Articles Posted in DUI/OVI continuing education

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How to improve litigation skills which lead to more acquittals (not guilty verdicts) in DUI/OVI cases can be a mystery. That’s why there are organizations like the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL). Those organizations co-host an annual DUI defense seminar in Las Vegas, and the theme of this year’s seminar was “Solving The Mystery of DUI Acquittals”. I attended the seminar, as I have for over 15 years, and took away valuable insights.

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Day One: Retrograde Extrapolation & Cross Examination
On the first day of the seminar, there were two presentations which stood out to me. The first was Joseph St. Louis’ discussion of retrograde extrapolation. St. Louis is a DUI lawyer in Tuscon and a regent for the NCDD. After teaching how alcohol is absorbed, distributed and eliminated, he explained retrograde extrapolation. Retrograde extrapolation is the act of calculating a person’s blood alcohol concentration (BAC) at a previous time based on the BAC at a later time. St. Louis highlighted articles from scientific journals concluding retrograde extrapolation is a dubious practice due to all of the possible variables in the calculation, most of which are unknown to the person completing the calculation.

Retrograde extrapolation is important in Ohio because our OVI law prohibits operating a vehicle if, at the time of operation, the driver is under the influence or ‘over the limit’. In an OVI trial, the prosecution introduces the result of a blood/breath/urine test, and that test may be done up to three hours after operation of the vehicle. That test result is circumstantial evidence of the BAC at the time the defendant operated the vehicle. However, an expert witness can testify the BAC at the time of operation cannot be calculated with certainty: there is, in fact, a wide range of possible BACs, including BACs ‘under the limit’.

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It turns out the criminal defense lawyers were not the only group gathering in Myrtle Beach. It was bike week. Harley Davidson bike week to be precise. Thousands of bikers rolled in to cruise the strip, and a small percentage participated in drag racing, drunk driving and disorderly conduct. While some people were in the tourist town breaking the law, others were there learning about the law. I was in the latter group.

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I was there for the Sunshine Seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). This is an annual continuing education seminar and retreat for OACDL members. The seminar portion of the event is held in the mornings on Thursday and Friday (in a meeting room overlooking the beach), and the remainder of the time is the ‘retreat’.

 

Cyber Security And Client Competency
The seminar included an interesting presentation on cyber security. I, like many others, believed small business owners need not be especially concerned about being the victim of cyber crimes. However, the speaker explained small businesses, including law firms, are, in fact, targeted by hackers. He also discussed some relatively simple ways to avoid being a victim. A wildebeest does not have the be the fastest in the herd; just not the slowest. Similarly, a small law firm does not need to be super cyber secure; it just needs to not be the low-hanging fruit for cyber criminals.

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The modern version of the OACDL annual DUI/OVI seminar began in 2002. That means this year we celebrate the 18th birthday of the seminar. I have attended every year, I have participated for many years, and I have been the co-chair for the past few years. Just like parents say about their children, I can’t believe it has been 18 years. Like a proud parent, I think this seminar has matured to be one of the best DUI seminars in the country. This year’s agenda featured too many speakers to name and too many presentations to summarize, but this article covers some of the highlights.

Learning From Non-Lawyers
We reintroduced a tee shirt this year with the slogan, “In God we trust…all others will be cross-examined”. Despite the warning on the throwback tee, we invited many non-lawyer speakers and did not cross examine any of them.

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Joshua Ott (Atlanta) is a former police officer with vast experience and credentials in DUI investigations. He discussed what to look for when reviewing law enforcement videos from cruisers and body cams. His presentation highlighted issues which may arise during all phases of the DUI investigation, including the field sobriety tests.

Dr. Lee Polite (Chicago) is the president of Axion Labs, where he provides chromatography training for scientists from around the world. Dr. Polite taught the basics of gas chromatography, the method used to test blood and urine in Ohio DUI / OVI cases. I attended his three-day gas chromatography course in Chicago, and it was outstanding. Somehow, he did an amazing summary of that material in one hour.

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I have attended this DUI seminar in Vegas annually for about 15 years. One might think it would grow stale. It doesn’t. While the co-sponsors of the seminar are the same each year, the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL), there are always different speakers and themes. This year’s theme was ‘Grand Slam Defenses’.

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The lead-off batter was Bill Kirk with ‘Cross-Examination: The Lawyer’s Opportunity To Testify’. Kirk was spot-on when he urged attendees to improve cross-examination by doing three things: (1) adopt methods which have worked for others; (2) use your own style; and (3) practice and ask for constructive criticism. Throughout my career, I have studied trial techniques in books and borrowed successful trial tactics from other lawyers. As Kirk recommends, I have incorporated the techniques which are effective and consistent with my style. I have given the same advice to many attendees as an instructor at the OACDL trial skills workshops.

Another major league presentation was Deja Vishny’s ‘What Online Dating Taught Me About Jury De-Selection’. Vishny gave the traditional advice of gearing the voir dire toward one’s theory of the case. However, she recommended asking questions to de-select jurors rather than seeking information to help select jurors. Vishny also provided examples of methods for meaningful dialogue with prospective jurors. Her presentation included specific phrases for questions, using sliding-scale questions, and using questions which frame a challenge for cause.

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Myrtle Beach, for the second year in-a-row, was the site for a seminar and retreat for the Ohio Association of Criminal Defense Lawyers (OACDL). I intended to go last year, but the timing didn’t work with my schedule. When it came up again this year, I made the event a priority on my calendar. I’m so glad I did. The unique seminar format, the interesting topics and the camaraderie made for a great experience.

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The continuing education part of the retreat was unique. Rather than having the room arranged like a classroom, the tables were set up in a rectangle, like a meeting.  It also didn’t hurt to have the beach as a backdrop.  The speakers, rather than giving a monologue presentation, facilitated lively discussions.

 

Medical Marijuana And Ohio Law
One topic we discussed was marijuana. The Ohio legislature passed a law two years ago permitting the use of marijuana for medical purposes under certain circumstances, but the regulations for the details of medical marijuana have not been finalized. Nevertheless, some Ohio doctors are already ‘prescribing’ marijuana to patients who are Ohio residents.

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I have been attending this DUI / OVI seminar since its modern inception in 2002. For five years before that, I practiced all varieties of criminal defense, with a focus on serious felonies. I didn’t think OVI defense was as complex as cases like murder, robbery and burglary. The seminar in 2002 showed me I was wrong. Shortly after that seminar, I decided to make OVI the focus of my practice. Fast forward 16 years, and I co-chaired this year’s two-day seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). I was primarily responsible for the first day, which means my job was to introduce the speakers without drooling or stuttering.

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The seminar got off to a great start with a presentation by Mimi Coffey from Texas. Mimi is board certified in DUI Defense, has twice completed the Borkenstein course at Indiana University, and is a regent with the National College for DUI Defense (NCDD). She discussed how to win an OVI case involving a breath test. Her discussion included favorable case law, important scientific principles and helpful litigation strategies.

The next speaker was Lauren Stuckert from Wisconsin. Lauren is the nation’s youngest lawyer to become board certified in DUI Defense. She discussed the analysis of blood and urine. The first part of her lecture focused on the analysis of alcohol, and the second part focused on the analysis of other drugs. Lauren included a spotlight on marijuana, as there is a growing number of Ohio OVI cases involving marijuana which will only increase with the legalization of medical marijuana.

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Vegas-2017-strip-closed-300x201A few hours before the Las Vegas shooting, I checked-in at the Monte Carlo, four ‘doors’ down from Mandalay Bay. I was there to attend the DUI defense seminar presented by the National College for DUI Defense (NCDD). The desk clerk said the Monte Carlo was being renovated (no pool, no spa, nearly no restaurants), and she offered to move me to Mandalay Bay. I decided to stay at the Monte Carlo and just use the pool at Mandalay Bay. My body was still on Ohio time, so I was going to bed when the shooting started. I was aware there was a lot of noise (apparently, the Monte Carlo was locked-down), so I put in earplugs and went to sleep.

Vegas-2017-news-reporter-300x225The next morning, I woke up and learned the nation’s largest mass shooting took place just down the Strip. Still on Ohio time, and traveling with an Ohio police officer, I walked down to the area. Witnesses were returning from police interviews: draped in hotel towels, crying, and wearing outfits obviously selected for a country music concert. News reporters, like the one pictured here, were reporting on the incident from every angle.

 

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And then there was the police presence. Law enforcement had Las Vegas Boulevard shut down south of Tropicana Avenue. Police cruisers and motorcycles lined Las Vegas Blvd. from one end of the Strip to the other. Groups of officers were stationed outside each resort.

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Lawyers disagree on what part of a trial is the most important. Some lawyers say the closing argument is the most important part because that’s when we tie everything together and persuade. Others say the closing doesn’t matter much: trials are lost or won during jury selection. Still others say the most critical phase of a trial is cross-examination.

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Cross-examination was the subject of a recent workshop in Charleston, South Carolina (a couple days after Hurricane Irma hit!), and I was part of the faculty for the workshop. The workshop was part of a three-day seminar presented by the DUI Defense Lawyers Association (DUIDLA), and first two days of the seminar were lectures on various DUI/OVI topics. The third day was a trial skills workshop focused on improving the attendees’ cross examination skills.

 

In DUI/OVI cases, cross examination is very important. In all OVI trials, the defense attorney cross-examines the prosecution witnesses. In many OVI trials, there are no defense witnesses testifying, so all of the testimony comes from the prosecution witnesses. Therefore, it is critical for those prosecution witnesses to be effectively cross-examined.

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In his book Good To Great, Jim Collins discusses ‘the hedgehog concept’. The concept is essentially this: although the fox is a cunning predator, the hedgehog always defeats the fox because the hedgehog focuses on doing one thing well – it rolls into a ball of spiky quills the fox cannot penetrate. The hedgehog concept applies to practicing law: focusing on one narrow area of law and doing it well leads to expertise and effectiveness. In the narrow area of DUI/OVI defense, one great way to learn is attending advanced level seminars like the summer session of the National College for DUI Defense (NCDD).

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I recently attended the NCDD summer session at Harvard Law School. Over the course of three days, some of the best DUI lawyers in the country discussed advanced topics in DUI defense. The seminar included lectures, demonstrations, and workshops. Additional learning took place informally each night as the lawyers exchanged ideas, tactics, and best practices.

While all the presentations were informative, there were two presentations which stood out to me: one about metrology, and one about pharmacology. The metrology presentation discussed the uncertainty involved in measurements and explained common failures in the measurement of blood alcohol concentration. The pharmacology presentation compared the work of law enforcement Drug Recognition Experts to that of pharmacologists in DUI/OVI cases involving drugs other than alcohol.

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Lawyers sometimes learn through trial and error;  literally.  Education at the school of hard knocks can be valuable, but learning from the experience of others has its own value.  One way attorneys can shorten the learning curve is by attending high quality continuing education seminars.  One outstanding annual seminar for DUI/OVI lawyers is ‘The Premiere Ohio DUI Defense Seminar’ sponsored by the Ohio Association of Criminal Defense Lawyers (OACDL).

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The focus of this year’s seminar, held last week, was drugged driving.  Ohio has seen an increase in the number of drivers charged with OVI for being under the influence of drugs.  With medical marijuana on the horizon, it’s likely the numbers of drugged driving cases will continue to increase.  With that in mind, the presentations addressed the science, the law and the litigation involved in drugged driving cases.

The Science Of Drugged Driving
Pharmacologist James O’Donnel taught the basics of pharmacokinetics.  He described, in terms understandable by non-scientists, the absorption, distribution and elimination of drugs in the human body.  Interestingly, he explained why retrograde extrapolation cannot accurately calculate the concentration of a drug in a person’s system at a particular point in the past;  like when the person was operating the vehicle.

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