Visalia

Visalia is a quiet, tree-lined city in the middle of the San Joaquin Valley off of Highway 99 between Bakersfield and Modesto in Tulare County. adjacent to Fresno County to the North, King County to the West and Kern County to the South. Generally a quiet village  surrounded by farms, it is the County Seat where the Courts are located.

On January 21, 1984, Karen W. and Russell B. after attending a prenuptial dinner at Russell’s home with his parents and traveling Westbound in Russell’s VW with Karen as a passenger, was driving to take Karen home at about 45 MPH in a 55 MPH zone on Caldwell Ave. He approached the intersection of Caldwell and County Center Drive. Upon entering the intersection, which had no stop sign for Caldwell drivers, only a traffic stop sign for westbound traffic, a terrible accident occurred.

James Mc was a well respected businessman, who farmed olives in a little town southeast of Visalia. On January 21 1984, he hosted a yearly gathering of his employees at the Lamplighter, a restaurant and motel in the heart of Visalia. He left at about 11:30 PM in his Ford Bronco and was traveling Southbound on County Center, approached the intersection of County Center and Caldwell, and entered the intersection without stopping for the blvd. stop, striking the previously mentioned VW on the passenger side, causing the VW’s occupants to be thrown from the VW, resulting in the death of Karen, a 21 year old student at a local college and severely injuring the VW driver,  Russell B.

James Mc. was arrested for, and subsequently tried and convicted of, Felony Drunk Driving, driving with .10 blood alcohol, also a felony, due to the injuries and vehicular felony manslaughter, and sentenced to 6 years for the manslaughter conviction and a consecutive 8 months for the felony DUI, for a total of 6 years 8 months in State Prison.

James appealed on various grounds, and the appellate Court reversed the manslaughter conviction due to error in instructing the jury, and as far as the DUI was concerned, the Appeals Court found the sentence of 8 months to prison and the denial of probation should be reconsidered. If you want to read the opinion, it can be found in “People v McNiece 181 Cal App 3rd 1048 (1986))

I was familiar with the case as I am one of those lawyers well-trained by the old DAs in the LA DA’s Office, who required all Deputies to read the posted appellate cases as they were published encoring not only trial skills but substantive knowledge of what is going on in the legal world. As a result, I continued that habit when I entered private practice and kept a running briefing of cases as they were published. Let me explain: the criminal law field, like all other fields, such as accident (Tort) law, Domestic Relations, Tax, Corporate etc. are based generally on statutes governing the field such as the Penal Code, Evidence Code, criminal  statutes contained in the Vehicle Code or Corporations Code and so forth. generally change in some details every year, with either new legislation or amendments to existing codes. So, in my opinion, it is imperative for the lawyer to stay knowledgeable in his/her field of practice. Also, it is required by the State Bar Association for lawyers to continue studying and to maintain a certain number of hours of continuing education as a mandatory requirement to be allowed to continue one’s practice. In that regard, not only did I attend such classes, but I also was an instructor and lecturer over the years in such classes. One of the subjects I became a specialist in was Driving Under The Influence cases, including felony DUIs and Vehicular manslaughter cases.  So, it as not unusual for other lawyers to refer such cases to me. I don’t recall the source of the referral of James McNiece, but for some reason, he seemed to like my approach which consists of a standard interview for about 45 minutes to an hour, familiarizing myself with the potential client’s version of the events, getting whatever documents are in his/her possession, such as police reports, possible witnesses and things like that. Set a fee, draw up a valid contract agreement, get retained and get the retainer (generally the amount based on the case, the anticipated work, the nature and severity of the charges and the costs involved, such as investigation fees, expert fees and the like. In this case, I had to take into consideration the fact that the case was out of town, so there would be costs of room and board, travel and things like that. My fee was not small, but not exorbitant either. I really thought it would settle based on the Appellate Opinion criticizing the trial judge for a prison sentence to an upstanding local citizen with no criminal record. I could not have been more wrong.

I appeared in Tulare County Superior Court with the client (I can’t remember the time of the year but my best guess would be the Spring of 1986 or 1987, not sure and makes no difference.) Met with the Tulare County Deputy DA before court for a disposition discussion. I was hoping to settle the case for some probationary terms. No such luck, the prosecutor was adamant that the client would be retried on the vehicular felony manslaughter and get the same sentence: 6 years 8 months in State Prison and loss of his driving privileges. So, we appeared in court and set a trial date down the road before a jury.

I should explain, this case was a “cause celebre” in the town. Mothers against Drunk Drivers were behind it and pushing for a conviction and heavy punishment and planned to attend the trial and do anything within their power to see the client convicted and severely punished. Not only was MADD involved as court observers on a daily basis, but the young lady killed had been local, a cheerleader, and also a student at the local junior college. From that background, a new anti drunk driving organization was created and became a national institution known as “Students Against Drunk Driving” (SAAD.) Plus, the local press was all over the case.

OK. I had to see if there were any solid defenses to the charge. So, I needed to check on the validity of the blood draw and subsequent test. The way blood results were determined at the time was through a machine known as a Gas Chromatograph,  which is a device like a small oven that heats the blood sample until it becomes vaporized, then the vapor travels into a cylinder that can measure the amount of alcohol in the blood and translate that result to a corresponding figure with a result in this case around 0.15 blood alcohol in the defendant’s system at the time of the test; in this case about an hour after the accident, when the blood was extracted from the accused. Experts on absorption and elimination generally render an opinion in court based on the accused’s drinking pattern related back to the time of driving and give an opinion based on absorption and elimination rates as to what the defendant’s blood alcohol would be at the time of driving. There is a presumption that if one’s blood alcohol was over .10 at the time of driving one is presumed to be under the influence. Count 3 of the charges also charged this defendant to be over 0.10 Blood alcohol at the time of driving, if the blood was taken within 3 hours of driving. Sort of complicated isn’t it? Most jurors, regardless of evidence attacking the reliability of the blood test and the presumptions attendant to the test, believe if one is over .10 at the time of the test,  the accused is DUI and guilty. A DUI defense, in my opinion, is tougher for the defendant than if he was charged with murder.

However there are defenses and valid attacks on what is known as “extrapolation” (which is from the time of the test extrapolating back to the time of driving, which we will get into later in this blog.)

So the DA will have an expert, so I need an expert as well, to explain the scientific fallacies of blood tests. I am no real expert on DUI blood and breath tests, so over the years, I have gathered scientific articles written by recognized experts in the field and successfully used the articles against the prosecution experts in cross-examination, trying to show that the so-called blood alcohol science, when you get down to it, is mostly based on pure speculation, and I will also cover this later when we address the trial.

There were witnesses who heard the Bronco traveling, and based upon the sound, estimated my client’s speed was around 55 MPH in a 30 MPH area. So, I needed a local investigator, and was referred to a former lieutenant in the Kings County Sheriff’s Department who ran for sheriff against the local sheriff and lost, thus he became a private investigator. I can’t recall his name, but, believe me, he was about one, if not the best, investigator I ever used, and I have used some great ones who I will cover in later blogs. What I look for in a private investigator is a guy or gal who will cover the subjects I am interested in, but also understands admissible evidence and defenses and has the ability to be what I call a self-starter and can find important facts relating to the charges, can analyze witnesses, both from the prosecution and defense and can ferret out stuff I never thought of. This guy was just what I ordered. He was presentable, a rather big guy, but not intimidating, and was just perfect to interview both prosecution witnesses and those for the defense. In other words, he could get reluctant witnesses, generally for the prosecution, to gladly talk to him. Plus, he was the one to discover that the blvd. stop sign on County Center Road at the time of the collision was blocked by over-hanging branches and leaves to the extent that the sign was not visible to drivers, and there had been other accidents and near-misses at the intersection before the City (after the accident, in this case) trimmed those branches for purposes of vision.  So much for blowing off a stop sign.

I hired Harry Kreuper, a mechanical engineer located in San Bernardino, where he is an expert on accident reconstruction and driver’s line-sight problems regarding roads, who not only would be available to testify that the driver did nothing wrong entering the intersection, but from the driver’s point of entry, he would have had the right of way, and he also conducted experiments regarding the sound of the Bronco’s tires, which at the time was consistent to one driving within the posted speed limit.

I actually paid an Orange County crime lab chemist at a previous time $500.00 to sit down with me and explain in detail the various blood and breath tests, the expert articles and anything else, so I could effectively cross-examine the prosecution’s so-called blood alcohol experts, which I will address when we get to the trial in this case. For years, I had very successfully used Darrell Clardy, a former supervisor at the Orange County Crime Laboratory, and an expert on DUI breath, blood and field sobriety tests, and engaged him in this case to examine the blood test method used in this case, as well as the reliability of what I referred to earlier as getting a blood alcohol estimate by relating back and other things we will discuss when I get to the trial.

Enough for today: next blog the trial

Marshall