Thursday, May 29, 2014

Callifornia DUI Attorrney Don Bartell's Vangelder v. California Reply Brief, on Petition for Writ of Certiorari to the Supreme Court of California, filed in the United States Supreme Court

Winner of this year's California DUI Lawyers Association Ed Kuwatch Award, Don Bartell filed his Reply Brief in the U.S. Supreme Court!

Here is the brief prepared by legendary California DUI Attorney Don Bartell, Lara Gressley and Charles Sevilla, with quality help from alot of fine people including Mary McMurray, Jared Bartell, Michael Fremont, and Daryl Genis...creating a chance for liberty.

No. 13-1012
In the Supreme Court of the United States
_______
Terry Vangelder,
Petitioner,
v.
State of California,
Respondent.
_______
On Petition for Writ of Certiorari to
the Supreme Court of California
_______
PETITIONER’S REPLY BRIEF
Charles M. Sevilla
Counsel of Record
1010 Second Ave., Ste. 1825
San Diego, CA 92101-4902
Telephone: (619) 232-2222
chuck@charlessevilla.com
Donald J. Bartell
Lara J. Gressley
5053 La Mart Dr. Ste. 201
Riverside, CA 92507
(951) 788-2230
djbartell@pacbell.net
Counsel for Petitioner
TABLE OF CONTENTS
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT
I. VANGELDER ESTABLISHES A MANDATORY
PRESUMPTION THAT BREATH MACHINES ARE
RELIABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. VANGELDER PRECLUDES VIRTUALLY ALL
ATTACKS ON BREATH TESTING.. . . . . . . . . . . . . 6
A. The court declared irrelevant any attacks on the
fundamental reliability of a breath machine. . . . . . . 6
B. Vangelder bars any margin of error argument. . 8
III. THERE IS A SPLIT OF AUTHORITY. . . . . . . 10
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
i
TABLE OF AUTHORITIES
Cases
Arizona v. Cooperman, 282 P.3d 446 (Ariz. 2012). . 10
Borger v. Dept. Motor Vehicles, 192 Cal.App.4th
1118 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
California v. Trombetta, 467 U.S. 479 (1984). . . . . . 5
Cooley v. Municipality of Anchorage, 649 P.2d 251
(1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fuenning v. Superior Court, 680 P.2d. 121 (Ariz.
1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hall v. Florida, 572 U.S __(2014). . . . . . . . . . . . . . . . 9
Keel v. State, 609 P.2d 555 (Alaska 1980). . . . . . . . 12
People v. Brown, 540 N.Y.S. 2d 650, (N.Y. 1989). . 12
People v. McNeal, 46 Cal.4th 1183 (2009). . . . . . . . . 2
People v. Vangelder 58 Cal.4th 1 (2013). . . . . passim
State v. Chun, 943 A.2d 114 (N.J. 2008). . . . . . . . . . 4
State v. Lowther, 7 Haw. App. 207 (Haw. 1987). . . 11
Regulations
Cal. Code Regs., tit. 17, §1219.3 . . . . . . . . . . . . . . . . 2
Federal Register, Vol. 58, No. 179, pp. 48705-48710
App. B, Guidelines for Re-testing of Modified EBT.7-8
Other Authorities
D. Bartell, M. McMurray, & A. ImObersteg,
Attacking and Defending Drunk Driving Tests,
Machine Precision and Accuracy (3d rev. 2012). . 7, 9
Gullberg, Rod G.; Breath Alcohol Measurement
Variability Associated with Different Instrumentation
and Protocols; Forensic Sci. International; 2003;
Vol. 131, Issue 1; 30-35. . . . . . . . . . . . . . . . . . . . . . . . 9
ii
REPLY BRIEF
Introduction. Respondent’s brief (hereafter
“RB”) re-states the question presented to suit its
desired interpretation. Respondent’s brief thus
attempts to avoid the serious constitutional question
presented by petitioner – the denial of petitioner’s
right to present relevant evidence refuting the
State’s case.
While recognizing that petitioner proffered
evidence challenging the fundamental reliability of
the breath machine used against him, the
Respondent categorizes the challenge as irrelevant.
Respondent argues that the defense expert’s
testimony on unreliability is purportedly not subject
to admission in court. Respondent’s brief (hereafter
RB), p. 2.
The RB makes three points to justify its
argument for exclusion of the defense expert’s
challenge to the reliability of the breath test:
1. Dr. Hlastala testified one reason for the
unreliability of breath machines is that the machines
do not measure the type of deep lung air the
manufacturers intended them to measure. The RB
states deep lung air measurement is irrelevant now
that Vangelder has so ruled, i.e., that the California
Legislature meant for the machines to measure the
“last expired breath out of the mouth” irrespective of
where in the lungs it originated. RB, p. 4.
This novel, and heretofore unprecedented
ruling, still does not undermine Dr. Hlastala’s
testimony on unreliability. Based upon his years of
lung-alcohol research, he has found unreliability of
1
breath machine measurements.1 Part of the reason
for this, he explained, stems from individual
breathing variables, lung size and other factors.
In this regard, neither Dr. Hlastala nor
petitioner ever argued that the machines must
measure “pristine” or “pure” alveolar air as asserted
at RB 6, 9. Petitioner relied upon decades of
California case law and regulations requiring
machines to measure “essentially alveolar air.” Cal.
Code Regs., tit. 17, §1219.3; People v. McNeal, 46
Cal.4th 1183, 1191 (2009)(“When a subject blows into
a breath-testing machine, the device measures the
amount of alcohol vapor expelled into alveolar spaces
deep in the lungs”); see also App. A, pp. 22-23.
Vangelder stated that approved machines
"…have been found by the National Highway Traffic
Safety Administration of the United States
Department of Transportation to reliably sample and
measure alveolar, deep lung breath as contemplated
by both federal and California regulations." App. A,
at 52.
In petitioner’s case, the Court made an
unprecedented mutation of the “essentially alveolar
air” requirement to hold that it now means only a
measurement of the last expired breath out the
1 The prosecutor stated to the trial court: “[Dr. Hlastala’s]
obviously very qualified, I don't have any argument with
the science." 2RT 364. His work includes decades of study
of "the way that alcohol is measured in testing procedures"
(2RT 324); he testified as an expert on the effects of alcohol
and breath testing issues in approximately 30 states. 2RT
325.
2
mouth. Though untethered to legislative, regulatory
or case law foundations, petitioner does not challenge
the Opinion’s interpretation of the state law.
However, the measurement of “last expired breath”
does not in the least undermine Dr. Hlastala’s
testimony that the breath results can be unreliable
because of the variations of individual human
breathing patterns and their impact on breath
alcohol measurements.
2. The RB asserts that the other physiological
variables relied upon by Dr. Hlastala are an inherent
part of the “partition ratio” and thus subject to
exclusion in breath alcohol cases on that basis. In
fact, this was the sole basis of the prosecutor’s
objection at trial. 2RT 334.2 The trial court agreed.
2RT 336.
Petitioner has explained why the testimony
did not trench upon the “partition ratio” exclusion.
Dr. Hlastala was making no comparison of blood to
breath ratios. See Pet’n, pp. 4-5. Dr. Hlastala spoke
to factors that affect the breath sample only and are
unrelated to the equilibrium process that is
fundamental to the partition ratio. 2RT 350. He
denied he was making a camouflaged effort to
challenge the partition ratio. Rather, his testimony
related to "factors within the body such as breathing
influence, how much alcohol comes out into the
breath." Id. at 350-351. As he testified in the proffer
2 The prosecutor told the court: "The court's recognized
there is a scientific basis...the doctor is not here as some
sort of quack." 2RT 339. "I'm not attacking the accuracy of
his representation to the jury." 2RT 364.
3
hearing, the inaccuracy is in "the variability and how
the alcohol comes out of the mouth." Id. at 351.
Dr. Hlastala could not have made it clearer
about the subject of his proffered evidence: "I'm not
talking about the partition ratio. I'm talking about
factors that influence the breath, breath-alcohol."
2RT 357. "I'm not talking about comparing it to
blood." 2RT 357.
Hlastala noted that variance of results is
endemic to a remote test like a breath test. The
"more remote, the more variable." 2RT 354. At
bottom, physiological differences of human
functioning vary but the standardized breath
machine assumes a cookie-cutter sameness which is
a false assumption.
But again, Vangelder and the RB morph what
the doctor testified into something akin to the
excludable “partition ratio” evidence, and hold the
testimony excludable on that basis.
The factors Dr. Hlastala discussed as affecting
reliability of the breath measurement included
breath patterns, speed of exhalation, depth of
breathing, body and breath temperature, hematocrit
level, and gender –women generally have smaller
lungs, therefore they will have a higher breath test
result. See State v. Chun, 194 N.J. 54, 100; 943 A.2d
114 (2008) (recognizing the Alcotest breath machine
unfairly tests women over 60). These are not factors
the expert used for any comparison purposes other
than to say that they cause variability in
measurements of the breath out the mouth. See
App. 11.
3. The RB asserts that the Opinion creates no
conclusive presumption of generic machine
4
reliability. RB 9-10. But Vangelder explicitly says
so: it holds breath machines "have been found by the
federal agency to reliably measure the alcohol
content of alveolar, deep lung breath samples." App.
A, 52. “[T]he fundamental reliability of the
breath-testing machine models used in this case to
produce results that are pertinent to the per se
statute has been determined by the Legislature.
That legislative determination is not subject to
rebuttal as a defense in a criminal prosecution."
App. A, at 54; italics added.
The RB attempts to refute this plain holding
by saying there are still available avenues to attack
breath testing. RB, pp. 8-9, citing California v.
Trombetta, 467 U.S. 479, 490 (1984). But those
approaches all deal with the individual operator or
specific machine functioning (e.g., its calibration.)
Excluded is the more fundamental issue of whether
the defense may introduce qualified expert testimony
that a machine functioning according to manufacturer
standards still produces unreliable results.
ARGUMENT
I. VANGELDER ESTABLISHES A MANDATORY
PRESUMPTION THAT BREATH MACHINES ARE
RELIABLE.
Vangelder holds that a criminal defendant
may not challenge the fundamental reliability of
breath alcohol testing devices. Respondent does not
directly dispute this. Rather, Respondent argues
that denying criminal defendants the right to
challenge the fundamental reliability of breath
testing devices is not significant because the court
has allowed other defenses, albeit not ones that
involve a challenge to the ultimate trustworthiness
5
of a breath-testing device.
For example, Respondent notes that in a
California drunk driving prosecution a defendant can
still argue that the particular machine in question
was not calibrated or properly used. RB 2, 3, 8. As a
result, Respondent comes to the conclusion that
Vangelder did not create a mandatory presumption
as to the reliability of breath-testing devices in
California. RB, 1, 9. In reaching this conclusion,
Respondent ignores the heart of the Vangelder
decision. Vangelder stated: "But the fundamental
reliability of the breath-testing models used in this
case to produce results that are pertinent to the per
se statute has been determined by the Legislature.
That legislative determination is not subject to
rebuttal as a defense in a criminal prosecution."
App. at 54; emphasis added. "Not subject to
rebuttal" sounds very much like a presumption that
cannot be rebutted, which in turn sounds very much
like a mandatory presumption. Mandatory
presumptions do battle with the presumption of
innocence. See Pet. 12-16.
Petitioner respectfully suggests, contrary to
Respondent's assertions, a criminal defendant can no
longer present evidence that thoroughly examines
the underpinnings of a breath machine. In other
words, you can kick the tires, but cannot open the
hood.
II. VANGELDER PRECLUDES VIRTUALLY ALL
ATTACKS ON BREATH TESTING.
A. The court declared irrelevant any attacks on
the fundamental reliability of a breath machine.
Respondent states "…it [Vangelder] allows for
all the methods of attack except for irrelevant
6
testimony." RB, 4. There is a certain tautological
truth to Respondent's claim because Vangelder made
irrelevant all attacks that focus on the fundamental
reliability of a breath-testing device. If a machine is
on the Federal Conforming Products List, according
to Vangelder its inherent reliability is not subject to
challenge. Thus, it is irrelevant if the defense can
show that the software driving the breath-testing
machine produces random, regular or even repeated
errors. It is irrelevant, not because such software
flaws are unimportant, it is irrelevant because
Vangelder says it is irrelevant. Likewise, a defendant
cannot challenge whether a machine produced
erroneous results due to radio frequency interference
from police radios and cellular telephones (hereafter
"RFI"). Nor may a defendant challenge whether or
not a machine is capable of detecting contamination
of the breath sample by way of mouth alcohol. This
last malady is one of the most common challenges in
criminal drunk driving cases across the country. See
D. Bartell, M. McMurray, & A. ImObersteg,
Attacking and Defending Drunk Driving Tests §
12:39 (3d revision 2012). If the machine is on the
Federal Conforming Products List, Vangelder makes
these challenges to the fundamental reliability of the
breath machine irrelevant because the devices are
conclusively presumed to be accurate.
This conclusive presumption is particularly
ironic due to the fact that in order to be on the
Federal Conforming Products List, a breath
machine's software does not need to be checked, the
machine's ability to detect RFI does not need to be
examined, and its ability to detect mouth alcohol
does not have to be tested. See Federal Register, Vol.
7
58, No. 179, pp. 48705-48710 (listing what must be
examined to be placed on the conforming products
list). These are but a few of the fundamental
challenges to the accuracy of breath testing. There
are a host of others. Despite Respondent's claims,
these challenges are precluded under Vangelder.
This is true even though the federal government
never examines these issues when deciding whether
a breath machine should be placed on the Federal
Conforming Products List.
B. Vangelder bars any margin of error argument.
Respondent also claims in its brief that a
defendant remains free to argue about the margin of
error inherent in breath testing. RB, 9. Actually,
Vangelder prohibits any such argument. The court
cited with approval Borger v. Department of Motor
Vehicles, 192 Cal.App.4th 1118 (2011). There, an
expert witness testified at a driver's license
suspension hearing that the breath test had a "plus
or minus 0.02 percent" margin of error. Id., at 1121.
The Court of Appeal ruled the testimony
inadmissible and found, among other things, that
margin of error testimony would upset the state's
breath testing regulatory scheme. In agreement
with the prohibition of margin of error testimony,
Vangelder court wrote: "Our conclusion is consistent
with observations made by the appellate court in
Borger… '[a] challenge to the general reliability of an
approved breath testing device is, in essence, a
challenge to the regulation allowing the device to be
on the approved list.'" App. A, 55, n. 28, quoting
Borger, supra, 192 Cal.App.4th 1121.
Although experts disagree on the amount of
the margin of error in breath testing, it is universally
8
agreed that such a margin of error exists. See
Gullberg, Rod G, “Breath Alcohol Measurement
Variability Associated with Different Instrumentation
and Protocols,” 131 Forensic Sci. International
30-35 (2003); cf., Hall v. Florida, 572 U.S __ (May
27, 2014) (noting the constitutional relevance of
measurement uncertainty in determining IQ).
The universal agreement that there is a
margin of error in breath testing includes the
country of Sweden. In Sweden, in order to account
for the margin of error in breath testing, a standard
deduction of 15% from the measured value is applied.
See D. Bartell, M. McMurray, & A. ImObersteg,
Attacking and Defending Drunk Driving Tests §
11:90, Machine Precision and Accuracy, pp. 11-29
and 11-30 (3d revision 2012).
Dr. Hlastala testified that the manner in
which one breathes into a machine will produce
different breath alcohol results for the same person.
At the margins of the legal limit (as in petitioner’s
case), this variance becomes very significant. A
person who blows a .08% could easily have a breath
alcohol level under the legal limit if they had simply
breathed differently into the machine. Petitioner was
in this reasonable doubt category. His post-arrest
breath test results were right at the legal limit of
.08%. It does not matter whether one is measuring
deep lung air or end exhalation air. As Dr. Hlastala
explained, the manner in which one breathes affects
the end results that the breath machine produces.
Dr. Hlastala's testimony was relevant defense
evidence to rebut the prosecution’s assertions of the
breath alcohol measurement.
9
III. THERE IS A SPLIT OF AUTHORITY.
Respondent contends there is no split of
authority in the state courts regarding what evidence
a criminal defendant may offer to challenge a breath
test. Respondent begins this argument by claiming
that Arizona v. Cooperman, 282 P.3d 446 (Arizona
2012), does not differ from the decision rendered in
Vangelder. RB 10. Petitioner completely disagrees.
Cooperman permitted expert testimony virtually
identical to the expert testimony excluded in
Vangelder. For example, the expert in Cooperman
testified that "how you breathe and how you blow
into the instrument changes the reading that you
obtain on the instrument. It changes your breath
alcohol concentration." This testimony is virtually
identical to testimony offered by Dr. Hlastala. The
expert in Cooperman also testified that breath
machines are calibrated at 34 degrees centigrade
explaining that a 1-degree change in breath
temperature from 34 degrees centigrade will change
the breath results from 6 to 8%. Id. at 454. Again,
the expert testimony in Cooperman on the effects of
breath temperature essentially mirrored the
testimony by Dr. Hlastala on this topic. There is no
substantive factual difference between the
Cooperman and Vangelder cases. The only
differences are the courts' holdings.
Cooperman deemed the above testimony
"competent expert testimony that these physiological
factors, apart from partition-ratio evidence, can
impact the ability of the machine to accurately
register a defendant's breath alcohol…." Id. at 455.
Cooperman found the expert testimony admissible as
it was properly offered to rebut the prosecution's
10
breath alcohol result. See App. A, 60, fn. 30. Again,
this holding is in direct conflict with the Vangelder
opinion.
Respondent also contends that Fuenning v.
Superior Court, 680 P.2d. 121 (Arizona 1983), is not
in conflict with Vangelder. Vangelder found that
breath testing is fundamentally reliable. Fuenning
held that there is an "…inherent possibility of error
in the test results." Id. at 127. Vangelder states that
a defendant may not argue the margin of error in
breath testing. Fuenning held the opposite and
found that a defendant "may attack the accuracy of
the test on any relevant ground, including inherent
margin of error." Id. The holdings simply are at
odds with each other.
In State v. Lowther, 7 Haw. App. 207 (Haw.
1987), the court held that the Director of Health's
approval of the Intoxilyzer as a breath-testing device
only relieves the prosecution of presenting expert
testimony as a condition to admission of the breath
test results. But the approval does not establish the
general reliability of the Intoxilyzer as an
unquestioned fact. Id. at 1020. Despite the
Director's approval, the machine was still subject to
challenge. The court wrote: "…we side with the
other courts that have recognized the defendants'
right to challenge the general reliability of breath
testing devices." Ibid. Respondent states that had
the Hawaii statute only measured breath alcohol
content, the court would have found the expert's
testimony irrelevant. RB, 12. But that reading is far
too narrow. The court held that a defendant has the
constitutional right to challenge machine reliability.
The court did not limit its holding as Respondent
11
suggests.
In People v. Brown, 540 N.Y.S. 2d 650, (N.Y.
1989), Keel v. State, 609 P.2d 555 (Alaska 1980),
Cooley v. Municipality of Anchorage, 649 P.2d 251,
255 (Alaska 1982), the courts recognized the defense
right to confront the breath test through the usual
tools of confrontation and adducing evidence.
Vangelder denies the defendant the right to
challenge the fundamental reliability of the breath
test.
CONCLUSION
The law does not enshrine disputed scientific
assumptions behind impenetrable legal protective
barriers. See Daubert v. Merrell Dow Pharmaceuticals,
509 U.S. 579 (1993).
Most citizens do not become involved in
serious criminal prosecutions, but many have contact
with the criminal justice system in the context of
DUI cases. The FBI reported over 1,215,000 such
arrests in 2011. See https://tinyurl.com/mylrrjd.
These prosecutions can have a profound impact on
the average citizen's perception of the fairness and
the legitimacy of the criminal justice system.
A criminal defendant must be allowed to
contest the State's case with relevant evidence.
12
The petition for certiorari should be granted.
May 29, 2014 Respectfully submitted,
Charles M. Sevilla
Counsel of Record
1010 Second Ave., Ste. 1825
San Diego, CA 92101-4902
Telephone: (619) 232-2222
chuck@charlessevilla.com
Donald J. Bartell
Lara J. Gressley
5053 La Mart Dr. Ste. 201
Riverside, CA 92507
(951) 788-2230
djbartell@pacbell.net
Counsel for Petitioner
13