The above is Part One from a lecture given by Attorney Justin J. McShane before the North Carolina Advocates for Justice “Advanced DWI Seminar”.  This seminar happened on February 26, 2010.  It was organized and hosted by John K. Fanney, Esquire of  Fanney & Jackson, P.C. The following is a transcript of this video:

My name is Justin McShane. I am from Harrisburg, Pennsylvania. That’s our state capital, not Philadelphia or Pittsburgh. It’s right in the middle of the state. As John referenced, National College of DUI, I am a member of. If you have questions at all about the blood testing related to cases, that’s what I specialize in. That’s kind of what I am known for. Just shoot me an email and you can contact me through my twit face, you know, whatever social media that’s out there, or through the website that is there.
The topic of this talk is “If You Want Blood You’ve Got It: Understanding, discovering, preventing errors in blood testing.” That is a nice title but the real title of my talk is going to be about how you need to start using experts and how an analytical chemist can be your best friend.

I would like to set the stage if we could just by very simply listening to the Bare Naked Ladies.

[Music – The Big Bang Theory Theme Song]

Bang! Okay, that’s what this seminar is going to do for you. We have such a star-struck, great lineup of speakers who are here throughout the day that you have heard about. This moment in time, hopefully you will look back and say, “My goodness, this was the big bang in my DWI career.” That’s what we hope to do.  And I am here to talk to you about analytical chemistry and specifically about that magic number that they pump out whether it is from a blood test, or if it comes from a breath test. What we are basically going to do is take a look at blood testing in great detail.

Now, blood testing, I understand, is about 1% of your state cases, from talking to John and a lot of other people. The reason you are you going to start seeing a lot more blood cases today is number one, serious accidents; number two, you guys are doing a great job challenging breath test cases. They know, the easiest thing in the world to do is scare you with words like “gas chromatography” and stuff like that.

Is there anyone in this room who has an analytical chemistry background? See, this is amazing. I go all across the United States and give this type of seminar – there is maybe one person who has ever raised their hand. Just to give you a background.

[interruption – murmur about the people with analytical chemistry background]

Two, great.

The whole point of it is that we, as lawyers, did everything we could to avoid science as much as possible. But, if you understand science, science is great. The truth and the best way to win these cases is through science. The day and age of smoke and mirrors is over and done with. The science is actually on our side. One of the things you will note when you start to try to present more science in the courtroom, in a legitimate manner, the more they will resist your efforts to do so. They will try to exclude your experts, they will try to tell you that you don’t need discovery, and that’s exactly, pretty much, what you are going to run into.  But what you have to do is remember this quote from Robert Frost. I believe in this quote, it hangs in my office, that twelve or six members of the jury, do you have twelve or six? Twelve. They are actually there to judge who has the better lawyer. That comes through science, and the honest presentation of science. Science is the truth, science is the defense. Does anyone ever watch the show The Big Bang Theory at all? It’s a great show. They have a motto that says, “Smart is the new sexy.” Well, smart is the new not guilty in DUI defense. Playing hide the ball, smoke and mirrors and only trying cases that are refusals or ones that are “Who’s the driver?”, that only gets you so far.

I am going to show you in this presentation how you can challenge the science that is being presented, force it to be shown for what it is, both its limitations and its good parts, and to start taking this back and making it so it is a not guilty.

With the objectives that we have here and if you present it, and I do this all the time, I do it in different states and have the pleasure of going around the United States.  If you start to show a jury the science you can use that “CSI affect” that we all know about to your benefit, where at the end of the day, you present it to them in an honest way and you show the limitations of the testing – juries get that. You’re going to empower them not to ignore things, which are our traditional method, but to vote science at the end of the day. It is very important to take a look at that.

My objectives today…and just so you know, there are hand-outs that I think everyone has one here. There are only a couple of new slides that I have added since I was out in Seattle. Basically, this is being taped by both you good folks and I am also taping it. It will be on YouTube at some point in time along with the PowerPoint slides being integrated. The reason I tell you that is because I want you folks to be exposed to this. I want you to sit back and listen. Don’t worry about taking down notes, okay?  Everything is in there. If you have questions, I am happy to answer it all. It’s going to be like a foreign language to us because we are all liberal arts majors. That’s what I was too, a liberal arts major. The whole point of it is not to become a master or an expert, in and of yourself, but to know what to look for so you can call up the expert or you can ask the question of John and some other folks that you have in this great state here, as far as what to do.

Our objectives here are to help you identify current issues in defending the citizen among us accused of a DUI offense; to introduce you to the science of analytical chemistry; expose you to an idea of how to totally frustrate a DA because you have learned the science and he has absolutely no idea about the science; to learn how to force better deals because what you are looking to do is create that knowledge gap. A DA is not supposed to lose a DUI case. How many people used to work in a DA’s office? If you lost a DUI case, didn’t you get made fun of? You aren’t supposed to lose those cases. It’s like losing a hand-to-hand delivery case. It just doesn’t happen. What you do is get them embarrassed of the fact that they don’t know what you know and what you have been exposed to, and it is going to force a deal at the end of the day.  It will teach you how to better cross-examine experts so you know exactly what you are talking about.  And then start using expert witnesses.

By a show of hands, how many people have ever used an analytical chemist or a pharmacologist in their DWI trials? We have 4 out of 98.  If you have an analytical chemist and a pharmacologist and someone who is well-versed in the SFSTs, you are going to be an absolutely deadly person. Basically, what we are going to be doing here together is learning how to become that most awesome weapon of mass acquittal. So become that weapon of mass acquittal. Let this be the spark of where you want to go with your career because not guilty’s is what we are supposed to do, and I am going to show you how we can do it.