DUI Defender

Many times we have client’s in our office who don’t know the names of the drugs they are taking (under medical supervision). We frequently need to match the description with the actual prescribed drug, this information helps our forensic toxicologist’s determine what if any drug interaction may be responsible for either physical observations of law enforcement or chemical test results. The website provided by the Medical University of South Carolina allows the user to select the shape, color, pattern and other identifying information that may be known. Upon entering some or all of the known information, the search engine provides the likely drug.

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?”

As I wrote earier, the source code battle has expanded beyond Florida and New Jersey, in Minnesota prosecutor’s and CMI missed the deadline to provide the defense with the source code for the Intoxilyzer 5000 EN. The court may dismiss the “per se” charge as a result of the failure.

The source code is the software that underlies the basic operation of the breath testing device. It essentially determines how the measurement is converted into blood alcohol concentration measurements used in criminal prosecutions. The reason why the code is important is that the software averages the readings taken during the sample to create a number, many scientists think that the breath alcohol measurement will vary dramatically depending upon where in the breath sample the measurement is taken. This variance could result in an overstatement of the blood alcohol measurement. The software also converts the breath alcohol measurement into a blood alcohol measurement. Many manufacturer’s of breath alcohol testing equipment have used the “proprietary” software defense, however, it seems to be failing in some court’s.

The “per se” charge as discussed above is a secondary charge that most persons arrested for DUI face, it states that you were DUI because your blood alcohol concentration was .08 or above. The so-called legal limit is now in effect in all 50 states since the award of federal highway funds was tied to legistlature’s enacting the limit. The importance of the “per se” charge should not be underestimated as it provides the prosecution with an alternative theory when a person is stopped for an equipment violation and performs well on field tests and has few if any of the “objective symptoms of intoxication.” (Odor of an alcoholic beverage, thick or slurred speech, red/watery eyes, unsteady gait, etc.).

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?

Yesterday, Federal experts released data demonstrating an increase in Drunk Driving deaths in 22 states in 2006. The headline is increased deaths, the reality is fewer deaths. 28 states experienced fewer deadly accidents in 2006 than in 2005. The interesting qualifier is that these accidents involved legally drunk drivers. The facts do not state that these accidents were caused by the “legally drunk” driver only that a legally drunk driver was involved. They also fail to highlight

Headlines like these fuel the hysteria associated with MADD and other anti-drunk driving organizations. They more vividly reflect the reality that more harsh laws and punishment aren’t going to end this problem. Many times criminalizing the conduct prevents persons from seeking the treatment they otherwise might obtain. Once a convicted person has “paid their debt to society” they move on, never receiving the care they need.

Recently, the Department of Health published the 2007 list of approved DUI program providers. The schools may be found on line. These provider’s are the only provider’s authorized by the Department of Health and accepted by the Department of Motor Vehicles for satisfying requirements related to license suspensions, license restrictions and license reinstatements.

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.