Monder Law Group - News
DUI – No Foundation
For preliminary blood alcohol screenings to be admitted as evidence for DUI charges, the prosecution must first “lay foundation.” This means that the prosecution must authenticate the test results, the test administrator, the credentials, etc. This rule is known as the Adams rule, based from a 1976 California case. The rule requires a showing that:
- the apparatus utilized was in proper working order;
- the test was properly administered; and
- the operator was competent and qualified.
The purpose of this requirement is to protect the fairness of the judicial system and make sure the defendant is given his or her constitutional grants of due process and equal protection under the law.
Now going back to the preliminary blood screenings—remember that these are not meant to determine blood alcohol content, but ONLY in determining if the person is under the influence of alcohol. They are ONLY a tool used for establishing probable cause. In fact, the party told to complete this screening is told this (or should be told this) and they should also be told that if arrested, he or she would be given another test to determine the alcohol content of the blood.
Arresting officers CANNOT be allowed to induce a person to believe this prescreening is going to be used only for the purpose of establishing probable cause and then allowed to use it for a purpose the defendant did NOT consent to. And doing otherwise would be in direct violation of the constitutional grants of due process and equal protection.
This becomes critical when the defendant consents to the prescreening, but not the actual blood alcohol content test. At trial, such defendants typically argue that they satisfied the implied consent law by submitting to the prescreening, and most judges have agreed with this argument. Hence, they do not allow the jury to be instructed that the defendant refused to give a chemical test as required by the implied consent law (thus, preventing the jury from hearing this bias-inducing fact). In fact, Evidence code §352, provides that the court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues, or of misleading the jury.