DUI Defender

As I wrote on October 14 of this year, the requirements for people on probation for DUI or alcohol related driving charges will change to a zero tolerance on January 1, 2009. However, in reading the draft legislation, I didn’t notice that the Legislature added a requirement to provide a breath sample in the field, so while non-probationers have the legal right to refuse the Premininary Alcohol Screen (PAS), a person on probation for an alcohol related driving offense will not.

In changing the law to require persons on probation for drinking related driving offenses to provide PAS tests the Legislature did not change the standards relating to how such evidence is acquired, meaning that the same lax standards that apply to it as an optional test will also apply to it as a mandatory test. What this means is that the standards that California has set in place for evidientiary breath testing will not apply, if the State can demonstrate that the machine was in working order, that the person operating the test was trained and that the proper procedures were follwed the test will be admited. More and more we see tests, that weren’t required under the law, fail to meet the lowest level of scientific protocols and yet, increasingly, we see Judges shirk their role as “gate keeper” and let the test in. Even clear violations of California’s rules relating to chemical testing will be tolerated in some jurisdictions. In these Jurisdictions a person may have their probation violated by a number that was generated by a machine that has a margin of error of .02, that may have been operated by an untrained or improperly trained officer (see, CCR 1221.4(a)(3)(A-E); 1221.4(a)(4)), that may not have been calibrated or maintained in accordance with California State law or that may have been adminstered in a manner that is not scientifically valid (See, CCR1219.3; 1221.1). Unfortunately, the probationer will not have the luxury of a jury to try and convince of the injustice, the decision rests with the Gatekeeper, the Judge.

It may seem weird for a DUI lawyer to be a proponent of a .00 legal limit but I’m one. Let me explain how I determined that I supported a .00 legal limit. Since our government is intent upon criminalizing conduct that may only cause harm it seems unfair that people “breaking” the law should know when it happens. When a person is out drinking with friends, family, co-workers or others socializing they have no idea when their blood alcohol concentration crosses from being legal to illegal. Each person metabolizes alcohol at their own rate, a rate that depends upon the time of day, the amount of sleep that they got the night before, stomach contents, alcohol level of drink, mixer and many other factors. When people go out they have no idea how much liquor is in their drink and frequently as they cross from below the legal limit to the legal limit, they can’t tell nor can the people they are drinking with. Rarely, does a person exhibit the commonly accepted symptoms of being intoxicated, they aren’t slurring their words or staggering, in fact they look just like you and me, but they are violating the law. They may be stopped by law enforcement for having an equipment violation, or possibly departing their lane while they fumbled for something they dropped, something that isn’t obviously driving under the influence. The simple fact is that most people don’t know when they go from legal to drive to illegal to drive a legal, if the legal limit was zero, we would all know that if we had a drink and chose to drive we were in violation of the law.

For persons looking for a less extreme approach, Stephen J. Dubner wrote a column relating to breath testing technology that other countries employ to help remove the “guess work” from guessing whether its safe to drive.

A professional athlete in Saudi Arabia was sentenced to 80 lashes after being convicted of DUI causing an accident. The only aspect of the crime and sentence is that the defendant/convict retains his privacy

The Salinas Police Department will be setting up checkpoints over the holiday weekend in various locations. Persons successfully passing through the checkpoint will be given a turkey, the Department hopes in convenience 150 to 300 persons, um, I guess I mean they hope to give out 150 to 300 turkeys. The Police Department cites many of the MADD statistics to support its efforts, especially the statistic relating to “alcohol-related” accidents, which as we have commented on earlier include accidents when sober people caused accidents involving a driver who had been drinking (not necessarily at or above the legal limit).

Next time you are listening to court case in which the defendant is proclaiming their innocence and the sole evidence for the prosecution is circumstantial evidence. When suddenly the prosecution trots out an “expert” with some sort of mechanical wizardry that purports to link the defendant to the crime. The scientific method involves some sort of analysis based upon dubious scientific theory, think it doesn’t happen? Think again.

Two years ago the FBI rejected the notion that lead bullets could be linked to a crime scene through analysis of the chemical composition of the bullet and bullets subsequently found on a suspect. This “scientific” technique was based on the theory that each “batch” of lead from which bullets were made had some sort of unique quality that could separate each one batch from another. The technique was initially developed when President Kennedy was assassinated and grew to be a commonly accepted science, then, in 2004, the National Academy of Sciences determined that the technique was unreliable and misleading. Interestingly, the technique was commonly accepted for over three decades before finally it was deemed unreliable.

Now, you would think that the FBI would make it a priority to discover which convictions were based in full or in part upon the misleading “scientific” technique, since our justice system is founded upon “innocent until proven guilty” and a lot of societal lip service is given to the importance of freedom, yet nothing has been done.

It is a sad, sad statement on our legal system that citizen’s who may have wrongly convicted for crimes based on this “scientific” technique continue to sit in jail with no one fighting the wrongful nature of the conviction.

You may ask yourself, why would a blog dedicated to DUI find this interesting? Well, as it turns out we have been fighting over breath testing for decades, the only true measure is that from the blood, every other measure is a “scientific” guess based upon some circumstantial evidence. The breath is measured either by elctrochemical cell technology or by infrared spectroscopy, neither of which measure the actual blood alcohol concentration. Will we eventually prevail on the issue of breath testing as circumstantial evidence as opposed to direct evidence? Will we ever manage to win the challenge that the “technology” is merely a guess? That the foundation of the theory is dubious and that the results are “unreliable and misleading?” One can only hope…

Earlier this week the Sacramento County Sheriff began a four day amnesty program for persons with out standing DUI arrest warrants. This amnesty period will run from November 13 through the 16. Following the conclusion of the amnesty period the Sheriff will initiate a sweep to arrest those with outstanding DUI arrest warrants at their homes or place of employment. Any person wishing to turn themselves in may do so at the Sheriff’s Administration Building at 711 G Street, Sacramento. The Warrant Counter is open Monday through Friday 7:00 a.m. to 4:30 p.m. Individuals eligible to receive a court date will be processed at the Warrant Counter without being booked into jail.

As we head into the holidays a significant number of signs are being posted that encourage drivers to call 911 if they suspect another driver of drunk driving. Of course these signs will result in numerous citizen’s, not under the influence, being inconvenienced while law enforcement makes the stop and invetsigates the crime. These anonymous tips have been gaining popularity and undoubtedly will result in many stops driven by bad or irate drivers wishing to inconvenience their fellow citizens.

These signs are springing up throughout our country, in fact a law enforcement officer used such a telephone service to call in a stop he wanted to make. While the driver wasn’t driving under the influence the officer had reason to know that the contents of the vehicle was illegal, he simply needed justification to make the stop. The call in drunk drivers gave him just the anonymous tip he needed to head out and make the stop/arrest.

It makes me wonder if citizens should have the authority to make an anonymous call without having to provide their contact information, there is no way that a citizen arrested for suspicion of DUI will have the opportunity to face and cross examine their accuser. Is this another exception to the Constitution?

Presented in this months Reason Magazine is an article distilling the essence of the argument in favor of competitive crime labs, and independent crime labs. Among the problems cited by the article are the pro-prosecution bias of the laboratory personnel and people testifying on behalf of the “evidence” analyzed and documented by the crime labs. The article also cites an error rate as high as 10% for fluid analysis (blood) which would mean that the results of one out of every ten blood samples analyzed would be wrong. Now this in and of itself doesn’t mean that the measurement is above the actual value but simply that it is wrong. In combination with the pro-prosecution bias this is a very disturbing statistic.

Many times potential or existing client has questions relating to a possible drug interaction with either something they ate or drank on the evening they were arrested for suspicion of DUI. Our office seeks the assistance of counsel from a forensic alcohol expert. However, many lay people may be surprised that such information may be available on the web: http://www.drugs.com/drug_interactions.html. This website provides in-depth information regarding drugs and possible interactions, it may be the first step toward deciding whether a “drug interaction” defense exists in your case.

A qualified DUI lawyer can help flesh out the facts necessary to set-up the interaction defense as it is possible that some interactions can provide reasonable explanations for physiological observations made by law enforcement and even explain elevated blood/breath alcohol measurements. Again, drug interactions can and do provide reasonable alternative explanations for otherwise questionable observations. The first step may be investigating the interactions yourself.

Check out this video, the lawyer demonstrates a flaw in the design and manufacture of the Draeger handheld breath test. The video supports the defense that law enforcement, by blocking the exit port of the device, can manipulate a below the legal limit test into an above the legal limit test. The video is a remarkable demonstration of a simple but effective method of producing incriminating evidence from an otherwise innocent person.