Winning Without An Expert

Institute of Continuing Legal Eduction in Georgia
December 2016
Trying A Test Case
Without An Expert
Ben Sessions
@Ben_Sessions
TheSessionsLawFirm.com
The Sessions Law Firm, LLC
115 Martin Luther King, Jr., Dr., SW, #410
Atlanta, Georgia 30303
(470) 225-7710
Friday, December 2, 16

What are the common tactics that work?
❖ There are no "common tactics" that consistently work.
❖ It is the uncommon that works. (No, I'm not talking
about wearing tennis shoes to court or ﬁghting over
what table in the courtroom you get to sit at.)

Do I fight on their terms?

Reconsider how and why you do what you do.
Yes, you are an “underdog”,
battling giants, and you are
probably a misﬁt.

When you engage the State, you have options.
But you have to know some rules.

Where are your advantages?
❖ Time
❖ Repetition
❖ Building upon prior experiences
❖ Group think

So, what’s the catch?
❖ Relentless effort.
❖ It’s hard.
❖ It’s mentally taxing.
❖ You better get a thick skin.

Intoxilyzer 5000

Intoxilyzer 9000

Intoxilyzer 9000
“The new Intoxilyzer 9000 machine is so
much more reliable and better that you
can’t challenge a test from that machine.”
- Me when I’m being lazy
WRONG!!

Intoxilyzer 9000
All molecules are unique, and have unique
characteristics. When a solid or gas is introduced into a
sample chamber, those molecules can be identified by
how they absorb into light at certain wavelengths or
microns.

Source Code
Indeed, the mere possibility that alcohol can remain present in the
mouth due to the existence of a surgical implant and retainer does
not amount to evidence of facts pointing to the actual existence of
excess alcohol in the mouth at the time of Cronkite’s breath test that
should have produced an error message from the Intoxilyzer 5000
that was not produced. Nor did Cronkite point to any other evidence
of facts supporting the existence of a possible error in his specific
breath test results such as discrepancies in the operation of the
Intoxilyzer 5000 machine itself.
Cronkite v. State, 293 Ga. 476 (2013).

Common defenses to the breath test
• Disconnect Defense
• Machine Maintenance/Error
• Mouth Alcohol
• Medical Issues

Carl Bettinger, Twelve Heroes, One Voice
Jury selection ideas: If you show them, they’ll show you.

• Common Ground / Shared Values
• Rule Followers – The Pros and The Cons
Jury selection ideas

Opening statement ideas
• I spoke with you about my fear of the number.
•Ask that they reserve judgment on it until the conclusion.
•Challenge the State to show compliance with the 20-minute
observation requirement.
•Let them know that they will not see compliance with the 20-
minute observation requirement established by the

1. Lock them down with regard to the timeline
2. Lock them down with regard to their observation of
your client
3. Their observation period consisted of times when they
were not watching your client
4. Lock them into their training on the observation period
Goals in cross examination of the arresting officer and breath test
operator

Cross-examination of the operator: the timeline

9 minutes passed from arrival at the jail to the 1st sample
Cross-examination of the operator: the timeline

1. Did not watch my client during the entirety of the 20-minute period
2. He was in the rear of your patrol car during part of the 20-minutes prior to the breath test
3. Possible he could have burped during the 20-minute period
Cross-examination of the operator: observation of my client

1. 20-minute wait period is required before each test
2. During the 20-minute period, the suspect is to be:
(1) in a controlled environment,
(2) prohibited from consuming alcohol, and
(3)monitored for regurgitation or vomiting.
3. If vomit, allow them to rinse their mouth with water, and
restart the 20-minute wait period.
4. This applies to cases of burping or belching where regurgitation
is suspected.
Cross examination of the operator: training on the 20-minute
wait period

1. The mouth alcohol detector is not perfect.
2. The Intoxilyzer 5000 can produce results as high as .11 when a
person has a true Blood-Alcohol Concentration of .000.
Additional Cross-Examination Areas:
3. You wrote the Intoxilyzer Operator’s Training Manual.
4. You established the Intoxilyzer Operator’s Training Curriculum.
5. In order to be assured that mouth alcohol will not influence the
printed alcohol concentration, the 20-minute observation period
must followed.
Cross-examination of the State’s expert: STAY FOCUSED ON
YOUR GOALS

GBI instrument comparison study

GBI instrument comparison study
Total Possible
Points
53
unknown
137
50
65
28
45
378 + Environmental
Conditions Score

The mouth alcohol detector (SLOPE DETECTOR) is not
perfect.

The mouth alcohol detector (SLOPE DETECTOR) a .11 result
with a true BAC of .00?

Comparison of mouth-alcohol curves

We’re not here fighting over general reliability.
We’re here because we think it’s important that they follow THEIR
rules in performing a test.
We asked at the beginning of the trial if the State would simply show
that the rules for performing a breath test were followed.
The evidence does not eliminate mouth alcohol as a problem.
Basics of the breath-test closing

Basics of the breath-test closing

Presumptions:
Jurors will have to make a decision based on their values.
“I charge you that breath alcohol measuring equipment approved by the State Crime Lab is considered accurate
properly operated.”
Johnson v. State
“The presumption of innocence, the burden of proof, and the standard of proof are the fundamental doctrines o
American criminal jurisprudence and the bedrock of determining guilt or innocence in a criminal case.”
Little v. State, 230 Ga.App. 803, 806(2), 498 S.E.2d 284 (1998).
Closing in the breath test defense case

Got a question?
Follow me @Ben_Sessions
and send me tweet or just
follow my lunacy.
Thank you!
Ben Sessions
@Ben_Sessions
TheSessionsLawFirm.com
Want these materials and others?
http://thesessionslawfirm.com/resources

Winning Without An Expert

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