It is amazing to me there aren’t more appellate DUI/DWI decisions in D.C. Yes, a recent case – Taylor v. District of Columbia – dealt with the legal definition of impairment. Beyond that, however, there are few cases in an area of the law that is in urgent need of reform.
Take existing case law on the Horizontal Gaze Nystagmus Test. (Please.) The HGN is one of three tests in the standardized battery of tests developed by Marcelline Burns for the National Highway Traffic Safety Administration. Although NHSTA later commissioned three studies that supposedly validated the tests, the HGN has never been peer-reviewed. Yet it is now widely accepted in jurisdictions throughout the United States.
How did this happen?
The current state of the law in D.C. is illustrative. Karamychev v. District of Columbia is the case that brought the HGN to the District. The language that the government loves to cite is based on the holdings of courts in Iowa and Ohio: “testimony by a properly trained police officer with respect to the administration and results of the horizontal gaze nystagmus evidence is admissible without need for further scientific evidence.” As far as I can tell, the Iowa and Ohio courts never undertook a detailed examination of the HGN themselves. They simply deferred to other courts that had already adopted the test. These courts, in turn, had based their holdings in large part on the testimony of none other than Marcelline Burns. In other words, the test is valid because its developer and her NHSTA sponsor say it is valid.
There are similar problems with the science behind alcohol breath testing. In order to maintain the fiction behind breath testing, courts throughout the country accept the self-interested claims of the breath test machine manufacturers who are seeking to market their products. The courts ignore the arguments of serious and impartial scientists like Michael Hlastala who question the science behind this technology.
So why haven’t these issues been challenged more in the District? Yes, DUI/DWI appeals are expensive. But so are all criminal appeals.
My explanation — based on purely anecdotal evidence — is that there are a number of factors contributing to this phenomenon. First, because of the special stigma attached to DUI/DWI convictions, people are reluctant to have their names publicly attached to an appellate case. Who wants to become the Ernesto Miranda of DUI cases in the District? Secondly, there do not seem to many appellate lawyers who have worked as DUI trial lawyers. Finally, although some of my DUI colleagues are among the best trial lawyers I have ever seen, these people generally do not like to do appeals. They want to be at trial, not tucked away in an office working on an appeal.
I hereby put people on notice that I am actively seeking out cases to appeal in D.C., Virginia, and Maryland. I promise to share the costs of an appeal in D.C.