DUI Defender

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.

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.

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.

The Saint Petersburg Times is reporting, Officer Daniel Brock was fired from his job and the State Attorney’s Office is investigating whether he should face criminal charges. Officer Brock, recognized for his stellar record of DUI arrests by MADD and his Department, has been fired for making false arrests. The record is clear he arrested 58 people for DUI when their blood alcohol concentrations were below the legal limit of .08. He stated that he thought a person could be impaired below .08 and that he thought the suspects were impaired. An investigation by Internal Affairs found that 43 of the arrests were of driver’s demonstrating no impairment while driving and in 41 instances the chemical test didn’t support the conclusions of Officer Brock. Further, video evidence proved that many claims of failed field tests were not documented by the camera, including one instance where a driver allegedly lost his balance while making a turn in the walk and turn test, that didn’t happen in the video evidence, then blew a .01 and was still arrested by Officer Brock. Apparently, this is just the tip of the iceberg, he made over 300 arrests between October 2005 and October 2006 and didn’t use his video camera approximately 40% of the time, he wrote his reports late, forgot relevant facts, and made numerous mistakes in his haste to process one arrest and get another. On several occasions he made one arrest while he had another suspect in his car, a violation of Department policy.

The simple fact is that when MADD provides incentives for Officer’s to make DUI arrests, the general public loses. The incentive and recognition heaped upon this officer by MADD and his colleagues led him to violate the public trust, make false and/or misleading statements in police reports and generally disrespect the people he was “to protect and serve.” Thank goodness for the fact that he did use the video camera in many of his arrests and the video eventually lead to hard evidence of his tactics. It is important, not just for citizen protection from renegade law enforcement personnel, but for everyone that law enforcement vehicles be equipped with video cameras.

“Stand over here, touch your nose, walk this line, follow this pen”. These are part of the instructions given to people who are stopped and suspected of driving under the influence. But what are they and what do they mean? The short answer is not nearly as much as people believe, and then only in specific situations.

It all started in the 1970’s. The federal government wanted to know if the various tests, literally hundreds, used by all of the law enforcement in America, had any validity and if some were better than others. In typical governmental fashion, a contract was awarded to the Southern California Research Institute, a study was commenced and eventually reports issued. The bottom line was that 3 tests, Horizontal Gaze Nystagmus, Walk and Turn and the One Leg Stand were deemed to be relatively reliable in assessing whether a person COULD be under the influence of alcohol.

THIS BECAME THE FIRST ISSUE WITH THE RESULTS. THE TESTS WERE TO DETERMINE UNDER THE INFLUENCE OF ALCOHOL, NOT IMPAIRMENT. There is a difference. The tests were designed to assist officers in the arrest or release decision. Not as proof of any underlying crime.

In fact, Dr. Marceline Burns, the person who ran this project, and known as the ‘godmother’ of SFST’s has made this absolutely clear in numerous court proceedings and statements “What you are asking is, are these tests of driving? They are not”. Nor can these tests be used to correlate to a specific blood alcohol level. This was discussed in the case of United States v. Horn.

So, despite what you may have heard, read or been told, any and or all of the field sobriety tests do not measure your alcohol level or the ability to drive a car. They just give the officer a “predictive power” of an elevated alcohol level.

Of course how accurate this predictive power may be depends on the officer, the situation and the use of statistics. Research has shown that under the best conditions with the best officers this predictive power never exceeds about 80%. Clearly not proof beyond a reasonable doubt.

Perhaps the biggest factor is the administration and interpretation of the tests. There are very specific guidelines on how to give a test and how to measure performance. So specific are these that officers MUST be trained to understand that varying from the standardized methods INVALIDATES the results. Again, this was said by Dr. Burns and appears in every training manual and at every training class on field sobriety tests.

So before you think that performance on a field test means a person is dui, ask yourself if the test was done correctly, was it interpreted correctly and was the result scored correctly. Then, and only then, give it the weight and value it was designed for, an arrest should be made. Not that the person is dui or has a specific alcohol level.

Lest the common driver think that law enforcement is completely objective and without motive for making DUI arrests, recently several CHP officers were honored in Ventura County for their activities during the year end holidays. While the arrests these officers made may eventually withstand constitutional scrutiny and other legal challenges it certainly seems like a conflict of interest to reward law enforcement for doing their jobs. Further it seems that if an officer is uncertain whether a person is under the influence they may be arrested, tested and jailed simply for a free meal and a public pat on the back.

A study recently funded by the Robert Wood Johnson Foundation, an organization whose goals are to improve the health and health care of all Americans, recently concluded that increased penalties for DUI do not deter DUI. Researchers looked at the changes in law and policies from 1976 to 2002 and dui arrest and accident fatality data for the same period. The study was conducted at the University of Florida and concluded that despite an increase in penalties the number of DUI’s committed were not reduced. The researchers concluded that the increased penalties had no deterrent effect on DUI.

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.