DUI Defender

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.).

A San Francisco rookie police officer accidentally shot and killed himself. The autopsy included a chemical test for alcohol which resulted in a .09 measurement. The San Mateo county coroner commented, “It’s hard to say, but I don’t believe a level that low would impair somebody significantly.”

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?

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.

Nissan unveiled a concept car intergrating “anti-drunk driving” technology. The car will be equipped with three different types of alcohol analysis, “breath odor analysis”, facial analysis and driving analysis. The breath odor analysis will be based on two separate technologies, first it will have sensors built into the shifter that will sense alcohol in sweat, second, it will have odor detectors built into the seats that will sense alcohol in the cabin. The second system for preventing drunk driving will be a facial camera mounted in the dash, it will analyze a driver’s facial movements and eyes, if the eyes start to sag or the device otherwise “thinks’ the driver is nodding off or DUI, it will communicate through the navigation system and tighten the seatbelt to get the driver’s attention. Finally, the car will analyze the driving behavior, if it “thinks” the driver is exhibiting inattention it will communicate therough the navigation and tighten the seatbelt to gain the driver’s attention.

What I am curious about is, who will buy this car? If Nissan thinks a person who drinks and drives will purchase it, I think they may be mistaken. At what levels will the car set off its warning systems? While .08 is the legal limit some States have levels at which sobriety is presumed. If a drunk driver is involved in an accident driving one of these cars, will Nissan have liability? For further information on the car click here.

A bill awaiting Governor Schwarzenegger’s will significantly alter the landscape of DUI convictions and, I predict lead to more jury trials. AB 645 will change the penal code regarding “expungement” from providing for a mandatory record clearance at the successful completion of probation, to making it discretionary. This dramtically changes the options available to a person facing a DUI or a “wet” reckless, as they are not entitled to an expungement after successful completion of of their probation.

In the past, a person, upon pleading guilty, no contest or being found guilty by a jury had the option of petitioning the sentencing court for an expungement. An expungement was a legal fiction that essentially allowed the court to change the conviction to a finding of not guilty. While it didn’t remove the prior conviction from the person’s criminal record (it could still be used as a prior conviction for enhancement purposes) it allowed a person to state, lawfully, that they had not been convicted of a crime in certain situations. A person who received an expungement still had to admit the conviction when applying for any government issued license or permit if the application specifically stated that expunged or sealed records must be admitted, but for the most part it allowed a person in private business to deny any criminal past. This was an approach that many younger people took, they could admit their wrong doing, successfully complete probation, suffer through three years of bad jobs, no raises or promotions, or any other punitive measure an employer might choose for an employee convicted of DUI or a “wet” reckless, then petition for an expungement, quit their job and move on to a normal, productive life. This essentially prevents that option, I anticipate that more people who might have “sucked it up” will now take their chances at trial since it is a winner take all forum.

This represents yet another action by the State of California to change the plea “bargain” agreements it enters into with citizen’s in the criminal justice system. A few years ago it changed the “look back” period from 7 years to 10, this resulted in many persons who thought that they had moved on past the 7 year period to be charged with prior convictions despite the agreement with the State that the prior would only count for 7 years. I know of at least one person who’s insurance rates were raised when the law changed and the DUI appeared on his record, again.

The simple fact is that if you can’t count on the State honoring its agreements, you have to go to trial.

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.