DUI Defender

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.

Recently a terrible accident occurred in Santa Clara County. John Mayfield, a diabetic, suffered some sort of lapse from low glucose levels. Rapid and unpredictable swings in glucose, blood sugar, levels is one of the main aspects of diabetes. It is for this reason that responsible diabetics regularly monitor their food intake and their sugar levels. In order to keep a “normal” blood sugar level, they adjust their insulin according to some general guidelines. However, this is not an exact science.

By all accounts this is what Mr. Mayfield had done prior to his driving back in July. Unfortunately, and with no warning, his sugar level dropped and an accident ensued. Mr. Mayfield’s truck lost control, flipped over and exited the freeway. The vehicle then collided with another truck, they burst in to flames and the passengers in the other vehicle died. Obviously a horrendous accident.

BUT THAT IS WHAT IT WAS, AN ACCIDENT. Mr. Mayfield did not intend to go in to diabetic shock. He did not disregard the warning signs. He did not overindulge. He did what is responsible, and more importantly, WHAT WAS REQUIRED BY LAW.

You see, in California, and most every state, people with certain medical conditions, such as diabetes or epilepsy, which may lead to lapse of control, can only drive if a doctor indicates the condition is under control from medication, such as insulin, and is relatively unlikely to occur. Such as Mr. Mayfield. In fact, it is unclear if Mr. Mayfield had ever suffered a similar situation.

So Mr. Mayfield was left with a choice; drive without his taking insulin, which violates his medical protocol, or take the insulin as directed. He did the prudent act, took his medication after checking his levels. It was not enough, and despite his intelligent and responsible actions, the accident occurred.

Now the District Attorney wants to prosecute John for driving under the influence of drugs; the drug being his insulin. So John is damned for what he did. Of course, we can easily surmise that had John NOT taken the required medication he would be charged with a crime for that omission, damned if he didn’t.

Not every event in life, no matter how tragic, is a crime. Accidents happen despite the best intentions and precautions of all involved. The mere fact that a death or deaths occurred does not elevate the event from tragedy to manslaughter. Prosecuting John Mayfield is the definition of persecution.

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.

The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.

In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

It comes as no surprise as researchers delve further into GERD, the causes and possible treatments that also should discover other symptoms. It has been recently published (GERD and Chronic Cough) that a chronic cough may be indicia of GERD in patients that are non-smokers and aren’t taking ACE inhibitors. This is currently being described as silent GERD and may account for 43 to 75% of all GERD cases, it also referred to as larygopharyngeal reflux disease. Just because a person isn’t symptomatic in a typical fashion (chronic heartburn, burping/belching, regurgitation) does not mean that they do not suffer from GERD. The reality is that a far greater number of people may have undiagnosed GERD which means that a larger percentage of the population may not be good subject’s for breath testing due to the mouth alcohol contamination caused by GERD.

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?