The 19^th annual Mastering Scientific Evidence seminar, put on by Texas Criminal Defense Lawyers Association and hosted by Troy McKinney showed once again why Bruce Kapsack is one of the top minds in DUI defense. Not only did Mr. Kapsack score the highest marks for his lecture on presenting the defense expert in DUI cases, he combined with forensic expert Jan Semenoff, of Saskatoon Canada, in giving the highest rated talk of the entire three day event.

Mr. Kapsack will next be lecturing on June 8^th, in Monterey for the California Public Defender Association, at their annual DUI conference. Mr. Kapsack has been a mainstay and top draw at this training for nearly a decade. Having served as a Regent for the National College for DUI Defense, Mr. Kapsack was the first attorney in California to take and pass the Board Certification in DUI defense acknowledged by the American Bar Association. Kapsack and Bair, LLP is AVVO 10 of 10 and Martindale/Hubbell AV rated. Much of his technique is contained in Innovative DUI Trial Tools, James publishing, the top selling book on litigating DUI cases.

As reported in the news, and as commented on NBC news by Bruce Kapsack, the San Francisco Police Department has admitted to what amounts to fraud in the maintenance of some breath machines. Kapsack & Bair, LLP, will be conducting a full investigation of all San Francisco DUI convictions from the last several years.

If you have had a case in San Francisco, whether you were our client or not, please feel free to send an email to us with your name and case number to see if your DUI may be reconsidered and if you may be entitled to other relief.

We have set up a special email account SFPASFRAUD@kandblaw.com

Did an interview for a KTVU Special Segment on DUI Field Sobriety Tests

This post is the first of a three part series on physical reasons breath machines can overstate a person’s true blood alcohol level.

Reason One: Breath Temperature

Most people will realize that measuring a person’s breath to determine their true blood alcohol level is an indirect measurement, whereas measuring the blood is direct.  What is ignored by the government witnesses are the variables among individuals which can change the predetermined conversion factors from breath to the blood.  In other words, the breath machine assumes that all of us have the same physical features, such as body temperature, weight, breathing patterns, etc.  We know this is not true.  This note will explain why and how this matters.

In order to measure a gas which has evaporated from a liquid, we use Henry’s law.  Simply put this scientific rule says that if we know the amount of the alcohol in the blood, and we know the temperature the blood is heated to, then we can use a set formula to determine how much of the alcohol in the blood would evaporate in to the air.  Working backwards, if we measure the alcohol in the breath, we can estimate the alcohol in the blood, BUT WE MUST ASSUME A SET TEMPERATURE.  In state run labs the assumption is that the breath is at 34 degrees centigrade.

Henry’s law dictates that at 34 degrees centigrade, the breath will contain 82.7% of the alcohol in the blood.  How is  this important for most people?

The research upon which the 34 degree premise was predicated was conducted in 1950 by Dr. Harger.  Unfortunately he only used SEVEN SUBJECTS.  More recent research, conducted by several different scientists using HUNDREDS of subjects has determined that TRUE breath temperature is 35 degrees Celsius.  While one degree may not seem like much, using Henry’s law, for every ONE DEGREE increase in breath temperature, the results will OVERSTATE the true blood alcohol by about 6%.

Standing alone this may not seem like much, but when added to the other physical factors I will discuss in upcoming entries, the breath can be as much as 35%.

I was recently voted top lecturer at the Arizona Criminal Defense Bar DUI program. Here’s the press release

Speaking for the Arizona Criminal Defense Bar on May 6^th at their annual DUI program, Mr. Kapsack, of Kapsack and Bair, LLP, once again demonstrated why he is one of the most sought after lecturers and one of the best attorneys in the DUI defense field. Using techniques from his top selling book, Innovative DUI Trial Tools, James Publishing, Bruce lectured on redefining the process of Opening and Closing arguments to today’s juries.

Mr. Kapsack will next be lecturing in Chicago for the Illinois Bar on two topics,Trial Techniques and Breath testing. Having served as a Regent for the National College for DUI Defense, Mr. Kapsack was the first attorney in California to take and pass the Board Certification in DUI defense acknowledged by the American Bar Association. Kapsack and Bair, LLP is AVVO 10 of 10 and Martindale/Hubbell AV rated.

Starting July 1, 2010, individuals arrested and then convicted of a first offense DUI, in Alameda, Los Angeles, Tulare and Sacramento counties, will be required to install an Ignition Interlock Device on their vehicle. First offenders will be required to install these devices for 5 months (12 months if an injury was involved). Despite proponents claims that these devices only cost $75 to install and $50/month to monitor, our check of local service centers found much higher prices. A first time DUI offender should expect to pay at least $500 over the the five months on top of other fines and penalties.

The implementation of the Ignition Interlock requirement in the four “pilot” counties was contingent upon funding to be created to cover the costs of the program. The law offices of Kapsack and Bair continue to investigate the source of the pilot program funding (Freedom of Information Requests have been served on the District Attorney for Alameda County, the Department of Motor Vehicles, California Attorney General and other government agencies), it appears likely that if you were arrested for a DUI after July 1, 2010 you will have to add an Ignition Interlock to the cost of losing your first offense DUI case.

Under legislation currently before the Public Safety Committee, if you are arrested and then convicted of a second offense DUI you will be eligible for a restricted license after 90 days of actual suspension after installing the Ignition Interlock Device. In the four pilot counties second offenders will be required to install the ignition interlock devices for a minimum of twelve months.

While it remains to be seen what will happen to individuals currently serving suspensions for multiple DUI convictions or administrative actions, it seems likely that the shortened suspension periods will only effect those persons violating the DUI statututes after July 1, 2010.  It also remains unclear whether persons who’s licenses are suspended through the administrative process will be eligible for the same treatment.  Meaning, if your license is suspended for a multiple time for through the administrative process, and you are convicted of a multiple offense DUI in court, you may not be eligible for the shorter restriction following installation of the Ignition Interlock Device.

Kapsack & Bair have been defending DUI cases in the Sacramento area for over a dozen years. We have great familiarity with the courts and DA’s in Sacramento, Yolo, Placer, and El Dorado Counties.

More and more people arrested for DUI in these areas have been looking to our expertise to see them through. Now Kapsack and Bair are happy to announce we will be meeting with clients and offering free initial consultations in a convenient downtown Sacramento location.

Sacramento DUI Lawyer
Esquire Plaza
1215 K Street
17th Floor
Sacramento, California 95814
United States
(916) 930-1967

Kapsack & Bair are very happy to be teaming up with Oakland’s Friendly Cab company to offer Free cab rides for the city’s monthly downtown art’s festival – the Oakland Art Murmur.

The Oakland art murmur happens the First Friday of every month is a collective community party that celebrates art, music, and fun. It is a great time time to show off the revitalization of Oakland’s Uptown District.

During First Friday many of Oakland’s premier bars and clubs also participate as their mixologists vie to out-do one another with fancy libations. While art, music, fun, and cocktails can sometimes come together, at Kapsack & Bair, we know that drinking and driving never do.

If your First Friday fun involves cocktails, please get a short-hop cab voucher from one of our partner drinking establishments:

• Penelope at 11th and Clay
• The Layover at 1517 Franklin
• Era Artbar at 19 Grand

Earlier today a bill passed out committee that would permit Judges to permanently revoke the drivers license of persons convicted of a third offense. AB 1601 sponsored by Assembyman Jerry Hill will allow Judges to revoke the driver’s license upon conviction of a third offense DUI.

While both the California DUI Lawyers Association and the ACLU spoke against passage of the bill it moved from the Public Safety Committee to the Assembly Appropriations Committe on a 5-2 vote.

This bill, seems to serve a noble purpose, removing from the roadways persons who seemingly can’t exercise good judgment when they drink alcohol. However, like most legislation in the DUI arena, it makes for great headlines and publicity for the elected official but it doesn’t serve justice and certainly doesn’t accomplish the goal which is to reduce the number of drivers under the influence.

This bill does not limit the “look back” period as state law does (10 years) and would permit a Judge to permanently revoke a person’s license upon conviction of a third offense even if the two prior convictions were many years in the past and/or separated by many years.

What about juvenile DUI’s, do these lapses in judgment or “youthful indiscretions” count? What if the person was under 21 but was a .1? Does this count? Can’t the law provide for a more compassionate punishment for the mistakes of persons who are convicted of DUI? Maybe a longer period with an ignition interlock device, maybe take into consideration the fact that upon conviction the defendant is sentenced to a minimum of 120 days of jail, often times it is the first time a person convicted of DUI actually does any “real” jail time.

It also ignores that alcohol is the number one “self prescribed” medication, several times a person will turn to alcohol to deal with the death of a parent, divorce or other emotional situation. During the grieving period they may turn to alcohol to help “cope” such behavior can result in multiple DUI’s during a very short period, should these otherwise law abiding citizens lose their licenses for life? Take away their livelihood at the very time when they need support in their delicate emotional state?

Providing impetus for the bill was a headline grabbing story regarding two drivers who racked up more than two dozen DUI convictions between them. Unfortunately, the back story is that only 310,000 drivers in California have 3 DUI convictions a relatively small percentage of the more than 22.5 million licensed drivers (<a href="http://www.statemaster.com/graph/trn_lic_dri_tot_num-transportation-licensed-drivers-total-number"). Further, it assumes the worst in people, nearly every adiction clinic advises it's participants that sobriety is a daily task, that mishaps and backsteps occur, to allow a license to be revoked following such an incident seems a travesty.

Recently Chief Justice Roberts fired off an opinion against most of his fellow Justices for not agreeing to review a case from Virginia regarding a DUI stop from an anonymous caller.  The Virginia case was simple; someone called 911 anonymously to report an alleged drunk driver.  Officers responded and found a vehicle matching the caller’s description.  The officers followed the vehicle and despite no bad driving to substantiate the anonymous call, stopped the vehicle.  The Virginia Supreme Court found this to be an unreasonable action in violation of the Fourth Amendment to the Constitution but the State asked the United States Supreme Court to review the decision.  The majority of Justices declined leading to Justice Roberts’ outburst.

What Roberts does not seem to grasp is that the Supreme Court has routinely held that standing alone an anonymous tip of illegal activity is not sufficient to accost a citizen UNLESS the illegal activity can be confirmed.  In Florida v. J.L. the Court stated that a 911 call of an Continue Reading »