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Law Firm of Aaron Bortel

Will Your Attorney Call Expert Witnesses to Testify for the Defense?


Aaron Bortel made a huge problem in my life go away. “After being arrested for DUI and having no idea how to represent myself, I immediately called several attorneys the morning I was released. I was impressed that, not only did Aaron return my call personally but within ten to fifteen minutes. (Only two others got back to me and not in a timely fashion).

I explained what had happened and Aaron told me there were a couple things that didn’t sound right, and he was very confident we could win in court. Well, he was right. Even though my breath alcohol level was .15% (almost twice the legal limit) he won the Motion to Suppress and the court case was dismissed. He also won the DMV hearing. As a result of Aaron’s great work, there was no conviction, no license suspension, no fines, and no points. 100% WIN. Aaron Bortel made a huge problem in my life go away. I can’t thank him enough.”

A DUI Client

Professional and Personal Attention “Aaron called me quickly and reviewed my case with me thoroughly. He did all of the leg work to set up appointments and handle both the Court and DMV requirements. He always made me feel like a deserving citizen rather than a criminal! He was very responsive throughout the length of our engagement, taking time to respond by phone and by email with any and all details that I needed or asked for. I had an extremely positive outcome in both my Court and DMV meetings. I know that I would not have won either of those hearings without the professional and personal attention that Aaron gave in both of these courts while representing me. Thank you Aaron for giving me my life back!”

A Satisfied Client

image-2Interviewer: Let’s talk about expert witnesses. In a DUI case, what kind of expert witnesses would you call, and what would they help do?

What Does An Expert Witness Do?

Aaron: The most popular time for an expert witness to come in on a DUI case, I would say, it would be at a DMV hearing, an admin per se hearing, because most cases have these hearings. Not all cases go to trial where you might bring in an expert witness there. You’re a lot more likely to need an expert witness at a DMV admin per se hearing. In those cases, we can have experts come in and testify to the margin of error in breath testing, which is 20%, according to the defense experts, rise in blood alcohol levels.

They can testify to problems with the breath machines or problems with the blood testing. They can retest the blood. They can testify about the retesting. They can testify whether there was enough preservative in the vial that held the blood.

They can testify whether there was some type of contaminant or something that caused the blood to have a higher blood alcohol level than it should have; some micro-bacteria in the vial. In some counties, like Alameda County, it’s a county where one of the labs notoriously will come up with a blood test, and when we retest it, it will be almost always 0.02 or 0.03 lower, so it’s a lab that’s been brought into question. We can have experts come in and talk about the difference in a retest and how the original test just cannot be trusted when the retest comes back so much lower.

Experts can also testify about field sobriety testing. That does depend on what they’re qualified to do. I use one who’s qualified as a standardized field sobriety test instructor. This expert can testify about all sorts of problems with the testing that someone was given, and this person can talk about how my client actually passed or did not fail field sobriety tests.

They can talk about the number of clues that were observed by the officers, based on the police report, and say, “This is not a fail of this test. It’s not a fail of that test.” The expert witnesses can talk about the circumstances that led to the arrest and detail about my client, such as: Whether it’s rising blood alcohol level or margin of error, and the lack of failing the field sobriety test and the objective symptoms of intoxication, such as if there was no unsteady gait or if the person’s demeanor was very calm and cooperative.

There are many different things that they can look at it and show that it’s more likely than not that at the time of driving, this person was under a 0.08 blood alcohol level. I’ve had a lot of success using experts, such as forensic toxicologists, at the DMV hearings.

For court, these experts would usually come in during a jury trial and testify about a lot of the same things that I already talked about. Having expert witnesses testify at trial is a lot more expensive. However, in a case where you are questioning a blood test result or a breath test result and if you have a client who can afford to pay for an expert witness to come in and testify, then you’ve got a much better chance of winning. It’s usually at least $1,500 to $2,000 to get an expert to come in and testify at a jury trial

Sometimes, I have a client who can’t afford that or doesn’t want to hire the expert, so we’ll cross-examine the prosecution’s expert who will come in and testify about the machines or the blood.

Aaron Bortel

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An Expert Can Be Retained Prior to Trial to Examine Evidence

Interviewer: Is it useful to get an expert witness before even a trial, have them make a determination, and then go to the prosecution and say, “Look. Our expert’s saying this, that and the other, so maybe we can come to an agreement and avoid trial”?

Aaron: Sometimes we can have an expert if we think it will really help and sometimes we have two experts testifying about different things. So, we have them write up a synopsis or a letter to us stating what they’re testimony will be and why.

We can present that to the prosecution, and that has resulted, in a past, in having cases being dismissed or charges being reduced to something that’s acceptable to a client, such as a wet reckless, a dry reckless, or some type of a moving violation. Yes, we can use them that way.

Also, experts are very useful, especially close cases, to help me evaluate a case. I’ve been doing DUI defense for over 20 years, so most of the time I’m pretty good about evaluating without needing an expert to look at it and tell me what’s going on.

There are a lot of times where I want an expert to give me an evaluation and something that I can share with my client, and just say, “These are the strengths and the weaknesses of the case, based on a scientist, based on a forensic toxicologist’s knowledge.”

If You Have a Medical Disability That Prevents You From Successfully Performing a Sobriety Test, An Expert Witness Can Explain the Facts to a Jury

Interviewer: How about for people that have medical conditions that could affect if they’re even able to do field sobriety tests, if they have like acid reflux and they can’t give a breath sample, or if they have something wrong with their blood? Do you hear about people like that?

Aaron: Yes, that’s a very good question. We can use experts in those instances. Medical explanation can get very complicated when we’re talking about acid reflux. There’s a GERD defense, that’s gastro esophageal reflux disease. For that, it helps if someone’s been pre-diagnosed. If not, they can get diagnosed after getting arrested for a DUI.

Experts can become very costly in one of those cases because we need to bring in the defendants doctor, or doctors, who have examined him or her and written their reports or done surgery on them. We need a forensic toxicologist who can testify as to why a breath machine would read someone’s at a 0.13 when they really were much lower, or lower than the legal limit, at the time of driving because the reflux was causing that. That’s one area for a medical defense to use an expert.

Field Sobriety Tests: Should the Elderly and People With a Disabling Injury Undergo Field Sobriety Tests?

The other question you had was about people who may have some type of injury, disability, or just elderly, who can’t perform these tests. Yes, I can bring in an expert witness who can say that they should not have been given them.

If someone’s over a certain age, they should not be given a field sobriety test. If they have injuries, leg injuries or head injuries, they should not be given these tests. Sometimes the police officers will ask people about these, sometimes they don’t. As a defense attorney, those factors can really wipe out the results on the field sobriety tests. The juries won’t take them into consideration as much if a forensic toxicologist or an expert on field sobriety tests comes in a says, “These officers should not have given someone who’s 65-years old and overweight, or who has a bad back, a walking test. Walk a line, turn, and come back, heel to toe; standing on one leg for 30 seconds, balancing tests.” These tests are not designed for people other than people who are 20-years old and who are in very good shape and who have good balance.

By Aaron Bortel

Aaron Bortel

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