DUI Defender

If you ever want to know where a road block will be, or know of where a roadblock will be this site helps keep track of them. This website run by the National Motorists Association tries to document road blocks and generate a grass roots opposition to roadblocks. It also has information on what to do if you encounter a road block. If you want to provide information regarding a roadblock you can.

The attached “quick facts” are excerpted from the CDC website. I have commented several times on “how to lie with statistics” and encourage you to visit those posts. The simple fact is that the problem isn’t anywhere near as severe as Mother’s Against Drunk Driving would lead you to believe. In fact, one of the alcohol related deaths counted in this years statistics will be a man who, while drunk, fell asleep beneath a parked car, the sober driver drove off, killing the sleeping the drunk.

Quick Facts About Drunk and Drugged Driving

In 2005, 16,885 people died in alcohol-related motor vehicle crashes, accounting for 39% of all traffic-related deaths in the United States (NHTSA 2006).

An alcohol-related motor vehicle crash kills someone every 31 minutes and nonfatally injures someone every two minutes (NHTSA 2006).

Drugs other than alcohol (e.g., marijuana and cocaine) are involved in about 18% of motor vehicle driver deaths. These other drugs are generally used in combination with alcohol (Jones et al. 2003).

Each year, alcohol-related crashes in the United States cost about $51 billion (Blincoe et al. 2002).

Most drinking and driving episodes go undetected. In 2005, nearly 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics (Department of Justice 2005). That’s less than one percent of the 159 million self-reported episodes of alcohol–impaired driving among U.S. adults each year (Quinlan et al. 2005).

There are actions that work to prevent injuries due to impaired driving. To further decrease alcohol-related fatal crashes, communities need to implement and enforce strategies that are known to be effective, such as:

Sobriety checkpoints. Fatal crashes thought to involve alcohol dropped a median of 22% (with random breath testing) and 23% (with selective breath testing) following implementation of sobriety checkpoints.

0.08% BAC laws. Fatal alcohol-related crashes showed a median decrease of 7% following the implementation of 0.08% BAC laws in 16 states.

Minimum legal drinking age (MLDA) laws. Raising the MLDA, such as from 18 to 21, decreases crash-related outcomes a median of 16% for the targeted age groups.

“Zero tolerance” laws for young drivers. One study found that fatal crash outcomes decreased 24% after implementation of “zero tolerance” laws (Elder et al. 2002, Howat et al. 2004, Shults et al. 2001, Shults et al. 2002).

The Governor has signed into law a statute that will impact anyone on probation for DUI. Effective January 1, 2009, if you are on probation for an alcohol related driving offense (DUI [V.C. 23152(a) or (b), DUI with injury [V.C. 23153(a) or (b)). The law changes means that the old probation requiring a probationer “not to drive with a measurable amount of alcohol” will now require a probationer’s blood alcohol measurement to be zero, meaning that a measurement of .01 or more can result in a probation violation.

The statute doesn’t change the legal requirement that the probationer be lawfully stopped, however, it does mean that the odor of an alcoholic beverage alone will most likley serve as grounds for a probation violation prosecution.

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.

The Denver Post reported a “voluntary” checkpoint that was set up by a non-profit organization attempting to collect data from driver’s. The check point was volutary but operated under the auspices of the Sheriff’s Department. The checkpoint sought to analyze persons blood, breath and/or saliva. While voluntary in description, many particiapnts felt that they didn’t have the right leave, felt pressured to provide samples and were offered as much as $100 to participate in the “study.”

This raises an interesting question, with law enforcement watching over, and the subjects not being allowed to leave is the Sheriff’s Department and the Non-Profit Pacific Institute open to civil liability for false imprisonment or some other civil liability. It is amazing to me that a law enforcement agency would permit, let alone participate, in a “check point,” just who exactly are they “protecting and serving?”

Two men in Wisconsin were picked up for drunk driving, normally not a big story, but in this case they were both driving… the same car. One of the men admitted that he was too drunk to drive the car so he had his friend operate the gas and brake, the catch, the driver didn’t have any legs, his defense was that he couldn’t be the driver because he couldn’t operate the pedals. A third passenger, also drunk, walked home from the scene.

In New Jersey, the Appellate Division of the Superior Court has upheld the conviction of a man arrested for DUI despite the fact that he did not have any pharmacologically active substance in his system. Essentially, the man was prosecuted for driving while hungover. While he may be prosecuted for speeding, weaving or other vehicle code violation, he was definitely not driving under the influence. This leads to other scenarios where person “under the influence” may be arrested and taken for testing. If a person was woozy from Claritin, would they be prosecuted for DUI? What if a police officer mearly suspected a person was recovering from drug use, would he have the legal right to place them under arrest for DUI and demand a chemical test? Where will it end?

Late last month, the Supreme Court of Minnesota agreed with defense attorney’s regarding the source code for the Intoxilyzer 5000 EN. The defense argued, successfully, the the source code (the operating software inside the breasth test device) was the property of the State not CMI and was therefore subject to discovery, the Supreme Court agreed and set a date in September for CMI (the manufacturer of the breath test device) to turn over the source code. This is a big win for the defense as the source code is the software that determines how the breath alcohol concentration is determined by the breath tester.

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.

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.