winning without an expert

Institute of Continuing Legal Eduction in GeorgiaDecember 2016

Trying A Test Case Without An Expert

Ben Sessions@Ben_SessionsTheSessionsLawFirm.com

The Sessions Law Firm, LLC115 Martin Luther King, Jr., Dr., SW, #410Atlanta, Georgia 30303(470) 225-7710

Friday, December 2, 16

What are the common tactics that work?

❖ There are no "common tactics" that consistently work.

❖ It is the uncommon that works. (No, I'm not talking about wearing tennis shoes to court or fighting over what table in the courtroom you get to sit at.)


Do I fight on their terms?


Reconsider how and why you do what you do.

Yes, you are an “underdog”, battling giants, and you are probably a misfit.


When you engage the State, you have options.

But you have to know some rules.


Where are your advantages?

❖ Time

❖ Repetition

❖ Building upon prior experiences

❖ Group think


So, what’s the catch?

❖ Relentless effort.

❖ It’s hard.

❖ It’s mentally taxing.

❖ You better get a thick skin.


Intoxilyzer 5000


Intoxilyzer 9000


Intoxilyzer 9000

“The new Intoxilyzer 9000 machine is so much more reliable and better that you can’t challenge a test from that machine.”

- Me when I’m being lazy

WRONG!!


Intoxilyzer 9000

All molecules are unique, and have unique characteristics. When a solid or gas is introduced into a sample chamber, those molecules can be identified by how they absorb into light at certain wavelengths or microns.


Source Code Indeed, the mere possibility that alcohol can remain present in the

mouth due to the existence of a surgical implant and retainer does

not amount to evidence of facts pointing to the actual existence of

excess alcohol in the mouth at the time of Cronkite’s breath test that

should have produced an error message from the Intoxilyzer 5000

that was not produced. Nor did Cronkite point to any other evidence

of facts supporting the existence of a possible error in his specific

breath test results such as discrepancies in the operation of the

Intoxilyzer 5000 machine itself.

Cronkite v. State, 293 Ga. 476 (2013).


Common defenses to the breath test

• Disconnect Defense

• Machine Maintenance/Error

• Mouth Alcohol

• Medical Issues


Carl Bettinger, Twelve Heroes, One Voice

Jury selection ideas: If you show them, they’ll show you.


•  Common Ground / Shared Values

•  Rule Followers – The Pros and The Cons

Jury selection ideas


Opening statement ideas

• I spoke with you about my fear of the number. •Ask that they reserve judgment on it until the conclusion.

•Challenge the State to show compliance with the 20-minute observation requirement.

•Let them know that they will not see compliance with the 20-minute observation requirement established by the


1. Lock them down with regard to the timeline 2. Lock them down with regard to their observation of

your client 3. Their observation period consisted of times when they

were not watching your client 4. Lock them into their training on the observation period

Goals in cross examination of the arresting officer and breath test operator


Cross-examination of the operator: the timeline


9 minutes passed from arrival at the jail to the 1st sample

Cross-examination of the operator: the timeline


1. Did not watch my client during the entirety of the 20-minute period

2. He was in the rear of your patrol car during part of the 20-minutes prior to the breath test

3. Possible he could have burped during the 20-minute period

Cross-examination of the operator: observation of my client


1. 20-minute wait period is required before each test

2. During the 20-minute period, the suspect is to be:(1) in a controlled environment, (2) prohibited from consuming alcohol, and (3)monitored for regurgitation or vomiting.

3. If vomit, allow them to rinse their mouth with water, and restart the 20-minute wait period.

4. This applies to cases of burping or belching where regurgitation is suspected.

Cross examination of the operator: training on the 20-minute wait period


1. The mouth alcohol detector is not perfect.

2. The Intoxilyzer 5000 can produce results as high as .11 when a person has a true Blood-Alcohol Concentration of .000.

Additional Cross-Examination Areas:

3. You wrote the Intoxilyzer Operator’s Training Manual.

4. You established the Intoxilyzer Operator’s Training Curriculum.

5. In order to be assured that mouth alcohol will not influence the printed alcohol concentration, the 20-minute observation period must followed.

Cross-examination of the State’s expert: STAY FOCUSED ON YOUR GOALS


GBI instrument comparison study


GBI instrument comparison studyTotal Possible

Points

53

unknown

137

50

65

28

45

378 + Environmental Conditions Score


GBI instrument comparison study


The mouth alcohol detector (SLOPE DETECTOR) is not perfect.


The mouth alcohol detector (SLOPE DETECTOR) a .11 result with a true BAC of .00?


Comparison of mouth-alcohol curves


We’re not here fighting over general reliability.

We’re here because we think it’s important that they follow THEIR rules in performing a test.

We asked at the beginning of the trial if the State would simply show us that the rules for performing a breath test were followed.

The evidence does not eliminate mouth alcohol as a problem.

Basics of the breath-test closing


Basics of the breath-test closing


Presumptions:

Jurors will have to make a decision based on their values.

“I charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate if properly operated.”

Johnson v. State

“The presumption of innocence, the burden of proof, and the standard of proof are the fundamental doctrines of American criminal jurisprudence and the bedrock of determining guilt or innocence in a criminal case.”

Little v. State, 230 Ga.App. 803, 806(2), 498 S.E.2d 284 (1998).

Closing in the breath test defense case


Got a question? Follow me @Ben_Sessions

and send me tweet or just follow my lunacy.

Thank you! Ben Sessions@Ben_SessionsTheSessionsLawFirm.com

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