But what about the machine?  What about someone that gives a blood test that shows they are above the legal limit?  That’s not just an opinion, is it?

“No.  In some ways, it is even worse.  The first thing you’ve got to understand is this: The critical question in a DUI case is whether the accused was impaired as it’s legally defined at the time of driving.  Or, whether the person’s blood or breath alcohol level was above the legal limit at the time of driving.   It is not illegal to be a .12 or a .14 at the police station; the crime is driving with an alcohol level that is above the legal limit.  Because of the way alcohol is absorbed into the body, it is quite possible, even probable, that they were below the limit at the time of driving, but that their alcohol level rose to a higher level before they were tested.

Of course all of that assumes that the breath test is working properly, or that the blood sample was properly drawn and properly preserved.  These forensic tests bring up more questions than they answer.”

What do you mean by that?  Aren’t these tests reliable and accurate?

“You may like to think so, but it isn’t true.  With breath machines, there are many sources of contamination and error.  The handheld roadside screening tests are the worst.  These machines have no mouth-alcohol detector, and all the experts will tell you that mouth-alcohol is one of the biggest sources of potential error in breath testing.  Especially in a roadside situation, where the person being tested may have just left a bar or restaurant where they’ve been drinking.  The stationhouse breath machines are only slightly better, but they have serious problems too.  For example, they usually don’t test the temperature of the person’s breath, even though elevated temperature can cause a higher reading.  And they are all based upon a fictitious ‘average’ person, which none of us are. There’s a long list of problems, longer than we’ve got time to talk about, but this is something that I spend a considerable amount of time and energy educating jurors about during trial.”

What about the blood test?  Is that accurate?

“Maybe.  The biggest problem in forensic blood testing relates to the integrity of the blood sample.  Most people getting blood tests don’t notice, but there is supposed to be a white powder in the base of the test tube that the blood is being drawn into.  That powder is an anti-coagulant and a preservative.  The problem is that the powder is loaded in by the factory, and not checked by anyone on the prosecution team, ever.  If that sample isn’t there in proper amounts, or if it is not properly mixed in with the blood, big problems.  Especially when you consider that in many areas, it is often a week or two before the blood sample is even tested.  Just like grape juice ferments and turns into wine, that blood sample can ferment, and create artificially high alcohol levels.

There’s other problems with blood too. You’d like to think that the crime labs are nice and clean, and look like something out of CSI: Miami.  That’s just not the case.  Because of that, there are mix-ups, and there are documented cases of blood coming back with a different blood type than the person it was supposedly drawn from.  Recently, there was a case where DNA testing was done and proved it wasn’t the person’s blood the crime lab thought it was.  It’s not as simple as some would have you believe.”

What should people look for in choosing a good DUI lawyer?

“I tell people all the time to make sure they are comfortable with their lawyer, to get the best lawyer they can afford who truly concentrates on DUI defense, but make sure that they have the right fit, the right feel.  First impressions count.  If that lawyer makes a lousy first impression on you, how are jurors going to feel about him or her?  How about prosecutors and judges? Also, responsiveness is key.  You should be able to quickly reach your attorney in a time of need.  I would ask any potential lawyer for his or her cell phone number, and tell them ‘Look, I may have a question at 10 o’clock on a Saturday

morning, or 10 o’clock on a Sunday night, and I want a number where I can reach you.’ The response you get will be very telling.  All my clients have their attorney’s cell phone number.”

Do you have a life?

“My wife gets a little upset from time to time, but it’s the only way I can do what I do, and practice law consistently with my beliefs.  I don’t want my clients sitting around worrying about some silly letter from the DMV when they could speak to their lawyer for 30 seconds, get an answer, and get back to enjoying their lives.

Hiring a lawyer to defend you is not hiring a one-trick pony.  It is not a single transaction; it is a relationship.  You need to feel comfortable in that relationship.  The average shelf-life of one of these cases is several months.  You’ve got to feel good about the person who you are entrusting your case to, or it will be several months of discomfort, and no one needs that.”

That kind of service sounds expensive.

“There are lawyers out there who are fresh out of school and who will gladly plead you guilty for far less money than I charge.  But legal emergencies are just like medical emergencies, and a trained professional can be life-saving.  I heard it said that there are three things in life that you never want to skimp on: Picking a brain surgeon, buying a parachute, and picking a lawyer.  You’ll never catch me jumping out of a plane with a parachute from the ‘half-off’ bin!”

Who would you hire to represent you if you were accused of DUI?

“Well, they say that a lawyer that represents himself has a fool for a client.  I’ve never had to cross that bridge, but if I have to gamble on anyone, I gamble on me!”

Darren Kavinoky, with offices throughout California, may be reached at 877.4.NOCUFFS (877.466.2833), via email at DUI@CaliforniaDUIHelp.com or online at CaliforniaDUIHelp.com.