CA law student tries uncertainty defense on his 2nd offense DUI

Recently in California a law student accused of a second offense DUI had his defense team try a novel defense on his DUI. He argued the actual blood alcohol level that was measured in the breath testing device was not 100% accurate and because of that there was a reason to doubt. If you’re from Washington State then you should know this argument. It’s called uncertainty and is the concept that every scientific measurement has a range of error, similar to a margin of error in a poll.

In the law students case he was caught driving 100 MPH in a major highway in CA. He was arrested and provide a breath test sample at the police station. His result was 0.14. Almost twice the legal limit. Due to this being his second DUI I suppose there was only one option for him and that was to go to trial. Considering the jail time he was facing and the possible denial of his license to practice law by the CA State Bar who can blame him.

So after a 6 week trial the law student was found guilty and sentenced to 210 days in jail. But his case raised serious issues concerning the breath testing procedures in CA, and whether the uncertainty measurement should be considered in all DUI cases.

If you remember the same thing happened in Washington State. Due to argument raised by a DUI Attorney all DUI cases in King County must include the uncertainty measurement with the discovery.

So what went wrong in the law student’s case. Well first of all his breath test was almost twice the legal limit. In my opinion in order for the uncertainty argument to have some teeth there needs to be an issue of whether the actual blood alcohol level is over the legal limit. There was no way the range of error of 4% in the law students case was going to get him below a 0.08.

But in cases where a defendant has a breath test of 0.08 or slightly above then the uncertainty will definitely show the breath test could be under the legal limit. And that right there is a reason to doubt. It’s tough to argue there is reasonable doubt when after your uncertainty calculations you’re still almost twice over the legal limit. Which was the case in the law students DUI trial.

It should be interesting to see what happens in CA if this particular argument takes off and becomes successful. Based on what I have read it appears that CA is in the process of updating three issues in when it sees as potential problems. First they are changing how blood samples are tested. Secondly the State Legislature is in the process of updating some of the regulations dealing with DUI cases. And lastly a advisory board is being proposed to ensure the best science is being practiced and presented in CA courtrooms.