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Monthly ArchiveFebruary 2008



DUI Issues hudson on 27 Feb 2008

DUI Conviction for Medical Board Applicants

Here is some information from the Medical Board of California’s website

The Board frequently receives questions about criminal convictions and how they could affect an application for a physician’s and surgeon’s license and/or an application for a Postgraduate Training Authorization Letter (PTAL).
The Board is unable to provide legal advice. Every situation is different and is addresed on an individual basis. The Board reviews every conviction based not only on the conviction itself in relation to the statutes, but also on the underlying issues which led to the conviction. The laws do not differentiate between a felony and a misdemeanor conviction.

The Board does receive information regarding actions which have been expunged, and the application forms advise applicants to disclose all prior convictions including those that have been dismissed or expunged. In addition, pending charges must be reported by an applicant immediately upon notification of the charge. The Board will learn of these actions through the fingerprint criminal history check.

A conviction that does not, at first glance, appear to be substantially related to the qualifications, functions or duties of a physician, may, under closer scrutiny, be revealed otherwise (e.g; reckless driving, DUI’s, and sex crimes). All information related to an applicant’s criminal history is considered. The specific conviction; when it occurred; the circumstances surrounding the conviction; the number of convictions; compliance with the court’s terms and conditions; and rehabilitation are factors considered when determining an applicant’s eligibility for licensure. In addition, one of the more important criteria is disclosure of the conviction. Failure to disclose a conviction is considered to be dishonest, and therefore an egregious breach of ethics and unprofessional conduct.

The Board has three options relative to PTALs or licensure: issue a PTAL or license; deny a PTAL or license; or place a license on probation. These actions must be substantiated by appropriate evidence. The primary statutes relating to denial or probation of a PTAL or license are California Business and Professions Code Sections 480, 820, 2234, 2239, and 2305.

Clearly, a DUI conviction can have some adverse implications as it is specifically listed as crime that can problems for a future medical doctor.

Uncategorized hudson on 22 Feb 2008

Online Immigration Information

As a lawyer who exclusively handles DUI cases our client’s and other citizen’s frequently ask us about the ramifications of a criminal conviction, informal versus formal probation and other potential impacts of a criminal charge and a subsequent conviction. The effects on a particular immigration situation should always be discussed with a lawyer who specializes in immigration law, however, many individuals handle their own immigration cases and do not have a lawyer involved. If you are a person without a lawyer, you may want to access this website for information and an informal chat room for persons going through the visa, green card and naturalization process.

DUI Defense &DUI Law &Kapsack & Bair bruce on 20 Feb 2008

In Defense of Drunk Drivers

How can you defend drunks? That question is posed to those of us specializing in this field more than any other. Lawyers who specialize in murder cases, where the evidence is usually much stronger, are not asked that question. It seems to be a given that a man who is accused of killing his wife is entitled to a strong defense, but not someone who is accused with less evidence.

People say if you drink, you drive, you lose; but that’s not the law. The law in every state of this union is that you CAN consume alcohol and drive, so long as you do so responsibly. So is it wrong for me to represent a person who is stopped for an expired registration and who only had one drink?

Continue Reading »

DUI Enforcement &DUI Issues hudson on 15 Feb 2008

Washington State Crime Lab Director Quits

Following the conclusion of the 3 judge panel regarding the “culture of compromise,” Barry Logan the director of the Washington State Patrol Laboratory announced his resignation. At the conclusion of the investigation and the ultimate decision rendered by the panel relating to the failures of the crime lab to protect the rights of the accused and the integrity of the laboratory procedures. While the Director will stay on until March to oversee the changes in procedures to ensure that the problems raised by the old regime are cleaned up.

Alcohol Issues &DUI Issues &DUI Law &Kapsack & Bair &Technology hudson on 10 Feb 2008

UNDERSTANDING THE SOURCE CODE MESS

By now most people have heard of the source code litigation taking place in Florida, Minnesota, New Jersey, and elsewhere. Few people however understand what the fuss is all about. Let me put it to you in simple terms.

It is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

Alcohol Issues &DUI Cases &DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 04 Feb 2008

Washington State Patrol Laboratory… Busted

Earlier this week a three judge panel finally concluded the drama in King County regarding the Washington State Patrol’s Toxicology Laboratory and oversight of breath testing program. The 29 page indictment found that many of the safeguards employed in proper laboratory protocols were not followed and in fact ignored by the Lab Manager, Anne Marie Gordon.

The panel found that Ms. Gordon authenticated test solutions that were prepared by other laboratory personnel without independent validation. The laboratory protocols called for calibration/accuracy testing solutions to be prepared and independently tested by the lab personnel. The importance of these solutions rests in that the entire breath testing program relies on the accuracy of the solutions to validate the measurements taken by breath testing equipment. The solutions are heated and the vapor is used to simulate human breath, that vapor is measured by the breath testing equipment and the result is compared to the “known” value. Of course, the problem arises when the “known” value isn’t actually “known” and the machines are calibrated to the unknown value. Without knowing what the machine is actually measuring it is difficult to verify the accuracy of the accused citizen’s breath test.

The panel found that other procedures were employed by the lab that resulted in a “culture of compromise.”