Talk Story
Arakawa’s unsuccessful
defense wins points
for creativityCLYDE Arakawa is going to jail. Justice has been done, but with little satisfaction. From the moment "when he entered the Pali and School Street intersection, within seconds, his whole life changed," his mother, Aiko Arakawa, correctly observed.
Dana Ambrose is dead. His life changed; hers ended.
The cards were stacked against Arakawa. A police officer, sworn to protect and serve, spends an evening drinking, runs a red light and smashes his car into that of a 19-year-old with a promising future. Her future is over, gone, while he's filmed schmoozing with other policemen at the scene. The tapes are broadcast to an outraged public. Arakawa's goose is cooked.
According to experts, usual defenses in cases involving drunken driving include claiming the cops had no "reasonable cause" to stop a suspect. If proven, this requires the judge to throw out evidence such as breath or blood tests. There must be "probable cause" for an arrest, too -- not just the smell of alcohol.
Neither of these defenses had a chance in the Arakawa case. The twisted metal and fatally injured victim were irrefutably probable and reasonable causes.
Another common tactic is to show that police used sloppy procedures and didn't precisely follow the state laws and regulations for collecting evidence. Arakawa tried that, complaining that a Sgt. David Talon mishandled evidence.
It sounded like a stretch. Arakawa claimed Talon should have photographed the light bulbs in the traffic signal, which fell on the hood of his car during the crash, in their original positions before removing them as evidence. Also, he said Talon locked them in his desk drawer rather than turning them over to the evidence room, violating procedure.
Talon says he put the bulbs in his desk for safekeeping -- not unreasonable considering that the case involved a fellow officer. An expert testified that the condition of the filaments showed Arakawa had a red light and Ambrose had a green light.
If all else fails, drunken-driving defense experts advise, challenge the test results.
Arakawa refused to be tested at the scene, but seven hours later registered a blood-alcohol level of .06 percent. The legal limit is .08 percent. A toxicologist extrapolated that at the time of the crash Arakawa was at almost twice that level.
More convincing was testimony and video showing he'd put down at least a dozen beers and a shot of liquor between 4:30 in the afternoon and 11:30 p.m. when he took the wheel.
"The tests used by the state to prosecute ... purport to measure chemicals which are found in exceedingly small quantities in the human," says Cliff Hypsher, a Colorado attorney who specializes in drunken-driving cases.
"For example, the impaired level for alcohol, 0.5 grams of alcohol per 210 liters of breath, equates roughly to one-eightieth teaspoon of alcohol dispersed in a volume of air the size of an oil drum! Needless to say, even the smallest error in the analysis can result in your being wrongly accused of a crime you did not commit."
Accordingly, Arakawa's attorney Michael Ostendorp devised an original defense strategy: "The Practiced Liver." It's sort of a reverse twist on the famous "Twinkie Defense," which won Dan White a conviction on lesser charges after he shot and killed San Francisco city supervisor Harvey Milk in 1978.
In that case, psychiatrist Martin Blinder testified White had been depressed and started eating junk food, such as Hostess Twinkies and Coca-Cola. This only made White more depressed, because as a former athlete he realized Twinkies weren't good for him. Blinder claimed the Twinkies were evidence of the depression that prompted his killing spree.
A toxicologist testified for the defense that Arakawa was such an experienced drinker his liver can metabolize alcohol much faster than a normal person's. In other words, although eating junk food made White do it, drinking didn't make Arakawa do it.
The toxicologist concluded that this buff liver, exercised by years of drinking, could process enough alcohol that Arakawa was safely under the .08 legal limit when he drove his Thunderbird into the side of Dana Ambrose's Honda Civic a half hour after he downed his last beer at Tropics Diner.
The jury was left to wonder why seven hours later this "practiced liver" had only managed to reduce Arakawa's blood-alcohol level to .06.
While the Twinkie defense has become a legend, the practiced-liver gambit is unlikely to become equally famous.
It didn't work.
John Flanagan is the Star-Bulletin's contributing editor.
He can be reached at: jflanagan@starbulletin.com.