Visit Kapsack and Bair's DUI Law Firm Website

Feed on Posts or Comments

Category ArchiveDUI Issues

DUI Enforcement &DUI Issues &DUI Law &Kapsack & Bair &Notable DUI Defendants hudson on 28 Aug 2012

SF Archbishop Suspected DUI in San Diego

Over the weekend the newly appointed Archbishop for San Francisco was arrested in San Diego. Mr. Kapsack was quoted in an Oakland Tribune article relating to the caution that District Attorney’s will exercise in evaluating evidence and determining whether charges should be filed. Our office often tries to intervene in the process between arrest and filing to put forward defense strategies and prevent charges from being filed, for regular citizens as well as high profile citizens. Early intervention may prevent charges from being filed. Read the Oakland Tribune Article.

DUI Issues bruce on 15 Dec 2011

DUI Field Soberiety Tests

Did an interview for a KTVU Special Segment on DUI Field Sobriety Tests


DUI Issues &Technology bruce on 18 May 2011

3 Physical Reasons Breath Machines Can Overstate Blood Alcohol Level

This post is the first of a three part series on physical reasons breath machines can overstate a person’s true blood alcohol level.

Reason One: Breath Temperature

Most people will realize that measuring a person’s breath to determine their true blood alcohol level is an indirect measurement, whereas measuring the blood is direct.  What is ignored by the government witnesses are the variables among individuals which can change the predetermined conversion factors from breath to the blood.  In other words, the breath machine assumes that all of us have the same physical features, such as body temperature, weight, breathing patterns, etc.  We know this is not true.  This note will explain why and how this matters.

In order to measure a gas which has evaporated from a liquid, we use Henry’s law.  Simply put this scientific rule says that if we know the amount of the alcohol in the blood, and we know the temperature the blood is heated to, then we can use a set formula to determine how much of the alcohol in the blood would evaporate in to the air.  Working backwards, if we measure the alcohol in the breath, we can estimate the alcohol in the blood, BUT WE MUST ASSUME A SET TEMPERATURE.  In state run labs the assumption is that the breath is at 34 degrees centigrade.

Henry’s law dictates that at 34 degrees centigrade, the breath will contain 82.7% of the alcohol in the blood.  How is  this important for most people?

The research upon which the 34 degree premise was predicated was conducted in 1950 by Dr. Harger.  Unfortunately he only used SEVEN SUBJECTS.  More recent research, conducted by several different scientists using HUNDREDS of subjects has determined that TRUE breath temperature is 35 degrees Celsius.  While one degree may not seem like much, using Henry’s law, for every ONE DEGREE increase in breath temperature, the results will OVERSTATE the true blood alcohol by about 6%.

Standing alone this may not seem like much, but when added to the other physical factors I will discuss in upcoming entries, the breath can be as much as 35%.


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.

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


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.”

DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 22 Jan 2008

NHTSA and Marijuana

As law enforcement steps up its efforts to investigate and subsequently arrest more drivers for driving under the influence we are beginning to see an increase in driving under the influence of drugs cases, or more commonly called, “drugged driving.” We continue to see cases with Ambien and other sleep aids more commonly that those involving marijuana but we are seeing an increase in marijuana as well.

Marijuana cases cause specific problems for law enforcement as there are no standards for quantifying the blood or urine concentration that will result in impaired driving. It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. The parent drug is the actual drug consumed while the metabolyte is the processed, but still measurable residue from the drug. Unfortunately, many involved in law enforcement are unaware that the metabolyte is not active and is not currently affecting/impairing the test subject.

In fact, the National Highway Traffic Safety Administration (NHTSA) concedes, “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. It is possible for a person to be affected by marijuana use with concentrations of THC in their blood below the limit of detection of the method. Mathematical models have been developed to estimate the time of marijuana exposure within a 95% confidence interval. Knowing the elapsed time from marijuana exposure can then be used to predict impairment in concurrent cognitive and psychomotor effects based on data in the published literature.”

While more studies need to be conducted on the effects of marijuana on driving, NHTSA, itself states that “some drivers may actually be able to improve performance for brief periods by overcompensating for self-perceived impairment.” For information see the NHTSA article about Marijuana and human performance.

Alcohol Issues &DUI Defense &DUI Issues &Uncategorized hudson on 20 Jan 2008

Diabetics Beware of Breathtesting

Depending upon the type of equipment used and the specificity of said equipment a person experiencing Hypoglycemia or Hyperglycemia can have an inaccurate measurement due to the inclusion of keytones in the measurement. Ketoacidosis is a metabolic crisis that occurs when the boy uses fats for energy instead of the primary source of energy, carbohydrates. As a result of this process keytones (acetone, etc.) accumulate in the blood and subsequently cause the body’s pH to drop to dangerous levels. These keytones can be measured as alcohol by machines that are not specific for alcohol.

Alcohol Issues &DUI Enforcement &DUI Issues hudson on 16 Jan 2008

Coming Soon to a State Near You?

An Oklahoma legislator has introduced legislation to require DUI convictions to appear on a persons driver’s license. The imputus is to put bars, nightclubs and liquor stores on notice that the person patronizing their establishment on notice that the person has a history of drinking and driving. This “scarlet letter” seems appealing in the sense that a person with a special notation on their driving license might be embarrassed into not drinking or driving after drinking, it seems highly unlikely that a bar, nightclub or liquor store will refuse service to the potential patron. Further, it seems even less likely that a busy bartender or other server of alcoholic beverages will have the time or inclination to moderate the drinking of the patron.

Next Page »