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HEY! THAT’S NOT WHAT I MEANT! How to Exclude Evidence Whose Sole Purpose is to Be Used Against You
PICTURE THIS:
You are at a friend’s house for dinner. With your meal, you enjoy two glasses of delicious Napa Valley Cabernet Sauvignon. It was a great time, but you need to get on your way and get to bed for work tomorrow. FYI: two glasses of wine will not put you in danger of 0.08 BAC. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars cordoned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, “Breath on me. Have you been drinking tonight? Please step out of the car.” Some of you might be thinking, “That’s not right! They have to have probable cause.” Unfortunately, there are a number of states (California included) that have a DUI exception.
Furthermore, in California, the law says you have a right to choose between breath and blood. It is your choice. We have discovered in California, however, through our own Supreme Court that when the officer doesn’t give you that choice — just makes you breathe into that little black box — that’s okay. They’re not supposed to do it, but there’s no remedy. There’s nothing that can be done about it, so says the California Supreme Court. You can’t suppress the evidence. Well, police are not stupid, so now about half of them simply don’t give you that choice, since nothing is going to happen if they don’t. So, you decide you’re going to breathe into that machine. And you do. You breathe into one end and out comes a piece of paper at the other end that says your BAC is 0.13%. Now, at this point, the police are supposed to give you a choice as to whether you want a blood sample taken and saved as well, so that you have something for your defense attorney to have examined for an independent analysis.
This is called the Trombetta advisement. They don’t give it usually. They’re supposed to, but if they don’t, “no harm, no foul” and so it is rarely done. It’s called the “Trombetta advisement” because a few years ago, in 1984, a defendant in California said, “Wait a minute, that machine captured my breath and minutes after analyzing it, just purged it into the room air. It could have saved the breath and then my attorney could have had it analyzed by a separate laboratory by a more exact and reliable testing method. You have destroyed evidence that I could have analyzed and may have been proven my innocence.”
A sound argument, indeed, but what did the Supreme Court have to say? In the landmark case of Trombetta v. California, the Supreme Court found yet another DUI exception to the Constitution and basically said, “Well, it would be nice if they saved the breath, but there’s no obligation to do so. And, destruction of that evidence, unless you can prove that it would have been exculpatory, has no impact.” But how do you prove it would have been exculpatory if it has already been destroyed? So, today it is all right to destroy the evidence and make sure the defense doesn’t get access to it. It should be pretty clear now that you should call your defense attorney as soon as possible.
What A Good Defense Attorney Already Knows:
The Implied Consent law in California requires every driver to submit to a chemical test (blood or breath if alcohol is suspected; and a third option of urine if drugs are suspected.) One does not have the right to a lawyer before making the decision that test to take or even whether to take the test at all. The officer should have read you what is called the Trombetta Advisement, which tells you that you are required under California law to submit to a test; that a breath test does not retain a sample for your independent testing, but that the other two options do.
If one refuses to take a test after a proper Trombetta advisement, DMV can suspend the privilege to drive for one full year on a 1st DUI offense. Law enforcement is also permitted to do a forced blood draw. There are no recognized constitutional protections against such law enforcement action. They may or may not have had recordings in the room and that is something that your lawyer can inquire about. Call the Monder Law Group today.
