Columbus OVI/DUI Attorney Blog
The Vegas DUI seminar presented by NCDD and NACDL always rekindles my passion for DUI defense (called ‘OVI’ in Ohio). This year, I went with my associate Bryan Hawkins. Although we have both presented at many seminars, there is always more to learn, and we each felt like there were many useful take-aways from the presentations. The presentations were all good, and there were three which were especially noteworthy.
Field Sobriety Testing
Anthony Palacios from Georgia gave a presentation titled, “2023 SFST Manual: Common Practice Errors”. Palacios is a retired police officer and a nationally known expert in Standardized Field Sobriety Tests (SFSTs). I took his class for SFST Instructors. He is not only incredibly knowledgeable about SFST, but he is also a great teacher, which is a separate skill set.
Palacios highlighted the differences between the 2018 SFST manual and the 2023 SFST manual. Many of the changes are subtle and could go unnoticed, but Palacios has obviously inspected every sentence of the manual and detected every change. Some of the changes are minor, but some are significant. The changes he illuminated could be very helpful when litigating issues related to field sobriety tests.
The Confrontation Clause and Laboratory Analysts
Josph St. Louis from Arizona gave a presentation about the application of the Sixth Amendment’s Confrontation Clause to expert witnesses. He explained the development of the right to confront witnesses, and knowing the background helps lawyers understand how the confrontation clause is interpreted in DUI cases. He analyzed Crawford v. Washington, which holds ‘testimonial statements’ of non-testifying witnesses are only admissible if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
St. Louis then focused on the use of laboratory reports (e.g., blood test reports) in trial when the lab technician who conducted the test does not testify. He explained the holdings of Melendez-Diaz v. Massachusetts (2009), Bullcoming v. New Mexico (2011), and Smith v. Arizona (2024). He concluded the non-testifying lab analyst report cannot be introduced through the document, the testimony of another analyst, or the testimony of an analyst who reviewed the testing analyst’s materials and reached an ‘independent opinion’. This is important for DUI defense lawyers to know, so the prosecution does not sneak-in a laboratory report which should not be admissible.
Cross-Examining Laboratory Analysts
If the crime laboratory analyst does appear in court, the defense lawyer needs to cross-examine the analyst effectively. Francisco Duarte from Washington described important concepts to recognize before and during the cross-examination, such as the inherent trust jurors have in the prosecution witnesses and the jurors’ expectations of scientific integrity, transparency, and fairness. He also provided a framework for examining analysts, particular issues to target, and specific questions to ask.
Rejuvenated Passion for OVI Defense
Bryan and I had a great experience at the seminar. We both left with a renewed excitement for defending clients in OVI cases. It was also good to spend time together outside the seminar. Last time I was at this seminar, I was a speaker, but this time I had no formal responsibilities. That meant Bryan and I had time to enjoy Vegas. I would share what we did during that time, but what happens in Vegas….