1. RESPONDING TO THE RISING BA DEFENSE G. Stewart Hicks Traffic Safety Resource Prosecutor 2220 Tulare Street, Suite 1000 Fresno, CA 93721 *(559) 999-2162* stewart.hicks@ca-tsrp.org Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

2. QUANTITY OF ALCOHOL CONSUMED IN MOST RISING BA CASES, THE DEFENDANT HAS NOT HAD ENOUGH TO DRINK IN MOST RISING BA CASES, THE DEFENDANT HAS NOT HAD ENOUGH TO DRINK HOW MUCH HAS THE DEFENDANT HAD TO DRINK? HOW MUCH HAS THE DEFENDANT HAD TO DRINK? WHEN DID HE START? WHEN DID HE START? WHEN DID HE STOP? WHEN DID HE STOP?

3. NOT ENOUGH TO DRINK USUAL SCENARIO: 2-3 QUICK DRINKS, GET IN THE CAR, DRIVE, STOPPED, SFST’s, PAS, ARREST USUAL SCENARIO: 2-3 QUICK DRINKS, GET IN THE CAR, DRIVE, STOPPED, SFST’s, PAS, ARREST BLOWS A.12 BLOWS A.12 NOT ENOUGH TO DRINK---EVEN FOR HIS OWN SCENARIO NOT ENOUGH TO DRINK---EVEN FOR HIS OWN SCENARIO

4. DRINKING PATTERN 3 QUICK DRINKS & DRIVE 3 QUICK DRINKS & DRIVE PEOPLE DON’T DO THIS PEOPLE DON’T DO THIS NOT WITHIN THE EXPERIENCE OF YOUR AVERAGE JUROR NOT WITHIN THE EXPERIENCE OF YOUR AVERAGE JUROR AN ABSURD CONTENTION AN ABSURD CONTENTION

5. DRINKING PATTERN... REBUTTAL HAVE FUN HAVE FUN –the defendant is saying, and wants you to believe... –“If not for the officer, I would have made it home safely. It’s his fault I was DUI. Not mine. He made me do it!” –“If not for the officer, I would have made it home safely. It’s his fault I was DUI. Not mine. He made me do it!”

6. YOUR EXPERT DISCUSS ABSORPTION RATES DISCUSS ABSORPTION RATES DISCUSS YOUR DRINKING PATTERN DISCUSS YOUR DRINKING PATTERN DISCUSS YOUR BA LEVEL DISCUSS YOUR BA LEVEL DISCUSS SFST’s DISCUSS SFST’s ASK: WHAT ABOUT MY FACTS COULD TURN MY CASE INTO A “RISING BA” CASE? ASK: WHAT ABOUT MY FACTS COULD TURN MY CASE INTO A “RISING BA” CASE?

7. YOUR EXPERT... GENERALLY, THE FASTER YOU DRINK, THE FASTER YOU ABSORB GENERALLY, THE FASTER YOU DRINK, THE FASTER YOU ABSORB DEF: POOL OF ALCOHOL DEF: POOL OF ALCOHOL DEF: SUDDEN ABSORBTION DEF: SUDDEN ABSORBTION DOESN’T WORK THAT WAY DOESN’T WORK THAT WAY CONSTANT ABSORBTION AND CONSTANT ELIMINATION CONSTANT ABSORBTION AND CONSTANT ELIMINATION

8. YOUR OFFICER LENGTH OF OBSERVATION LENGTH OF OBSERVATION INCREASING “IMPAIRMENT”? INCREASING “IMPAIRMENT”? PUT IN CONTEXT WITH QUICK DRINKS, SHORT DRIVE, SUDDEN ABSORBTION, SUDDEN IMPAIRMENT PUT IN CONTEXT WITH QUICK DRINKS, SHORT DRIVE, SUDDEN ABSORBTION, SUDDEN IMPAIRMENT

9. SYMPTOMS WHY DID THE OFFICER ARREST THE DEFENDANT? WHY DID THE OFFICER ARREST THE DEFENDANT? A SPECIFIC NUMBER? A SPECIFIC NUMBER? NO NO TOTALITY OF THE CIRCUMSTANCES TOTALITY OF THE CIRCUMSTANCES –DRIVING, EYES, ODOR, SPEECH, COORDINATION, SFST’s DID DEFENDANT GET MORE “IMPAIRED?” or “INTOXICATED” DID DEFENDANT GET MORE “IMPAIRED?” or “INTOXICATED”

10. OFFICER’S EXPERIENCE NUMBER OF DUI INVESTIGATIONS NUMBER OF DUI INVESTIGATIONS LEVEL OR DEGREE OF IMPAIRMENT DEMONSTRATED AT DIFFERENT BA LEVELS (.07,.08,.09) LEVEL OR DEGREE OF IMPAIRMENT DEMONSTRATED AT DIFFERENT BA LEVELS (.07,.08,.09) IMPAIRMENT IMPAIRMENT NOT BA NOT BA

11. DEFENSE EXPERT FROM WHERE DID THE DEFENSE EXPERT OBTAIN HIS FACTS? FROM WHERE DID THE DEFENSE EXPERT OBTAIN HIS FACTS? –THE DEFENDANT! HOW HAVE THOSE FACTS CHANGED SINCE THE ARREST? HOW HAVE THOSE FACTS CHANGED SINCE THE ARREST? WHEN DID DEFENDANT FIRST SPEAK WITH THE EXPERT? WHEN DID DEFENDANT FIRST SPEAK WITH THE EXPERT? WHEN DID THE EXPERT FORM THE OPINION THAT DEF’S BA WAS RISING? WHEN DID THE EXPERT FORM THE OPINION THAT DEF’S BA WAS RISING?

12. CROSS OF DEFENSE EXPERT... HOLD THE EXPERT TO YOUR FACTS! HOLD THE EXPERT TO YOUR FACTS! WHERE DID EXPERT OBTAIN HIS FACTS? WHERE DID EXPERT OBTAIN HIS FACTS? FINAL QUESTION: FINAL QUESTION: –ASK THE SAME HYPOTHETICAL YOU ASKED YOUR EXPERT –DEF. EXPERT SHOULD COME UP WITH SAME OR VERY SIMILAR ANSWER

13. CONCLUSION DISCOVERY DISCOVERY –RETAINER AGREEMENT –DATES –WRITINGS –OPINIONS –ETC. MOTIONS IN LIMINE MOTIONS IN LIMINE

14. RESPONDING TO THE RISING BA DEFENSE G. Stewart Hicks Traffic Safety Resource Prosecutor 2220 Tulare Street, Suite 1000 Fresno, CA 93721 *(559) 999-2162* stewart.hicks@ca-tsrp.org Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.