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Monthly ArchiveJuly 2007



DUI Enforcement &DUI Issues hudson on 31 Jul 2007

Washington State Crime Lab Mucky Muck Quits

Earlier I posted a story regarding a sample of blood that was missing from the Washington State crime lab, now it seems that in addition to destroying evidence (whether intentionally or not) the State Crime Manager is now suspected of signing off on calibration solutions without verifying their accuracy. If this allegation is true many more cases than just the vehicular homicide case could hang in the balance. As these charges circulate, the crime lab manager has resigned her position.

Why is this such a big deal?

In every State that requires periodic accuracy and calibration checks the machines are tested using a “known” value or a simulator solution. The solution is heated and the vapor is pumped into the testing chamber of the breath testing device. If the measurement is in agreement with the simulator solutions value, the machine is deemed accurate. If the measurement is not in agreement, then the machine is adjusted (calibrated) to match the known value. The problem of course arises when a solution prepared by the crime lab claims to be .08 and it is actually a .10, if the breath testing equipment is adjusted to measure a .10 as a .08, subsequent tests will measure .02 to low (a benefit for the accused) however, if the inverse were to be true, then people below the legal limit would be prosecuted for a crime they did not commit. This problem is further compounded by the fact that the solutions degrade over time and with use so they are frequently replaced, this means that unless the solution is currently in use, the accuracy of each test is called into question, thereby establishing “reasonable doubt.” Reasonable doubt, the standard by which a criminal case to be proven beyond by the prosecution, means that the case should be dropped by the prosecuting agency, it clouds citizen confidence in the procedures involved in acquiring evidence against people and casts doubt upon the system that prosecutes it’s own citizens when serious issues relating to evidence integrity arise.

California DUI Law &DUI Law &Kapsack & Bair staff on 27 Jul 2007

DUI Questions on Yahoo Answers

We’ve been having a lot of fun using Yahoo Answers to communicate with people about their DUI issues.

You can see the full Kapsack and Bair profile.

Here’s one of our recent answers. We are pretty sure it was the best, but it was not chosen for some reason. Oh well, you can lead a horse to water …

Question
I was pulled over a couple weeks ago at a dui checkpoint in Orange County and took the blood test and got the results that were .08 BAC. I am not proud of this, and am willing to pay the consequences for my actions. I am wondering what that is going to entail. Here is the thing with my case. I am moving to New York on August 1st. My job is transferring me to our firm out in the city and its already all in the pipeline. My court date is august 10th, so I think I am just going to move my start date back because I don’t know if I can go to court earlier. I called a lawyer’s office and they charge 4000 to fight the case, so I think I am just going to go in there alone. I need info on probation, costs, classes, etc. Especially in regards to how that works since I’m moving (I currently live in Cali). Thanks so much in advance for any advice. I really appreciate. Please don’t preach to me, I already feel bad.

Our Answer (from Bruce)
DON’T MAKE ANOTHER MISTAKE. First, roadside checkpoints are generally not constitutional. In order to pass muster, they must have publicity, proper notice, a way to avoid the stop and almost a dozen other REQUIRED criteria. It is unusual for the police to conduct these stops correctly. If the judge decides the police acted improperly in a checkpoint, then the resulting cases are dismissed.

Second, ALL chemical tests have a margin of error of AT LEAST .01. This means you may be below the legal limit, and under the presumption of innocence we all share, this benefit of the doubt goes to you.

Next, most courts will reduce these borderline case to less than a DUI. In fact, given the court you are in, and the facts you presented, the DA is likely to reduce the charges to non alcohol allegations because of the weaknesses I just pointed out.

While four thousand dollars may seem like a lot, you will make it up in saved fines (about ten thousand dollars for a DUI), school costs (about three hundred), license suspension (six months) and jail time. Add in to this the insurance cost for DUI insurance (about $3500 per year for 5 years) and you see why it is cheaper to fight than not.

Of course, you must also remember a DUI is a criminal conviction which may effect the rest of your life.

Driving under the influence was a mistake, not fighting a case like this would be worse.

DUI Defense &DUI Enforcement &DUI Issues hudson on 26 Jul 2007

Mother’s Against Drunk Driving Paid to Monitor Court Proceedings

The National Highway Traffic Safety Administration (NHTSA) recently awarded $400,000 to a MADD chapter in New Mexico, this money was intended to fund a program to watch how DUI cases proceed through the New Mexico criminal justice system. It is also intended to make recommendations on improvements that can be made to reduce recidivism and track how cases are handled within the system. The unfortunate aspect of this award is that MADD has a dog in fight, they have been the leading edge of the fight to reduce/eliminate constitutional protections for criminal defendants, their mission is to promote prohibition. I can already predict their report, it will be an indictment of the justice system, defense lawyers finding problems with equipment and “technicalities” lead the list of “problems.” Neither of these are the problem, if a machine is to provide evidence against a citizen acused of a crime, it must be reliable, it must be maintained in accordance with both legal and scientific standards, failure to comply should result in the test being excluded from evidence. The defense attorney who uses the law to defend their client is hardly the problem, they are simply the vehicle provided by the law to protect us from government action. This new award of taxpayer money puts the fox in charge of the henhouse, no good can possibly come from this.

DUI Cases &DUI Defense hudson on 24 Jul 2007

How Long Should a Blood Sample Be Kept?

This is the very issue that the State of Washington finds itself determining. In 2001 an accident occurred killing several people. The State has alleged that the blood alcohol concentration of the driver causing the accident was .12, however, the blood sample has been destroyed. This cuts to the very core of our legal system, the right of the accused to confront the evidence against them, be it a person who witnessed a crime or some other physical evidence. The State must determine whether the blood alcohol concentration is admissible despite the fact that it was never confirmed by an independent laboratory and is no destroyed. The fact of the matter is that it is irrelevant that the destruction occurred inadvertently, the fact is that the defense has been denied the right to evaluate and confirm (or contradict) the evidence. Whether or not the accused was .12 or not, the evidence must be excluded from the case, it is a fundamental right of the accused to confront the evidence against him/her, this right is denied by the actions of the State of Washington and should not benefit in its prosecution for its conduct.

DUI Defense hudson on 18 Jul 2007

Genetic Link for Divided Attention Test Performance?

A recent study linking listening and learning to specific performance has found that as many as 7% of the population may have a problem “connecting the dots” between what they hear and what they are expected to do with what they hear. “The finding may help researchers better understand a broad and complex group of disorders-called auditory processing disorders (APDs)-in which individuals with otherwise normal hearing ability have trouble making sense of the sounds around them.

“Our auditory system doesn’t end with our ears. It also includes the part of our brain that helps us interpret the sounds we hear. This is the first study to show that people vary widely in their ability to process what they hear, and these differences are due largely to heredity,” James F. Battey, Jr., M.D., Ph.D., director of the NIDCD said.

The term “auditory processing” refers to functions performed primarily by the brain that help a listener interpret sounds. Among other things, auditory processing enables us to tell the direction a sound is coming from, the timing and sequence of a sound, and whether a sound is a voice we need to listen to or background noise we should ignore. Most people don’t even realize they possess these skills, much less how adept they are at them.

Auditory processing skills play a role in a child’s language acquisition and learning abilities, although the extent of that relationship is not well understood.”

As a theory this may help explain how young, healthy persons with low blood alcohol concentrations perform poorly on field sobriety exercizes.

DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 16 Jul 2007

Illinois Consequences for California DUI Conviction

I recently came across an article written by an Illinois DUI defense attorney, Donald J. Ramsell, discussing the ramifications for an Illinois licensed driver when they are convicted of a DUi in another State. In the 10 years that our firm has been practicing DUI defense we have always been aware that handling a Illinois licensed driver is a difficult proposition. The main difficulty arises because the Illinois licensing agency treat a DUI as a more serious offfense, even a first offense will trigger a one year revocation. If you have an Illinois drivers license, I strongly encourage you to visit this article to see how your DUI charges may effect your driving privileges in Illinois. The effects of a DUI conviction may drive your decision to fight your DUI or look for a new home state.

DUI Defense &DUI Law hudson on 13 Jul 2007

State Unilaterally Extends Look Back Period for DUI Convictions

Last year the State changed the “look-back” period from 7 years to 10 years,thereby increasing the length of time a DUI convict can be charged with a “prior” conviction and subject to additional penalties. The State made this change to the contractual relationship it had with every DUI defendant without offering any sort of “consideration.” Consideration is required when a party chooses change a term of a contract to which they are a party.

Whenever a person is convicted of DUI they are informed that it is a “priorable” offense meaning that the offense they are currently being convicted of can be used to increase the penalty should they engage in the same conduct at some future time. The look-back period was limited to 5 years in the late ’80′s and has been 7 years until a year ago when the Legislature changed the look back period to 10 years. What this change has meant over the years is that a person who was arrested for a DUI with a prior conviction within the statutory period could be prosecuted for a more serious crime with significantly more draconian punishment.

Many persons opt to resolve their cases and enter a contract with the State that states the terms and conditions under which they will cease the defense of their case, the terms and conditions often include the look back period. Had the person been aware of a 10 year look back would they have resolved their case? Probably so but, to unilaterally change the length of time the State can look back alters a material term of the agreement.

Our firm continues to challenge the State on this issue under numerous theories including the contract theory discussed above. While we are having limited success, it is important that when you are charged with a DUI and a prior conviction, you meet and discuss the facts of both the prior conviction and the current offense with a lawyer who can advise you of possible challenges to both the current case and the prior conviction. A prior conviction may not be re-litigated but there may be problems with the way the plea was taken by the court, or the court you are in may one of the court’s we have had success preventing our client’s from being charged with a prior conviction outside of the originally agreed upon look back period. A qualified lawyer can help you navigate the laws and provide you the best chance to avoid the penalties associated with a second, third or fourth offense DUI.

Technology hudson on 10 Jul 2007

New Blood Alcohol Testing Technology

A company in New Mexico has patented and is now field testing a device that measures blood alcohol concentrations non-invasively. The device appears to operate in a fashion like a pulse oximeter, a small clamp like device that hospitals use to measure the amount of oxygen in patients experiencing respiratory distress. The compay webite describes the technology as employing near-infrared (NIR) absorption spectroscopy to measure the concentration of alcohol by introducing NIR light into the skin and collecting the light that returns to the tissue surface (often referred to as diffuse reflectance).

We haven’t had the opportunity to see one of these devices in action to determine how accurate it is in its measurements or ability to determine whether what it is rteading is ethyl alcohol or some other compound with a similar molecular structure. Alcohol specificity is a common problem for non-invasive blood alcohol measuring devices. Trutouch Technologies must also get Federal approval and join the list of “conforming devices.”

While we have not seen this technology used by any law enforcement agencies that we work with it is important to note that it may be coming to a police force near you.

Uncategorized hudson on 03 Jul 2007

Convict the Innocent?

In an often quoted statement, better that 10 guilty persons escape, than one innocent suffer, penned by English jurist William Blackstone, we set forth the notions of criminal justice in both England and later here, in the United States. A recent study by researchers at Northwestern University concluded that Juries may reach the wrong verdict as often once in every six trials. The study found that juries get it wrong 17% of the time and Judges get it wrong 12% of the time. The study also demonstrated that it more frequently the case that an innocent person is convicted rather than a guilty person is exonerated. This conclusion seems to support recent releases of death row inmates based on DNA evidence and other high profile. While the study that illustrated these conclusions only evaluated 290 cases in four major cities, it is troubling enough to warrant further investigation.

More glaring is the spotlight that shines on the supposed presumption of innocence and the prosecutors burden to prove their case beyond a reasonable doubt. These corner stones of our criminal justice system appear to eroded both from within the system (the on-going erosion of civil liberties for the criminally accused) and within the society as a whole (the popularity of criminal justice television). In the 1950′s and ’60′s our television hero was Perry Mason a criminal defense attorney who pointed out the weakness of the State’s case and always won justice for his client. I appears that we have lost our way, many great minds have taken “Blackstones Ratio” of 10:1 and reinterpreted it, Benjamin Franklinn thought that it was better that 100 guilty persons escaped. The current data suggests that if you are innocent your chances are 1:6 that you will be convicted.