For many it can be quite confusing to learn of the different state requirements imposed upon prosecutors to meet their burden of proof within a dui prosecution.
Although the national uniform standard of proof to sustain a conviction in a criminal case is “beyond a reasonable doubt,” all states have different rules of evidence in regard to the process by which state prosecutors must seek to sustain that burden of proof. Significant to this posting, I was recently questioned by a defense lawyer within another state jurisdiction in regard to an owi prosecution within the state of Indiana.
The central focus of his questioning was the Indiana rules of evidence governing the admissibility of breath test results. Within the attorney’s state jurisdiction in order for a breath test to become admissible in a state prosecution, prosecutors are apparently required to present the live testimony of expert forensic toxicologists. In so doing, a judge or jury can learn the expert opinion of such a witness as it relates to the term “retrograde extrapolation.”
This term is frequently fundamental to a dui prosecution in that it takes into account not what a suspected individual charged with dui tested after time has elapsed following an investigation, but rather what was the likely bac of the suspected impaired driver at the time he or she was operating the motor vehicle in question.
This concept recognizes that as the body absorbs and/or expels alcohol the bac level at the time one is tested can fluctuate greatly. For example, it is generally accepted that one reaches a peak alcohol reading of bac approximately one hour from the last consumed drink of alcohol.
Many factors can come into play when attempting to backdate this estimated result. Such factors may include but are not limited to; time last drink of alcohol was consumed, frequency of drinking activity within a certain time period, type of alcohol consumed, body weight & gender.
It therefore stands to reason that an individual charged with dui will darn well desire the most complete investigation possible to justify what his or her bac level was not at the time of testing, but at the time the operation of the vehicle while impaired is alleged.
Ultimately, people are surprised to discover that although witnesses making such calculations may be deemed experts when testifying to such results, in the end such expert testimony is really no more than guesstimations as opposed to mathmatical calculations that can stand up to scientific scrutiny.
This reality underscores the perilous nature behind potentially incriminating evidence presented against an individual within the standard dui prosecution.
Most notably, for bac results not far above .08, it stands to reason that a criminal conviction should not be legally based upon witness guesswork clothed within supposed expert testimony. However, such legal testimony is not only permitted within criminal courts nationwide, but endorsed and sometimes required within dui prosecutions.
Such is not the case within the state of Indiana. In Indiana, a state prosecutor is under no legal obligation to present the live witness testimony of a forensic toxicologist to sustain his or her burden of proof within a dui prosecution.
What is required in Indiana is for the law enforcement official responsible for breath or blood testing to be certified to do so within prescribed time periods. In the case of breath tests, once valid certifications can be introduced in court validating that the testing instrument in question was in working order at the time the suspected individual’s breath sample was taken from the particular machine, the bac results become admissible into evidence.
While the credibility of the bac test can be questioned by defense witnesses, the tests most significantly cannot be excluded from evidence.
It is here where the out of state lawyer’s questioning of me proves significant for the purpose of this posting.
Where other states may require the prosecutor to present the testimony of a forensic toxicologist as a required witness to sustain a criminal conviction within a dui prosecution, Indiana does not. As a result, should a state prosecutor in Indiana be able to hurdle this very low evidentiary standard for the admissibility of a bac result above .08, it becomes incumbant upon a defendant to present the testimony of his or her own forensic expert to attempt to rebut the bac evidence presented.
This reality essentially shifts the burden of proof from a prosecutor to a criminal defendant seeking to educate a jury as to the potential flaws inherent when assessing impairment based upon a given bac test result.
In an ideal world this may not prove a problem were financial considerations not a very real issue as to the retention of potential witnesses. However, hiring one’s own independent forensic toxicologist can prove extremely costly, and serve as yet another punitive sanction imposed upon one merely accused of a dui offense.
Further, as the expert calculations presented are little more than educated guesses based upon what factors are able to be compiled within a given case, no toxicologist, whether presented by the state or paid for by the defense will be able to affirmatively testify with certainty as to a given bac level at the time the vehicle within a prosecution was in operation.
No matter the reality as to a reasoned scrutiny of evidence presented nationwide in regard to breath test results, I believe it time for Indiana and other applicable state jurisdictions to re assess the evidentiary burden imposed upon criminal defendants within dui cases.
Those accused of operating while intoxicated should not have to bear the burden of retaining and locating suitable expert testimony capable of altering the perception of the average juror as to the lack of scientific certainty behind breath test results within dui prosecutions. That burden should rightly be placed upon prosecutors within the state of Indiana who are responsible for the charging of criminal cases and the corresponding burdens of proving those cases within a court of law.