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Monthly ArchiveMarch 2007



Alcohol Issues &DUI Cases &DUI Defense &DUI Enforcement &DUI Issues &DUI Law &Technology hudson on 20 Mar 2007

Low Calorie Diets induce Positive Alcohol Readings

There has been a lot of discussion recently regarding diet and alcohol. Some in the medical community have documented the fact that diabetics can enter a state of ketosis wherein their breath will test positive for alcohol on many types of breath analyzers that have specificity issues (devices that are not alcohol specific). In a recent Swedish study researchers found that low calorie diets can result in false positives that prevent ignition interlock devices from allowing cars to start. If the devices can’t tell the difference between ethyl alcohol, ketones and isopropyl alcohol, how can we trust the results of blood alcohol measurements made by similar machines used in law enforcement?

California DUI Law &DUI Enforcement &DUI Issues hudson on 20 Mar 2007

How to Lie with Statistics, Part 2

In February of this year legislation was introduced to require an Ignition Interlock Device on any car owned by a person convicted of Driving Under the Influence.  Earlier this month I wrote about why I thought this was a bad idea.  In an on-line post “The Spitzer Report” an article regarding the legislation was quoted.  The article cites statistics to support the effectiveness of IID in preventing future DUI’s.  The statistics misrepresent reality.

1)  Spitzer is quoted as saying “California Highway Patrol statistics that show from 2005 to 2006 there was a 14 percent increase in the number of people convicted of driving under the influence with a suspended license for a prior DUI.”  If these driver’s don’t regard the suspended status of their license, why on earth, would they install an ignition interlock device on their vehicle?  The fact of the matter is a certain number of persons will drive with complete and total disregard to the legal status of their driver’s license or sobriety.  I’m not certain why this particular statistic supports the legislation, nor am I sure why this statistic is relevant to deterring future DUI.

2)  “In 2005, there were 23,500 convictions, compared with 26,900 in 2006.”  This statistic again misrepresents the truth.  In 2006 the “lookback” period for prior DUI’s was changed from seven (7) years to ten (10) years. 

The “lookback” period is the amount of time a prosecutor can look back in time to determine if a particular defendant has a prior conviction for DUI.  In 2005, the “lookback” period was seven (7) years meaning that a person who was convicted of DUI in 1998 could be charged with a prior however a person convicted of a DUI in 1997 could not.  In 2006, the lookback period was changed to ten (10) years, meaning that while a person convicted of DUI in 1997 could not be charged with a prior conviction in 2005, they could be charged with a prior conviction in 2006.  This increased the number of driver’s who could potentially be charged with a prior offense rather dramatically as it added every person convicted of DUI between 1996 and 1999 liable for a prior conviction.  This change in the law would easily make up the increase in repeat offenders.

Finally, the article which Spitzer cites in his on-line post concedes, “However, the [DMV] study also found that the device is not effective in reducing DUI convictions or incidents for first-time DUI offenders.”  Which leaves me scratching my head since the ignition interlock is already required for second offenders who wish to be licensed following a one year suspension.  The legislation just seems unduly punitive with no statistical support for the goals it intends on supporting.

DUI Defense hudson on 16 Mar 2007

Insomnia Drugs Linked to “Sleep Driving”

Earlier this week the United States Food and Drug Administration released a statement indicating that it hard notified the manufacturers of insomnia drugs that a possible side effect could be “sleep driving, making phone calls, preparing and eating food.”

This statement confirms what many of our client’s have related, that they don’t remember anything until the red and blue lights appeared behind them.  Last year, Representative Patrick Kennedy claimed that he had no recollection of driving after taking Ambien and crashing into a Capital security barrier.  Representative Patrick Kennedy’s experience is not the only story involving one of these drugs.

Experts recommend that people who are prescribed these types of drugs do not mix them with alcohol or other sedatives and take only the prescribed dosage.

The fact of the matter is that these drugs can be cause of driving that could result in a driving under the influence charge.  Driving under the influence is a general intent crime and therefore can be charged by a prosecutor without the accused specifically intending to violate the law.  A competent DUI attorney can help defend charges that arise from driving under the influence of these types of drugs or a combination of these drugs and alcohol.  Hoever, the ingestion of these types of drugs, and the unexpected conduct that resuklts as a side effect of proper usage may be a defense to a specific intent crime.

California DUI Law &DUI Enforcement &DUI Issues &Technology hudson on 14 Mar 2007

Ignition Interlock for ALL Dui Convicts?

A bill is currently working its way through the California State Legislature (Senate Bill 177) that will require every person found guilty of DUI to install an ignition interlock device on their car.

Ignition Interlock Device-

An ignition interlock device is a machine that is installed in a car between the key and the starter.  The driver must blow into the device prior to the car starting.  If the machine determines that the driver is not “sober” it will not start.  These devices also require periodic testing of the driver, meaning that while the car is on the road the driver must blow into the device.  In the event that the vehicle detects alcohol, it initiates an alarm, the lights and horn will sound until the vehicle is shut off, it does not shut off the engine immediately.

Why this is bad-

The number one reason cited by MADD and the proponents of this change in the law is the increased rate of repeat DUI’s.  The statistic most recently cited by the proponents of this law (who include the lobby group for the manufacturer’s of these devices) includes all of the new repeat offenders added to the statistic since the “look back” period was changed from seven years to ten thereby increasing (by at least a third) the number of persons subject to inclusion in any repeat offender statistics.  The statistics in New Mexico, the only State to have a mandatory IID requirement for first offenders have been seriously manipulated to create the illusion of effectiveness.

This law will unfairly effect the working poor more significantly than the rich.  The Ignition Interlock Device must be purchased or leased from a provider.  The device must be brought in to a licensed provider every so often to have data downloaded and have its calibration verified, this too costs money.  What will the people who can not afford these devices do?  They will either sell their existing car (and purchase another car in someone else’s name), or transfer ownership to another person.  Once the title is no longer associated with the convicted driver, the Ignition Interlock is no longer required.  It doesn’t matter who’s driving the car, only to whom the car is registered.  While this will not satisfy the requirement that a device be on any car driven by the convicted driver, it is only possible to verify that any car owned by the driver has an ignition interlock installed.

The law will adversely impact the lease car industry.  The IID is hard wired into a car meaning that it must be bolted to the car, the damage caused by the installation violates the terms and conditions of most automobile leases.

The device is non-specific for alcohol.  I have had client’s who could not start their car shortly after smoking a cigarette or using mouth wash.  Many of the defenses we use to challenge criminal cases are applicable to these machines as there are no safeguards.  Some gums and other breath fresheners will cause positive measurements; again the car will not start.  The lack of specificity could result in sober people not being able to start their car to drive to work or appointments.

DUI Defense bruce on 05 Mar 2007

How to Get Them to Give You a Defense

“Officer, isn’t it true that everything you have just testified to on direct examination is a complete lie?” How many of us style our cross examination on this model? It is the old tried and true method made famous in books and movies; but is it necessarily the best?

Sure, jurors expect us to cross examine a witness, especially a police officer aggressively. They may even look forward to some fireworks, but how often does this play to our ultimate benefit? How many times could we obtain the same answers without the possible backlash of juror sentiment? Benjamin Franklin was considered a master at the art of polite questioning which inevitably led to the conclusion he was after. Lets see if we can do the same.

When a defense counsel first rises to ask the witness a question, all is hushed. The officer is poised to respond as if a weapon were drawn upon him or her in the street. The DA is set to backup the officer with objections and interruptions designed to shoot counsel in the back, or at least to wing’em. Jurors, formerly asleep at the dull droning of direct examination are now ready to see this ‘new’ phase of the trial, and the judge is paying attention for the first time since he or she may actually have to issue a legal ruling.

Continue Reading »

Kapsack & Bair staff on 02 Mar 2007

Bruce Kapsack on TV

Bruce Kapsack recently finished filming a segment for the television show Heartbeat of America with Doug Llewelyn. The episode will air April 20, but for now you can catch a sneak peak where Bruce Kapsack discusses various reasons someone charged with DUI might not actually be guilty.