1 Tequila, 2 Tequila, 3 Tequila … Not Guilty! – When Faulty Science Meets a Savvy Defense

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The prosecution, the prosecution, in their subpoena, said, we want the medical records because it's going to assist in the prosecution. I argued to the judge that, one, they don't know what's in these medical records, and they gave a very vague statement on their subpoena, so you can't find good cause just from them going, oh, we think it might help. That's not enough. That's a guess.

And then I said, the prosecution is essentially trying to violate my client's right to privacy, which there is clear case law that says you have a constitutional Fourth Amendment and due process right to privacy in your medical records.

The judge asked me, well, Mr. Hoffmeister, how do you think they're supposed to get the medical records? And I said, with a warrant.

Welcome to Another Not Guilty. I'm David Moore, here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

These stories are about the not-guilty as public defenders get on a daily basis.

In an unjust criminal system.

With a deck stacked against us.

Another Not Guilty.

Welcome back, everybody, to another fabulous episode of Another Not Guilty.

It's your boy, David D, here, and I'm excited about today's episode for several reasons.

One being today's special co-host, my fellow comedian and friend, Ashley Ray.

Ashley, how you doing?

Good! I'm so excited to be here. Very excited about today's episode.

David, how are you doing?

I'm doing good. I'm doing good. I'm a little tired.

I had to be a lawyer today in court, and that's always...

Yeah, you with the important day job. I've just been over here tweeting all day. It's been great.

And I'm sure those tweets have a lot of impact on the world, though.

Yeah, you know. Every day, I help my own clients, in a way.

And then if you get a retweet, then it just makes it all worth it, right?

Yeah, yeah.

I think a retweet is just as good as a not-guilty, so...

Another retweet. We should... That podcast is coming around the circle any second now, right?

Love it.

So that's good. All right. Well, you know, Ashley, after a tough day of work,

ain't nothing like sitting down and hearing about another not-guilty. What do you say?

Ah, nothing better. Nothing better. You know what I like to do after a long day of work? Have a nice drink.

Maybe a tequila sunrise, personally.

Oh. Going on a nice drive.

Maybe not that. Maybe not that part. Maybe. But maybe our guest today can give us some tips,

some notes on what you should be doing after you do or do not consume your tequila sunrises.

That's right, guys. Today on the episode, we have a pretty badass public defender that I work with

here in Los Angeles. Today's guest on the podcast is Kyle. Kyle, how are you doing today?

I'm doing good. I had a long day in court, but, you know, fought the good fight.

You know, just making the prosecution work for every inch.

Nice. Nice.

Don't give in. You're not here to make friends, right?

No. No. My job is always to advocate for my client.

Okay. All right. And you're here to share one of your trial stories with us today, right?

Yeah. This is a not-guilty I got in November of last year. The trial actually occurred right

like the week before Thanksgiving and went past Thanksgiving in the first week of December.

Oh, wow. So you're dealing with all of this while you're also dealing with Thanksgiving dinner,

time with the family, traveling. Okay. So that sets the scene for us.

Yeah. A lot of drinking and driving around the holidays, too.

Yeah. Yeah. That could have helped. Yeah. That could have helped. But like,

no one wanted to be on this jury at that time. But I feel like I got a good jury. That helped.

Well, let's start from the beginning then. What was your client charged with?

So my client was charged with, I guess, what is colloquially called DUI, or driving under the

influence. In the state of California, that's made up of two charges. Vehicle Code Section 23152A,

which is just you drove a car with alcohol in your system to the point that you couldn't safely

operate the motor vehicle. Basically driving impaired because of alcohol. And then the second charge

charge is actually driving with a BSE of 0.08 or more. And both of those together form a typical DUI

complaint. Standard DUI, though. An A count and a B count, right? One is driving under the influence,

and the other one is just driving with 0.08 or more, right? Yeah. Yeah. It's a very common charge.

I don't think you're a public defender if you haven't done a DUI trial. It's just very common.

So Kyle, go ahead. Why don't you tell us about the prosecution facts? What did the police report

read? How did your client get arrested for DUI? So my client was driving on, it's like the 110-101-105.

It's that part of downtown where like one freeway splits into like five different ones. And so my

client is driving there at around 145 at night. She's coming back from Hollywood, trying to go back

home, I believe, to Inglewood or Compton, I forget, kind of towards the South Bay. So she's going north

to south. And she's in, I believe, the lane for the 105 when she needs to go to the 110. And she's

on her GPS. And my client's not from Los Angeles. She's from Ohio. I was born and raised in Southern

California. The freeways are confusing. Yeah. I just moved here. I just started driving. I know the

exact place you're talking about, like the 5, the 110, the 10. It's a mess. It's terrifying.

Oh, yeah. Yeah. It's literally right in downtown. You see the skyline. You see all those big

buildings. She's right there at 145 in her black, in her black Nissan Altima. And as she's trying to

get back home and trying to go to the other freeway, her GPS is giving her confusing directions. I don't

know what type of app she was using, but she was having directions fed to her by the GPS. And she

realizes she's in the wrong freeway. And so she does what a lot of people do. She makes kind of a quick

change. And as she's doing, she crosses the gore point in between freeways. And I didn't know what

a gore point was until this case. The gore point is kind of like the dead zone. When freeways split

off, there's like, it's usually like a lined. Yeah, like that line partition. Sometimes there's like

barrels there. Yeah. Yeah. Yeah. And so as she's crossing the gore point, the prosecution's facts are that

there is this gray Toyota Corolla just parked there. And as she's crossing the gore point,

she clips the Corolla, I believe on the left side, she when she clips it going at about I think 30

miles an hour is what they said, her car just starts spinning, you know, because she just clipped the

car, she spins her car is pretty much inoperable when it stops spinning. The Corolla just literally

goes forward, like, like 10 feet, which I thought was weird. And so the accident happens. The driver

in the gray Toyota Corolla calls 911. And CHP shows up, they get an interview from the guy, and they get

an interview from my client who's actually with her mom. And the CHP then is talking to her getting you

no facts for his accident collision report, notices my client has red bloodshot watery eyes, but she was

crying. And then my client is actually injured. So she has to go to the hospital. And so at the

hospital, the CHP officer is talking to her. And as and as he's talking to her, she's actually in what's

called a C collar or a neck brace. And apparently, she has trouble standing because of pain. And so the

cop is he's talking to her notices the smell of alcohol. And then he's like asking her these questions,

like, supposedly, she says, I had three tequila and orange juices, like an hour apart from each other.

And so he says, he never even asked her if she feels impaired. But he still notices red bloodshot

watery eyes, the strong smell of alcohol, but her speech is normal. His her speech is not slurred.

She's not speaking slowly, you know, she's speaking normally. And so the cop then has her do

um, a couple field sobriety tests, he does the horizontal gaze nystagmus, which is like fall the

tip of my pen. And he's looking and he notices signs of intoxication, right? And just again, he's doing

all of this, this follow the thing with a neck brace on. Is that? Okay. Yeah. Okay. He's cool with

that. He's just like, very happy to give you this thing about your physical ability while you are

wearing a neck brace. Just, I just, I'm just a little like, okay, cool, cool, cool, cool, cool idea,

cool idea. As she's sitting in a hospital bed, I think she was either laying down like, as the bed is

like inclined, or he has like sit up and turn with her feet hanging over the edge. He couldn't remember

which one he did. So after he does the nystagmus and notices these so-called signs of intoxication,

he then has her do what is called the modified Romberg, which if you were to do it the way

police usually do it is tilt your head back and estimate 30 seconds in your head, but she has the

neck brace on. So he has to not quickly, I'm not super familiar. What is the Romberg typically used

for? Uh, so the Romberg test, so the police use what is called the modified Romberg. I guess the

unmodified Romberg is what it would be called is actually a, I had to look this up. People use it

typically in nursing homes for elderly people to judge fall risk because you know, it's like they're

checking your balance to see if you're a fall risk. So the modified Romberg is, you know, till your head

back, estimate 30 seconds in your head and then open your eyes, but she's in a neck brace. She can't

tilt her head back. So the cop has to modify the modified Romberg. And my client then, um, estimates

actually, no, she, she, she closes her eyes. And after 60 seconds, the cop goes, okay, stop. It's

way more than 30 seconds. Romberg is like the scientist who thought of it, right? His name is

Romberg. Yeah. Yeah. It's named after Romberg. I mean, scientists always do that. They always name

stuff after themselves. So yeah. So like the Romberg normally is a fall is to judge someone's fall

risk. It's actually not scientifically validated. The horizontal gaze nystagmus is scientifically

validated. So the horizontal gaze nystagmus typically is in the form of look at the tip of

my pen, usually a stimulus, which is why they use the tip of my pen, essentially something to focus

on. And you're supposed to actually hold it. I think, and David, correct me. I haven't done a

DUI trial in a while. It's like about 12 inches from them. And it's actually, it's supposed to be

a little bit below eye level. You're not supposed to hold it close. You're supposed to hold it 12

inches away. And then it's like, follow the tip of my pen. And the logic behind that is alcohol is a

depressant. Alcohol relaxes your muscles. And so when it relaxes the muscles in your eyes, they have,

they can still focus, but they have a little bit of trouble. And this trouble focusing is shown in the

form of shake or a little bit of shake. The way it's described usually. They call that little

shaking nystagmus. So yeah. And it occurs when the pen goes all the way to this to about 45,

45 degree angle from your face kind of thing. So yeah. So with your right eye, it's at like three

o'clock and with your left eye, it's at like 10 o'clock. And if there's nystagmus when it's over

there or over here, that means you're a 0.8 or 0.1 or something like that. And these

still sobriety tests were created for when the laws were 0.1. Before it used to be, you know,

if you're 0.1, you're drunk. And then they just decided to lower it to 0.08. And then they just

said, everything we've made for 0.1 now applies to 0.08.

So essentially, we have this battery of tests this officer has decided to administer. Most of them

not really valid. A lot of them questionable science behind them. But most importantly,

you have this client, this woman in a hospital bed. So from the jump, not really the place you're

supposed to be administering these tests. I think most of the time they're like by the side of the

road, right? Yeah. And here's the thing. There's many, as I talked about the many different tests,

the walk and turn, the one leg stand, the other scientifically validated tests. He can do those,

but he actually, and this came out on Cross and I can talk about it later. He decided not to do them

because he knows that if these tests aren't done to the T and like really almost a controlled

environment, they're not reliable. So you're right. She's in basically no position to do these.

And especially with nystagmus, where if you have a concussion or if you had to have a head injury,

it can cause what is called false nystagmus or a false positive on the test.

And my client just obviously has an injury from the neck up.

Yeah. And I imagine it's probably hard to move your head from side to side

with a neck brace on. Might cause some issues. Could we maybe tell us a little more about this

client? What's kind of her state going into this?

She was a little bit upset, you know, maybe even consider angry, which I don't blame her. I mean,

I get angry just from watching the news. I can't imagine when someone's actually accusing me of

something where it's just not factually true.

The most frustrating part to me was you said that the cop kept mentioning her eyes were bloodshot,

her eyes were bloodshot. And like you said, she's crying. She's sobbing. There's this,

she's a girl, a black girl traveling with her mom. She just moved here from Ohio. She's in this

accident. And the cop is kind of giving her no sympathy. There's, did it seem at any point that

anyone was maybe caring about the physical health of this woman? Did they care that her neck was injured?

Did they care about her legs? Any sort of concern there? Yeah. So then, all right. So the cop,

the CHP officer does these field sobriety tests at the hospital. We've gone over them. This, the,

the Romberg, she estimates 60 seconds when it's supposed to be 30 seconds, even though she's in the

hospital bed. She does, they do the horizontal gaze nystagmus. So her eye shakes a little bit.

Yeah.

When she's in a neck brace. Okay. Laying in bed. What was, was there a third one?

No, there was no third one, but the cop after that then proceeds to give her what is called

the preliminary alcohol screening device or the PAS as we, I guess we shorthand it.

It's the, it's the black, it's the black box that you blow into on the, on the, on the street. So the

officer says, Oh, blow into this and you blow into it and it spits out a number. So it's called a

word for a breathalyzer, right?

There you go.

Yeah. I mean, technically they're different. And I argued that this wasn't a chemical test,

which plays into the jury instructions, but yeah, she blew into that. And her BAC, when she blew into

that was a 0.198. The legal limit, as we talked about in the state of California is 0.08. So if you

were to accept this on face value, she's doubled the legal limit.

But what, I mean, how much time has passed since the traffic accident and the blowing into the device?

That's, that's actually very important too. That was about 45 minutes to an hour. Um, and the car

accident, we didn't know the exact time, but we roughly estimated it at, um, one 45 in the morning

and she got to the hospital around three, maybe a little bit before two 50.

Okay. And they did the pass at around three or after three?

A little, yeah, a little bit before three.

Because they have to prove that her BAC was 0.08 at the time of driving, not an hour later.

Not an hour later.

The time of driving, it was 0.08.

Yeah.

So that evidence is like an hour later.

And does it mean anything that they didn't have her do the pass at the scene of the accident?

It's, well, yeah, it's also relevant because the farther you get away from driving,

the more alcohol connection, because alcohol, when it comes in your system,

it goes in what is called a bell curve. Like, you know, like if you've ever been out,

you've ever been out at a bar, you're like, okay, let's do three shots. And you just like,

you know, you do a shot, wait a bit, you do a shot and like, you don't feel it, but you know,

you kind of start to feel it. It creeps up in you. And then, you know, that's, that's alcohol

being absorbed in your system. That's alcohol, that's your BAC rising. And then you either

stop drinking, blackout, you know, you stop basically intaking alcohol and then it kind of

plateaus and then you decrease. And that is, uh, the falling alcohol being, um,

it takes like 45 minutes to absorb or depends if you eat, you know, or not, or just takes a while

to drink and it's absorbing. So you can drink and then they take, take your BAC and zero, zero,

then 30 minutes later. Yeah. So very important in terms of figuring out when exactly this woman was

drinking and her state when she was driving. Yeah. I believe the cop supposedly said, which I never

had any audio. The cop said she admitted to drinking about two hours, no, an hour and a half prior to the

accident, but in order, but the literature says you're fully absorbed roughly an hour and a half

to two hours after drinking. So, I mean, timing's really kind of everything, but there's more to

this than just the numbers. Yeah. Okay. So she, he gives him the pass, right? Yeah. And it's 0.198.

So what happens next? So then the cop is like, okay, you're under arrest for DUI.

And then he's like, you have the choice. He basically, actually, he doesn't even give her a

choice. Um, he basically says, is this on body worn video, by the way?

No, no, CHP does not. Um, CHP only has dash cams. So we just had what the officer was going to say

and what was in his report. It's kind of like the olden days where it's like what the cop says

is what the cop says. And you just have to attack credibility. That's kind of how it is.

All right. What happens next? What happens next is like, uh, the cop says, okay, well,

you have to submit to a chemical test. Um, you're at the hospital, so we're going to do blood.

He never tells her you have the right to blow into a breath machine and actually also have the

right to provide a urine sample. But I've never, I've never seen a case where the person gives,

um, gives, uh, the chemical test in the form of a urine sample.

Cause so actually the police officer asks that you, you have as the arrestee, you have an option

because now that you've been arrested for DUI, you have to give a chemical test,

which could be the breathalyzer, blood or urine. Yeah. This part I do know because I've dated

enough white men from Boston who've had DUIs to know how to get out of one. Okay. You never say

yes to the breath, say yes to the blood. Cause it like takes longer or whatever. That's,

that's how my friends have gotten out of them. So I think it would have been a really important

for her to know you have these other options. They can be beneficial at times or better,

more scientific. Uh, and it's, it's horrible that the cop didn't let her know. I, but I guess

for him, it's not to his benefit. Well, I don't know if definitively, he didn't let her know,

but he basically just didn't give her the choice. He's like, you got to give blood or else, you know,

I'm going to get a, I don't know if at that point he said he was going to get a warrant,

but he's like, you have to provide a blood sample. And she's like, okay. So they call a nurse,

the nurse uses ethyl alcohol and ethyl alcohol swab. Um, you know, like if you're ever getting

your, gotten your blood drawn, it's, it's a standard alcohol swab. They, you know,

they got to sanitize the area. He does that. They get a sample. The CHP officer apparently left the

room during this comes back and asked the nurse, well, what did you use to sanitize? And he's like,

Oh, I used this swab and he showed him, apparently he, the nurse shows the actual, like, I guess thing

they ripped it out of. And he was the, it was, it was an alcohol swab, which you're not supposed to

do when you're trying to test for alcohol. Makes sense. Yeah. Yeah. And I did research and there's

literature that says it increases, it increases the alcohol you're looking for and thus undermines the

credibility of the number. So the cop is like, this isn't good because he also knows this isn't title

17 compliant. And the Sergeant says, okay, well get another blood sample or, or you can get a

warrant right now. And so he goes back in and explains to my client, Hey, I need another blood

sample. And my client, you know, doesn't like being poked with needles. Yeah. And also imagine

she's in a neck brace. She's been doing all these tests. She just was in an accident. I would imagine

her mother is, is, you know, still freaking out. And now they're saying we got to poke you with a needle

again because we messed up. Yeah. And, and, and, and so she's like, no, I'm not going to do that.

And then the cop's like, well, then I'm gonna get a warrant. And then she's like, fine, do it. So

between the first and second blood draw was, I think about another 40 minutes, they get another nurse

who then uses, I believe it was, um, iodine and iodine solution wipes her down and goes on the same

arm. They go, they poke the same arm twice and they get a blood sample. And then, um, you know,

my client's arrested, license suspended. Is this, is this all in this, in the police report that it

was a second swab, like second draw? Yeah. Yeah. This was all in the police report. Even in the

police report, he said, like, I did the field sobriety tests while she was in a hospital gurney

with the neck brace, you know, he said in the report, he came in and she was sitting, she was laying

in the hospital bed. And he did note that when he did the Romberg, he had her get out of the bed.

And if you, the way you read the report was he did nystagmus first and then Romberg. So it's

like, he has to order her to get out of the bed. So logically he had to have, he had to do the HDN

test, the nystagmus test in the bed. Did he, did he get the doctor's permission to have her get out of

the bed? Did he will that thing around the bed? So she, cause she's like probably hooked up to

some like fluids or something like that. Or the cop actually handcuffed her to the bed.

He handcuffed her to the bed. She's handcuffed to the bed through all of this? Yeah. I can't

remember. She's handcuffed to the bed with a neck brace on? She's handcuffed to the bed.

Yeah. She was handcuffed to the bed. Wait, okay. So she's like in a car accident in the hospital,

neck brace, and they're handcuffing her to the bed. Like this isn't really a crime with a victim.

Like I do know that she was handcuffed to the bed because I crossed the cop at some point during the

trial and the pre and the pretrial motions. And like almost from the beginning, as soon as he

realized she was, uh, where he thought was a DUI, he was not going to let her leave that room.

I even asked him. So if she had gotten up and just decided, you know, fuck you, not talking to you

and got up and left, he, you weren't going to let her leave her room. He was very adamant. He was

like, yeah, I wasn't going to. At this time, we here at Another Not Guilty want to give a special

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If you too enjoy A&G and want to become a Patreon member and get a shout out on an episode,

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So why at this point is she thinking I need to get a lawyer? I should be quiet. I need a defense or

she's just, you know, for me as a civilian, I feel like if I'm handcuffed to a hospital bed,

I believe I'm in trouble. And I would be like, give me a lawyer. Well, if you're handcuffed to a

bed, you have an argument that you're entitled to your Miranda rights because you're in custody.

Kyle, what does the case law say about when you're handcuffed to a hospital bed? What's the case law

say about that situation? I know if you're handcuffed, generally that indicates custodial interrogation,

especially when you're not allowed to leave. Oh, here's the other thing. My cop was in the

hospital room and then his partner was actually waiting immediately outside. So you have this

kind of like watchman situation to further ensure she's not leaving. And I think, I don't think we

got the number. What was the number on the blood draw? It was. Oh, so yeah, the blood draw, which

what they didn't find out that night, the blood number in the blood draw was, I believe a 0.173 and

a 0.172. So, so it's, it's a lower number. So just to summarize, we have this woman, she's been

driving with her mom. She gets into this accident. The cop gets to the scene, doesn't seem to think

anything. You know, she's drunk, seemed or slow. Her speech is fine. He notices watery eyes, red eyes.

She's been crying, takes her to the hospital, locks her to a bed. She's forced to do all these tests

wearing a neck brace, which is, Hey, questionable. Yeah. Okay. They do the blood results, the pass,

you get the blood alcohol test, the pass results, you get the crime scene report. Yeah. And how are you,

how are you approaching all this? How are you digging in? I wasn't the original attorney on this

case. It was my colleague, Julieta Salvador. Shout out to her because she honestly did a lot of amazing

work. She got this case and then she started prepping it up. Client was very adamant. I'm

not drunk. And she had a job in which if she got convicted, she, she felt that she was going to lose

her job. From the get go, you know, we advised her of all the consequences, potential jail time. And

she was like, no, I'm going to fight this. So from the very beginning, we knew that this was going to

be a trial. Okay. I love, I love, uh, someone who wants to fight to the end. Let's do this. Let's

get in there. So you, you inherit this case knowing there's going to be a battle over your client's

medical records. Oh, right. Oh, hell yeah. And I was personally offended because medical records are so

personal. You know, I mean, my medical records are something between me and my doctor. Yeah. I think

there's a lot of, uh, mistrust on the part of especially black women in the healthcare system

and police. And nobody wants that sort of invasiveness in their, in their personal information.

And especially in this case where it's not like these are people who ever cared about her health

when she was in the hospital, they were making her do all these tests, getting out of bed. We don't

even know if they asked her doctor, is it okay for her to do these tests? Is she able to do these

tests? They had no concern for her mental, for her health records. And then afterwards when it's,

you know, an opportunity to, to, to charge her with something now, all of a sudden they want access

to these records. It just makes me so angry that it's, that it's like, now you want to do this and

you had her locked to a hospital bed. Okay. So Kyle, what, what type of work did you do

to try to prevent the government from getting your clients medical records?

Well, I did a bunch of research to supplement my motion. Um, and I'd been practicing, I think with

the office for like nine months, been an attorney for almost a year at this point. And I'd previously

done private criminal work and I've never heard of the city or of a prosecutor trying to subpoena my

client's medical records. And here's the thing, the prosecution in their subpoena said, we want the

medical records because it's going to assist in the prosecution, but they didn't even know what the

hell was in the medical records. I argued to the judge that one, they don't know what's in these

medical records. And they gave a blanket, very vague statement on their subpoena. So you can't

find good cause just from them going, Oh, we think it might help. That that's not enough. That's a

guess. And then I said, the prosecution is essentially trying to violate my client's right

to privacy, which there is clear case law that says you have a constitutional fourth amendment and

due process right to privacy in your medical records. The judge asked me, well, Mr. Hoffmeister,

how do you think they're supposed to get the medical records? And I said, with a warrant.

What do you say to that? Was he like, she found that there was sufficient cause to believe that

this would assist in the prosecution of my client. And there's good cause here.

What's the money we're supposed to do? There's a good cause, right?

Yeah. Just, just keep saying the buzzword. Oh, it's good cause. Of course there's good cause,

but they, they can't, they can't give you a specific reason why there's good cause.

Um, but you know, I was honestly expecting on losing the motion because they do this so much.

And in this courthouse, the judges are kind of known for just allowing them to do it.

Only that courthouse that the judges just roll over for the prosecution. Nowhere else.

I mean, Dave, you've been a criminal defense attorney longer than I have. And I mean,

you're, you're, you probably are shocked at that, that this happened, that the judge ruled against

the defendant. Yeah. I don't know where you practice. That's why I didn't give you

my prelims when we were coming around. Yeah. Yeah. Yeah. I miss, I miss just had bad luck.

So in, but, uh, in developing your defense, they, they let in these medical records. Uh,

obviously we already have like the blood alcohol test levels. Um, and so is this when you start

to kind of go, Hey, these numbers aren't right. They used an alcohol swab. Hey, let me start

to kind of question the blood alcohol test results. We got to work with in this case.

What'd you kind of look at there? I mean, are you a blood scientist? What did you have

to learn there? No, I am. I'm far from a scientist. There's a joke that attorneys don't like numbers

and I am very much in that category. Um, but I, you know, I did, I did a lot of research,

you know, before actually starting, um, DUI trials and, um, I hired an expert and in, in the blood

discover we got from the motion to compel, there is what I call a chromatograph. And the chromatograph

is essentially the results, uh, of the test when they actually, um, test the blood for the alcohol

and the way they actually test for the presence of ethanol. And then the certain quantity of

ethanol or alcohol in a person's blood is through what is called flame ionization. And what that is,

is the blood is shot through like this like tube and then it's heated up. And when it's heated up

or burned, there's a thing called retention time. And basically you can see what's, you can't see

specifically what's burning, but you can see certain things are burning up and how long they're burning.

And so in that process, you can see, uh, ethanol being burned or the retention time for ethanol there

indicating that what was burned was ethanol and then also other stuff. And so on the chromatograph,

it's essentially a line and then there's a bump, you know, there's a, there's a curve or a hill.

And on this one, you can see a giant hill, which they've designated. Oh, that's the ethanol peak,

meaning that there's ethanol in the bloodstream indicating someone has drank, you know, alcohol

in the blood. But prior to the actual peak, you see, there is also another spike. That spike is not

the same as an ethanol spike. There's something else in the blood.

Blood, if not properly preserved, once it is drawn from the subject will start to decompose,

it will start to ferment and create alcohol in the sample. In fact, scientific studies have showed

that a blood sample containing no alcohol at all can ultimately produce a BAC result of 0.25% or higher

after decomposition has occurred. Here, Kyle is arguing that there is a problem with the blood sample

evidenced by the additional spike in the chromatograph, which was likely caused by blood

fermentation. Blood fermentation defense.

I just want to say, Kyle, it sounds like you did become a blood scientist.

Yeah. Well, okay, Kyle. So, all right. So the blood's not, not reliable as actually pointed out. And

the filter variety tests aren't reliable as actually pointed out. And the, yeah, but listen,

you still have a pass. The pass was 0.19. All right. The blood's 0.17. And that's why you do all

these different things of evidence. So it's all consistent.

David, and justice can't fail because we have the pass. Thank goodness. Okay.

Okay. So, yeah. So how are you going to get around this one, Kyle?

What about that, Kyle? What about the pass, Kyle?

Yeah. Come on.

So the pass device actually has to be calibrated every 150 tests, or I believe every week.

Says who?

You?

Title 17 does.

Oh, title 17. Okay. Okay.

So I actually got the pass logs and I saw when it was calibrated. In those pass logs, it actually

is put next to this air canister with this, I don't even know if it's air or liquid, but

essentially hooked up to this canister with the known alcohol content. And that known alcohol

content is 0.10. And so when they do the calibration, they have to get a reading that

is 0.01 plus or minus. So the acceptable rating would be 0.09 all the way to 0.11. They don't

have to get 0.10 every time. They just have to get within that, you know, 0.09 to 0.11 range.

The margin of error.

Yeah. The margin of error, which you think, oh, like these are very small decimals,

but you know, if you're charged, if you're, you can be charged with DY for a 0.08. If

it's off and you're a 0.07, you may not be guilty of something. But regardless, when I

got the pass, the numbers were all over the place on one test, that calibration result

was 0.091, which is still technically good under the parameters, but it's barely on the

edge. Like if it had just been a little bit less, no good. The pass device is obviously

broken. And then the following test was 0.107. So it jumped. It jumped reading higher than what

it really should, but still technically, still technically good.

I mean, okay. But, but these pass devices aren't like, you know, they just kind of owned

by one officer say, and that one officer is always calibrating it. Is it not that organized?

No. So there actually were on this pass log, there were two pass coordinators calibrating

this device. And that, that 0.091 number and that 0.107 number, those were done by two

different pass officers. You have the number, but you don't know if they got to it by mistake.

So you're saying that the, this pass, you know, this pass device is barely passing, I guess,

no pun intended. Like it's still with, it's still scientifically, it's still falling title

17 because it's within the parameters, but it's a very, it's barely, it's very shaky. It's

barely holding on.

Hardly something that seems like enough for a woman to get convicted and lose her job over.

You know, I don't think it shows beyond a reasonable doubt, but you know.

All right. So you've been, you've been, now you've been able to attack the blood draw and

the pass. What else are you attacking in this case?

So I attacked trying to get my client's medical records in because even though I filed the motion

to quash the subpoena, which is a good cost standard, I, I filed a motion to suppress the

actual medical records. And they're two different things. I motion to quash the subpoena and motion

to suppress are arguing different things in the motion to suppress. I argued that they violated

my client's fourth amendment rights by not getting a warrant because there's no exigency. There's,

there's no exception to the fourth amendment for them to be justified in violating my client's

privacy.

Yeah. And you also mentioned that the cop at the hospital hadn't said that she could give

other samples. She couldn't, you know, she could have given a urine sample. She could have done all

these other things. Could that also give cause for suppression? Is that kind of also?

Yeah. Yeah. So I also moved to suppress that. And there's case a lot says that has to be freely

and voluntarily done. You can undermine a person's free will through like obviously physical force.

You know, there's plenty of cases where a cop has beaten a confession out of someone.

Or having a cop standing right outside your hotel door, one in your, right outside your hospital room,

one in your hospital room and you're handcuffed to a bed. That might be enough to do it.

Yeah. So I tried to suppress that. And I argued to the judge that once she had already given the

blood sample, which they didn't test. In fact, the cop literally doesn't know what happened.

He doesn't know what happened to it. She told the cop the first time, no, I'm not going to give you

another blood sample. And it's only when this cop who has her handcuffed to the bed at this point,

no, she's not going to leave, is not going to let her leave that room. At that point, he goes,

well, then I'm going to get a warrant, you know, and then, and then it's a forceful blood draw.

They actually hold you down and stick a needle in you. And then after that, she relented. And I didn't

feel that that was freely and voluntarily given. The judge disagreed, but I still actually also got a lot of

good testimony, which I used in the trial. This is a lot of research to break all this down. I mean,

it sounds like it's your Thanksgiving break and you became a blood scientist, a past tech expert.

You're learning, learning about blood fermentation, which is like, even the writers on Grey's Anatomy

couldn't grasp that. And the whole time you're also trying to enjoy a holiday. So you're there.

So, um, so Kyle, you know, like all this is great. You've, you found your, your science and your

technical this and technically that, and come come back graphs and technographs and peaks and valleys,

but you know, you're going to have to get a jury to give a fuck and pay attention to your stupid

science that no one cares about. Right. That's, I think, I think when it comes to DUIs is, is that's the

toughest part of a DUI. There's always reasonable doubt in a DUI because it's, it's, it's, it's junk

science. It doesn't really matter. It's fake. They do voodoo dancing with the nystagmus and the one

leg stand and count the 30 or 40 and whatever. And that's supposed to say this and that, but getting

a jury to agree with you is a tough part. So why don't you tell us about jury selection in this case?

So jury selection, I mean, I, with a DUI, I don't really have anything, I guess, too sexy. I guess the

most, the funniest thing or the most important thing I do is I, with every jury selection, I try to break

the ice with the jury because I say, you know, jury selection is about giving unpopular opinions,

especially with a DUI, because you can have someone go, I think it's okay for someone to drink and then

drive. As long as they're not impaired, you can have alcohol in your system. And some people are so

staunchly against alcohol. So one way I tried to break the ice was I do the stupid thing for every

jury selection where I go, ladies and gentlemen, you know, I kind of want to hear your unpopular

opinion. I'll tell you an unpopular opinion I have. Born and raised Southern Californian and I don't

like In-N-Out. I think it's overrated. True. That's true. Yeah. I'm glad someone from the East

Coast agrees. I'm from the Midwest, but I still agree. Oh, sorry. Sorry. I was hearing Boston a bunch.

That's a personal obsession, but that makes a lot of sense. You got to weed out the nerds.

You got to get, what are your popular opinions? I like that. Yeah. And so I was looking for people

who, you know, they don't have to be okay with someone driving drunk, but they have to evaluate

the evidence and actually determine if my client was driving drunk because there was all those

indicators that showed she wasn't, she wasn't drunk. You know, the accident that's, that's

completely irrelevant. Really? That's irrelevant? The accident? It's irrelevant that you were

drinking and you go on a car accident? Totally irrelevant. Did you do a pre-trial motion to

exclude the accident then? I actually did because like, for a DUI conviction.

So talk about the count that says you consumed alcohol and you're unable to operate a vehicle

safely because of your alcohol consumption and they get in an accident and you tried to exclude

that from, I think it's no, no. So no, it wasn't the accident. I was trying to exclude that she was

at fault for the accident. Sorry. Okay. Okay. Yeah. Yeah. It's like the accident was coming in

regardless. Sorry. Whether or not she was at fault, I tried excluding because it's like

that ultimate conclusion is just irrelevant to whether or not she was drunk. I mean, they can

argue that she caused the accident, but I didn't want the cop saying definitively based on my

training and experience, she caused the accident because she was drunk, which actually the cop

didn't even opine. Um, but one other thing during jury selection, which, you know, like I said, this

was during Thanksgiving break. No one wanted to be on this jury. People were saying, I can't, I got to

travel for the holidays. One lady was, uh, saying how she had three kids, you know, they're going to be

on Thanksgiving break. I don't have a babysitter. And the judge was like, I'm not going to excuse you

as she's leaving. She literally pushes open the doors to the point. They make a client, a, um, a

banging sound. And as she's doing that, she goes, this is fucking horseshit.

Were you excited to have her on your jury? Oh, hell no. I did not want her on the jury.

But one thing I was also looking for in jury selection was because my client's African American

and I wanted her peers. I wanted people who knew what it was like to be her on that jury.

And I personally made sure there were other African Americans on that jury because that's

one of the biggest problems we as defense attorneys have is we don't get the representation of our

client on the jury because prosecutors, and there's been studies on this, they're going to

kick minorities. They're going to kick African Americans from the jury ultimately because they

think they're going to relate too much to our client. They're not going to believe the cops

because, you know, Dave's done a bunch of jury trials. I've done a bunch of, I've done not as

many, but you know, um, a sizable amount you, when a prosecutor is asking an African American

about their experience of police, a lot of times it's not positive because they're like, I've been

pulled over for no reason. So that was one thing I was very, very adamant about. And I even told my

client, I want to make sure that you have people who are from your demographic on the jury. And I had

three African Americans on my jury, uh, two females and one male.

Yeah. I think that makes a lot of sense for, for all the reasons you said. And, and I also like it

because I think this is a case where yes, she got a DUI, this crime that I think most of us are like,

Oh, it's so awful, but she really does deserve some sympathy here. She's in the hospital bed.

And I think a black jury would really understand that. You know, I, you're, if you're listening,

I am a black woman, so I can say this, but also culturally when I heard the story, I was like,

I'm sorry, no black girl is drunk driving with her mom in the car. No black girl is drunk driving

with her mom in the car. I know the second I thought I was like, her mom was there. Her mama was in the

car. You're telling me her mama was in the car and no, and her mom wouldn't let her like, you know,

I don't think, you know, anybody's mom would let them do that. It's like, I'm going to get in this car.

You're hammered. I'm going to let you drive. No, like 0.19 hammered. I mean like 0.19, you know?

Yeah. That's fucked up. The second I heard that I was like, I'm suspicious. No black girls jeopardizing

their mother's life like that. Come on. Yeah. So yeah, we picked a, I was actually really happy

with my jury. Um, I even told my client, I think we got, I think we got what we needed. And so after

we picked the jury, it was in, it was onto opening statements. I laid out my entire case for the jury.

I wasn't hiding anything. I told them, I, you know, you're going to hear from my expert.

There's going to be evidence of fermentation. You're going to hear about that. I laid it

out to them. Did you get the jury to like, you talk about science at all when you did

your voir dire and talk about fermentation or like, did that mean anything to you? Like

getting some sort of like nerdy engineers or biologists on your, on your jury, if that

was possible? You know what? I don't know if there was anybody with a science degree or

super sciencey on our jury, but I do remember there was a nurse on our jury and I was actually,

uh, I was worried that she would disagree because scientists have differing opinions all the time.

And I was actually going to kick her, but the prosecution did. So I guess looking back,

they were afraid of my fermentation, uh, of my fermentation defense.

Yeah. They were afraid of your science degree that you earned very quickly.

Tell us about opening statements. You know, I keep, I like to keep my opening statements short

and sweet. I think mine was like seven minutes because this isn't the time we need to need to

spend 20 minutes talking to a jury. They're going to be bored. They, you know, like, they're like,

okay, we've heard a lot about this. Let's just get into it. You're going to hear evidence about

fermentation. You're going to hear these levels, but everything, my theme was everything has to add

up. Everything has to make sense because if you're going to be so sure beyond a reasonable doubt,

you have to be damn near certain and everything has to add up. You can't be going,

you know, this is a little weird. A little weird because your defense is all right. So they got

these numbers, 0.19, 0.17, but you're saying there's no other signs of intoxication. Cause if

you, if you have a 0.19, if you have a 0.17, then your speech is going to be slurred. Your eyes

gonna be watery. You're going to smell alcohol on someone. They're gonna have an unsteady gait

and there's no evidence of that. So maybe there's a problem on the other end, right? Yeah. Yeah.

There's all these things missing, which you would expect, especially from someone who's

apparently so far gone. How does the prosecution, how's the evidence roll out for the prosecution?

Who do they put up? So the first person they put up was the actual driver of the Toyota Corolla

and he actually had apparently had a passenger, but they never called him. So that, uh, he was like,

Oh, we were just pulled over on the side of the road because something was wrong with my car. I

didn't know what it was. And he apparently just stayed in the car and he was there for about five

minutes when apparently he says he felt a bang. He felt a bang on the back of his car. And then

he saw my client's car spinning, spinning, spinning, sees my client get out of the driver's seat. And

then he calls 911. But I crossed him. I was like, well, did you have anything to drink? And he's like,

no, um, my passenger did. That's why I was driving. And it was a question. I didn't care what the answer

was because if he says, yes, that looks good for me. If he says no, I, you know, he's just

mitigating, he's lying. So he's parked in the gore point. And then he, yeah, he, he's felt like he

felt, I think he says like a big bang. He sees the car spinning and then his car just runs forward.

Why is he parked in the gore point?

We, so he says that he felt that there was something wrong with his car and then he pulled over,

but we never figure out if there's anything actually wrong with the car.

Right. Well, nothing that he would admit to. Right. Um, but we had a, I had a 911 call provided

to me by the prosecution where someone was saying, Hey, there's a gray Honda Civic blocking lanes with

smoke coming out. You guys need to come here because it's going to cause an accident. This phone call

occurred at like 142, but he said the accident occurred that the, the, the guy in the Corolla actually

said the accident occurred at like 148 to 150. So after, after this person's making the phone call,

Oh, I also asked him and you're expecting my client to pay for the damage to your car.

And the DA objected and the judge, I was like, your honor, it goes to bias, you know, because

he wants my client to be found guilty and culpable. So she has to pay for his car.

And he said, he said on my cross, he was like, well, wouldn't you think she would have to pay for

it? And I said, it doesn't matter what I think. I want to know if you think she has to pay for

your car. And he goes, well, yeah, of course. So, um, that was, that was, I think the last thing I

asked him. And then we moved on to CHP testimony. Okay. And how'd that go? Um, that honestly went

really well. I feel like that's what ultimately helped my client because, you know, it's, he

basically testified to everything. Um, I told you before that when he, he, he got a call of a car

accident that he saw my client on scene, identified her. And he, he, at first he said her eyes were

red bloodshot and watery. And then he started talking to her and then she got transported to

the hospital. I turned to my client after he said that she saw her eyes were red bloodshot and watery.

And I said, were you crying? And she goes, yeah, I was. So on my cross, um, I asked him,

yeah, my client was crying after the accident, which I felt, you know, he, there was nothing in

his report indicating that, but I felt like that just logically made sense. So I took a bit of a

gamble and he said, yeah, she was crying. And then I just hit on, you didn't notice any, uh, you didn't

notice any smell of alcohol. Right. And you were talking to her for several minutes. Right. You didn't

think to do any of these so-called field sobriety tests at the scene. No. And that's because you

didn't believe at that point you were doing a DUI investigation. Yeah. And she was standing up,

she was standing up and outside of her car at the accident, the scene of the accident too, right?

Yeah. Yeah. You know, the accident freshly happened. She's still in shock, you know,

and he could have, he could have done all this stuff. He could have provided better evidence for

a so-called, you know, DUI, but he didn't do it because all the signs weren't there.

So how, what do you testify about the pass and how'd you, did you tack them on the pass or you just

said, okay, she blew and you got this number. Did you like really hone in on that?

I did a little bit. I explained if he knew how the PAS worked and he really didn't know how the PAS

device worked because he's not the PAS coordinator. So he can't really ensure the validity. He just says,

I gave this test. Here's the numbers. Then pass coordinators, the next witness, right?

Yeah. The pass coordinator is the next witness. And he basically says, this is how a PAS works.

And the thing about the PAS device, it detects more than alcohol. Like if you were actually,

here's the weird thing. If you were to chew gum and it's like sugar-free gum, that sugar-free chemical

will actually give a reading on the PAS device. It doesn't have a lot of the safeguards,

like a mouth alcohol sensor. Like if you were to, if you were to drink a beer, wait 30 minutes,

it absorbs in your system and you burp and you were to blow, there'd be alcohol in your breath

because you just burped. It doesn't have any of those things. So I brought that out with the

PAS coordinator and also the PAS device works essentially by a battery. It basically, you blow

into it and then it uses the internal battery to kind of like heat up the air to see if there's

alcohol in it.

In terms of the PAS coordinator though, did you attack the calibration then?

Yeah. I attacked the numbers too, like the 0.091 and the 0.107. I said, well, those numbers

are good when you're looking at that 0.10 number. He's like, yeah, but if you were to basically

take the difference between those two and you got 0.107, that wouldn't be proper under title 17.

No, it wouldn't. You know, just to convey that these numbers are so far apart that this device,

there's something wrong with it.

Right.

How's the prosecutor been in his presentation of the case?

You know, he wasn't condescending. I got along well with the prosecutor, but he, it was like

a typical DUI trial to him. You know, it's like she was driving drunk, you know, like it's,

it wasn't, there wasn't anything really kind of special. He crossed the cop, you know, did you notice

these signs? What are these signs indicate? How long have you been a cop? How many DUI

investigations have you done? You know, it was just, you know, really just kind of, it was a

straightforward case for him, he thought. Cause in fact, right before we, I announced ready for

trial and got sent out, he said, do you really want to take this to trial? She's a 0.198.

And I responded, she wants a trial. We're doing a trial.

There it is.

Yeah. I feel like this seems like a case where the prosecutor, like I think most people go DUI

is bad. Obviously this is a slam dunk. How, you know, that was it for the people's case.

The last person they brought in was the nurse and he really didn't remember anything. He was very,

his testimony was very short. Um, and I even asked him, you know, about this title 17,

we've been talking about these strict stringent requirements. Or I asked him, do you know what

title 17 is? He's like, no. And then I said, so you can't say if you follow a title 17 or not.

He's like, I can't, I've never heard of it. So that was the end of his testimony. And I

use that to argue to the jury, like these safeguards, the person who's supposed to be

insuring this doesn't even know if he's following it. And so after that, the prosecution rest and

then it, um, yeah, Mr. Hoffmeister, do you have a, do you have any witnesses? Hell yeah, I do.

Um, I, um, we, I, I hired an expert, but I, okay. So as a public defender in LA County,

we don't pay for the experts, the court does. Uh, and this kind of became a point of contention

because the prosecution was claimed to the jury that I was paying this guy to say whatever I wanted,

which isn't, one, isn't true. Cause I'm not paying this guy a damn thing. Um, the, this,

the County is to ensure that someone has a fair trial.

They, they always act like it's a high, they always say he's a hired gun, you know?

Yeah. You're a hired gun. Yeah. And then they always like pull like, Oh, how much are they paying

you? And then, Oh, you do this. And how many cases do you take a year? And you've, Oh, you got paid,

you know, $500,000 over the last 10 years to testify or whatever it is, or something like that.

Anything to discredit your witnesses.

Yeah. I mean, it's like a lot of these people wouldn't do it for free. I mean, it's a supply and

demand market. So I, I mean, I found that most jurors really don't care because they, they're

like, well, of course they have to get, yeah, of course they have to get paid. What else would

they be here? I felt I wouldn't be here if I was getting, if I wasn't getting paid and the jurors

get paid, honestly, peanuts. And also they're kind of forced to, but, um, only the jury is not

getting paid right now. Everyone else is getting paid. Everyone else is, you know, the criminologist

coming in for the prosecution, he's getting paid. It's his job. He knows he has to do it.

Yeah. Everybody, but my client wasn't getting paid. Um, and, uh, she took off, she took off

a couple of days of work. Um, and I, you know, we talked to her about that and she said straight

up like, okay, I don't want to miss work, but this is something I got to do. Um, and she

was Uber in the entire time. Um, so, but, um, so, but my expert, when he testified, um, you

know, I talked to him beforehand, you know, um, I handed over the prosecution, his statements,

they knew about his fermentation idea. And he said kind of what I've been harping on

is that stuff doesn't make sense because he was like, they're saying that her BAC is

this, but there's problems with the PAS. They're saying her BAC on the blood was this, but there's

problems with the blood. And we went over the fermentation, the microbes. And he says, no,

this is actually more common than I guess the more, most people think. And he himself was

a former criminalist and then he went private. And then he also said that the rate at which

my client's BAC dropped didn't make sense because the prosecution's own criminalist says within

an hour, your BAC will drop, uh, 0.015. Yeah. 0.015. The prosecution actually tried to make

it a little larger and was like, well, how about 0.02? And they're like, he was like, it's possible,

but I only feel comfortable saying 0.015. And so my, my criminalist said they're claiming her

blood drop this quickly, but it really can't because the average person does 0.015. And while

there are some examples of people in an hour dropping as high as, I think he said 0.029,

that's on the upper end. And my client, my client, the, the time between the PAS and the blood draw

wasn't even a full hour. So it's not even getting close to that. Oh, and I also crossed,

I crossed the guy on that. It's like, when you make your opinions, you're making a subjective

opinion. Yeah. But I base it on literature, blah, blah, blah. And I also crossed him and I said,

okay, this literature, when you're reading the literature, you're not, you, your job doesn't

ask you to read literature that basically undermines the science. He's like, well, he kind of dodged

it, but I finally got out that he's like, well, I haven't read any of those articles in the course

of my employment, but there are out there. He knows they're out there. Yeah. He's not doing his job.

I feel like what's good about the, when we bring in our own expert for the DUIs is that it cancels out

the prosecution's expert because their experts are the, the police officer that had all the

experience. They bring in the past coordinators, all the experience. They bring in the criminalist

who's all the experience. And they ask them all, do you believe this person was drunk? And it's like,

based off my training experience, I believe they were under the influence. I believe they were 0.08 at the

time of driving. And these are the reason why. And you say all this science, but the jurors aren't

really soaking that in. They just know someone official up there saying this. So then we put

someone up, someone official up there to say all this also to say, no, no, it's not that because

of these reasons, but no one really understands what the fuck's going on. My opinion.

Yeah. And, and also, it's also like, we had to hire someone to take a second look at this.

So then I guess we're moving on the closing statements then, right?

Yeah. We're moving on to closing. Um, my closing, I kind of harped on everything I was talking about.

I was like, this all doesn't make sense. You know, there's fermentation, there's evidence of

fermentation and they just don't want to, they just don't want to acknowledge it. We know that it can

happen. We know that this is so much of a problem that this blood valve company has to put this

stuff in, which, Oh, by the way, even though they're claiming I brought up, I basically argued,

even though they're claiming this isn't part of that recall, we know this place has problems with

making a quality product. I think I argued for like, uh, like 30 or 35 minutes. Um, you know,

everything I've argued and those, those two African-American female jurors, I was looking at

them. And as I was looking at them, one of them was literally nodding her head throughout my entire

closing. And I was like, I got my one. I got my one. And, you know,

I just harped on that. Like, look, this is beyond a reasonable doubt. You have to be so convinced

that it's to a near certainty. And I said, if you have to ask a question, if you're left wondering,

well, I wish I heard this, I wish I saw this. That's because you have a question. And if you

have a question, you have a doubt because you want more, you're not satisfied. And so when I sit down,

I, uh, I turned to my client and this is kind of, I guess, uh, conceited, but I like to know how my

client thinks I'm doing because I want to make them happy. You know, I'm their attorney.

It's because you care about your client. You care about doing a good job. It matters to you that

you do that you, you're putting in a lot of energy and work here and you want to make sure that it's

coming across. So, yeah. And one of the primary people who I think should care how I'm doing is

my client. Because if I was in my client's shoes and if the jury was in my client's shoes,

you don't want the attorney who throughout the entire trial, you're going like, I am so fucked.

Yeah. In your closing, did you kind of bring up any of your client's personal stuff to get the

sympathy? She just moved here six months ago. It's a lot of traffic there. Did you kind of try to,

you know, her mom was in the car. Did you try to play that sympathy?

They did bring up the fact that like, okay, my client, she's from Ohio. We know that. She's not

familiar with LA and let's assume she is at fault. You know, even though the cop said he made that

termination before she was, before he made the conclusion she was drunk, let's assume she was

at fault. Who cares? She's a bad driver. This is LA. Who cares? If you're a bad driver, it doesn't

mean you're drunk. And especially it's a confusing freeway. The prosecution actually admitted an exhibit

of a Google map of all the different freeways where this accident occurred. So it's not that she's a,

that she's drunk, you know, worst case scenario, she's a bad driver or she's confused.

Okay. So you've turned to your client and you said, yeah. So, um, after, after my closing,

I sat down, I turned to my client and I said, uh, what did you think? And she, she looked at me and

she actually had a smile and she said, I believe you. Amazing. Oh, she's my superhero now.

Kyle, let me ask you this though. When you asked that question, how did you think you were doing?

Yeah. I mean, I actually felt really good. I was actually feeling myself during this entire trial.

Like at one point when they, when the cop said my client allegedly drank orange juice

and tequila, I asked, um, I asked the cop or the criminalist, isn't that actually called a tequila

sunrise? The DA objected relevance and the answer came out that the witness didn't know. Yeah. I mean,

like it's not relevant. I think I showed the jury how much of a alcoholic I've, I've been in my life

right now. That's a tequila sunrise. Yeah. But I, I, I honestly, I felt like this, I mean,

in the beginning there was some four twos that are motions of lemonade that were against me,

but I just felt that everything I wanted to come out of the trial and everything I wanted to happen

happened. And, you know, as an attorney, I feel like that's all you can do. You get all the evidence

you want. It's up to the jury. And I felt like I picked a damn good jury.

Nice. So tell us about jury deliberations then.

We closed and finished everything at 11, no, at like 10 30, the judge did their final instruction.

So the jury got the case at like 10 40. I went back to my, actually I was, I was in a courthouse

that I wasn't stationed at. So I was in someone else's office. And I was just waiting. The lunch

break hit. I went to lunch. I was, you know, I, I enjoyed it a little bit. And then when I came back,

I started getting nervous. I like, it was, it was the weirdest feeling. Like, cause I just,

I had time to actually think about everything. Cause there was like, there's always a come down,

you know, cause you're in trial, you know, you're in that mode for so long. And when it stops,

it's, you know, you're, you're in like, okay, relaxing. And then it's like, oh my God,

what's the jury thinking about?

You're thinking about what you could have said or what you didn't say, or maybe I should have said

it this way or.

Yeah. You can't, you can't bring out everything. Um, or you usually don't bring out everything you

want to. So they started 10 30. We got back from lunch at one 30. The jury started deliberating

at one 30 and I had around like two 15 or two 10, I get a text. And usually when I get,

and I know it's from the clerk because I recognize the number, but I don't see the message and I'm

thinking, oh fuck, they have a question or they hung, but I get the, I read the text and it says

verdict. And I'm like, fuck, you know, I mean, which quick minutes really. And yeah.

Yeah. I know for me as someone who, who, you know, watches TV, typically it's, if it comes

back quick, that's not good. Uh oh.

Yeah. And like, I was like, I was so calm. I had such like, I was so confident too. Cause

I had that one juror and I just, and other, a lot of the other jurors in my closing, like

they're very stoic. So they're not showing emotion. And so I go down to the courtroom, my

client's waiting outside and she was actually watching, um, she was watching a handmaid's

tale. And I was like, we got a verdict and she was, I had, I was more nervous than she was.

She was a really good show. She probably just got into it. I mean, it's Mary Griffin.

No, no. She told me that she was like, she was, cause she did a bunch of sitting around. She's

like, I'm on, I'm on episode two. And she, before we went in the courtroom, she's like,

you should really watch it when you get a chance. And I was like, okay, I was like, we got a verdict.

We got a verdict. So, so we get in there before person says, your honor, we have a verdict.

I give it to the, uh, the clerk and the clerk reads both counts. And it says, uh, my client's

name, we, the jury in the above a town action find you're not guilty of count one. And I

was like, okay. You know, I was like really happy. You're not guilty on count one, but

juries sometimes will find not guilty on the impairment, but on the BAC.

The jurors will do split the baby. Okay. Let's all agree. We'll say not guilty on one

and guilty on the other. Get her on something. Yeah. It's like, it's like the same consequence

where there's two guilties or one guilty. It's the same thing. They think you're, they're

doing you a favor. So we read count one. I'm like, I'm like happy, but I'm like, I'm not

out of the woods yet. Neither is my client. And then I count two, we, the jury in the above

entitled action. Fine. My client, not guilty of vehicle code section two, three, one, five,

two, having a BAC of points or eight or more. They read out the entire charge. And then my

client, she's, she's crying. And I'm like, I put my hand on her shoulder and, um, Michael

Kelly, I heard what he said to his client when he got a not guilty. And I kept, I told her

the same thing. It's over. It's over. You know, because this had, this had consumed several

months of her life where she was in this limbo and she was crying. And I, you know, she was,

she kept saying, thank you. Thank you. And I was like, it's over. And then, um, Michael

Kelly, a public defender from which, which episode of Michael Kelly? Cause he's been a guest three

fucking times on this show. No, no, it was, it wasn't when he was, oh, you're right. He

has done a bunch. It was the one where his, um, his client was allegedly charged with the

murder of an unborn fetus. Oh yeah. Yeah. Which, which like, if you're just here that you're

like, oh my God, like, how'd you get a not guilty and should you have gotten a not

guilty? But if you, once you listen to it, yeah. Season three is episodes five and

six, I think, or four and five.

But yeah, after we got, here was the funny thing. I was looking at my client, you know,

you know, not trying to calm her down, not really consoling, but just being like, you

know, like, let's enjoy this moment together. The prosecutor told me afterwards, cause I

wasn't looking at him. He said his job was, his job was on the floor. He was like, afterwards,

we talked to the jury and this Hispanic juror comes up to me. Uh, and I think she like taps

me in my shoulder or she gets my attention. She turns, she comes up to me and she shakes

my hand, looks at the prosecutor and then walks away.

Ooh, did that feel good? I bet that felt good.

I mean, it wasn't like feeling good. Cause I hated the prosecutor. Cause like, I didn't,

you know, I felt like he was doing his job. I, we didn't clash heads that much, you know,

but it was kind of more like, you know, like further validation that they saw what I wanted

them to see about my client. You know, they saw that my client wasn't this drunkard, this

monster that the prosecution was trying to make my client seem.

Yeah. And also that you put in so much work, uh, not only to, to defend her in, in this horrible

charge that, that just really didn't have a basis, but to protect her medical records,

to kind of give her, her humanity back after this cop handcuffs her to a bed. I think that's really

clear, uh, probably to the jury that, you know, you did become a blood scientist. You really did.

Yeah. You know, I feel like these, these DUI trials from my experience, they're, they're tough to

win. They're also kind of fun. Cause you gotta like learn all that science.

And try to regurgitate it and, you know, go up against an actual scientist and somehow convince

the jury that you, that what you're saying is more persuasive than the scientist. And it sounds

like you really dug in there and, uh, became the expert. So, so good job on this case. I don't,

I mean, that's a tough win.

The client on this case, uh, how is she doing now? Have you kind of kept in touch? She just

said, thanks. And I didn't call her afterwards. We just kind of parted ways afterwards. And I told

her, like, look, I love you, but I don't want to see you again when I'm wearing this suit.

Hey, yeah. I think most black women, uh, we're fine if we never see a nice white guy again. Thanks

for helping us out. We can go our separate ways. Thanks.

Nice. So you left it open then. I like that.

Yeah. Um, all right, Kyle. Well, you know, we're at the end and going to ask a question.

The question that we ask all public defenders, uh, last question of the interview is, um,

why did you become a public defender? Oh God, this is, this is a podcast in and of itself. Why

each public defender became where, what we are today. I guess in summary, I had, um, I had a bunch

of friends who are African-American and their experiences with police and just really authority

was so different than mine. And from an early age, I was like, I knew they weren't lying. I was like,

why is that? Why are they different? And quite frankly, and bluntly, it's the color of my skin.

I'm a Caucasian male. Um, and I'm not saying I, that I'm ashamed that I'm treated nicely by people,

but I want my friends to be treated as nicely as me. You know, I want everybody to be treated nicely.

And it's not fair that they're, you know, harassed by police. You know, that my friend is just

driving and the police registration, pull them out of the car and searches, search the car.

Cause that wouldn't happen to me. I think the cliche cops should treat everybody like they're white

regardless of their skin color. And I remember my friend Chibuzo, uh, he's my best friend. He told

me about one of his experiences with police that was really negative. And I was, I was very emotional

because I was like, I'm hurt that I can't help you. I'm hurt that you're telling me this. And I feel

powerless because you're my best friend. I want to help you. And I can't. And his response was,

don't worry about it, man. It's, it's just how it is. And I was like, no, fuck that. You know,

that's not how it should be.

I love hearing that. Cause I think even, even as a black person, you, you know, you know,

okay. Public defenders are supposed to be here for me, but I think most of the time you think this

is a guy who probably has quotas, who doesn't care about my, who doesn't care about me.

This is just his job. So to hear PDs who actually are getting into it because they do care about,

you know, addressing inequality, uh, misjustice and abuse by cops. That's great.

That's yeah. That's exactly why I became a lawyer. And, um, I gravitated towards the public defender

field because I knew I wanted, I mean, all attorneys help people to an extent, but I know I wanted to

help those who really needed it. As cliche as that sounds, that's literally why I became a public

defender.

Great. Well, we're glad to have you on the team. Thanks for being on the show. Thanks for sharing

your story and, you know, go ahead and send it, send an email about that other not guilty you just got,

you know, uh, lovely to have you back again. Uh, Ashley, thanks for being my awesome cohost.

Thank you so much for taking the time. Thank you for doing the work. Thanks for helping this black

woman be, be out in the world. Thank you for stopping the prosecution from, from taking another

one of us out, man. That's, that's what I try to do every damn day. Thanks for tuning in to this

week's episode of another not guilty. Shout out to Daniel Mark, original A&G theme music composer

and Mike Grimm for the remix. And guess what? We'll be back in two weeks with another not guilty

straight from the trenches.

We'll be back in two weeks with another not guilty straight from the trenches.