DUI Defender

The Department of Justice in Watsonville revealed that two separate times in 2006 their breath testing program was flawed, so seriously that the 355 DUI cases affected may be dismissed. The issue arose because the Lab failed the proficiency testing conducted by the State Department of Health Services, while the District Attorney and Crime Lab down played the effect the failed proficiency tests had on the cases involved, the simple fact remained that the machines were not functioning properly, the results are tainted and the prosecutions should be dropped. If we can’t have faith in our prosecutor’s to do the right thing and protect the public from flawed chemical testing, who can we trust.

As I wrote earier, the source code battle has expanded beyond Florida and New Jersey, in Minnesota prosecutor’s and CMI missed the deadline to provide the defense with the source code for the Intoxilyzer 5000 EN. The court may dismiss the “per se” charge as a result of the failure.

The source code is the software that underlies the basic operation of the breath testing device. It essentially determines how the measurement is converted into blood alcohol concentration measurements used in criminal prosecutions. The reason why the code is important is that the software averages the readings taken during the sample to create a number, many scientists think that the breath alcohol measurement will vary dramatically depending upon where in the breath sample the measurement is taken. This variance could result in an overstatement of the blood alcohol measurement. The software also converts the breath alcohol measurement into a blood alcohol measurement. Many manufacturer’s of breath alcohol testing equipment have used the “proprietary” software defense, however, it seems to be failing in some court’s.

The “per se” charge as discussed above is a secondary charge that most persons arrested for DUI face, it states that you were DUI because your blood alcohol concentration was .08 or above. The so-called legal limit is now in effect in all 50 states since the award of federal highway funds was tied to legistlature’s enacting the limit. The importance of the “per se” charge should not be underestimated as it provides the prosecution with an alternative theory when a person is stopped for an equipment violation and performs well on field tests and has few if any of the “objective symptoms of intoxication.” (Odor of an alcoholic beverage, thick or slurred speech, red/watery eyes, unsteady gait, etc.).

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.

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.

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.

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.

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.

Recently I found an article discussing the connection between increased desire for alcohol in alcoholics and certain drugs. The drugs, Anafranil, Effexor, Luvox, Paxil, Prozac, Zoloft, and diet pills, Fen-Phen and Redux increase serotonin, thereby increasing the desire for alcohol. I found it interesting that Yale study in 1994 found that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. Unfortunately, these drugs are often taken to combat aniti-social behavior or feelings due to these particular mental conditions. It also raises concerns about the choices that persons taking these medications for their mental health and the perceived voluntary nature of alcohol abuse. It makes one wonder if a possible defense to DUI is the inability to control the desire for alcohol stemming from the use of such drugs.

Earlier this month it was impossible to avoid media coverage of the Durham, N.C. prosecutor Michael B. Nifong’s defense of his conduct as Prosecutor in the Duke University Lacrosse team prosecution. He eventually was forced to defend his actions in an unsuccessfull attempt to save his license to practice law. His misconduct extended to extreme prosecutorial abuse, he made prejudicial comments to the media, withheld DNA evidence and proffered testimony from a victim that consistently changed her story and played up the racial aspect of the case. This level of prosecutorial misconduct only came to the media’s attention due to the national interest in the case.

Unfortunately, it is common that we experience this sort of conduct (albeit not always so glaring) in the daily practice of DUI law. While defense attorney’s are expected to use whatever ethical tactics are available to provide a vigorous defense for their clients, a prosecutor’s duty is try to discover the truth and thereby attain justice both for the accused and the society that they are sworn to represent. All to often, in cases as minor as DUI’s, the Prosecutor gets wrapped up in the need for vistory and forgets that the truth is what they are sworn to seek, not just a conviction.

In an article written for the Washinton Post, Jonathan Turley, describes several high profile cases in which the prosecution forgot their duty to seek the truth and instead sought victory, a citizen forced to defend their honor, reputation and innocence from the very government to which they pay taxes and, theoretically fund their own prosecution. The fact is that many prosecutor’s offices have rates of conviction of 90% or higher. Often times the vanity of the prosecutor is a factor in the decision whether to prosecute a case, it could be that they have a bias against the particular crime, attorney or even defendant. That bias can lead to improper decisions regarding whether to prosecute a case, the strength of the evidence and the justice of seeking a conviction. In his article he references a Texas prosecutor who stated, when told he had gotten a conviction (and death sentence) against an innocent man, any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.

All to often as we wage war against the government that consitently seeks to erode the constitutional protections that we once took for granted, we see the prosecution fail to provide citizen’s with the discretion that they alone bear as part of the criminal justice system.

It suprised many observers that Paris Hilton was remanded into custody earlier today. The simple fact of the matter is she is being treated differently because of her celebrity. Most cases that I have handled that involve driving on a suspended license for an alcohol related offense (California Vehicle Code 14601.2) do not end up in jail, in fact, most appear with a driver’s license and have their cases reduced to either a misdemeanor or infraction “driving without a license.” (CVC 12500). In the rare case, when the defendant has a series of these types of offenses “priors” (more than 2) the person is looking is looking at time in custody.

The Judge ordered Paris into the overcrowded Los Angeles County Jail system. The reality is, in Los Angeles County, no one does all the time to which they are sentenced. The Sheriff must make decisions everyday regarding housing, sometimes he must release lesser criminals to provide housing to more serious criminals. Who will be released so that Paris Hilton will remain in jail? The sad fact is that because of the Judge’s decision today, the Sheriff will lose a cell into which one (or more) more dangerous person(s) could be put, because Paris needs a lesson.

Ahhhh, but now I digress, the reason that this situation is so offensive is that if Paris and her representatives had hired competant DUI counsel she might not be in jail. While I am not intimate with the facts of her case, in fact I know only that her blood alcohol concentration was .08 (right at the legal limt), I strongly believe that if the State had been forced to prove their case, she would not have an alcohol related offense on her record. I think that, regardless of public opinion of her (both good and bad) she would have either been acquitted of the DUI charge after trial, or the prosecutor would have reduced the case to a non-alcohol related offense. Her counsel (legal and/or otherwise) failed her and set her up for the soap opera that her life has become. And, if her defense attorney explained to her the choices, and Paris chose to “plead out” then she shouldn’t be singled out for preferential punishment, she should have been sentenced like others for similar offenses, she should do whatever time is the average for a forty five day sentence and allowed to move on with her life.

While not all of us have the resources to fight a case like Paris Hilton could have, we all can take a lesson and consult with an attorney who is knowledgeable in the area of law that is important to our legal problem, find out what our possible defense are and what are the possible outcomes. A lawyer that regularly practices in the field should be able to tell you what the pros and cons of your case are, without costing you a penny. Consult a lawyer, get informed.