Impressive. Or pathetic. Depending on your take.
Joseph Freitas is drunk as a skunk. Allegedly. And driving. He's weaving through lanes and going 65 mph in a 45 mph zone when he's pulled over. He fails tons of field sobriety tests, and according to the blood test, his BAC is .23.
So, among other things, they pull ("administratively suspend") his license. Which he challenges.
Apparently -- and I didn't know this -- blood tests are done via a gas chromatograph, which has a heated chamber
containing two long, narrow, coiled columns. I'll just quote the opinion to give the rest of the details about these two different columns:
"The inner surfaces of the columns are
treated with chemical preparations, a different preparation in each column. A portion of
the sample to be tested is introduced into each column in gaseous form. As a sample
passes through a column, compounds in the sample react with the chemicals on the walls
of the column. . . . The reason for using two differently prepared columns is that for any given single
column, the retention time for alcohol is the same as the retention time for numerous
other volatile organic compounds that can be present in a blood sample. Data from a
single column consistent with the presence of alcohol would also be consistent with the
presence of a different compound or alcohol plus another compound. A sample yielding
a positive result from a single column thus might contain no alcohol or might contain less
alcohol than the result indicates. Results from the second column, which are based on a
different chemical principle, are necessary to confirm the presence and quantity of
Hmmm. Interesting. And I get it. The only thing I knew about this before was a brief reference to this stuff in My Cousin Vinny. Now I actually understand the thing. Neat.
But here's the weird thing. In Kern County, apparently, even though there are two gas columns in a dual chromatograph, and even though there's a totally good reason for the two columns, the BAC reports they print out only list the result from one of these two columns.
So the (allgegedly) .23 drunk Mr. Frietas hires a lawyer, who hires an expert -- an expert who often gives testimony on this exact same issue -- and this is what the expert says:
“[Counsel]: Can you think of any reason, scientifically speaking, why dual
column analysis would not be used as a confirmatory method when the
entire system is already set up that way?
“[Arvizu]: I really can’t. And I can’t even imagine why they would set it
up that way and then not use it. Even the instrument manufacturers, in their
materials, indicate that dual column should be used for ethanol. To set it up
with dual columns and then just ignore the second column is scientifically
But the DMV doesn't care. This is just a silly little DUI case. It doesn't bother to put on an expert of its own. It just says that the results are probably right; that it only has to prove a .08 anyway, and the testimony of the police officer and the field sobriety tests more than support the conclusion that Mr. Freitas was blitzed and driving with a BAC in excess of .08.
The administrative officer in the DMV hearing agreed. So did the trial judge, who affirmed the suspension of Mr. Freitas' license.
The Court of Appeal reverses.
Justice Smith holds that since the expert's analysis was unrebutted, there's no substantial evidence to support the finding that Mr. Freitas was driving with a BAC of .08. So he gets entirely off.
On the one hand, Justice Smith writes a very persuasive opinion. Plus, I'm horrified to know that in Kern County -- and potentially elsewhere -- they're inexplicably reporting only one column from the deliberately-designed two-column device. That's just crazy. I'm certain -- or at least hope -- that this opinion corrects this practice.
Though, in the meantime, there are all these people, like Mr. Freitas, who are going to get out of the legitimate consequences of their driving while (way) intoxicated. So that I don't like at all.
Plus, I'm not entirely certain that Justice Smith is correct.
Okay, I'll grant you, the expert's unrebutted testimony is fairly devastating. I'm giving that a ton of weight.
Nonetheless, the dude was driving with an (alleged) .23. That's way above a .08. Plus, the police officer gave a plethora of evidence -- the weaving, the field sobriety tests, the admitted drinking, the strong smell of alcohol, etc. -- that would very strongly support that, in layman's terms, Mr. Freitas was indeed driving while way intoxicated. Definitely -- or at least very likely -- in excess of .08. A conclusion that I'd reach even without any blood test. And the expert's testimony here, while really good, hardly in my mind means that I give no weight whatsoever to the test. Yes, we're lacking the results from the "backup" column. But nine times out of ten -- more, I'd wager -- I bet that other column isn't starkly different. And even more rarely is does the difference drop down from .23 to below .08.
And the expert's failure to say anything to the contrary, or to deny my common-sense judgment with respect to this issue, furthers my conclusion in this regard.
Oh, and one more thing. The second column was reported. Just not during the trial. They gave this information to Mr. Freitas, and his expert, during discovery. So if that second column tended to show that the first column was, in fact, materially off, I'd definitely have expected the expert to have pointed this out.
But the guy didn't say Word One about that topic.
Put that all together, and to me, it's pretty darn certain that the guy was driving over .08. Sure, it's possible for a guy to weave in and out of lanes and fail field sobriety tests with a .07. Sure, it's at least possible for a .23 result in one column to really reflect a .06. I'm sure it happens sometimes.
But the trial court here found that this wasn't the case here. And I totally agree with it. I'm not at all convinced that I could validly say, on a cold record, that the entirety of the record fails to provide any "substantial evidence" to support the trial court's finding that the guy here was driving with above a .08.
If for no reason than, if you ask me, I'd bet dollars to doughnuts -- indeed, lots of dollars to very few doughnuts -- that the guy was, in fact, driving with above a .08.
I think that you can validly convict a guy for driving with above a .08 even without a blood test at all, based solely on his conduct. So, ipso facto, I think you can validly find that a guy was likely driving with above a .08 based on his conduct and an (admittedly partially flawed) test.
So I'm not sure it makes sense to give Mr. Freitas' license back.
Or the thousands of others who are just like him and who, after this opinion, will be smart enough to take similar advantage of the shoddy practices reflected here.