Not so. There are many ways in which to challenge chemical tests. But defendants must also be mindful of the fact that the absence of this evidence does not automatically mean they will evade conviction, either.
DUI law is actually more complex than most people realize, and the recent case of Coffey v. Shimoto is evidence of that. This was a California Supreme Court case in which the chemical testing of defendant was challenged, but still resulted in a conviction, primarily based on other circumstantial evidence.
Circumstantial evidence is evidence relying on an inference to connect it to a conclusion of fact. This is in opposition to direct evidence, which supports the truth of the assertion directly. So in a DUI case, a breathalyzer reading of twice the legal limit would be direct evidence, while the fact that the driver was seen pulling out of the parking lot of a bar would be a piece of circumstantial evidence.
While prosecutors don’t typically like to rely heavily on circumstantial evidence if they can help it, sometimes it can be a powerful tool in securing a conviction.
It’s important for DUI defense attorneys to challenge both kinds of evidence wherever possible, but circumstantial evidence is generally more ripe for this.
In the Coffey case (a challenge to license suspension), a trooper with the state highway patrol stopped a vehicle driven by plaintiff. (In a criminal case, she would be identified as the defendant, but here, she petitioned the court for reconsideration regarding her license suspension, so she is here “plaintiff.”)
Trooper reportedly observed her driving erratically. It was around 1:30 a.m. Upon making contact with plaintiff, he observed her eyes were read and a strong odor of alcohol emanated from the vehicle. Another officer arrived and would later confirm these observations. Driver denied consuming any alcoholic beverages. She told officers the “implausible” story that she just turned 21, had been in a bar but had not personally consumed any alcohol. Based on this, officers placed her under arrest. After officers advised her of the implied consent law (which requires drivers to submit to chemical sobriety tests, or else face mandatory license suspension and other penalties), plaintiff submitted to a breathalyzer test.
She initially failed to provide adequate breath samples the first few times. She finally did submit an adequate sample, and one hour after she was stopped, her breath-alcohol concentration measured 0.08 percent. A second breath test minutes later resulted in a BAC of 0.09 percent. Subsequent blood tests taken a half hour later revealed even higher BAC levels of 0.096 percent and 0.096 percent.
This is indicative of the fact that alcohol is processed in our systems in a way that it may rise even after consumption of alcohol has stopped. That means you may not be over the legal limit when you get into the car, but you could by the time you are pulled over.
In this case, officers did not take this fact into regard and instead issued an administrative license suspension/revocation and the state charged her with misdemeanor drunk driving. She was later allowed to a charge under California law known as “wet reckless,” which basically is a misdemeanor reckless driving charge with a prosecution statement indicating alcohol was involved. It’s a lesser offense than drunk driving.
Subsequently, at an administrative hearing on the license suspension, plaintiff presented the expert witness of a forensic toxicologist with extensive experience who testified the fact that her BAC levels were on the upswing from the time she was stopped to the time she was booked indicates her alcohol level was rising at the time of the tests – meaning she was likely below the legal limit when she got into the vehicle.
The DMV officer rejected this testimony, finding it too speculative and based on subjective evidence. But beyond that, the hearing officer found the trooper’s testimony to be credible, and even without the BAC level reading, the other circumstantial evidence presented was sufficient enough to conclude the license suspension was proper.
Plaintiff appealed, but both a trial court and the state supreme court ultimately affirmed.
This case shows how there may be more than one way to approach a DUI case, and it’s important to have an experienced criminal defense lawyer to preserve your rights and fight for a favorable outcome.
Coffey v. Shimoto , April 6, 2015, California Supreme Court
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