A fine line

In April, San Diego City Attorney Jan Goldsmith declined to file drunk-driving charges against local TV sportscaster Kyle Kraska, despite a police-station breathalyzer test that put Kraska’s blood-alcohol content at .09, just above California’s legal limit of .08.

Kraska’s attorney said the case was dismissed because of police error, though Gina Coburn, spokesperson for the City Attorney’s office, would say only that prosecutors felt they couldn’t prove the case beyond a reasonable doubt.

If comments posted in response to online news articles are any gauge of public sentiment, the “reasonable doubt” explanation didn’t sit well with folks; with field sobriety tests, breathalyzers and blood-draws, you’re either legally drunk or you’re not, a lay-person might assume. And, as statistics bear out, beating a DUI is tough. Of 7,226 DUI arrests made by San Diego police officers in 2008, 6,777— 94 percent—were found to have enough merit for charges to be filed, according to the City Attorney’s office, which handles misdemeanor DUIs within city limits. Countywide, in 2006 (the year for which data is most recently available), of the roughly 18,000 people who were arrested for driving under the influence, around 95 percent of them were convicted of something: a misdemeanor or felony DUI, or the person agreed to a lesser charge, like reckless driving.

In Kraska’s case, his attorney, Greg Turner, argued that arresting officer Marco Perez made what Turner described as an “egregious error.” According to Perez’s written account of the arrest, around 8 p.m. on March 14, Kraska was speeding on a residential street and nearly hit Perez, who was walking back to his cruiser after stopping to find out why a kid on a skateboard took off running when he spotted the police car.

Perez said he used his flashlight to signal to Kraska to slow down, then followed on foot as Kraska pulled into a nearby garage. When the garage door started to close, Perez triggered the safety sensor with his foot and entered the garage where, according to his account, he noticed Kraska’s eyes were bloodshot and he smelled of alcohol. He asked Kraska to exit the garage and walk into the street, where Perez conducted a field sobriety test.

“At the completion of the test, I told Kraska that I believed he was over the legal limit and I was going to transport him downtown,” Perez wrote. Kraska opted to take a breathalyzer test at the station, failed, declined to submit to a blood test and was booked into jail.

In a letter to Goldsmith, Turner argued that the case should be tossed because Perez entered Kraska’s garage, violating Kraska’s Fourth Amendment protection against warrantless intrusion.

“Where an officer’s violations are so egregious,” Turner wrote in a letter to Goldsmith, “it is our shared duty to respond to them with a heavy hand to preserve the integrity of what we each do.”

In an e-mail to CityBeat, San Diego Police Department spokesperson Monica Muñoz said the department was not informed that Perez did anything wrong.

“We have not been asked to look into any allegation of improper actions on the officer’s part,” Muñoz said. “The city attorney chose to exercise prosecutorial discretion, but that does not mean that anyone did anything improper in the case.”

CityBeat ran Perez’s actions past several attorneys, both prosecutors and defense. While a couple were surprised that Goldsmith didn’t file charges—“I believe they have filed on weaker cases than this,” one defense attorney noted—others said he probably made the right decision.

DUI is the rare misdemeanor offense that allows police to enter a home without a warrant—but they must prove exigency, said Gary Gibson, a veteran public defender and adjunct professor at California Western School of Law. In other words, something about the situation demands immediate action—if the suspect refuses to come out of his house long enough, his blood-alcohol content will dissipate or he might drink more alcohol, making it impossible for prosecutors to prove whether he was legally intoxicated while driving. And, Gibson said, the officer needs to reasonably suspect that a person had been driving drunk in order to enter the house; speeding might not rise to that level, he said.

Dan Fox, an attorney for the DUI-focused California Traffic Safety Resource Prosecutor Program, agreed that it would be tricky to justify Perez’s need to get into the garage. Still, he said, Perez’s actions were “proper and legal.”

“I had a case almost exactly like this,” Fox said. “The defense ran a motion to suppress [evidence from the arrest] claiming Fourth Amendment violation. The defense lost that motion.

“The argument,” he said, “is about flight. Not saying it is a cut-and-dried matter, but I would find it hard to believe that the city attorney would back the defendant’s allegation of illegality.”

Fox reviewed the police report and said a more likely defense would be what’s known as “rising blood-alcohol”—a person’s blood-alcohol content (BAC) reaches a peak before it starts to come down. The question is whether that peak happened while driving or later on.

“Given his breath results, time of test, time of arrest and drinking chronology, there is serious doubt as to whether he was over or under .08 at the time he came around the corner and pulled into his garage,” Fox said.

The reason any information about Kraska’s arrest is publicly available—the San Diego Police Department and City Attorney’s office declined to release the police report or BAC test results—is because the sportscaster is challenging the Department of Motor Vehicles’ suspension of his driver’s license. It doesn’t matter to the DMV whether a person is prosecuted or found not guilty of DUI. If your BAC is .08 or higher, your license is automatically suspended.
“It’s an administrative procedure,” DMV spokesperson Armando Botello explained. The record “doesn’t have to show anything beyond the BAC reading.”

A person can request an appeal hearing with a DMV safety officer, which Kraska did. In a letter to the hearing officer, Turner argued not only the legality of the stop but also a laundry list of things that might have skewed his client’s test results. Kraska belched shortly before the breathalyzer test (if this happens, the test administrator is required to delay the test for 15 minutes—which police did, according to the report); he wears Invisalign braces, which could trap alcohol (police are required to make sure a subject removes all mouth devices prior to the test, attorneys pointed out to CityBeat); and he’s on a no-carb diet, which, studies have found, causes the body to produce acetone, which could mess with breathalyzer results (Muñoz said the type of breathalyzer the San Diego Police Department uses, the Intoxilyzer 8000, is set up to detect acetone and will give an error message).

“They come up with all sort of defenses,” Fox said, “and it’s not to say that they’re bogus, but most of the time, to pull them off successfully is going to be difficult. Last year, I would bet that somewhere in Palm Springs at a defense attorneys’ conference, someone started talking about the Ambien defense. So, all the sudden, we started to have Ambien cases. A current one up right now is GERD, gastro-esophageal reflux. That’s a big one. Periodically, dentures. Invisalign braces? I haven’t heard of that one.”

The DMV hearing officer upheld Kraska’s license suspension; the next step is to challenge the suspension in court, which Turner plans to do in November, when, if he chooses, he’ll have one additional item to argue that he didn’t have before. Last week, the state Supreme Court agreed to allow DUI defendants to challenge the formula used by breathalyzers to convert a breath into a blood-alcohol percentage. Called “partition ratio,” it presumes that, on average, the amount of alcohol in 2,100 milliliters of breath equals the amount of alcohol in one milliliter of blood. Though the formula is skewed slightly in the defendant’s favor, the justices agreed that there are people for whom the 2,100-to-1 ratio doesn’t apply and whose BAC would actually be lower (as well as higher) if breathalyzers were capable of measuring everyone’s unique partition ratio.

“It will allow defense attorneys to dump a lot of information on jurors,” Fox said. “It’s a nice ruling for a defense; it really won’t change DUI trials that much in terms of their outcome, but it is going to make them messier and more time-consuming and potentially more complicated for everybody including the jury.”

Pat Hodgkin, executive director of the San Diego County chapter of Mothers Against Drunk Driving, said she’s concerned that the ruling could throw a wrench in an already impacted court system. Hodgkin said that a blood test removes any doubt raised by breathalyzer tests.

“It’s better for the case because blood, there’s no arguing, so it’s a slam-dunk,” she said. 

An earlier version of this article had attorney Greg Turner's name as Greg Taylor. We apologize for the error.

Write to kellyd@sdcitybeat.com and editor@sdcitybeat.com.