May 11, 2012

SAN DIEGO CRIMINAL DEFENSE: CALIFORNIA SUPREME COURT DECLARES NICOLE BROWN SIMPSON HEARSAY RULE UNCONSTITUTIONAL

California Evidence Code sec. 1370 (aka: the Nicole Brown Simpson hearsay exception) creates an exception to the hearsay rule for statements made by someone describing a threat or actual infliction of harm where the person is unavailable.

The California Supreme Court recognized that the videotaped interview of the witness who was unavailable for trial, which would be admissible under California Evidence Code sec. 1370, violates Crawford (541 U.S. 36) and confrontation; since it is purely testimonial.

Now, anytime a prosecutor tries to use California Evidence Code sec. 1370 for a statement made to the police, the analysis here ought to close the door.

Since the context here is a death penalty case, the California Supreme Court finds harmless
error and affirms the death verdict.

People v. Livingston; 2012 DJ DAR 5410; DJ, 4/27/12; Cal. Supremes

May 4, 2012

SAN DIEGO DUI DEFENSE: EXPERT TESTIMONY CONCERNING PHYSIOLOGICAL VARIABILITY AFFECTING BREATH TESTING IMPROPERY EXCLUDEDg Breath Testing Improperly Excluded

Chalk one up for Chuck Sevilla and Chris Plourd (now The Hon. Chris Plourd!) for their great work in Vangelder. But, as usual, the young'uns in the misdemeanor unit of the City Attorney's officer have stamped their feet and cried "foul" all the way up to the Supreme Court. Don't they know that the Supreme Court will not baby sit them as many of our local judges will? Well, here goes. Below is a synopsis of Vangelder.

People v. Vangelder (2011) ___Cal.App.4th___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

Held: The trial court prejudicially erred in refusing to allow scientific testimony to be presented that would have raised doubts about the reliability of the EC/IR and PAS breath testing devices, with respect to the physiological variables that can affect the sample of breath or air taken.

Distinguishing the California Supreme’s Court’s prior decision in People v. Bransford (holding that evidence of partition ratio variability is irrelevant and inadmissible on the per se charge (i.e., driving with a .08 percent or higher alcohol content), the Court noted that this was not an attack on the partition ratio employed, but rather a critique on the assumed nature and quality of the breath samples.

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