constitutional rights directly affecting the
14                  ascertainment of guilt are implicated, the hearsay rule may not be
                    applied mechanistically to defeat the ends of Justice.” Chambers v.
15                  Mississippi, (1973) 410 U. S. 284, 302.
16
            Restricting the “defendant’s right to present relevant evidence,” must comply with the
17
     admonition in Rock v. Arkansas, (1987) 483 U. S. 44, 56, that they “may not be arbitrary or
18
     disproportionate to the purposes they are designed to serve.” Applying that admonition to
19
     Arkansas’ blanket rule prohibiting the admission of hypnotically refreshed testimony, the U.S.
20
     Supreme Court reasoned that a “State’s legitimate interest in barring unreliable evidence
21
     does not extend to per se exclusions that may be reliable in an individual case.” Id., at 61.
22
            Any ruling excluding reliable, relevant defense evidence that rebuts prosecution evidence
23
     would violate a citizen’s constitutional right to present a defense to a criminal charge.
24
            A person accused of a crime has a firmly established constitutional right to present a
25
     defense. The Sixth Amendment provides that “the accused shall enjoy the right... to have
26
     compulsory process for obtaining witnesses in his favor.”
27
                       “Few rights are more fundamental than that of an accused
28

                                                   5
                                  M OTION TO ADM IT POLYGRAPH TEST
 1                  to present witnesses in his own defense, see, e.g., Chambers v.
 2                  Mississippi, (1973) 410 U. S. 284, 302. Indeed, this right is an
 3                  essential attribute of the adversary system itself. ... The right to
 4                  compel a witness’ presence in the courtroom could not protect the
 5                  integrity of the adversary process if it did not embrace the right to
 6                  have the witness’ testimony heard by the trier of fact. The right to
 7                  offer testimony is thus grounded in the Sixth Amendment ... .”
 8                  Taylor v. Illinois, (1988) 484 U. S. 400, 408-409.
 9          According to Joseph Story, that provision was included in the Bill of Rights in reaction to
10   a notorious common-law rule categorically excluding defense evidence in treason and felony
11   cases. In Washington v. Texas (1967) 388 U. S. 14, the court held that this right is applicable to
12   the States because it “is in plain terms the right to present a defense” and that it “is a
13   fundamental element of due process of law.”
14                     “The right to offer the testimony of witnesses, and to compel
15                  their attendance, if necessary, is in plain terms the right to present a
16                  defense, the right to present the defendant’s version of the facts as
17                  well as the prosecution’s to the jury so it may decide where the
18                  truth lies. Just as an accused has the right to confront the
19                  prosecution’s witnesses for the purpose of challenging their
20                  testimony, he has the right to present his own witnesses to establish
21                  a defense. This right is a fundamental element of due process of
22                  law.” Id., at 19.
23          Consistent with the history of the provision, the Court in Washington v. Texas, Id., held
24   that a state rule of evidence that excluded “whole categories” of testimony on the basis of a
25   presumption of unreliability was unconstitutional. The blanket rule of inadmissibility held
26   invalid in Washington v. Texas involved the testimony of alleged accomplices. Both before and
27   after that decision, the U.S. Supreme Court has recognized the potential injustice produced by
28   rules that exclude entire categories of relevant evidence that is potentially reliable. At

                                                    6
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   common law interested parties such as defendants [Benson v. United States, (1892) 146 U. S.
 2   325, 335], their spouses [Hawkins v. United States, (1958) 358 U. S. 74, 75-76], and their
 3   co-conspirators (see Washington v. Texas, 388 U. S., at 20-21), were not competent witnesses.
 4   “Nor were those named the only grounds of exclusion from the witness stand; conviction of
 5   crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the
 6   common law was to admit to the witness stand only those presumably honest, appreciating the
 7   sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of
 8   interest. The courts were afraid to trust the intelligence of jurors.” Benson v. United States,
 9   supra, 146 U.S. 336. Under the regime established by Frye v. United States, scientific evidence
10   was inadmissible unless it met a stringent “general acceptance” test. Strict rules of exclusion
11   have been replaced by rules that broaden the discretion of trial judges to admit evidence and to
12   allow properly instructed juries to evaluate its weight. The direction of the trend has been
13   consistent and it has been manifested in constitutional holdings as well.
14          The U.S. Supreme Court in 1918 observed that in the “years which have elapsed since the
15   decision of the Benson Case, the Disposition of courts to remove disabilities from witnesses has
16   continued under dominance of the conviction of our time that the truth is more likely to be
17   arrived at by hearing the testimony of all persons of competent understanding who may
18   seem to have knowledge of the facts involved in a case, leaving the credit and weight of such
19   testimony to be determined by the jury or by the court, rather than by rejecting witnesses as
20   incompetent, with the result that this principle has come to be widely, almost universally,
21   accepted in this country and in Great Britain.” Rosen v. United States, (1918) 245 U. S. 467, 471.
22          Funk v. United States, (1933) 290 U. S. 371, 377-378, involved the disqualification of
23   spousal testimony, Justice Stewart stated: “Any rule that impedes the discovery of truth in a
24   court of law impedes as well the doing of Justice.” Hawkins v. United States, (1958) 358 U. S.
25   74, 81 (emphasis added). (Stewart, J., Concurring).
26
27
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                                   M OTION TO ADM IT POLYGRAPH TEST
 1                                                      III.
 2         FEDERAL CASE AUTHORITY HAS APPROVED POLYGRAPH EVIDENCE
 3          Courts have specifically approved the admissibility of polygraph evidence, e.g., U.S. v.
 4   Crumby (D. Ariz. 1995) 895 F.Supp. 1354. In judging the admissibility of polygraph
 5   evidence, the Court is entitled to consider the purpose of the examination evidence to be
 6   offered. In Crumby 895 F. Supp. at 1358-63 defense polygraph evidence was admissible to
 7   show defendant’s credibility. In this case, a defendant claiming his innocence seeks to present
 8   exculpatory evidence as part of his defense and to rebut prosecution evidence. As the district
 9   court noted in Crumby, a defendant who seeks to present polygraph evidence to exonerate
10   himself should be looked upon differently by the Court:
11                  “[i]n the present case, it is not Orwell’s ‘Big Brother’ who wished to
                    use its authority to require that all criminal suspects take polygraph
12                  examinations, but rather a self-proclaimed innocent individual who
                    wishes to prove his innocence using polygraph evidence . . . This
13                  country’s long history of affording criminal defendant’s with [the
                    presumption of innocence, right to obtain exculpatory evidence, and
14                  “beyond a reasonable doubt” norms] mandates that the Court consider
                    the value of polygraph technology and its ability to foster justice and
15                  provide the criminal defendant . . . with a fair trial.”
16   Crumby, 895 F.Supp. At 1362-63.
17          There is no per se rule of inadmissibility for polygraph evidence in the Ninth Circuit. See
18   United States v. Benavidez-Benavidez (9th Cir. 2000) 217 F.3d 720, 724 (discussing United States
19   v. Cordoba (9th Cir. 1997) 104 F.3d 225, 228. Once the government attempts to impeach
20   Defendant’s credibility, the defense is entitled to seek admission of the polygraph evidence
21   to rehabilitate his credibility. See U.S. v. Cordoba (9th Cir. 1997) 104 F.3d 225, 228-29
22   (remanding to permit defendant to make Daubert showing for use of polygraph results to
23   bolster his credibility); U.S. v. Crumby (D.Ariz 1995) 895 F.Supp. 1354 (polygraph results may
24   be sued to show defendant’s credibility). In the Ninth Circuit, the district court has “wide
25   discretion” to consider the admissibility or inadmissibility of such evidence, and is free to
26   analyze the evidence under Federal Rules of Evidence 702, 403 and 704.1/ Benavidez-Benavidez,
27
     1/
28       Benavidez-Benavidez states that courts may make a decision excluding such evidence based on any, or
     all, of those rules. 217 F.3d at 725. In this case, Defendant requests that the Court undertake, at a
                                                    8
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   217 F.3d at 725; Cordoba, 104 F.3d at 227 (“[t]he per se . . . rule excluding unstipulated
 2   polygraph evidence is inconsistent with the ‘flexible inquiry’ assigned to the trial judge by
 3   Daubert”).
 4           Polygraph evidence offered by defendants has been ruled admissible in federal
 5   criminal cases post-Daubert. See United States v. Galbreth (D.N.M. 1995) 908 F.Supp. 877,
 6   878-95 (polygraph examination evidence offered by defendant admissible under Daubert in
 7   criminal case); United States v. Crumby (D.Ariz. 1995) 895 F.Supp. 1354, 1358-63 (defense
 8   polygraph evidence admissible under Daubert in criminal case of showing defendant’s
 9   credibility); United States v. Padilla (S.D.Fla. 1995) 908 F.Supp. 923, 929-31 (denying
10   prosecution motion to exclude polygraph evidence and noting that Eleventh Circuit had made an
11   explicit determination that polygraph tests are reliable enough to form basis for expert
12   testimony under FRE 702); United States v. Patino (M.D.Fla. 1997) 991 F.Supp. 1449, 1450
13   (polygraph evidence may be admitted to impeach or corroborate testimony of trial witness
14   under certain circumstances). In addition, a number of courts have rejected a per se rule of
15   inadmissibility where polygraph examination results are concerned and in some cases have
16   remanded for a determination of admissibility. Federal courts have repeatedly recognized that
17   polygraph results are reliable and admissible in a variety of other situations in the criminal context. See,

18   e.g., Rupe v. Wood (9th Cir. 1996) 93 F.3d 1434, 1437 (polygraph evidence showing that accomplice lied

19   about his role in crimes should have been admitted in penalty phase of state death penalty case); United

20   States v. Posado, 57 F.3d 4278, 436 (5th Cir. 1995) (remanding for reconsideration of polygraph

21   admissibility in motion to suppress hearing); Toussaint v. McCarthy (9th Cir. 1990) 926 F.2d 800, 802-03

22   (polygraph may be used by prison officials in prison disciplinary proceedings); Bennett v. City of Grand

23   Prairie, Texas (5th Cir. 1989) 883 F.2d 400, 405-06 (polygraph evidence was admissible in probable

24   cause proceeding before magistrate and acknowledging that “polygraph exams, by most accounts,

25   correctly detect truth or deception 80 to 90 percent of the time”). See also United States v. Cordoba

26   (9th Cir. 1997) 104 F.3d 225, 230 (remanded for determination of polygraph evidence’s
27
28   minimum, an analysis of the admissibility of the polygraph evidence at issue in this case under Daubert.
     Id. (district court ruled on admissibility after undertaking Daubert hearing and a Rule 403 analysis).
                                                       9
                                     M OTION TO ADM IT POLYGRAPH TEST
 1   admissibility under Daubert); United States v. Pulido (7th Cir. 1995) 69 F.3d 192, 205
 2   confirming that polygraph admission is within trial court’s discretion); United States v. Posado
 3   (5th Cir. 1995) 57 F.3d 428, 436 (remanding for admissibility determination); United States v.
 4   Piccinonna (11th Cir. 1989) 885 F.2d 1529 (holding unstipulated polygraph evidence admissible
 5   for corroboration and impeachment purposes under certain circumstances).
 6                                                      IV.
 7                THE EVIDENCE CAN BE USED TO BOLSTER CREDIBILITY
 8          Polygraph evidence may be used to bolster a witness’s credibility. Crumby, 895 F.Supp.
 9   at 1358-63 (defense polygraph admissible to show defendant’s credibility); U.S. v. Piccinonna
10   (11th Cir. 1989) 885 F.2d 1529 (unstipulated polygraph evidence admissible to corroborate
11   witness’s credibility in certain circumstances); U.S. States v. Padilla (S.D.Fla. 1995) 908 F.Supp.
12   923, 928-29 (polygraph evidence admissible to corroborate defendant’s credibility). See
13   Campos, 217 F.3d at 712 n. 2 (polygraph evidence potentially admissible for collateral purposes).
14          Defendant’s testimony would probably be less persuasive than that of a third-party
15   witness without any purported bias. A rule that bars this defendant from introducing expert
16   opinion testimony to bolster his own credibility, and counter prosecution attempts to
17   characterize him as lying, unquestionably impairs his “opportunity to present a complete
18   defense”.
19          In Dean Wigmore’s view, both “conduct” and “utterances” may constitute factual
20   evidence of a “consciousness of innocence.”
21                     “Moreover, there are other principles by which a defendant may
22                  occasionally avail himself of conduct as evidence in his favor -- in
23                  particular, of conduct indicating consciousness of innocence, . . . of
24                  utterances asserting his innocence . . ., and, in sedition charges, of
25                  conduct indicating a loyal state of mind... .” 1A J. Wigmore,
26                  Evidence Section 56.1, p. 1180 (Tillers rev. ed. 1983); see United
27                  States v. Reifsteck, 841 F. 2d 701, 705 (CA6 1988).
28

                                                   10
                                  M OTION TO ADM IT POLYGRAPH TEST
 1                                                        V.
 2                      U.S. v. SHEFFER DOES NOT PROHIBIT POLYGRAPH
 3                          EVIDENCE UNDER THE FACTS OF THIS CASE
 4           In United States v. Scheffer (1998) 523 U.S. 303 (“Scheffer”), a plurality of four justices
 5   upheld an exclusion of polygraph evidence involving a military court martial. It was not a
 6   state criminal case. Significantly, that case did not present any offer of proof based on the
 7   reliability of such evidence. Four concurring justices agreed with the result, but refused to join
 8   in any language restricting a later court from deciding whether or not the polygraph evidence
 9   was reliable. The concurring justices expressly reserved such a discussion to a case presenting
10   an evidentiary record permitting such analysis. This case will have such a record. One of the
11   sitting justices argued that per se rules excluding polygraph evidence are unconstitutional.
12           Justice Thomas in Scheffer had only three other justices join to support exclusion of
13   polygraph evidence and five justices criticized that portion of the opinion. Scheffer did not
14   deal with the Federal Rules of Evidence or the Daubert test and did not hold that polygraph
15   evidence was unreliable.2/
16           Scheffer did not provide a definitive answer to the issues surrounding polygraph use in
17   criminal courts. There were, in fact, three separate opinions,3/ none garnering the full support of
18   a majority of the nine-member court. It takes a careful analysis to determine just what the court
19   said and did not say; the decision has been widely misinterpreted. The only clear majority
20   holding from the court's opinion is that the military’s choice to exclude polygraphs is not
21   absolutely precluded by the United States Constitution, at least at the present time. That
22
23
     2/
         Furthermore, the Ninth Circuit has confirmed after Scheffer that it does not preclude the admissibility
24   of polygraph evidence in this situation. United States v. Benavidez-Benavidez (9th Cir. 2000) 217 F.3d
     720, 724 n. 2. Benavidez, which recognizes that polygraph evidence is potentially admissible, was also
25   decided after United States v. Cordoba (9th Cir. 1999) 194 F.3d 1053.
26   3/
          Much of this argument is taken from an article written by Charles W. Daniels, an adjunct professor
27   at the University of New Mexico School of Law, past President of New Mexico Criminal Defense
     Lawyers Association, and a member of the NACDL Board of Directors. The article was published in
28   2003 in the National Association of Criminal Defense Lawyers Inc., “The Champion” and the article was
     entitled “Using Polygraph Evidence After Scheffer . . .”
                                                     11
                                    M OTION TO ADM IT POLYGRAPH TEST
 1   conclusion was shared by four justices supporting the Thomas opinion ("The Thomas four" --
 2   Thomas, Rehnquist, Scalia and Souter) and the four justices supporting the Kennedy opinion
 3   ("The Kennedy four" Kennedy, O'Connor, Ginsburg, and Breyer).
 4           Only the “Thomas four” believed that the per se exclusion was appropriate. The
 5   “Kennedy four” reluctantly joined the Thomas four on the constitutional issue to avoid binding
 6   all court systems in the country to a constitutional ruling that they have no power to choose to
 7   exclude polygraph evidence, joining only on the ground that "the rule of exclusion is not so
 8   arbitrary or disproportionate that it is unconstitutional." The “Kennedy four” went on to say,
 9   however, that they did not agree that the per se exclusion was wise and that a later case
10   might cause them to reexamine their agreement with the constitutionality of the exclusionary
11   position. The “Kennedy four” also noted the tension between the Scheffer result and the
12   Daubert doctrine, as well as the inconsistency between the government's oppositionist
13   position to use of polygraphs by the accused while it makes widespread use of polygraph tests in
14   going about its own business.
15           Synthesizing the three separate opinions, a five-justice majority of the court (Stevens,
16   Kennedy, O'Connor, Ginsburg and Breyer) made clear their positions on the following issues:
17           1. A per se rule of polygraph exclusion is either unconstitutional (Stevens) or unwise
18   (Kennedy, O'Connor, Ginsburg and Breyer).
19           2. Polygraph evidence was not found unreliable. In fact, none of the opinions of the nine
20   justices reached that conclusion. The Thomas four and the Kennedy four agreed that in light of
21   the continuing good faith disagreement among experts and courts on the subject, it is possible to
22   "reasonably reach differing conclusions as to whether polygraph evidence should be admitted" as
23   a matter of constitutional law. Justice Stevens found it sufficiently reliable that the Constitution
24   requires its admission on behalf of the accused.
25           3. The majority of the court did not find that polygraph evidence invades the province of
26   the jury. The government used this familiar argument, but failed to convince the majority of the
27   court. While the Thomas four accepted the argument, the remaining five justices explicitly
28   rejected it.

                                                   12
                                   M OTION TO ADM IT POLYGRAPH TEST
 1          In a future case, a majority of the Court could hold that admission of polygraph evidence
 2   is constitutionally required. Until the issues are revisited by the Supreme Court, the lower courts
 3   remain free to consider the admissibility of polygraph evidence under Daubert. A majority of
 4   the Scheffer justices were favorable to consideration of polygraph evidence under the Daubert
 5   guidelines and that a policy of exclusion to be unwise or unconstitutional.
 6           The United States Supreme Court suggested significant advancements have occurred
 7   concerning the reliability and relevancy of polygraph tests in the Court’s concurring opinion in
 8   Sheffer. Justice Kennedy observed that a subsequent case may arise that would warrant
 9   overturning the per se exclusion in favor of permitting the various courts and jurisdictions
10   to determine whether polygraph evidence should be admitted at trial. Scheffer, id., at 318.
11   As Justice Kennedy noted, voicing the concerns of five Supreme Court justices, “there is
12   much inconsistency between the Government’s extensive use of polygraphs to make vital
13   security determinations and the argument it makes here, stressing the inaccuracy of these
14   tests.” See Scheffer, 523 U.S. at 318. As five Supreme Court justices agreed, the jury’s role in
15   making credibility determinations is not diminished by hearing polygraph evidence and the
16   government’s argument to the contrary here “demeans and mistakes the role and competence of
17   jurors in deciding the factual question of guilt or innocence.” Scheffer, id., at 318-19 (Kennedy,
18   J., concurring).
19          Justice Stevens, in his dissenting opinion, stated more emphatically that in recent years
20   polygraph testing has gained increased acceptance as a useful and reliable tool, and that the
21   confrontation clause of the Sixth Amendment and due process clause of the Fourteenth
22   Amendment are fundamentally more important than the military’s reasons for finding
23   polygraphs unreliable. Scheffer, id., at 322-326.
24          Regarding the admissibility of polygraph tests at trial under federal law, not in the
25   military setting, Justice Thomas recognized the divergence of opinion and noted that two of the
26   Circuit Courts have abandoned the per se exclusionary rule as it relates to Federal,
27   non-military law, and replaced it in favor of leaving its admission or exclusion to the
28   discretion of the district courts under the Daubert test - namely, the Fifth Circuit Court of

                                                  13
                                  M OTION TO ADM IT POLYGRAPH TEST
 1   Appeals in United States v. Posado (CA5 1995), 57 F.3d 192, 434, and the Ninth Circuit Court
 2   of Appeals in United States v. Cordoba (CA9 1997), 104 F 3d 225. Sheffer, at 311.
 3          The prosecution can: 1) present its own contrary expert testimony regarding the
 4   effectiveness of polygraphs; 2) cross-examine the defense’s polygraphs expert; 3) argue the
 5   weight to be given to the polygraph evidence, and 4) benefit from any appropriate limiting
 6   instructions, this Court should hold a foundation hearing and admit the evidence.
 7                                                      VI.
 8                    POLYGRAPH EVIDENCE IS MORE RELIABLE THAN
 9              HANDWRITING EVIDENCE OR IDENTIFICATION TESTIMONY
10          Under the now discredited reasoning in a case decided more than 80 years ago, Frye v.
11   United States (1923) 54 App. D. C. 46, 293 F. 1013, the court excluded polygraph evidence. In
12   recent years, however, the U.S. Supreme Court has not only repudiated Frye’s general approach
13   to scientific evidence, but the federal courts have rejected the once-popular view that all lie
14   detector evidence should be categorically inadmissible.
15                     “There is no question that in recent years polygraph testing has
                    gained increasingly widespread acceptance as a useful and
16                  reliable scientific tool. Because of the advances that have been
                    achieved in the field which have led to the greater use of
17                  polygraph examination, coupled with a lack of evidence that
                    juries are unduly swayed by polygraph evidence, we agree with
18                  those courts which have found that a per se rule disallowing
                    polygraph evidence is no longer warranted... Thus, we believe
19                  the best approach in this area is one which balances the need to
                    admit all relevant and reliable evidence against the danger that the
20                  admission of the evidence for a given purpose will be unfairly
                    prejudicial.” United States v. Piccinonna, 885 F. 2d 1529, 1535
21                  (CA11 1989). “[W]e do not now hold that polygraph examinations
                    are scientifically valid or that they will always assist the trier of
22                  fact, in this or any other individual case. We merely remove the
                    obstacle of the per se rule against admissibility, which was based
23                  on antiquated concepts about the technical ability of the polygraph
                    and legal precepts that have been expressly overruled by the
24                  Supreme Court.” United States v. Posado (1995) 57 F. 3d 428,
                    434.
25
26          Well reasoned opinions are concluding, consistently with the U.S. Supreme Court’s
27   decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993) 509 U. S. 579, and General
28   Electric Co. v. Joiner, (1997) 522 U. S., that the federal rules wisely allow district Judges to

                                                   14
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   exercise broad discretion when evaluating the admissibility of scientific evidence.
 2          In fields like handwriting analysis, for example, when most of the practitioners are part
 3   of the law enforcement community and where the relevant academic and publication
 4   communities are far more limited, the government typically argues (successfully) that, e.g., an
 5   accuracy rate of 87% is sufficient to establish an acceptable rate of error. See, e.g., United
 6   States v. Prime (9th Cir. 2004) 363 F.3d 1028, 1032-35, vacated and remanded on other grounds
 7   (2005) 125 S.Ct. (handwriting comparison). Most knowledgeable witnesses utilized by the
 8   prosecution concede that polygraph accuracy is above 90 percent. Dr. Rovner will testify it is
 9   95% as of the year 2008 by a qualified examiner. Furthermore, the types of errors identified in
10   polygraph studies previously discussed by experts against the admission of polygraph evidence
11   could not possibly be at issue in this case because they involve almost exclusively false positive
12   errors. In this case, the evidence will be that polygraph examination is governed by clear and
13   consistent standards (including the APA and ASPA standards). Here there will be a more
14   extensive and unbiased system of “peer review” for polygraph research and there will be surveys
15   of objective and relevant scientific communities supporting general acceptance of polygraph
16   techniques and the use of polygraphs by a wide range of federal agencies.
17          The prosecution will be entitled to “vigorous cross-examination, presentation of contrary
18   evidence, and careful instruction on the burden of proof . . .” as the traditional and appropriate
19   means of attacking evidence. United States v. Crisp 324 F.3d 261, 265-272 (expert handwriting
20   evidence admissible even where “flawed or flimsy” because the defense can employ cross-
21   examination or contrary expert testimony). Courts allow eye witness testimony into evidence
22   which is tested in the crucible of cross examination. The testimony of disinterested third parties
23   that is relevant to a determination of credibility will assist the trier of fact. This is not a case
24   in which the defendant will choose not to testify.
25   ///
26   ///
27   ///
28   ///

                                                   15
                                   M OTION TO ADM IT POLYGRAPH TEST
 1                                                  VII.
 2               POLYGRAPH TESTING AS PERFORMED BY DR. ROVNER ON
 3      DEFENDANT, IS CONSIDERED RELIABLE AND GENERALLY ACCEPTABLE
 4                 BY THE RELEVANT SCIENTIFIC COMMUNITY AS OF 2008
 5          A.        The Polygraph Evidence In This Case Is Sufficiently Reliable and Accepted
 6                    and Should Be Allowed to Rebut the People’s Evidence that Defendant is
 7                    Lying.
 8          The scientific evidence to be provided in this case by a leading expert regarding
 9   polygraph examinations, and the circumstances surrounding the specific polygraph examination
10   of defendant, will provide a foundation for the admission of the examination results in this case.
11   See Declaration of Dr. Louis Rovner, a nationally renowned expert on polygraphs that will testify
12   (Exhibit “B”).
13          As an offer of proof, a recognized expert in the polygraph examination field, Dr. Louis
14   Rovner, will testify that the polygraph examination of defendant Andrews is reliable and
15   valid, and that polygraph evidence is generally accepted in the relevant scientific community
16   as of the year 2008. See Declaration of Dr. Rovner attached hereto as Exhibit “B” which
17   provides his background and experience and the basis for his opinion that the polygraph testing
18   performed on defendant is generally accepted in the relevant scientific community, and that the
19   polygraph examination of Defendant followed correct and accepted scientific procedures.
20          Dr. Rovner is a graduate of the Los Angeles Institute of Polygraph. Dr. Rovner has a
21   doctorate in psychology with a specialty in psycho-physiology and a masters degree
22   specializing in biopsychology. He has been an instructor more than twenty years in psychology
23   and statistic courses at the University of Utah, California Lutheran University, and Westminster
24   College. He has taught psychology, physiology, and psycho-physiology at the Los Angeles
25   Institute of Polygraph. He is currently an instructor at the Marston Polygraph Academy in San
26   Bernardino, California. He is also guest lecturer at numerous schools and at private and
27   organizational seminars. He has also published articles on polygraph issues, including the
28   subject of polygraph accuracy. He is a member of the American Psychological Association, the

                                                 16
                                  M OTION TO ADM IT POLYGRAPH TEST
 1   Society for Psycho-physiological Research, and the American Psychology Law Society and is
 2   on the panel of experts for the Superior Court of Los Angeles.
 3          Dr. Rovner’s doctoral thesis was on the validity of the use of the Utah Zone Comparison
 4   Polygraph Test to determine a participant's truthfulness. This two-year controlled study was
 5   presented to the Society for Psycho-physiological Research in 1979 and published in the Journal
 6   of Polygraph for the American Polygraph Association. Based upon this objective study, the
 7   overall accuracy for polygraphs were 95.5% for the standard non-informational group (no
 8   prior knowledge of polygraph testing procedures). Dr. Rovner will testify that the results of his
 9   study are consistent with the subsequent studies on the subject.
10          Polygraph tests, just as DNA tests, ballistic tests, fingerprint analysis, and handwriting
11   analysis all are science related matters beyond the knowledge of a layperson. They can be
12   helpful to the trier of fact. Dr. Rovner is eminently qualified as an expert in the field of
13   polygraph testing based upon his individual knowledge, skill, experience, training and education.
14          In Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24, the court undertook an
15   extensive analysis of the admissibility of polygraph test evidence. It noted that the original basis
16   for court exclusion of such evidence was lack of reliability and acceptance of such tests, but that
17   at the present time (1982) “the polygraph examination... is widely accepted for use in many
18   areas of our government and society.” (Id. at p. 29.) It concluded that there was “no sound legal
19   basis for denying defendant the opportunity to persuade a trial judge of the expert qualifications
20   of the polygraph examiner and the validity of the basic premises upon which the examiner’s
21   opinion is based.” (Id. at p. 33.) In response, in 1983, the Legislature enacted Evidence Code
22   section 351.1, which prohibited the use of polygraph evidence in criminal proceedings in the
23   absence of a stipulation by all parties.
24          Thereafter, in People v. Harris (1989) 47 Cal.3d 1047, 1095, the Supreme Court
25   indicated that polygraph evidence could be admissible upon “proof that the polygraph is
26   now accepted in the scientific community as a reliable technique.” The Court stated that “on
27   a proper showing defendants must from time to time be permitted to demonstrate that
28   advancement in a scientific technique has enhanced its reliability and acceptance in the

                                                   17
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   scientific community, and to establish that the advances warrant admission of a previously
 2   excluded category of scientific evidence.” (Id. at p. 1094.)
 3          B.      The Reliability and Acceptance of “Properly Conducted Polygraph Exams
 4                  Are Reliable, Valid, and Accepted . . .”
 5          The Declaration of Dr. Lou Rovner explains that as of 2008, there is not a “deep
 6   division” in the “relevant scientific community” regarding the reliability of polygraph evidence
 7   assuming proper procedures are followed by a trained and qualified expert. “There is a
 8   unanimity of opinion of those experts that have the qualifications, training, and experience in
 9   conducting polygraph examinations, i.e., that the relevant scientific community considers
10   polygraph evidence accurate and reliable. When the scientific community consists of persons
11   trained and experienced in the field that have actually performed polygraph examinations on
12   subjects and when proper procedures are followed, when the expert is trained and qualified, and
13   ‘inconclusives’ are not considered, there is a consensus that polygraph examinations are reliable
14   and valid.” As Dr. Rovner opines, “The scientific community that performs and is actually
15   involved with polygraph exams has established the validity and reliability of polygraph
16   testing. Polygraph is now generally accepted in the scientific community. The scientific
17   literature is replete with scores of research reports and articles which establish that a polygraph
18   test, when conducted under proper conditions, is an extremely accurate indicator of a
19   person's truthfulness or deception with regard to an issue about which he is being questioned.
20   Most of these studies have been conducted by scientists who had no financial motivation to do
21   their research. Research studies have been conducted in universities around the United States, as
22   well as in other countries such as Canada and Israel.” “As an expert on polygraphs, it is Dr.
23   Rovner’s opinion that the results of properly conducted polygraph examinations are reliable,
24   valid, and are accepted in the scientific community as a reliable technique.
25          Polygraph tests have gained general acceptance in the scientific fields of psychology,
26   psychiatry and physiology as to the areas of said disciplines devoted to lie detection.
27   Polygraph has long passed the experimental stage.”
28   ///

                                                  18
                                  M OTION TO ADM IT POLYGRAPH TEST
 1          There are a host of studies that place the reliability of polygraph tests at 90%.
 2                     Raskin, Honts, & Kircher, The Scientific Status of Research on
                    Polygraph Techniques: The Case for Polygraph Tests, in 1 Modern
 3                  Scientific Evidence 572 (D. Faigman, D. Kaye, M. Saks, & J.
                    Sanders, eds. 1997) (hereinafter Faigman) (compiling eight
 4                  laboratory studies that place mean accuracy at approximately
                    90%); id., at 575 (compiling four field studies, scored by
 5                  independent examiners, that place mean accuracy at 90.5%);
                    Raskin, Honts, & Kircher, A Response to Professors Iacono and
 6                  Lykken, in Faigman 627 (compiling six field studies, scored by
                    original examiners, that place mean accuracy at 97.5%); S.
 7                  Abrams, The Complete Polygraph Handbook 190-191 (1989)
                    (compiling 13 laboratory studies that, excluding inconclusive
 8                  results, place mean accuracy at 87%).
 9          Moreover, to the extent that the polygraph errs, studies have repeatedly shown that the
10   polygraph is more likely to find innocent people guilty than vice versa. Thus, exculpatory
11   polygraphs are likely to be more reliable than inculpatory ones.
12          There is no legal requirement that expert testimony must satisfy a particular degree of
13   reliability to be admissible. Expert testimony about a defendant’s “future dangerousness” to
14   determine his eligibility for the death penalty, even if wrong “most of the time,” is routinely
15   admitted. Barefoot v. Estelle, (1983) 463 U. S. 880, 898-901.
16          Studies indicate that handwriting analysis, and even fingerprint identifications, may
17   be less trustworthy than polygraph evidence. One study compared the accuracy of
18   fingerprinting, handwriting analysis, polygraph tests, and eyewitness identification. The
19   study consisted of 80 volunteers divided into 20 groups of 4. Fingerprints and handwriting
20   samples were taken from all of the participants. In each group of four, one person was randomly
21   assigned the role of “perpetrator.” The perpetrator was instructed to take an envelope to a
22   building doorkeeper (who knew that he would later need to identify the perpetrator), sign a
23   receipt, and pick up a package. After the “crime,” all participants were given a polygraph
24   examination. The fingerprinting expert (comparing the original fingerprints with those on the
25   envelope), the handwriting expert (comparing the original samples with the signed receipt), and
26   the polygrapher (analyzing the tests) sought to identify the perpetrator of each group. In addition,
27   two days after the “crime,” the doorkeeper was asked to pick the picture of the perpetrator out of
28   a set of four pictures. The results of the study demonstrate that polygraph evidence

                                                   19
                                  M OTION TO ADM IT POLYGRAPH TEST
 1   compares favorably with other types of evidence. Excluding “inconclusive” results from each
 2   test, the fingerprinting expert resolved 100% of the cases correctly, the polygrapher
 3   resolved 95% of the cases correctly, the handwriting expert resolved 94% of the cases
 4   correctly, and the eyewitness resolved only 64% of the cases correctly. Interestingly, when
 5   “inconclusive” results were included, the polygraph test was more accurate than any of the
 6   other methods: The polygrapher resolved 90% of the cases correctly, compared with 85% for
 7   the handwriting expert, 35% for the eyewitness, and 20% for the fingerprinting expert. Widacki
 8   & Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph
 9   Technique and Three Other Common Methods of Criminal Identification, 23 J. Forensic
10   Sciences 596, 596-600 (1978); see also Honts & Perry 365.
11          Even highly dubious eyewitness testimony is, and should be, admitted and tested in the
12   crucible of cross-examination. Vigorous cross-examination, presentation of contrary evidence,
13   and careful instruction on the burden of proof are the traditional and appropriate means of
14   attacking shaky but admissible evidence.” Daubert, 509 U. S., at 596.
15                    C. A Kelly Foundation Will Be Made by a Qualified Expert.
16          People v. Kelly (1976) 17 Cal.3d 24, p.30, states that the party that wants to introduce
17   evidence that is based on a new or novel scientific technique bears the burden of establishing the
18   reliability in order to admit the evidence. The Kelly rule deals with the fundamental validity of
19   the scientific technique. The methodology is tested by the weight of the evidence. “The Kelly
20   rule is based on the notion that juries may give undue way to experimental techniques presented
21   by credentialed experts whose testimony may convey an unjustified aura of scientific certainty.
22   (See Cal. Crim. Law, Procedure and Practice CEB, 2005 Ed., §3113, p. 912.) There is no such
23   concern in this case. The Kelly standard has three prongs:
24                  1. The test must be generally accepted in a relevant scientific community;
25                  2. Testimony must be given by properly qualified experts; and
26                  3. Correct scientific procedures must have been used.
27          The defense will establish a foundation for the reliability of the polygraph examinations
28   performed by Dr. Rovner of this defendant and which satisfies the Kelly Rule. The relevant

                                                  20
                                  M OTION TO ADM IT POLYGRAPH TEST
 1   scientific community considers the procedures used reliable. A recognized polygraph expert will
 2   testify at the hearing that the polygraph technique used is reliable and is as good or better
 3   than handwriting analysis, eyewitness identification, and fingerprinting (once inconclusive
 4   results are eliminated).
 5                                                    VIII.
 6                THE WILKINSON CASE DOES NOT APPLY TO THESE FACTS
 7          The defense is aware of People v. Wilkinson (2004) 33 Cal.4th 821, 845 which states that
 8   polygraph evidence is inadmissible per Ev. Code 351.1 unless the parties stipulate to
 9   admissibility. However, the defense in Wilkerson failed to properly lay a foundation.
10          In People v. Wilkinson (2004) 33 C.4th 821 the Supreme Court upheld a ruling by a trial
11   court that denied the defendant a Kelly hearing to lay a foundation for the admissibility of
12   polygraph evidence, stating the hearing was unnecessary because of Evid. C. §351.1's
13   “categorical prohibition” of polygraph evidence. The defense has no quarrel with that general
14   principle under the showing presented in Wilkinson. However, this case is different based
15   upon the offer of proof (Ex. B) by a recognized expert which demonstrates that polygraph
16   testing is now accepted in the relevant scientific community, there is no split of relevant
17   scientific opinion, and that a qualified examiner followed recognized and accepted
18   procedures in the examination of Defendant.
19          The Constitutional Rights involved override Evid. Code §351 and the prosecution can
20   cross-examine and otherwise call its own experts so that the trier of fact can evaluate the
21   polygraph evidence. The defendant is going to testify, the prosecution will attack his testimony
22   and his veracity, the polygraph examination will relate to critical issues of the defense, the
23   defense has the Constitutional rights to present evidence, present a defense, counter the
24   prosecution evidence, and has the right to a fair trial.
25   ///
26   ///
27   ///
28   ///

                                                    21
                                   M OTION TO ADM IT POLYGRAPH TEST
 1                                                      IX.
 2                                             CONCLUSION
 3          Dean Wigmore opined:
 4                  “Let the accused’s whole conduct come in; and whether it tells for
 5          consciousness of guilt or for consciousness of innocence, let us take it for what
 6          it is worth, remembering that in either case it is open to varying explanations and
 7          is not to be emphasized. Let us not deprive an innocent person, falsely accused, of
 8          the inference which common sense draws from a consciousness of innocence and
 9          its natural manifestations.” 2 J. Wigmore, Evidence Section 293, p. 232 (J.
10          Chadbourn rev. ed. 1979).
11          Given the recent advancements in polygraph technology, this Court should find that the
12   Sixth Amendment and Fourteenth Amendment warrant the admission of non-stipulated
13   polygraph evidence in this limited situation in which the proffered polygraph is reliable, the
14   polygraphist is subject to cross-examination, and where no jury can be swayed unduly. Dr.
15   Rovner will testify that: "Polygraph instruments have become far better at measuring and
16   recording physiological responses. Our knowledge of how to structure and conduct a polygraph
17   test, our knowledge of how to evaluate the results of a polygraph test, and our knowledge of how
18   to estimate accuracy is light years beyond what it was years ago.”
19          Some courts have been concerned with the variable skill of the polygraph examiner as a
20   major reason to object to polygraph evidence. In the instant case however, that concern is
21   alleviated by the demonstrated expertise of Dr. Rovner.
22          Under the unique circumstances of this case, where this Court can conduct an evidentiary
23   hearing to evaluate the reliability of the instant polygraph evidence, where the polygraphist will
24   testify as to the general acceptance of polygraph use and methodology, and where Dr. Rovner
25   will testify that the defendant was not being deceptive in his answers to the questions pertaining
26   to the criminal charges, this court should find that the polygraph evidence is admissible at trial.
27   Based upon the great advancements in the technology of polygraph examinations and greater
28   consensus by the scientific community as to its accuracy, this Court should admit the polygraph

                                                   22
                                   M OTION TO ADM IT POLYGRAPH TEST
 1   tests and polygraph testimony over the People’s objection to its admissibility. Given the eminent
 2   qualifications of the polygraph examiner and the demonstrated reliability of the polygraphy
 3   evidence and the defendant’s right to present a defense, this Court should find that the polygraph
 4   test results are admissible.
 5            The Court can be guided by settled principles concerning the credibility of expert
 6   testimony. Common sense suggests that the testimony of a disinterested third party with a
 7   scientific background and an expertise that is relevant to the credibility determination will
 8   assist, rather than impair, the court’s factual findings. The Constitution protects the right of a
 9   defendant to present evidence to rebut prosecution evidence.
10   Dated: February 9, 2009                         Respectfully submitted,
11
12
13
14                                                   _______________________________________
                                                     JON BRYANT ARTZ, Attorney for Defendant
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                                                              23
                                          M OTION TO ADM IT POLYGRAPH TEST
 1                                       PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On June 2, 2008, I served the foregoing document described as MOTION TO ADMIT
     POLYGRAPH EVIDENCE TO REBUT PROSECUTION EFFORTS TO
 6   CHARACTERIZE Defendant AS MENDACIOUS; DEFENDANT’S CONSTITUTIONAL
     RIGHTS TRUMP EVID. C. §351.1; OFFER OF PROOF AND DECLARATION OF DR.
 7   ROVNER THAT THE METHOD AND PROCEDURES OF DEFENDANT’S
     POLYGRAPH EXAM ARE RELIABLE AND THAT POLYGRAPH TESTING IS
 8   GENERALLY ACCEPTED IN THE RELEVANT SCIENTIFIC FIELD on the interested
     parties in this action as follows:
 9
            The esteemed Mr. William Clark, Deputy District Attorney
10          District Attorney - Malibu
            23525 Civic Center Way, Room 101
11          Malibu, CA 90265
12
     [ ]    (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
13          hand to the interested party[ies] as listed above.
14   [ x ] (BY OVERNIGHT MAIL - FEDERAL EXPRESS) As follows: I am “readily
           familiar” with the firm’s practice of collection and processing correspondence for
15         mailing. Under that practice it would be deposited with U.S. postal service on that same
           day with postage thereon fully prepaid at Los Angeles, California in the ordinary course
16         of business. I am aware that on motion of the party served, service is presumed invalid if
           postal cancellation date or postage meter date is more than one day after date of deposit
17         for mailing in affidavit.
18   []     (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile no.
            ________. All pages were sent, a confirmation form from facsimile no. (310) 820-1691
19          confirmed all pages were sent without error.
20   [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that
            the above is true and correct.
21
     [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this
22          court at whose direction the service was made.
23          Executed on June 2, 2008, at Los Angeles, California.
24
     Rita Pollak                          __________________________________
25   Typed or Printed Name                      Signature
26
27
28

                                                 24
                                  M OTION TO ADM IT POLYGRAPH TEST
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                                    II. A. 1
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, 4th Floor
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant ____________
 5
 6
 7
 8                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                                FOR THE COUNTY OF SAN DIEGO
10                            (North County Division, Vista Regional Center)
11
     THE PEOPLE OF THE STATE OF                            )   Case No.: ________
12   CALIFORNIA,                                           )
                                                           )   POINTS & AUTHORITIES
13                          Plaintiff,                     )   SUPPORTING DEFENDANT’S
                                                           )   REQUEST FOR SPECIAL JURY
14          v.                                             )   INSTRUCTIONS:
                                                           )   1. People must prove preliminary facts
15                                                         )   that correct scientific procedures were
     _________________,                                    )   followed. Evid.C. §403(c). See Memo of
16                                                         )   Law attached to Special No. 1.
                            Defendant.                     )   2. For 23152(a), People must prove
17                                                         )   driver “impaired to an appreciable
                                                           )   degree”
18                                                         )   3. View less satisfactory evidence with
                                                           )   distrust.
19
20                                                    I.
21                 THE COURT MUST GIVE SPECIAL JURY INSTRUCTIONS
22                    IF RELATED TO DEFENSE THEORIES OF THE CASE
23          A trial judge, when considering instructions to the jury, shall give no less consideration
24   to those submitted by the attorneys for the respective parties than to those contained in the latest
25   edition of CALJIC. Cal. Rules of Court, Appendix, Division I, Section 5.
26          Defendant is entitled upon request to an instruction relating particular facts to any
27   legal issue. People v. Sears (1970) 2 Cal.3d 180 at 190, 84 Cal.Rptr. 711. Such a requested
28   instruction may relate the reasonable doubt standard for proof of guilt to particular

                                                      1
             P&A’s IN SUPPORT OF DEFENDANT'S REQUEST FOR SPECIAL JURY INSTRUCTIONS
 1   elements of the crime charged or may pinpoint the crux of a defendant’s case. The court is
 2   under an “obligation to instruct on defenses . . . and on the relationship of these defenses to
 3   the elements of the charged offense . . . where . . . it appears that the defendant is relying on
 4   such a defense, . . . ” People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Flannel, 25 Cal.3d
 5   668, 680, 681; People v. St. Martin, 1 Cal.3d 524, 531.
 6          The Court has a duty to instruct the jury, and a party has a right to instructions on his
 7   theory of the case, if defendant’s theory finds any support in the evidence or any inference
 8   which may be properly drawn from the evidence. As stated in People v. Sam (1969) 71 Cal.2d
 9   194, 77 Cal.Rptr. 804, “a defendant is entitled to an instruction on any theory, no matter how
10   remote or incredible, which is supported by any evidence deserving of any consideration
11   whatsoever.” (Citations omitted)
12          In People v. West (1983) 139 Cal.App.3d 606, 189 Cal.Rptr. 36, there was reversible
13   error due to the failure of the court to give defendant’s proposed instructions. Defendant’s
14   specials listed eight (8) factors for consideration which were not mentioned in the standard
15   instructions and which were supported by the evidence. The West court, id., 139 Cal.App.3d at
16   608, stated that “the trial court has a duty to give requested defense instructions which direct
17   the jury’s attention to evidence from which the jury could infer a reasonable doubt of
18   defendant’s guilt.”
19          A trial court must instruct on every theory of the case supported by substantial evidence,
20   including defenses that are not inconsistent with defendant’s theory of the case. (People v.
21   Montoya (1994) 7 Cal.4th 1027, 1047; People v. Jackson (1989) 49 Cal.3d 1170, 1199.) “In
22   reviewing the evidence to determine whether exclusion of a requested instruction was error,
23   ‘[d]oubts as to the sufficiency of the evidence to warrant instructions should be resolved in
24   favor of the accused.’”1/
25
26   1/
            Similarly, the defense has the right to instruction on the defense theories of the case. (See
27   generally Mathews v. United States (1988) 485 US 58, 63 [108 SCt 883; 99 LEd2d 54]; Conde v.
     Henry (9th Cir. 1999) 198 F3d 734, 739.) Such defense theories can range from affirmative
28   defenses such as self defense to evidentiary theories based on logic or reasonable inference
     such as good character.
                                                       2
             P&A’s IN SUPPORT OF DEFENDANT'S REQUEST FOR SPECIAL JURY INSTRUCTIONS
 1                                                    II.
 2                         A TRIAL JUDGE HAS A DUTY TO GUIDE THE
 3                           JURY AND EXPLAIN LEGAL PRINCIPLES
 4          “Discharge of the jury’s responsibility for drawing appropriate conclusions from the
 5   testimony depend[s] on discharge of the judge’s responsibility to give the jury the required
 6   guidance by a lucid statement of the relevant legal criteria.” (Bollenbach v. U.S. (1946) 326 US
 7   607, 612 [66 SCt 402; 90 LEd 350].) “Jurors are not experts in legal principles; to function
 8   effectively, and justly, they must be accurately instructed in the law.” (Carter v. Kentucky
 9   (1981) 450 US 288, 302 [101 SCt 1112; 67 LEd2d 241].) “It is quite simply a hallmark of our
10   legal system that juries be carefully and adequately guided in their deliberations.” (Gregg v.
11   Georgia (1976) 428 US 153, 193, 96 SCt 2909; [opn. of Stewart, Powell, and Stevens, JJ.].)
12                                                   III.
13    DEFENSE ARGUMENT IS NOT A SUBSTITUTE FOR REQUIRED INSTRUCTIONS
14          Many courts tend to blur the distinction between the separate functions of instruction
15   and argument, often to the detriment of criminal defendants. It is common for the judge to
16   refuse a defendant’s request for a instruction on a specific defense theory or legal principle on
17   the basis that the instruction is “a matter for argument.”
18          Instruction of the jury by the court and argument to the jury by counsel are two distinct
19   phases of trial, each with its own purpose and impact. On a conceptual level, these functions are
20   not interchangeable--each must fulfill its own discrete purpose. “A jury’s response to
21   instructions from the judge is, and should be, quite different from its response to arguments from
22   counsel. Counsel’s argument is neither law nor evidence, and the jury is so instructed.”
23   (United States v. Bernard (9th Cir. 1980) 625 F2d 854, 857.) “Any suggestion that counsel’s
24   argument can perfect an otherwise faulty jury charge is totally erroneous. Arguments of
25   counsel can never substitute for the instructions given by the Court.” (Goodwin v. Balkcom (11th
26   Cir. 1982) 684 F2d 794, 803, fn 8; see also U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154
27   [court rejected as “disingenuous” prosecution’s argument that defense theory was adequately
28   presented by closing argument of counsel; jury deliberations are guided by the court’s

                                                       3
             P&A’s IN SUPPORT OF DEFENDANT'S REQUEST FOR SPECIAL JURY INSTRUCTIONS
 1   instructions not counsel’s arguments].)
 2          Instructions which accurately define, explain or clarify elements of the offense are
 3   appropriate matters for instruction by the court rather then argument of counsel. (See
 4   generally Neder v. U.S. (1999) 527 US 1 [119 SCt 1827; 144 LEd 2d 35]; U.S. v. Gaudin (1995)
 5   515 US 506, 515 [115 SCt 2310; 132 LEd2d 444]; Eaglin v. Welborn (7th Cir. 1995) 57 F3d
 6   496, 500.)
 7                                                  IV.
 8      THE JUDGE HAS AN OBLIGATION TO PROVIDE INSTRUCTIONS THAT ARE
 9                BALANCED BETWEEN THE PROSECUTION AND DEFENSE
10          If the court gives instructions on presumptions (see e.g., CALCRIM 2110 and 2111) as
11   requested by the prosecution then it would violate the requirement of balance and would
12   implicate due process principles (see generally Wardius v. Oregon (73) 412 US 470 [37 LEd2d
13   82; 93 SCt 2208]) to relegate to argument analogous defense instructions. (See also People v.
14   Williams (1997) 55 CA4th 648, 652, 64 CR2d 203.
15                                                  V.
16                                             CONCLUSION
17          The court must instruct where there is some evidence supporting a defense theory.
18   Argument cannot substitute for instruction. (See Carter v. Kentucky, supra; People v.
19   Mathews (1994) 25 CA4th 89, 99 [30 CR2d 330] [“[I]nstruction by the trial court would
20   weigh more than a thousand words from the most eloquent defense counsel”]; Ovalle v.
21   State (TX 2000) 13 SW3d 774 [argument of prosecutor did not cure error in failing to inform
22   capital sentencing jury to consider sentencing phase evidence].)
23   Dated: February 9, 2009                      Respectfully submitted,
24
25
26
27                                                _______________________________________
                                                  JON BRYANT ARTZ, Attorney for Defendant
28

                                                     4
             P&A’s IN SUPPORT OF DEFENDANT'S REQUEST FOR SPECIAL JURY INSTRUCTIONS
 1                                                              PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5        On February 9, 2009, I served the foregoing documents described as POINTS &
     AUTHORITIES SUPPORTING DEFENDANT’S REQUEST FOR SPECIAL JURY
 6   INSTRUCTIONS on the interested parties in this action as follows:
 7
     Laurie L. Hauf
 8   Deputy District Attorney
     325 S. Melrose Dr.
 9   Vista, CA 92083
10
11   [ ]         (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
                 hand to the interested party[ies] as listed above.
12
     [x]         (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
13               and processing correspondence for mailing. Under that practice it would be deposited
                 with U.S. postal service on that same day with postage thereon fully prepaid at Los
14               Angeles, California in the ordinary course of business. I am aware that on motion of the
                 party served, service is presumed invalid if postal cancellation date or postage meter date
15               is more than one day after date of deposit for mailing in affidavit.
16   []          (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
                 All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
17               all pages were sent without error.
18   [X]         (STATE) I declare under penalty of perjury under the laws of the State of California that
                 the above is true and correct.
19
     [ ]         (FEDERAL) I declare that I am employed in the office of a member of the bar of this
20               court at whose direction the service was made.
21               Executed on February 9, 2009, at Los Angeles, California.
22
23
                                                                                       __________________________________
24                                                                                     JON BRYANT ARTZ
25   C:\Data\0Seminar SF 0309\IIA1 p&as supp req for special jury insts 02-09-09.wpd


26
27
28

                                                                                   5
                   P&A’s IN SUPPORT OF DEFENDANT'S REQUEST FOR SPECIAL JURY INSTRUCTIONS
 1   JON BRYANT ARTZ, ESQ. - State Bar No. 52187                               II. A. 2
     LAW OFFICES OF JON BRYANT ARTZ
 2   12400 Wilshire Boulevard, Suite 500
     Los Angeles, California 90025-1030
 3   Telephone: (310) 820-1315
     Facsimile: (310) 820-1691
 4
     Attorney for Defendant _________
 5
 6
 7
 8                   SUPERIOR COURT OF THE STATE OF CALIFORNIA
 9                            FOR THE COUNTY OF LOS ANGELES
10
11   PEOPLE OF THE STATE OF CALIFORNIA,                  )   Case No.: _________
                                                         )
12                        Plaintiff,                     )   MEMO OF LAW FOR SPECIAL
                                                         )   INSTRUCTION NO.1: THE COURT
13          v.                                           )   MUST INSTRUCT THAT THE JURY
                                                         )   DETERMINE WHETHER THE
14                                                       )   PRELIMINARY FACTS EXIST
                                                         )   (FOUNDATIONAL FACTS OF
15   ______________,                                     )   CORRECT SCIENTIFIC
                                                         )   PROCEDURES) AND TO DISREGARD
16                        Defendant.                     )   THE BLOOD TEST RESULTS
                                                         )   UNLESS IT FINDS THE
17                                                       )   PRELIMINARY FACTS WERE
                                                         )   PROVED. EVID. C. §403(c)
18
19                                                  I.
20                  A BLOOD TEST RESULT IS NOT ADMISSIBLE UNLESS
21                   THE PEOPLE SHOW THAT “CORRECT SCIENTIFIC
22                             PROCEDURES” WERE FOLLOWED
23   A.     IN ORDER TO ADMIT A CHEMICAL TEST FOR

24          ALCOHOL, THE PROSECUTION MUST SHOW THAT “CORRECT SCIENTIFIC
25          PROCEDURES” WERE FOLLOWED
26          The California Supreme Court in People v. Williams (2002) 28 C.4th 408 held that for a
27   chemical test to be admissible the proponent must “demonstrate that correct scientific
28   procedures were used in the particular case.” The Williams’ court authorized “admitting

                                                1
                   MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1   breath test evidence after a showing of (1) reliability of the instrument, (2) the proper
 2   administration of tests and (3) the competence of the operator.” Also, in People v. Kelley (1976)
 3   17 Cal.3d 24, 30, the California Supreme Court stated that the reliability of scientific evidence
 4   must be demonstrated, i.e., the proponent “must demonstrate that correct scientific procedures
 5   were used in a particular case.”
 6           The Williams’ court concluded that chemical test results are admissible upon the
 7   showing of either compliance with Title 17 or the foundational elements of (1) properly
 8   functioning equipment, (2) a properly administered test, and (3) a qualified operator...” In
 9   footnote 6, the Williams’ court noted that if the people did not establish the three required
10   foundational elements (or compliance with Title 17) the test results are inadmissible. The
11   Williams court ruled that all three foundational elements must be established for the evidence
12   to be admissible; the chain is not stronger than its weakest link.”
13           The Williams’ court correctly analyzed that in People v. Adams (1976) 59 C.A.3d 5591/
14   there was only a minor or technical violation of Title 17 (testing of the machine must be done
15   every hundred subjects or weekly and the results must be reported to a licensed laboratory.)
16   And, in footnote 5, Williams’ observed that there was “no challenge in Adams to the admission
17   of the test or the qualifications of the operator” and the defendants did not “attempt any
18   showing that the non-compliance affected the test results in any way, let alone rendered the
19   results inaccurate.” The defense contends in this case that there are issues of proof re the
20   reliability of the test results and compliance with “correct scientific principles.”
21   B.      THE RELIABILITY OF A CHEMICAL TEST RESULT IS A MATTER OF RELEVANCE
22           The Williams’ court noted that foundational facts “will insure that the tests retain their
23   reliability and thus their relevance and admissibility...” The Williams’ court reasoned that “. .
24   .admissibility depends on the reliability and consequent relevance of the evidence...” Thus,
25   the California Supreme Court held that chemical test results must be reliable to be admitted or
26
27   1/
        Adams is cited by the People [without thorough analysis] that “failure to comply with Title 17 goes to
     the weight, not admissibility.” True, if a minor defect of Title 17 that does not go to the accuracy of the
28   results. Not true if the failure to follow correct scientific procedures means the results are not proved
     accurate. If so, the test results are not accurate, they are not relevant.
                                                       2
                     MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1   else they are not relevant.
 2   C.       EVIDENCE CODE §403(a) REQUIRES THE PROPONENT TO PRODUCE “SUFFICIENT
 3           EVIDENCE” AS TO THE PRELIMINARY FACTS OR THE EVIDENCE IS INADMISSIBLE
 4           E.C. §403 determines foundation and other preliminary facts where relevancy is
 5   disputed. Under §403(a) “the proponent of proffered evidence has the burden of producing
 6   evidence as to the existence of the preliminary fact and the proffered evidence is inadmissible
 7   unless the court finds that there is evidence sufficient to sustain a finding of the existence of the
 8   preliminary fact, when the relevance of the proffered evidence depends on the existence of the
 9   preliminary fact. A proffered chemical test result is inadmissible unless there is sufficient
10   evidence to demonstrate that the test was properly administered, the personnel involved in the
11   test were qualified, and that the testing device was in proper working order and accurate.
12                                                     II.
13                 THE COURT DECIDES QUESTIONS OF ADMISSIBILITY OF
14                                                EVIDENCE
15           “Evid. C. §310 provides that all questions of law, including the admissibility of evidence,
16   are to be decided by the court in accordance with Evid. C. §§400-406.” “Jefferson, Cal.Evid.
17   Benchbook, 3d Ed., Vol. I, §23.4. “...Preliminary fact issues should be finally decided by the
18   jury and not by the judge.” Jefferson, Id., § 23.5. “For the preliminary fact issues set forth in
19   Evid. C. §403,” the proponent must persuade the judge that there is “sufficient evidence” to
20   justify a finding by the trier of fact that the preliminary fact exists. Jefferson, Id., §23.6. “...The
21   jury, not the trial judge, resolves conflicts in the evidence ...” Jefferson, Id. §23.6.2/
22                                                     III.
23        ONCE ADMITTED, AND “IF REQUESTED”, THE COURT SHALL INSTRUCT THE
24           JURY TO DETERMINE WHETHER THE PRELIMINARY FACTS EXIST
25           AND TO DISREGARD THE PROFFERED EVIDENCE UNLESS THE JURY
26             FINDS CORRECT SCIENTIFIC PROCEDURES WERE FOLLOWED
27
28   2/
       As demonstrated below in IV, in a criminal case the burden of proof is beyond a reasonable
     doubt [as opposed to a preponderance of the evidence].
                                                 3
                     MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1           Under Evid. C. §403(c) if the court admits the proffered evidence of the chemical test
 2   result (i.e., finds there is sufficient evidence of the preliminary facts), the court:
 3                   “May, and on request shall, instruct the jury to determine
 4                   whether the preliminary facts exist and to disregard the
 5                   proffered evidence unless the jury finds that the preliminary fact
 6                   does exist.”
 7           The relevance of the test results depends on the existence of proof of preliminary facts,
 8   i.e. that correct scientific procedures were followed. The defendant requests special jury
 9   instruction #1, which mirrors the language E.C. 403(c) and is tailored to the evidence in this
10   case. Special instruction #1 informs the jury that it must determine whether correct scientific
11   procedures (preliminary facts) have been proved and that the jury must “disregard the proffered
12   evidence unless ...” it finds that those foundational elements have been proved. The accuracy of
13   the blood test result is a matter of relevance per Williams, supra, and Evid.C. §403(3) requires
14   that the jury must be instructed as [per special #1] that it “shall disregard” the blood test results if
15   the prosecution did not prove that correct procedures were followed.
16                                                       IV.
17                  THE PROSECUTION MUST PROVE THE FOUNDATIONAL
18                             FACTS BEYOND A REASONABLE DOUBT
19           The defense has introduced evidence tends to prove the nonexistence of the presumed
20   facts, i.e. that the defendant was a .08% or higher at the time of driving. Evid. C. §607 requires
21   that the jury must be convinced beyond a reasonable doubt that the basic facts exist and may find
22   the presumed fact (permissive inference) only if the jury is convinced beyond a reasonable doubt
23   that that presumed fact has been proven.
24           The leading author on evidence in California, Justice Jefferson, states:
25                   “If the prosecution invokes a presumption affecting the burden of proof to
26           establish a presumed fact that is an essential element of the offense charged
27           against the defendant in a criminal action, the presumption operates as set forth in
28           §§46.50-46.51.” See Jefferson, Cal.Ev. Benchbook, 3d. ed., Vol. II, §46.49

                                                     4
                     MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1           The basic fact of the chemical test gives rise to presumptions affecting the burden of
 2   proof [See V.C. 23610(a)] to establish a fact in the criminal case “only if the trier of fact is
 3   convinced beyond a reasonable doubt from a consideration of all the evidence in the case that the
 4   presumed fact exists.” Jefferson, Cal. Evid. Benchbook, Vol.II, §46.51. As stated in Jefferson,
 5   Id.,:
 6           “...the court should instruct the jury that it may find that the presumed fact
 7           exists only if:
 8           •       The jury is convinced beyond a reasonable doubt that certain
 9                   specified facts (the basic facts giving rise to the presumption) exist;
10                   and
11           •       The jury is convinced, beyond a reasonable doubt, from a
12                   consideration of all the evidence in the case, that the specified fact (the
13                   presumed fact) exists.
14           People v. Roder (1983) 33 C3d 491. 189 CR 501. See In re Winship (1970)
15           397 US 358, 25 L Ed 2d 368, 90 S. Ct 1068; Jackson v. Virginia (1979) 443
16           US 307, 61 L Ed 2d 560, 99 S Ct 2781; Ulster County Court v. Allen (1979)
17           442 US 140, 60 L Ed 2d 777, 99 S Ct 2213; Leary v. U.S. (1969) 395 US 6,
18           36, 23 L Ed 2d 57, 89 S. Ct 1532.”
19           The preliminary facts (“correct scientific procedures”) operate to establish presumptively
20   facts essential to the defendant’s guilt, and thus the preliminary facts must be proven beyond a
21   reasonable doubt. Evid. C. 607. See also P.C. §1096: Presumption of Innocence, right to an
22   acquittal, and burden of proof beyond a Reasonable Doubt in a criminal case.
23           Ev. C. §501 states that any statute (with exception for §522) that assigns the burden of
24   proof in a criminal action is subject to P.C. §1096. Therefore, section 403 of the Evidence Code
25   must comport with P.C. §1096. The law revision comment to Evid. C. 501 states “that the
26   statutory allocations do not (except for insanity) require the defendant to persuade the trier of
27   fact of his innocence. Ev. C. §502 states that:
28           “[T]he court on all proper occasions shall instruct the jury as to which party

                                                    5
                     MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1          bears the burden of proof on each issue and as to whether that burden requires
 2          that a party raise a reasonable doubt concerning the existence or nonexistence
 3          of a fact or that he establish the existence or nonexistence of a fact or that by a
 4          preponderance of the evidence, by clear and convincing proof, or by proof beyond
 5          a reasonable doubt.”
 6                                                     V.
 7                          PRESUMPTIONS CANNOT BE MANDATORY
 8          A mandatory presumption violates a defendant’s due process rights because it would
 9   require the defendant to produce some evidence to raise a reasonable doubt, and thus would be
10   construed as lightening the prosecution’s burden of proving every element of the crime beyond a
11   reasonable about. In re Winship (1970) 397 US 358; Ulster County Court v. Allen (1979) 442
12   US 140; Sandstrom v. Montana (1979) 442 US 510. Any mandatory presumption lightening the
13   prosecution’s burden of proof in every element of the crime beyond a reasonable doubt is invalid
14   under those cases.
15          Evid. C. §607 dealing with a presumption that involves an essential element of the crime
16   charged requires the prosecution to prove the basic facts beyond a reasonable doubt and the
17   defendant only need introduce evidence to raise a reasonable doubt about the existence of the
18   presumed fact. See People v. Roder (1983) 33 C.3d 491. See also Jefferson, supra, §46.55 As
19   Justice Jefferson stated:
20          “. . . the inference from the basic facts to the presumed fact must follow beyond
21          a reasonable doubt. This necessarily casts the burden of proof of such fact
22          beyond a reasonable doubt on the prosecution. To place the burden on the
23          defendant to raise a reasonable doubt would thus violate the Ulster Country
24          Court mandate.
25                  As a result, no instruction may be given to a jury that places on a
26          criminal defendant the burden of proof of negating the existence of a presumed
27          fact by raising a reasonable doubt. To so instruct a jury would remove the duty
28          of the prosecution to prove beyond reasonable doubt every fact essential to the

                                                   6
                     MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1          offense or the defendant’s guilt.”
 2                                                     VI.
 3                                            CONCLUSION
 4          As requested by the defense, and as required by Evid. C. 403(c) and case law, the court
 5   must give special instruction #1 which explains the law and informs the jury that the People must
 6   prove the foundational facts or the jury must disregard the chemical test result. The chemical
 7   test result is critical evidence and involves presumptions. To not instruct as requested in special
 8   #1 would violate Evid. C. §403(c), Due Process of law, and the Right to a Fair Trial.
 9   Dated: February 9, 2009                       Respectfully submitted,
10
11                                                 _______________________________________
                                                   JON BRYANT ARTZ,
12                                                 Attorney for Defendant George Paul Hicker
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

                                                   7
                    MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
 1                                                          PROOF OF SERVICE
 2   STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
 3          I am employed in the county of Los Angeles, State of California. I am over the age of 18
     and not a party to the within action; my business address is: 12400 Wilshire Boulevard, 4th Floor,
 4   Los Angeles, California 90025-1033.
 5           On February 9 , 2009, I served the foregoing documents described as THE COURT
     MUST INSTRUCT THAT THE JURY MUST DETERMINE WHETHER THE
 6   PRELIMINARY FACTS EXIST (FOUNDATIONAL FACTS OF RELIABLE AND
     ACCURATE CHEMICAL TEST RESULTS) AND TO DISREGARD THE CHEMICAL
 7   TEST RESULTS UNLESS IT FINDS THE PRELIMINARY FACTS WERE PROVED.
     EVID. C. §403(c) (SEE SPECIAL INSTRUCTION NO. 1) on the interested parties in this
 8   action as follows:
 9
     Laurie L. Hauf
10   Deputy District Attorney
     325 S. Melrose Dr.
11   Vista, CA 92083
12
13   [x]        (BY PERSONAL SERVICE) I delivered or caused to be delivered such document[s] by
                hand to the interested party[ies] as listed above at Trial.
14
     [ ]        (BY MAIL) As follows: I am “readily familiar” with the firm’s practice of collection
15              and processing correspondence for mailing. Under that practice it would be deposited
                with U.S. postal service on that same day with postage thereon fully prepaid at Los
16              Angeles, California in the ordinary course of business. I am aware that on motion of the
                party served, service is presumed invalid if postal cancellation date or postage meter date
17              is more than one day after date of deposit for mailing in affidavit.
18   []         (BY FACSIMILE) I sent said fax via facsimile no. (310) 820-1691 to facsimile nos. ___
                All pages were sent, a confirmation form from facsimile no. (310) 820-1691 confirmed
19              all pages were sent without error.
20   []         (BY OVERNIGHT COURIER): I caused such envelope to be placed for collection and
                delivery on this date in accordance with standard FEDERAL EXPRESS delivery
21              procedures.
22   [X]        (STATE) I declare under penalty of perjury under the laws of the State of California that
                the above is true and correct.
23
     [ ]        (FEDERAL) I declare that I am employed in the office of a member of the bar of this
24              court at whose direction the service was made.
25              Executed on February 9, 2009, at Los Angeles, California.
26
                                                                              __________________________________
27                                                                            JON BRYANT ARTZ
28
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                                                                          8
                            MEMO OF LAW IN SUPPORT OF JURY INSTRUCTION#1 [EVID. C. §403]
                                                              1-          People Must Prove the Preliminary Facts of
                                                                          Foundation or Jury Must Disregard The Breath
                                                                          Test Results

                                                              Evid. Code §403(c);People v. Williams, (2002) 28 Cal.4th
                                                              408; See Memo of Law in Support of Jury Instruction
                                                              under Evidence Code §403(c) supplied herewith.




                                You are instructed that the People have the burden of proof regarding the
                        preliminary facts relative to the breath test results. In determining whether the
                        results of the breath test may be considered by you, you shall determine whether
                        the prosecution has proved each of the following three foundational elements:

                                     1.          The particular machine utilized for analysis of the breath sample
                                                 was in proper working order at the time of the test;

                                     2.          The breath test was properly administered and proper procedures
                                                 were followed; and

                                     3.          The operator was properly trained, competent, and qualified.

                                If the prosecution has not unanimously convinced you beyond a
                        reasonable doubt of each of these three preliminary facts, you must disregard the
                        breath test.




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2.                     McLean v. Moran (1992) 963 F.2d 1306, People v. Milham
                       (1984) 159 Cal.App.3d 504-505, People v. Roder (1983) 33
                       Cal.3d 491; Evid. Code §§600 and 607; Ulster County
                       Court v. Allen (1979) 442 U.S. 140, 156, In re People v.
                       Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1972, 25
                       E.Ed.2d 368




The permissive inferences do not alter the People's burden to prove defendant's
guilt beyond a reasonable doubt. The permissive inferences just read to you are
not mandatory. They are rebutted if the evidence raises a reasonable doubt in
your mind whether the defendant was in fact a .08 blood alcohol level or higher at
the time of the driving.

       You are instructed that the permissive inferences just read to you
regarding blood alcohol levels equal to .08 or higher are not mandatory. The
permissive inferences are rebutted if the evidence raises a reasonable doubt in
your mind of the existence of the inferred fact. The inferred fact is whether the
defendant was a .08 blood alcohol level or higher at the time of the driving.

       You further instructed that the defendant does not have the burden of
disproving the inferred fact. It is sufficient to rebut the permissive inference if the
evidence raises a reasonable doubt in your mind of the existence of the inferred
fact.

       You are further instructed that the permissive inferences do not alter the
People's duty to prove defendant's guilt beyond a reasonable doubt.
                                                 3-          “Under the Influence” is defined as Driving Ability
                                                             Impaired to an Appreciable Degree

                                                             People v. Canty (2002) 100 Cal.App.4th 903,
                                                             Byrd v. Municipal Court (1981), 125 Cal.App.3d 1054,
                                                             1058, relying on People v. Haeussler (1953) 41 Cal.2d 252;
                                                             Modification of CALJIC No. 16.830 (6th ed. 1996).




                                 “Under the influence” is defined as when the liquor has so far affected the
                        nervous system, the brain, or muscles so as to impair to an appreciable degree the
                        ability to operate a vehicle in a manner like that of an ordinary prudent and
                        cautious person in full possession of his faculties.”




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                                  4 - Viewing Less Satisfactory Evidence with Distrust


                                                              Evidence Code §412




                                You are instructed that if weaker and less satisfactory evidence is offered
                        when it was within the power of the party to produce stronger and more
                        satisfactory evidence, the evidence offered should be viewed with distrust.




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                                         5 - Title 17: Continuous Observation Period

                                     California Administrative Code of Regulations, Title 17.
                                     See also Davenport v. DMV (1992) 6 Cal.App.4th 133 at 142
                                     (“...regulations shall establish the procedures to be used by law
                                     enforcement...”). V.C. §15. E.C. §403(a)(c).




       You should consider whether or not the breath test was performed in accordance with
the provisions of Title 17. The law defines “Shall” as “mandatory,” and “May” as
“permissive.” The applicable provisions of Title 17 are as follows:

            §1219 of Title 17 provides that “Samples taken for forensic alcohol analysis and
            breath alcohol analysis shall be collected and handled in a manner approved by the
            Department. The identity and integrity of the samples shall be maintained through
            collection to analysis and reporting.”

            §1219.3 of Title 17 entitled Breath Collection requires: “A breath sample shall be
            expired breath which is essentially alveolar in composition. The quantity of the breath
            sample shall be established by direct volumetric measurement. The breath sample
            shall be collected only after the subject has been under continuous observation for at
            elast fifteen minutes prior to collection of the breath sample, during which time the
            subject must not have ingested alcoholic beverages or other fluids, regurgitated,
            vomited, eaten, or smoked.”

       You are not required to accept the results of a chemical test but should give it the
weight, if any, to which you find it entitled. The result of a breath test must be disregarded if
you find that correct scientific procedures were not followed.




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                       6 - Regulations of Title 17 for Breath Testing, Including Training




       The testing of breath samples by or for law enforcement agencies for purpose of
determining the concentration of ethyl alcohol in the blood of persons shall be performed in
accordance with regulations adopted by the California Department of Health Services.

        The failure, if any, to follow the regulations adopted by the California Department of
Health Services for testing breath samples to determine a person’s blood alcohol concentration
may be considered by you in determining the accuracy of such test results and the weight, if any,
to be given them.

            Those regulations specify the following:

       The instrument used to conduct the breath sample analysis must be named on the
“Conforming Product List” published by the National Highway and Safety Administration of the
U.S. Department of Transportation.

        Breath analysis shall only be performed by persons whose training includes theory of
operation, detailed operation procedures, and a precautionary checklist, and who have practical
experience in the use of the instrument and have taken a written or practical examination. Such
training shall be by or under the supervision of persons who are qualified as forensic alcohol
supervisors, analysts or trainees.

        A breath sample shall be expired breath which is essentially alveolar in composition. The
breath sample shall be collected only after the subject has been observed continuously for at least
fifteen minutes prior to collection of the breath sample, during which time the subject must not
have ingested any alcoholic beverages or other fluids, eaten, smoked, regurgitated or vomited.

        For the person tested, breath analysis shall be of two separate breath samples that result
in a determination of blood or breath alcohol concentration that do not differ by more than 0.02
percent.

       The instrument used to test breath samples must be checked for accuracy either every ten
days, or 150 breath samples, whichever occurs sooner.

        The accuracy test must be against a known test sample and the accuracy test result must
be within plus or minus 0.01 percent of the known test sample’s actual alcohol concentration.
The alcohol concentration of the known test sample must be no less than 0.01 percent and no
more the 0.03 percent. The accuracy test shall be performed by an operator who is trained to use
the instrument tested. The test sample must be provided by a forensic alcohol laboratory.

            Law enforcement agencies shall keep records of trainingwhich show their activities

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covered by the regulations. These records include

                         S           records of the frequency of accuracy determinations and the identity of the
                                     person performing such determinations.
                         S           records of analyses performed, results and identities of the persons
                                     performing analyses.
                         S           a precautionary checklist to be used by the operators of each instrument, at
                                     the location of each instrument.
                         S           records of training of operators which must be maintained by the licensed
                                     laboratory.

        Records showing compliance with the accuracy determination regulations shall be kept at
a licensed forensic laboratory.




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                                                          7 - Training of Operator

                                                    California Administrative Code Title 17




                                In determining the weight to be given to the results of the chemical
                        test, you should consider whether or not the test was performed in accordance
                        with the applicable provisions of the California Administrative Code, Title 17.


                                General: Breath alcohol analysis shall be performed in accordance
                        with standards set forth in this Article.

                               Standards of Procedures: Procedures for breath alcohol analysis shall
                        meet the following standards:

                               Breath alcohol analysis shall be performed only with instruments for
                        which the operators have received training, such training to include at
                        minimum the following schedule of subjects:

                                     (A)         Theory of operation;
                                     (B)         Detailed procedure of operation;
                                     (C)         Practical experience;
                                     (D)         Precautionary checklist;
                                     (E)         Written and/or practical examination;

                               Training in the procedures of breath alcohol analysis shall be under the
                        supervision of persons who qualify as forensic alcohol supervisors, forensic
                        alcohol analyst trainees in a licensed forensic alcohol laboratory.

                               The failure, if any, to follow the regulations adopted by the
                        Department of Health for procedures to be used in administering tests to
                        determine the concentration of alcohol in a person's blood, may be considered
                        by you in determining the accuracy of the breath test results.

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                                         8 - Standards Re Breath Testing per Title 17


                                     California Administrative Code of Regulations, Title 17,
                                     §1215, et seq., and §1219.3, Evid. Code 403(c).




       In considering the chemical test results, you should determine whether or not the test was
performed in accordance with the provisions of the California Administrative Code, Title 17.
Vehicle Code section 15 defines “Shall” and “May” as follows: “Shall” is “mandatory,” and
“May” is “permissive.” The applicable provisions of Title 17 are as follows:

            §1219 of Title 17 provides that “Samples taken for forensic alcohol analysis and breath
            alcohol analysis shall be collected and handled in a manner approved by the Department.
            The identity and integrity of the samples shall be maintained through collection to
            analysis and reporting.”

            §1219.3 of Title 17 entitled Breath Collection requires: “A breath sample shall be expired
            breath which is essentially alveolar in composition. The quantity of the breath sample
            shall be established by direct volumetric measurement. The breath sample shall be
            collected only after the subject has been under continuous observation for at least fifteen
            minutes prior to collection of the breath sample, during which time the subject must not
            have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or
            smoked.

            §1221 Mandates that “Breath alcohol analysis shall be performed in accordance with
            standards set forth in this Article.”

            §1221.4 – “Standards of Procedure: “Procedures for breath alcohol analysis shall meet
            the following standards:” §1221.4(a)(3) requires that: “Breath alcohol analysis shall be
            performed only with instruments for which the operators have received training, such
            training to include at a minimum the following schedule of subjects: (A) Theory of
            operation; (B) Detailed procedure of operation; (C) Practical experience; (D)
            Precautionary checklist; (E) Written and/or practical examination.”

            §1221.4(a)(4) provides that “Training in the procedures of breath alcohol analysis shall
            be under the supervision of persons who qualify as forensic alcohol supervisors, forensic

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            alcohol analysts or forensic alcohol analyst trainees in a licensed forensic alcohol
            laboratory. (A) After approval as set forth in Section 1218, the forensic alcohol
            laboratory is responsible for the training and qualifying of its instructors.”

            §1221.4(a)(5) states that “An operator shall be a forensic alcohol supervisor, forensic
            alcohol analyst, forensic alcohol analyst, forensic alcohol analyst trainee or a person who
            has completed successfully the training described under section 1221.4(a)(3) and who
            may be called upon to operate a breath testing instrument in the performance of his
            duties.”


            §1222 states that “Forensic alcohol laboratories and law enforcement agencies shall
            maintain records which clearly represent their activities which are covered by these
            regulations. Such records shall be available for inspection by the Department on
            request.”

            §1222.1 provides that: “Forensic Alcohol Laboratory Records. (A) Each laboratory
            which is licensed to perform forensic alcohol analysis shall keep the following records
            for a period of at least three years.”

            §1222.1(a)(7) requires “Records of such training as a laboratory may provide to persons
            who operate breath testing instruments for law enforcement agencies.”

       The failure, if any, to follow the regulations adopted by the California State Department
of Health for procedures to be used in administering tests to determine the concentration of ethyl
alcohol in a person’s blood, may be considered by you in determining the accuracy of the tests
made in this case.

        You are further instructed that the result of a breath test shall be completely disregarded
if the People do not prove the foundational facts that all required scientific procedures were
followed.




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                                                             9-          Periodic Accuracy Standards and Required
                                                                         Training of an Operator

                                                             California Administrative Code, Title 17, §1219, §1221,
                                                             H&S Code §436.50 et. seq.




                                You should consider whether or not the test was performed in accordance
                        with the Requirement for Breath Alcohol Analysis of the California
                        Administrative Code, Title 17, sections 1215 et seq. You are not required to
                        accept the results of the breath test.

                                    §1221. General: Breath alcohol analysis shall be performed in
                                    accordance with standards set forth in this Article.
                                    §1221.4. Standards of Procedure: (a) Procedures for breath alcohol
                                    analysis shall meet the following standards:

                               The accuracy of instruments shall be determined and shall consist, at a
                        minimum, of periodic analysis of a reference sample [as described in section
                        1221.2(a)(3)] and which is provided by a forensic alcohol laboratory.

                                Breath alcohol analysis shall be performed only with instruments for
                        which the operators have received training, such training to include at minimum
                        the following schedule of subjects:

                                    (A)          Theory of operation;
                                    (B)          Detailed procedure of operation;
                                    (C)          Practical experience;
                                    (D)          Precautionary checklist;
                                    (E)          Written and/or practical examination;

                               Such analysis shall be performed by an operator (as defined in section
                        1221.4(a)(5)), and the results shall be used by a forensic alcohol laboratory to

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                        determine if the instrument continues to meet the standard of accuracy as required
                        (section 1221.2(a)(3)).

                                The instrument used to conduct the breath sample analysis must be named
                        on the “Conforming Product List” published by the National Highway and Safety
                        Administration of the U.S. Department of Transportation.

                                    1.           The instrument shall be capable of analyzing a blank sample and of
                                                 analyzing a suitable reference sample, such as air equilibrated with
                                                 a reference solution of known alcohol content at a known
                                                 temperature;

                                    2.           The instrument shall be capable of the analysis of a reference
                                                 sample of known alcohol concentration within accuracy and
                                                 precision limits of plus or minus 0.01 grams % of the true value;
                                                 these limits shall be applied to alcohol concentrations from 0.10
                                                 grams % to 0.30 grams %. The accuracy test shall be performed by
                                                 an operator who is trained to use the instrument tested. The test
                                                 sample must be provided by a forensic alcohol laboratory.

                               §1221.4(a)(4) provides that “Training in the procedures of breath alcohol
                        analysis shall be under the supervision of persons who qualify as forensic alcohol
                        supervisors, forensic alcohol analysts or forensic alcohol analyst trainees in a
                        licensed forensic alcohol laboratory.

                                §1221.4(a)(5) states that “An operator shall be a forensic alcohol
                        supervisor, forensic alcohol analyst, forensic alcohol analyst, forensic alcohol
                        analyst trainee or a person who has completed successfully the training described

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                        under section 1221.4(a)(3) and who may be called upon to operate a breath testing
                        instrument in the performance of his duties.”


                               §1222 states that “Forensic alcohol laboratories and law enforcement
                        agencies shall maintain records which clearly represent their activities which are
                        covered by these regulations. Such records shall be available for inspection by
                        the Department on request.”

                               §1222.1 provides that: “Forensic Alcohol Laboratory Records. (A) Each
                        laboratory which is licensed to perform forensic alcohol analysis shall keep the
                        following records for a period of at least three years.”
                                §1222.1(a)(7) requires “Records of such training as a laboratory provides
                        to persons who operate breath testing instruments for law enforcement agencies.”
                        Law enforcement agencies shall keep records of training which show their
                        activities covered by the regulations. These records include

                                                 S           records of the frequency of accuracy determinations and
                                                             the identity of the person performing such determinations.
                                                 S           records of analyses performed, results and identities of the
                                                             persons performing analyses.
                                                 S           a precautionary checklist to be used by the operators of
                                                             each instrument, at the location of each instrument.
                                                 S           records of training of operators of breath testing
                                                             instruments for law enforcement which must be maintained
                                                             by the licensed laboratory.


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                                Records showing compliance with the accuracy determination regulations
                        shall be kept at a licensed forensic laboratory.

                               The failure, if any, to follow the regulations adopted by the California
                        State Department of Health for procedures to be used in administering tests to
                        determine the concentration of ethyl alcohol in a person’s blood, may be
                        considered by you in determining the accuracy of the breath tests made in this
                        case.




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                                             10 - Labs Must Keep Training Records

                                    California Administrative Code of Regulations, Title 17, 1221.1(7);
                                    Health and Safety Code 436.50 et. seq.;




        Title 17 of the California Administrative Code of Regulations states that laboratories which
are licensed by the State to perform forensic alcohol analyses shall keep records of training persons
who operate breath testing instruments for law enforcement agencies.




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                                                              11 - Choice of Tests

                                                             V.C. §23612(a)(d)
                                                             People v. Alvarado 181 Cal.App.3d Supp.3




                                You are instructed that the law provides that the Defendant had the right
                        to choose whether the chemical test shall be of his blood or breath, and the officer
                        shall advise the person that he has that choicen [and if a test was requested by the
                        Defendant, the arresting officer shall have that test performed].

                                 If you find that the above requirements of the Vehicle Code were violated
                        by the officer, you may consider that violation as a factor bearing on the
                        credibility of the officer and the accuracy of the breath test administered by the
                        officer.




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                                                          12 - Character Evidence

                                                            Revised CALJIC 2.40 & 2.41 (Character Trait for Sobriety)




                                Evidence has been received of the defendant’s character trait of moderate
                        use of alcohol. Such a character trait for moderate use of alcohol is consistent
                        with sobriety.

                                The character trait for moderate use of alcohol may be sufficient by itself
                        to raise a reasonable doubt as to the guilt of a defendant. It may be reasoned that
                        a person who drinks moderately may not be likely to commit the crimes of
                        driving under the influence.




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                                               13 -   V.C. 23612(a), (h);
                                                      People v. Wilson (2003) 114 Cal.App.4th 953.




                                A chemical test for blood alcohol content is required by law if a person is
                        lawfully arrested for driving under the influence. A PAS test is not the scientific
                        equivalent of a chemical test to determine blood alcohol content and a significant
                        difference exists between the two types of tests. A chemical test for blood
                        alcohol content, administered under controlled circumstances and likely with
                        more precise equipment, is more reliable than the PAS test, which is administered
                        by a police officer in the field. A PAS test is a field sobriety test and is not the
                        chemical test required by law to determine the alcohol content of the person’s
                        blood.




13 A PAS Test is a Field Sobriety Test.wpd
                        Page 953
                                                              1. 114 Cal.App.4th 953
                                                                8 Cal.Rptr.3d 167
                                                    THE PEOPLE, Plaintiff and Respondent,
                                                                         v.
                                             DONALD KEITH WILSON, Defendant and Appellant.
                                                                     A102208
                                             California Court of Appeal, First District, Third Division
                                                                December 30, 2003
                        Superior Court of Solano County, No. FCR185991, Harry Kinnicutt, Judge.
                        Page 954
                        [Copyrighted Material Omitted]
                        Page 955
                        Counsel
                        John Steinberg, under appointment by the Court of Appeal, for Defendant and
                        Appellant.
                        Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
                        General, Gerald A. Engler, Senior Assistant Attorney General, Violet M. Lee,
                        Ayana A. Cuevas, Deputy Attorneys General, for Plaintiff and Respondent.
                        OPINION
                        Pollak, J.
                        Defendant Donald Wilson appeals from his conviction of driving under the
                        influence of alcohol causing bodily injury. Prior to his arrest, defendant consented
                        to a preliminary alcohol screening test (PAS test) that measured the blood alcohol
                        level (BAL) in the breath sample he provided at 0.09 percent. After his arrest, he
                        was required to submit to a blood test, which measured his BAL at 0.12 percent.
                        He contends that the blood test constituted an unreasonable search and seizure
                        and that the trial court erred by denying his motion to suppress the results of the
                        test. We affirm.
                        Factual and Procedural History


13 A PAS Test is a Field Sobriety Test.wpd
                        On August 16, 2000, defendant was involved in an automobile accident after his
                        car crossed over a double yellow line and collided head on with
                        Page 956
                        another vehicle. Both the driver of the other car and her passenger suffered severe
                        injuries as a result of the accident. Defendant was charged by information with
                        driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)
                        [1]
                            ; count 1), and driving with a 0.08 percent blood alcohol level causing injury (§
                        23153, subd. (b); count 2). The information also alleged that defendant caused
                        bodily injury to more that one victim (§ 23558), and that defendant personally
                        inflicted great bodily injury on both victims (Pen. Code, § 12022.7, subd. (a)).
                        Finally, the information alleged that defendant had suffered two prior strike
                        convictions (Pen. Code, § 667, subd. (a)(1)), and two prior serious felony
                        convictions (Pen. Code, § 667.5, subd. (b)).
                        Prior to trial, defendant made a motion to suppress the results of a blood test
                        taken after his arrest. The testimony given at the suppression hearing provides the
                        following factual history. Officer Jerry Chu arrived on the scene of the accident
                        shortly after it occurred. Based on his initial observations that defendant's eyes
                        were quite red, watery and bloodshot, Chu believed that defendant was
                        intoxicated. Because of defendant's injuries, however, he was transported to the
                        hospital before Chu could conduct a field sobriety test.
                        At the hospital, Chu conducted a nystagmus test whereby defendant was asked to
                        follow Chu's finger as it was moved back and forth in front of his face.
                        Defendant's inability to track Chu's finger indicated that he was intoxicated. Chu
                        also requested that defendant submit to a PAS test and advised defendant that the
                        test was voluntary and would not satisfy his obligation to submit to a subsequent
                        BAL test if he were arrested. The PAS test showed a BAL of 0.09 percent. Based
                        on his observations and the test results, Chu determined that defendant was under
                        the influence of alcohol and arrested defendant.
                        After placing defendant under arrest, Chu advised defendant that he was required
                        to provide a blood sample. Although defendant maintained that he was not
                        consenting to the test, he permitted hospital staff to draw the blood sample. The
                        blood was tested and the toxicologist determined that it contained a 0.12 percent
                        BAL.
                        Based on this testimony, defendant argued that the results of the blood test should
                        be suppressed on the ground that they were the product of an illegal warrantless
                        search because any exigency that might have justified the administration of the
                        blood test was eliminated by the prior administration of the PAS test. The trial
                        court denied defendant's motion, finding that the officer acted reasonably in
                        requiring the post-arrest blood test.
                        Page 957
13 A PAS Test is a Field Sobriety Test.wpd
                        After a three-day trial, the jury convicted defendant on both counts contained in
                        the information and found true the great bodily injury and multiple victim
                        allegations. Thereafter, the trial court found true the prior conviction allegations.
                        Defendant was sentenced to 22 years in state prison. Defendant filed a timely
                        notice of appeal.
                        Discussion
                        Defendant contends that his Fourth Amendment rights were violated by the taking
                        of his blood after he voluntarily submitted to a PAS breath test. He acknowledges
                        that prior case law and Vehicle Code section 23612, subdivisions (h) and (i),
                        permit an officer to administer both a PAS test to help determine whether
                        defendant is intoxicated and a post-arrest blood, breath, or urine test to confirm
                        the defendant's BAL. Nonetheless, he argues that the recent decision in People v.
                        Williams (2002) 28 Cal.4th 408, taken together with People v. Fiscalini (1991)
                        228 Cal.App.3d 1639, eliminated any justification for the nonconsensual taking of
                        a blood sample following the administration of a PAS test.
                        We review the trial court's denial of defendant's motion to suppress by deferring
                        to factual findings by the trial court that are supported by substantial evidence.
                        We independently review, however, whether the search and seizure was
                        reasonable under the United States Constitution. (People v. Leyba (1981) 29
                        Cal.3d 591, 596-597 [174 Cal.Rptr. 867]; People v. Stanley (1999) 72
                        Cal.App.4th 1547, 1551 [86 Cal.Rptr.2d 89].)
                        Section 23612, subdivision (a)(1)(A), provides, "A person who drives a motor
                        vehicle is deemed to have given his or her consent to chemical testing of his or
                        her blood or breath for the purpose of determining the alcoholic content of his or
                        her blood, if lawfully arrested for an offense allegedly committed in violation of
                        Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable,
                        then paragraph (2) of subdivision (d) [urine test] applies." Section 23612 provides
                        further, "(h) A preliminary alcohol screening test that indicates the presence or
                        concentration of alcohol based on a breath sample in order to establish reasonable
                        cause to believe the person was driving a vehicle in violation of Section 23140,
                        23152, or 23153 is a field sobriety test and may be used by an officer as a further
                        investigative tool. [¶] (i) If the officer decides to use a preliminary alcohol
                        screening test, the officer shall advise the person that he or she is requesting that
                        person to take a preliminary alcohol screening test to assist the officer in
                        determining if that person is under the influence of alcohol or drugs, or a
                        combination of alcohol and drugs. The person's obligation to submit to a blood,
                        breath, or
                        Page 958
                        urine test, as required by this section, for the purpose of determining the alcohol
                        or drug content of that person's blood, is not satisfied by the person submitting to

13 A PAS Test is a Field Sobriety Test.wpd
                        a preliminary alcohol screening test. The officer shall advise the person of that
                        fact and of the person's right to refuse to take the preliminary alcohol screening
                        test." Section 23612 has been upheld against constitutional challenge on the
                        ground that the warrantless taking of blood (or breath or urine) to prevent the
                        destruction of evidence is reasonable under the Fourth Amendment. (Schmerber
                        v. California (1966) 384 U.S. 757.)
                        In People v. Bury (1996) 41 Cal.App.4th 1194 [49 Cal.Rptr.2d 107], the court
                        held that PAS test results are admissible to prove a defendant's guilt if the proper
                        foundation is laid. The court also rejected the argument that a defendant who
                        submits to a PAS test has satisfied his obligations under section 23612,
                        subdivision (a)(1). The court explained that former section 23157, subdivision
                        (h), was enacted in part "to require police to advise a suspected drunk driver that
                        the PAS test does not satisfy the chemical testing requirement under the implied
                        consent law. [Citation] . . . The express exemption of PAS devices from the
                        implied consent law was necessary to correct the problem ' ". . . that occurs when
                        a DUI suspect submits to a pre-arrest Alco-Sensor test but subsequently refuses to
                        submit to a post-arrest blood, breath or urine test as required under section 23157
                        of the Vehicle Code. At trial, these defendants typically argue that they satisfied
                        the implied consent law by submitting to the Alco-Sensor test. [¶] Apparently,
                        most judges have agreed with this argument and hence do not allow the jury to be
                        instructed that the defendant refused to give a chemical test as required by the
                        implied consent law. If the Alco-Sensor results are not admissible at trial, which
                        seems to be occurring in most counties due to the lack of foundation . . . the
                        district attorney is left to prosecute the case without an admissible chemical test
                        and without a refusal instruction. Needless to say, a case without a post- arrest
                        alcohol screening result or a refusal instruction is almost impossible to win." ' "
                        (People v. Bury, supra, at p. 1205.) The court also stated, "The statute requires
                        police to obtain a driver's consent to PAS testing, along with advising the driver
                        that a PAS test is not a substitute for chemical testing under the implied consent
                        law. If this advisement is properly given, a suspect who voluntarily submits to a
                        PAS test cannot reasonably believe that his submission to further chemical testing
                        is optional. Where, as here, the driver voluntarily takes a PAS test but later
                        wrongfully refuses to take a chemical test under the implied consent law, he
                        should not be able to profit therefrom by successfully challenging the admission
                        of the PAS evidence." (Id. at p. 1206.) Thus, the PAS test results are admissible to
                        prove a defendant's guilt if the proper foundation is laid, but the test does not
                        satisfy defendant's obligation under the section 23612 to submit to a subsequent
                        blood, urine or breath test after being arrested for drunk driving.
                        Page 959
                        Contrary to the defendant's assertion, nothing in People v. Williams, supra, 28
                        Cal.4th 408, or People v. Fiscalini, supra, 228 Cal.App.3d 1639, conflicts with or
                        alters this rule of law. In Williams, the court reiterated, and perhaps clarified, the
                        foundational requirements for admitting PAS test results into evidence that were

13 A PAS Test is a Field Sobriety Test.wpd
                        applied in Bury. The court held that the results of a PAS test are admissible even
                        if the tests were not performed in compliance with Department of Health Services
                        regulations. The court held that the foundational requirements for the admission
                        of PAS test results may be demonstrated either by showing compliance with the
                        regulations or by showing that (1) the equipment was properly functioning, (2)
                        the test was properly administered, and (3) the test was administered by a
                        qualified operator. (28 Cal.4th at p. 417.) Williams did not address section 23612,
                        subdivision (h) or (i).
                        In Fiscalini, the court held that the implied consent law permits the arresting
                        officer to conduct only one of the alternate tests provided by the statute based
                        upon the suspect's choice. (228 Cal.App.3d at pp. 1644-1645.) The court reasoned
                        that once a defendant takes a urine test, the officer may not forcibly draw blood
                        without providing some additional justification for the warrantless search, and
                        that having successfully completed a urine test, there is no longer an exigency to
                        justify a second test. (Id. at p. 1645.) Fiscalini is distinguishable from the present
                        case, however, because the PAS test and the post-arrest BAL blood test are not
                        mutually exclusive alternatives under the statute. To the contrary, section 23612
                        specifically provides for the use of both tests.
                        Defendant raises a novel question about the continued validity of section 23612,
                        subdivisions (h) and (i), which is not answered directly by the authority cited
                        above. Defendant suggests that since the results of his PAS test were admissible
                        under Williams and Bury, the provisions of section 23612 which permit the
                        arresting officer to take a subsequent BAL test are unconstitutional, because an
                        additional test is not necessary to preserve the blood alcohol evidence.
                        This argument is premised, however, on the assumption that the PAS test is the
                        scientific equivalent of a post-arrest blood, breath or urine test. Nothing in
                        Williams compels the conclusion that the PAS test is the functional equivalent of
                        the mandatory BAL test under section 23612, subdivision (a). Williams merely
                        establishes the requirements for receiving the PAS test in evidence. The
                        Legislature, however, has concluded that significant differences exist between the
                        two types of tests, as demonstrated by their separate treatment in the statute. (§
                        23612, subds. (h) & (i); see also Legis. Counsel's Dig., Sen. Bill No. 602 (1991-
                        1992 Reg. Sess.), Stats. 1992, ch. 1242, pp. 3-4 [amending former section 23517
                        to permit use of consensual PAS test, "which indicates the presence or
                        concentration of alcohol based
                        Page 960
                        on a breath sample in order to establish reasonable cause, prior to arrest"];
                        Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666, 676 [46
                        Cal.Rptr.2d 123], citing Assem. Com. on Public Safety, Analysis of Sen. Bill No.
                        689 (1993-1994 Reg. Sess.) July 13, 1993, [Legislative history of amendments to
                        "zero tolerance law" (§ 23137) demonstrates that "Legislature considered

13 A PAS Test is a Field Sobriety Test.wpd
                        arguments regarding the reliability of the PAS test" and "reveals a recognition of
                        possible foundational problems associated with the PAS test"]; 59 Fed.Reg.
                        39382-02 (Aug. 2, 1994) [differentiating between "evidential breath testing
                        devices" which "measure the alcohol content of deep lung breath samples with
                        sufficient accuracy for evidential purposes" and "alcohol-screening devices"
                        which are primarily used to detect the presence of alcohol in a person's breath or
                        bodily fluids]; 72 Ops.Cal.Atty.Gen 226 (1989).) The Legislature may well have
                        found that the results of the PAS breath test, normally administered by a police
                        officer in the field, are less accurate and reliable than the chemical tests
                        administered under more controlled circumstances and likely with more precise
                        equipment. The immediate purpose of the implied consent law "is to obtain the
                        best evidence of blood alcohol content at the time of the arrest of a person who is
                        reasonably believed to be driving while intoxicated." (People v. Ryan (1981) 116
                        Cal.App.3d 168, 182 [171 Cal.Rptr. 854], italics added.) In the absence of any
                        evidence to the contrary, we must accept the Legislature's implicit finding that the
                        tests are not equivalent, and therefore that despite the taking of the PAS test, it
                        remains important to obtain the more reliable results of the chemical test before
                        the evidence becomes unavailable with the passage of time. (People v. Ireland
                        (1995) 33 Cal.App.4th 680, 693 [39 Cal.Rptr.2d 870] [" 'where scientific opinions
                        conflict on a particular point, the Legislature is free to adopt the opinion it
                        chooses, and the court will not substitute its judgment for that of the Legislature'
                        "].) "[T]he exigency created by the evanescent nature of blood alcohol and the
                        danger that important evidence would disappear" is sufficient to satisfy Fourth
                        Amendment standards. (People v. Trotman (1989) 214 Cal.App.3d 430, 436.)[2]
                        Disposition
                        The judgment is affirmed.
                        We concur: McGuiness, P. J., Parrilli, J.
                        ---------------
                        Notes:
                        [1]
                              All statutory references are to the Vehicle Code unless otherwise noted.
                        [2]
                          In light of this conclusion, we do not reach the Attorney General's alternative
                        argument that the blood test was justified here by defendant's attempt to obstruct
                        the breath test. (See People v. Sugarman (2002) 96 Cal.App.4th 210, 214-216.)
                        Although there was evidence that Officer Chu tried on three occasions to obtain a
                        proper breath sample, and that defendant interfered with the results by failing to
                        seal his lips around the tube, this evidence was presented at trial and was not
                        before the trial court when it denied defendant's motion to suppress.
                        ---------------


13 A PAS Test is a Field Sobriety Test.wpd
                                          14 - Factors Re Credibility of Police Officers

                                                               Johnson v. United States (1948) 333 U.S. 10, 14, 92 L.Ed.
                                                               436, 68 S.Ct. 367; People v. Dickerson (1969) 273
                                                               Cal.App. 645, 650, fn. 4, 78 Cal.Rptr. 400




                                 In determining the believability of any witness who is a member of a law
                         enforcement agency, in addition to the general criteria of credibility applicable to
                         all witnesses, you should consider the following:

                                 1.      That law enforcement is a competitive enterprise and, as such, a
                         police officer witness has an interest in the outcome of this case.

                               2.      Police officers have a natural and unavoidable tendency to
                         assemble and remember such evidence as would be used against a defendant.




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                                                              15 - Mistake of Fact

                                                             Modified CALJIC 4.35 Mistake of Fact
                                                             In People v. Hernandez (1964) 61 Cal.2d 529




                               A person is not guilty of a crime if he commits an act under an honest and
                        reasonable belief in the existence of certain facts and circumstances which, if true,
                        would make such act lawful.

                                Therefore, if you believe that the defendant had an honest and reasonable
                        belief that his blood alcohol concentration at the time of his driving was less than
                        0.08 percent, then you must find him not guilty of the charge alleged in Count II,
                        driving with .08 percent or higher.




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                                    16 - Failure to Give Trombetta Affects Credibility

                                                              V.C. §23614
                                                              People v. Alvarado (1986) 181 CAM Supp. 1, 226 CR 329.
                                                              People v. Medina (1990) 51 C3d 870, 274 CR 849.
                                                              People v. Hitch (1974) 12 Cal3d 641, 117 Cal.Rpt




        The defendant in this case submitted to and completed a breath test for the determination
of his blood alcohol content. The law therefore requires that he be advised in accordance with
the requirements of Veh. C. §23614. The relevant parts of that statute are the following.

        “A person who chooses to submit to a breath test shall be advised that the breath testing
equipment does not retain any sample of the breath and that no breath sample will be available
after the test which could be analyzed later by the person or any other person.”

        “The person shall also be advised that, because no breath sample is retained, the person
will be given the opportunity to provide a blood or urine sample that will be retained at no cost
to the person so that there will I be something retained that may be subsequently analyzed for the
alcoholic content of the person's blood.”

        “If the person completes a breath test and wishes to provide a blood or urine sample to be
retained, the sample shall be collected and retained in the same manner as if the person had
chosen a blood or urine test initially.”

        If you find that these requirements have been violated, you are instructed that you are
permitted to use that information as a factor bearing on the credibility of the law enforcement
authorities involved and the accuracy of the breath test result.




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                                                  1 - Four Elements of Willful Refusal

                                                                Modified CALCIC 16.835
                                                                People v. Huston (1989) 210 Cal.App.3d 192, 208.
                                                                V.C. §23612(a)(1)(A) and V.C. §23612(2)(A)




       You are instructed that the prosecution has the burden of proof regarding whether in fact
there was a willful refusal to take a chemical test. Before you consider said alleged refusal, and
the weight to such a circumstance, if any, is entitled, and whether or not such conduct shows a
consciousness of guilt, the prosecution must prove beyond a reasonable doubt the following:

            1.           The defendant drove a motor vehicle;

            2.           That the defendant was offered a choice of blood or breath test for the purpose of
                         determining the alcoholic content of his blood;

            3.           That the defendant was made aware of the nature of such tests and their purpose;
                         and

            4.           That after being offered such a choice of tests, and being made aware of their
                         nature and purpose of such tests, the defendant willfully refused to take any of
                         said tests.

       If the prosecution does not prove beyond a reasonable doubt each of the four factors, then
you should find there was not a refusal to take a chemical test. However, if you find the
prosecution has proved beyond a reasonable doubt each of the above elements, then you should
consider whether the refusal clearly demonstrated a consciousness of guilt or not.

       Such refusal is not sufficient to establish the guilt of the defendant. It is a fact which, if
proved beyond a reasonable doubt, may be considered by you in light of all other proved facts in
deciding whether defendant is guilty or not guilty.

        The weight to which such circumstances is entitled and whether or not such conduct
shows a consciousness of guilt are matters for your determination, and if you find from all the
evidence surrounding such refusal that it was done with a state of mind or purpose other than to
refuse to submit to such a test, you may disregard it.




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                                    2 - State of Mind Other than Consciousness of Guilt

                                                                 People v. Huston (1980) 210 Cal.App.3d 192, 258
                                                                 Cal.Rptr. 393; People v. Flannel (1979) 25 Cal. 3d 668,
                                                                 672; CALJIC 517.




                                  You are instructed that if you find, from all the evidence surrounding the
                          alleged refusal to take a chemical test, defendant’s conduct was done with a state
                          of mind and purpose other than a consciousness of guilt, you should disregard the
                          alleged willful refusal.




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                                          3 - Police Must Advise Refusal Used in Court

                                                                 Sanchez v. Alexis (1982) 131 Cal.App.3d 709, 182 Cal.
                                                                 Rptr. 593




                                  You are instructed that the police officer must inform the defendant that
                          the refusal to take a chemical test can and will be used in a court of law.




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                                            4 - Blood Sample Can Be Taken by Police

                                                              People v. Ryan (1981) 116 Cal.App.3d 168, 171
                                                              Cal.Rptr. 854; People v. Fite, (1968) 237 Cal.App.2d
                                                              685, 690-691. People v. Mills (1985) 164 Cal.App.3d, 652;
                                                              210 Cal.Rptr. 669; Schmerber v. California (1966) 384
                                                              U.S. 757, 86 S.Ct. 1826.




                                You are instructed that a blood sample can be withdrawn non-consentually
                        by the police from a person lawfully arrested for driving under the influence and
                        that the results of said chemical test can be used as evidence in a trial for driving
                        under the influence.




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                                                 5 - V.C. §23612 Allows for Urine Test

                                                                V.C. §23157(a)


        You are instructed that Vehicle Code section 23612 deals with chemical testing for blood,
breath or urine tests for blood alcohol content, and provides in pertinent part as follows:

VC 23612(a)(1)(A)

        Any person who drives a motor vehicle is deemed to have given his consent to chemical
testing of his blood or breath for the purpose of determining the alcoholic content of his blood, if
lawfully arrested for any offense allegedly committed in violation of Vehicle Code §23152. If a
blood or breath test, or both, are unavailable, then paragraph (d)(2) applies.

VC 23612(a)(1)(B)

        Any person who drives a motor vehicle is deemed to have given his consent to chemical
testing of his blood or urine for the purpose of determining the drug content of his blood, if
lawfully arrested for any offense allegedly committed in violation of Vehicle Code §23152.

VC 23612(a)(2)(A)

        If the person is lawfully arrested for driving under the influence of an alcoholic beverage,
the person has the choice of whether the test shall be of his blood or breath and the officer shall
advise the person that he has that choice. If the person arrested either is incapable, or states that
he is incapable, of completing the chosen test, the person shall submit to the remaining test. If a
blood or breath test, or both, are unavailable, the paragraph (d)(2) applies.

VC 23612(a)(2)(B)

         If the person is lawfully arrested for driving under the influence of any drug or the
combined influence of an alcoholic beverage and any drug, the person has the choice of whether
the test shall be of his blood, breath or urine, and the officer shall advise the person that he has
that choice.

VC 23612(d)(2)

        If a blood or breath test is not available under VC 23612(a)(1)(A) or VC 23612(a)(2)(A),
the person shall submit to the remaining test in order to determine the percent, by weight, of
alcohol in the person's blood. If both blood and breath tests are unavailable, the person shall be
deemed to have given his consent to chemical testing of his urine and shall submit to a urine
test.



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                                                 6 - Willing to Take Urine is No Refusal

                                                                 CALJIC 5.17 Modified




                                 If you find that the defendant was willing to take a urine test and believed
                          he had the right to such a urine test, then the alleged refusal is not the product of a
                          consciousness of guilt and you should not consider the refusal. This would be so
                          even though a reasonable person in the same situation seeing and knowing the
                          same facts might not have had the same state of mind.




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