Donald Bartell's section (Chapter 10) "Attacking Widmark Calculations" is available on the web at http://www.jamespublishing.com/articles_forms/DrunkDriving/attacking_ widmark_calc.htm and is where one can find California DUI criminal defense attorney Don Bartell article. This is the entire 9th and 10th chapters of Don's and Ann D. Imobersteg's book Attacking and Defending Drunk Driving Tests published by James Publishing.

One must contact the author directly. Don practices law throughout California with an office in Riverside County and his e-mail is djbartel@pacbell.net; his telephone number is (951) 788-2230.

California DUI criminal defense attorneys like this book, especially for its discussion of the Widmark formula (Chapter 9) and for its complete layout on how to cross-examine a toxicologist who is using it for retrograde extrapolation (Chapter 10). The authors include the cross-examination step by step, question by question.

Often everything that California DUI criminal defense attorney Don Bartell says may happen during a D.A.'s expert testimony can happen in a California DUI criminal defense attorney's trial: (1) the toxicologist did not use the actual Widmark formula but a truncated version that assumed a given alcohol level for beer, wine and spirits the truncated version is easier to calculate but assumes much more - especially when it comes to the quantity of a drink and the amount of alcohol in beer and wine; (2) the D.A.'s expert never actually read Widmark's book and the D.A.'s expert says he or she couldn't because it was in German (so give D.A.'s expert the English translation of that book); (3) all of the D.A.'s expert factors were based on estimates and not observation of any fact; (4) the D.A.'s expert couldn't say what the averages that D.A.'s expert used to dump numbers into the formula were based on; (5)D.A.'s expert wasn't able to say what the famous R constant represented ; (6) the accused's weight (denominator in the truncated version of the formula) was pulled from the drivers license and wasn't her actual weight at the time (i.e. the California DUI arresting officer didn't ask the accused how much the accused weighed when the accused was arrested; (7) the D.A.'s expert used a burnoff rate (e.g. of 0.02) per hour even though that wasn't Widmark's average burnoff rate. The D.A.'s expert rounds up so that the D.A.'s expert math would be simpler; (8) The D.A.'s expert couldn't answer basic questions about Widmarks studies (that are laid out in the article) and (per Chapter 10) (9) when asked what Widmarks actual formula was, the D.A.'s expert didn't know.

At the conclusion, the state's "expert" should be asked two key questions:
(1) this is all just an educated guess isn't it?
Yes. That is all Widmark is, since it is based on average R constants and burnoff rates for men and women.
(2) If you don't know what the accused's beta factor is, and you don't know what the accused's R constant is, and you don't know how much the accused weighed on the night the accused was arrested, then you don't know how much the accused had to drink that night, do you?
Yes.

Towards the beginning of closing, look hard at the D.A.:
If the facts are against you, argue the law;
if the law is against you, argue the facts; and
if the facts and the law are against you hire an expert! The D.A. hires an expert.
The D.A. is trying to convict the accused with statistics rather than facts. There's an old quote: "There are lies, damn lies, and statistics."

The purpose of an expert is to get the jury to stop thinking; jurors look at a complicated formula and say they don't understand it, but it sure looks impressive with all those numbers, division signs, beta factors, r constants, etc.. So if this expert says the accused is guilty we guess the accused must be? Instead, Jurors need to read the CALCRIM jury instruction that the jurors should use their common sense in deciding whether he or she is guilty beyond a reasonable doubt. They shouldn't get lazy and rely on the D.A.'s so-called state expert.

Concerning the R constant and beta factors that are based on averages, the jury considered an illustration that Bartell and others have used: Imagine that a tailor makes a pair of pants based on the national average for waist size, inseam, leg length, etc. and that is the only size that you are able to buy. Will you buy a pair of pants from that tailor?

A D.A.'s entire case is often based on retrograde extrapolation, and the accused's condition when cops arrived. D.A. told the jury the case was an easy conviction.

D.A.'s experts often use the abbreviated version of Widmark (California DUI criminal defense attorney Don Bartell lays out a beautiful cross-examination for this) and make a truckload of assumptions into the equation including accused's R constant, her burnoff rate, the alcohol content of the drinks and the quantity of the "drink", among others. When reviewing all assumptions and all the averages for the numbers she used in her equation, a D.A.'s expert should admit that he or she was giving the jury only an "educated guess" and has no real idea as to how many "drinks" the accused would have had to have to get to a certain BAC later.

Whether or not you ultimately end up hiring a California DUI Specialist attorney, it is a smart idea to speak to a California DUI Specialist lawyer in this highly complex field.



California DUI Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html .





San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended informed the President of the California DUI Lawyers Association that San Diego California DUI criminal defense attorney Rick Mueller was excellent.

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