July 29, 2007

Harvard Law School & Continuing Legal Education

Many states require lawyers to take continuing legal education after graduating from law school and passing the bar, Maryland is not one of them. In Maryland, once you pass the bar you are authorized to say goodbye to school and books forever. As a Maryland lawyer, I feel differently. I have been admitted to practice law in this state since 1992. I have been a DUI lawyer in Maryland since my early years with an ever increasing focus on that area of the law.

What's interesting is that when the average person hears the words DUI or DWI they might think this area of the law is not as complicated as others or that this is an easy field, they might not understand that this area is a sub-specialty unto itself. The truth of the matter is, the more one gets involved with seriously defending persons charged with DUI and DWI, the more one appreciates that this truly is a specialty of criminal law. That is, there is so much information to stay abreast of regarding the constitutionality of vehicle stops, the reasonableness of pre-arrest investigations, including field sobriety tests, and the legality of post arrest testing, including breath testing and blood testing. Interestingly, both breath testing and blood testing in DUI and alcohol related cases are very expansive in that they spill over into a variety of other sciences.

The breath test machine, as has been discussed in earlier entries, is effected by such things as the suspect's partition ratio, which the machine takes for granted at 2100:1 and many times is simply wrong, the suspect's hematocrit level, which the machine does not even take into consideration, the suspect's breathing pattern which the police are all to happy to help you with, the machine's built in error rate and on and on. You will recall that the machine essentially operates by taking a breath sample and shining a light through the sample and evaluating how much light comes out the other end of the magic box.

Conversely, with blood draws there are a number of issues including hematocrit, pre-absorption versus post-absorption, venous draws versus arterial draws, hospital draws versus police draws, vials used, preservatives in the vial, storing conditions, custody, etc. They involve many issues involving an understanding of science.

If a DUI lawyer is to provide the best defense possible to a DUI/DWI suspect, that lawyer needs to have a firm grasp not only on the constitutional issues which he learned in law school, but on the scientific issues which are learned outside of law school at continuing legal education seminars and various text books on the subject like Larry Taylor's Drunk Driving Defense, presently in its 6th edition. For me personally, I believe it's important to continually stay fresh on the latest scientific articles and research in the fields that effect DUI suspects. I have just now returned from the National College for Drunk Driving Defense Lawyer's annual continuing legal education seminar at Harvard Law School where I am reminded that the police and the court system are very happy to accept evidence as presented by the government and draw the expected conclusion; however, if that is not consistent with what a client needs, then the lawyer must be prepared to and capable of pulling back the black curtain in order to expose the scientific truth. Knowledge of the science is the truth, the truth leads to fair and equitable results in the defense of DUI cases.

July 16, 2007

I can pass Field Sobriety Tests and various sundry matters

Have you ever driven home from a social event after midnight and been just plain exhausted to the point where it's a struggle to keep your eyes open? Have you ever driven your car for 3 or more hours and looked in the mirror and seen red, glassy eyes staring back at you? That's how it was for me driving back from camp the other day. It was an 8 hour total drive in one day, but hey, the kids are worth it. The problem is if Maryland's finest should happen to stop somebody for a traffic violation, such as a license tag light being out, the red glassy eyes and late night driving would be a seriously incriminating problem. Additionally, if one were to stop on the way home and eat dinner and consume one beer, which was subsequently identified by the roving officer, the whole evening could prove quite disastrous.

Some important thoughts to baer in mind regarding late night driving and DUI are 1) the cops are on heightened alert because it's nighttime. When the sun goes down the police ramp up for more stops and more DUIs. They go out of their way at night to pull people over for any infraction, such as a burnt out tag light, high beams on too long, driving 5 miles over the speed limit, touching the shoulder line of the road, etc., in order to effectuate that stop.

2) Once they pull you over, even the faint odor of an alcoholic beverage will get you in trouble for drinking and driving because once they smell it, you are likely going to be arrested. The police officer's favorite question is: have you been drinking tonight? You lose no matter what you say. "Yes, I have been drinking, I had a beer at the restaurant." Busted, you are going to the station house because you admitted to consuming alcohol and they won't believe what you told them. Or, "No officer I haven't had anything to drink tonight." Busted, he knows you are lying because he can smell it on your breath. Either way, you lose.

Now, the fun is just beginning! Your body keeps its own internal clock, it's called a circadian rhythm. This internal body clock, according to researchers can effect your ability to engage in mental and physical exercises at night such as DUI roadside field sobriety tests. Therefore, when you are most vulnerable to attack by the police secondary to it being late at night, or being tired, or driving a long distance, the police are on high alert to look for you. Mix that with only one beverage and you have a recipe for disaster. Under these circumstances there is little chance, if stopped, that you won't be charged with a DUI even if you blow under Maryland's legal limit for DUI, which is .08. Remember, according to a recent conversation I had with a Maryland State Trooper, "If we hook 'em, were going to write 'em." That means, if you are arrested for the crime of DUI, it is highly likely you will be charged even if you blow under .08.

Continue reading "I can pass Field Sobriety Tests and various sundry matters" »

July 9, 2007

How to select a Maryland DUI Defense Lawyer

Day to day I don't have any particular agenda regarding what to write about but instead when I'm in DUI court, things seem to happen which prompt me to write a post. Today I was in court in Anne Arundel County, Maryland and listened to a case which was called before mine. The gentleman was apparently weaving in his vehicle while he was towing a boat. The suspect was stopped and refused to blow in the State's breath machine and he refused to engage in the State's roadside gymnastic exercises. (Hurray for this man)!! That is, upon being pulled over the suspect was smart enough to let the police do their job without giving the police all kinds of evidence to use against him. DUI defense attorneys do not see too many cases like that.

Anyway, in court the suspect's attorney elected not to try the case based on these facts. Instead the attorney simply plead the defendant out to a guilty charge and it was over. The client was placed on probation and had to complete all the requirements of same and may or may not have even known what type of case he had. (By the way, while in the process of pleading the case out the attorney engaged in a loud and heated argument with the judge's bailiff on two separate occasions. The judge was very nice, a different judge may have knocked the lawyer back on his heels for this type behavior.) Frequently when I'm in court I'll see cases that are plead out that really should not be. Cases where client's plead guilty but instead should plead not guilty and should fight their case. Many cases can actually be won if an effort to fight is made. That is, if you do not fight, you cannever win.

The point of this entry is that you really need to know something about the attorney you are hiring. You need to be prepared to spend a descent amount of money for fair representation. That is, if you do not pay enough to be represented, you won't be, you will just be plead out. Now sometimes a good result may be reached by pleading, there is nothing wrong with that if 1. there is a decent deal on the table and 2. you don't have a decent defense. But in cases like the one I saw today, there was a decent defense and it should have been tried. Heck, if the attorney lost the case, he would have ended up right where he started and at least he would have taken a "shot at the ring" on behalf of his client.

I had a DUI case with this very same judge earlier this year. My facts were much worse in that my, under the age of 21 client, had an accident, there were drugs found on him and he blew a .15. I tried my case before this judge and got the drugs suppressed and I kept the .15 out of evidence. Result: Not guilty of possession and not guilty of DUI. My point is- one has to be ready to fight in order to accomplish anything worth while.

Continue reading "How to select a Maryland DUI Defense Lawyer" »

July 9, 2007

Why DUI defense attorneys do what we do (Part 2)

In my prior DUI post on this topic I was explaining that the criminal justice system for some reason treats DUI suspects differently and with less privilege, than a murder suspect. This is of great concern to the DUI bar for many reasons. The most important of which was already discussed, that is, we can not permit an erosion of constitutional rights in the name of convenience of prosecution. This ideology takes us down a scary and slippery slope which we as Americans have never permitted, so why permit it in DUI cases?

I must say the degree of enthusiasm and the extent to which the government machine is willing to sacrifice our legal rights strikes me as rather ironic when considering the large variety of people who actually get charged with DUI cases. That is, the very law makers who seek to limit your rights and place the iconic letter on your back are also the law breakers. Starting with a certain former President, charged with DUI, police officers, prosecutors, law makers, countless congressional representatives, doctors, lawyers, and Indian chiefs. A Google search on the topic would reveal countless DUI cases involving any group, for example today, July 4th, 2007 the Chicago Tribune has a piece on a police deputy stopped for suspicion of DUI and wouldn't you know it, there was a prosecutor in the car with him. The story continues that they were processed and released without charges. Whoops, somebody forgot to charge the police deputy with DUI, how could that happen? Now everybody involved is suspended and it's all being reviewed for procedural errors which they admit occurred.

How about the Delaware State Representative who was pulled over in December 2006 and flashed his legislative I.D. card and was released without charges by two Ocean City Maryland police officers-whoops. It's just more than ironic, perhaps hypocriticalthat everybody wants to hammer the DUI suspect, limit their rights, convict as quickly as possible until it happens to somebody in the spot light or somebody with authority, then it's time to drop charges, run the other way, and turn the other cheek.

Not concerned about your rights yet? Alright. You are driving home from dinner on Friday night, wife and family in the car. You are driving perfectly because you not impaired. You had a glass of wine with your dinner, maybe two. You are herded into a police sobriety checkpoint or road block which is set up on the road you take home. After sitting in a backed up traffic line for 5-10 minutes while the cops engage each driver in conversation, it is your turn. You are not concerned because you are not drunk. Good evening Sir- have you had anything to drink tonight? Your heart jumps into your throat, you know you are not drunk or impaired so you answer truthfully, a couple of glasses of wine with dinner. Sir can you please pull over to the side for field sobriety tests.... guess what? Unless you are a gymnast you are going to jail right now, in front of your wife and children who are horrified. You are going to be charged with a DUI, you have to hire a lawyer, go to court, complete an alcohol class, be on supervision and pay all kinds of money for lawyers and, you guessed it, government fees and fines.

Why? You only had two glasses of wine at dinner, you were driving fine how could this happen? Heck after taking you to the station you only blew a .06 which is below the legal limit of .08. What happened? Well in today's climate nobody gives a darn. If you admit to drinking alcohol you will be stopped and asked to do field exercises. If you perform those exercises, you will undoubtedly fail them because they are foreign to you and you are nervous and scared. Once that happens, you are going to be charged no matter what, whether you blow a .04, .08 or more. I know because I see it every day. I had a lady involved in a serious single car accident who blew a .04, she had wine with her Mother over lunch. She was charged. I got her off the charge, but she still had to go through all the emotional turmoil and expense of the process.

The point I want to advance here is that 1) this can easily happen to any person any time no matter who they are- unless you just do not consume any alcohol and more importantly 2) this should not happen at all and here's why.....

Continue reading "Why DUI defense attorneys do what we do (Part 2)" »

July 7, 2007

Does it matter how I breath into the device?

People ask me if it matters how you breathe into the breath machine. Is it good to hold my breath? Should I breathe heavy? Should I breathe quickly? The answer is, it does matter how you breathe into the device. Basically, you want to do the opposite of whatever the cops tell you to do- then you will get a fair result (notwithstanding the machine's shortcomings that were previously discussed).

A client came in to see me and said the "the officer told me to hold my breath and blow hard into the machine until he tells me to stop." The officer actually went so far as to write these instructions down on the DR-15A officer's certification and temporary license. I must say, I have never seen that written down before. The officer may not have even known what he was doing, they may just be trained that way, but here is the result of that action.

There have been a number of scientific studies which have determined that the breathing pattern of a driver absolutely impacts the resulting number. Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing. 51(1) Journal of Studies of Alcohol 6. If a driver holds her breath for 30 seconds before exhaling she can unknowingly increase her BAC (breath alcohol content) by as much as 15%. Conversely, hyperventilating for a similar period of time before blowing can have the effect of decreasing the BAC by as much as 10%. Keeping your mouth closed for several minutes before blowing versus simply opening your mouth and breathing regularly or with short quick exhales can have an impact. How can this be you ask?

Remember that the exchange of alcohol from blood to breath takes place in the alveolar lung air. If a driver holds their breath they are allowing whatever alcohol is in their mouth and airways to build up right before exhaling in the machine. Additionally, sustained deep hard breathing into the machine extracts the maximum alcohol content from the lungs into the machine as opposed to more shallow breathing which will not have such a high level of alcohol content. The machine has a gage on it that monitors exhaled air flow which has a tendency to require a certain air volume but it does not take much to meet the requirement of the machine.

Maryland law and the toxicology regulations Section III Appendix J require that the two blows that are required must be within .02 of each other and if they are not, a third sample is required. One of the reasons for that is because different techniques employed while blowing into the machine can have dramatically different results. Thankfully, the State does use the lower result against the driver.

Therefore, if you can not remember how to blow into the machine when asked to do so by Maryland's finest, simply employ a technique directly contrary to what the officer who is trying to convict you, asks you to do, and you should be alright.

Continue reading "Does it matter how I breath into the device? " »

July 7, 2007

Maryland DUI and Field Sobriety Tests

I have been espousing to clients and the public in general that engaging in Field Sobriety Tests (FSTs) following an alcohol stop is wrong! It's just wrong! The reason is because there are so many variables against you regarding the successful completion of these tests and conversely you have so little to gain by attempting the exercises. You can and should expect the officer to cajole you into doing the tests by saying such things as, "well if you don't do the test, I am going to arrest you" and "if you pass the tests, I might let you go." Guess what, once you are stopped for DUI in Maryland, once the officer smells alcohol on your breath, you are going to be arrested in 9.5 out of 10 cases; plain and simple. What we all need to do is to stop giving the police evidence to use against us in Maryland's court, we need to stop self incriminating. The faster we grasp that, the better we will be. The field sobriety tests in Maryland are enormously unfair and unproductive to the driver and here is why:

1. The tests are subjectively graded by the officer. As far as the court is concerned, what the officer says happened, is what happened. When it's a driver's word against the cop's word, the cop wins- after all, you were impaired how could you possibly remember what happened right?

2. The driver is attempting these field exercises in a highly emotional state. It is typically night time, on the side of the street, and if you are human, your blood pressure is through the roof because you have been pulled over by the police, you face possible jail based on how you do (at least in your own mind), you are in public trying to do these tests, and you may not be all that physically coordinated.

3. Different people have different abilities, both physically and mentally. Some people are coordinated, faster, balance better, some people have medical issues, some people can function better under pressure, etc. I do not see, nor have I seen, where sober people under these conditions can perform these test adequately. How many times have you heard "I couldn't do these tests sober!" Don't say that either, they will use that against you as an admission. Essentially, the test are engineered from the word go for you to FAIL. By the way, you better wait for the word GO to begin the tests or that will be construed as a clue against you.

I won an interesting case on Friday (today is Saturday morning) on the eastern shore, Maryland and I think it is noteworthy regarding field sobriety tests- here's what happened....

Continue reading "Maryland DUI and Field Sobriety Tests" »

July 5, 2007

When being right is not necessarily right

First thing back after the Independence Day holiday I'm in Montgomery County, Maryland for a DUI . In this case the defendant was stopped for a traffic violation and read her DR-15 rights prior to blowing in the machine. She did not understand her rights as they can be somewhat confusing so she asked to speak with an attorney, on more than one occasion, which is a good thing to do in any case. Unfortunately, she had been arrested by an officer who did not appear to understand that the defendant has rights (there's a shocker). She has the right to speak with a lawyer when she asks as long as it does not interfere with the timely administration of the breath test. Notwithstanding, this officer said NO. The defendant subsequently ended up providing a breath sample and blew a .18.

Well, these facts are good for the defendant and bad for the MVA and/or the court. I requested an MVA hearing for this client (where I may not have otherwise done so based on the BAC number) on the denial of counsel issue. Following an MVA hearing on the merits, the administrative law judge agreed that the defendant had the right to an attorney prior to blowing in the machine and therefore took no action. Very nice result for a .18. This particular issue is a strong one at administrative hearings and when properly proven, has won the day in each instance except for once, for which the matter is presently on appeal to the Circuit Court for Carroll County.

Be that as it may, we appeared in the District Court for Montgomery County today with the .18 and I anticipated the State, based on the facts, would drop the case to the "b" offense. The State, however, had other plans and declined to do so. We had a fair judge today and I think the issue would have been successfully tried, except for two things: 1. The client was not in favor of a trial as she just wanted it to be over so she could go home and 2. There were underlying traffic tickets that still had to be dealt with in addition to the DUI charge. So, at the client's direction, the matter was not tried but rather plead out. She essentially received an unsupervised probation, having already completed alcohol education, all the traffic tickets were dropped and the client was happy. So in this case, being right and proving it at trial may not have been the right thing to do as it may have resulted in additional problems for the client at the end of the day.

The point to bare in mind here is that despite the possible trial on the right to an attorney issue, the better resolution was reached as a result of entering into a plea agreement with the State. The prosecutor said they normally do not drop the traffic tickets but since we did have an issue, she was willing to drop them here. As a result of that, the client was able to make a very clean exit. It's true that she got probation for the "a" offense as opposed to a possible "b" if we would have won in trial, but she walked away with no points whatsoever, and a short period of probation without the stress of a trial and she avoided the traffic tickets which she would have otherwise received. The better result was obtained without the fight.

Continue reading "When being right is not necessarily right" »

July 5, 2007

What if I am a Diabetic?

I recently concluded a case for a lady who blew a .19, she was a diabetic and was stopped in her car while racing home, above the speed limit and blowing through lights in order to get to her meter to test her sugar levels. She had insulin injections with her but no meter. When arrested she was noted to have slurred speech, nystagmus, and was unsteady on her feet.

Now, how does a depressed blood sugar level present itself? Known as hypoglycemia (low blood sugar) a person will have slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face and will possibly be disoriented. All of the normal things the cops look for. They see it in a person suffering from this condition and then make an arrest for DUI. In my case, the lady told the officer why she was racing home and what she needed but naturally her claims fell on deaf ears.

So off to the station house we go for a breath test which will surely exonerate our young client right? Wrong! As previously discussed the infra red device in the intox is designed to pick up the molecular structure of ethanol alcohol. Unfortunately for this driver, a similar molecular structure exists in a wide variety of breath constituents known as the "methyl group" and will be picked up and identified by the magic box on the cops desk as ethanol alcohol and used against the driver.

In this case, the diabetic has acetone on her breath. Acetone on the breath is a well documented by-product of hypoglycemia. The machine will register the acetone in the breath and yield a BAC reading when the driver may have consumed no alcohol or it will magnify the BAC where she has consumed alcohol.

The result for this particular driver was that her BAC number was thrown out at the administrative hearing and she received an unsupervised probation in Court.

July 4, 2007

Why DUI attorneys do what they do (Part 1)

Why do DUI defense lawyers defend people accused of drinking and driving, after all, it's a terrible crime, people get hurt and sometimes worse? How can we possibly do this? Do we condone the use of alcohol and driving? Do we lack a conscious or compassion for our fellow man? The answer is, it is our conscious and compassion for our fellow man that drives us. What I condone is the applicability of the United States Constitution, for which many generations of men have fought and lost their lives. Thomas Paine once said, "It is the responsibility of the patriot to protect his country from its government." A review of the news around the globe reflects countless instances of government trampling on the rights of its citizens. The United States constitution is over 200 years old and has guided our laws, our citizens and our government effectively because we have always had a government and a Supreme Court willing to fight to uphold its tenets. However, increasingly there have been chinks in the armor of the Constitution in the name of expediency. Increasingly courts all over this country are eroding the Constitutional rights of citizens to be safe and secure in their "persons, papers and effects." (Fourth Amendment U.S. Constitution). If we blindly continue to allow these transgressions of the Constitution, if we turn a blind eye to these matters because it is convenient to prosecute cases, then tomorrow it will be a different erosion of your personal rights to privacy that were guaranteed to you as a citizen. Each time there is a transgression or an erosion of civil liberties in the name of convenience of prosecution, we bring ourselves one step closer to a society which our forefathers fought and died to extricate us from.

Did you know that if you were convicted of the worst crime possible, murder, that you have more rights and Constitutional protections than if you are charged with the misdemeanor of drinking and driving? That is, as soon as the murderer is taken into custody the first thing that happens is that he is read his Miranda rights; he is essentially advised to shut up and get a lawyer (albeit many people never heed this warning). Every step of the way thereafter, due process mandates that a suspect have a lawyer present to protect his legal rights, despite the fact he may have killed another human being and deprived that person of their rights.

Your government has the right and the ability under law to deny a citizen of their property, their liberty and their life. If a government agent, the police, charges a citizen with a crime, another government agent, the prosecution picks up the ball and prosecutes the citizen. Then a judge, another government employee, or a jury hears the evidence which is offered by the government. The government has an endless amount of resources, financial and otherwise to obtain evidence and to support its version of a case. The ONLY THING standing between the police, the prosecution and government, the only thing an accused has to rely on to protect him from losing his liberty, his property, or his life, is his defense attorney. His attorney is his key to bring to bare the case law, the statutes, and the facts in order to contradict the awesome power of the government. His criminal defense attorney is all he has to protect him from the system.

In any individual case the system may be correct, the defendant may have done what he is accused of doing and may therefore need to be punished (unless he is a friend of the President like Scooter Libby, in which case the rule of law does not matter and he will be set free). If this "system" is correct, then so be it, let the system prove its case to the satisfaction of a jury and punish the defendant accordingly. However, there are also countless times when the system is not correct; where the wrong defendant has been accused, where the crime has not been committed as charged. It is in these cases where the defense attorney is needed the most and in order for the defense attorney to be effective on the part of an innocent person, the attorney must also defend the guilty defendant. That is, both defendants, those actually guilty of the crime and those innocent of the crime have the absolute right to and a need for a defense. Both defendants have the right to an even playing field under the Constitution because if a defendant is in fact guilty, the State should be able to prove its case beyond a reasonable right, right?

Continue reading "Why DUI attorneys do what they do (Part 1)" »

July 4, 2007

Where can I be arrested?

A client recently contacted me to represent him for DUI for driving his vehicle on strictly private property. That is, he was attempting to get his vehicle out of a wooded area when arrested. (How the vehicle got in the wooded area in the first place is beyond the scope of this blog). I have also documented a number of DUI or alcohol related offenses on "vehicles" other than cars. So I thought I would clear up the confusion regarding where exactly you can drive in the state of Maryland and what you can operate after having consumed alcohol.

First the where may I drive? The answer is nowhere. (Trans. 11-127) Maryland's alcohol statute 21-902 and the transportation section 16-205.1 have been interpreted by the courts to mean that a driver may not operate a vehicle anywhere in this state, public or private, after having consumed significant alcohol. There is a case on point that says operating a motor vehicle on one's own private while over a .08 BAC is sufficient to be violative of Maryland's statute. Now this can be contrasted with driving on a suspended license which only applies to public property or private property used by the public at large.

Second, what may I drive? A bicycle, horse, scooter, tricycle? Answer: None of the above. The legislature has drafted the definition of vehicle in the transportation article 11-176 to mean any device in which a person or property may be pulled or towed on a highway. A highway is expansively defined as essentially anyplace traffic may go. It has been interpreted to include private land. Thus, for those with a desire to know, almost any vehicle, including a wagon, but excluding a personal device designed to transport a handicapped person, would be enough to satisfy the statute. Operating this vehicle any place in the State, even completely private property would likewise be enough to satisfy the statute.


July 4, 2007

Stick to crabs and not bread

It is best to stick to crabs and a little beer (if you are going to drink at all) on this holiday and to stay away from bread products: white bread, donuts, pretzels and the like. The reason why is the bread products can get you convicted of a DUI. Research has shown and scientific articles have been written which indicate that the consumption of bread products can actually result in you registering a BAC of up to .05 or more in some cases.

The reason is that there is a fermentation process with white bread and a by-product of fermentation with yeast is alcohol. The resulting alcohol, while in relatively small amounts, can be problematic if a driver has consumed any other alcohol. That is, a .05 from two beers could become a .10 under these circumstances. Additionally, bread that is retained in the mouth between teeth has the additional benefit of absorbing and trapping alcohol that is consumed by the driver. This can have the detrimental effect of registering even a higher number on a breath machine.

Sounds hokey you say? Not so. I have personally tested the EC/IR machine. I have personally placed alcohol in my mouth and eliminated same and later provided a breath sample which was extremely high. This is known as mouth alcohol. The machines are suppose to have mouth alcohol detectors, known as slope detectors for this very reason, but Maryland does not use them. Considering that the consumption of bread can register its very own BAC number and further considering that bread tends to absorb liquid and thereby allow for mouth alcohol, I would bare these important issues in mind if you are asked to provide a breath sample.

For more information on this topic see “Intoxilyzer: A Bread Testing Device?”, 15(4) Drinking/Driving Law Letter 52 (1996).

July 4, 2007

Let's try to be more careful

Today is July 4th, 2007. Happy Independence Day America!

I wanted to write an entry about the importance of significant weight loss and its impact on the breath machine but then I saw this video of 1989 playmate Jennifer Jackson being stopped for a recent DUI and wanted to make a more important observation for the safety and benefit of all.

If you watch the video you will see Ms. Jackson attempting to perform field sobriety tests on the shoulder line directly adjacent to oncoming traffic. You will also see this Ohio officer actually standing almost in the middle of the travel lane as he requests this young lady to perform these tests and incriminate herself. She appears to have difficulty balancing, now whether this is a personal issue, or is related to alcohol consumption or drug consumption (they found items in her car) we do not know, although the police will of course charge her with everything.

The thing that bothers me about this DUI arrest, is that the officer, in his zeal to effectuate this DUI stop has placed himself and the suspect directly in harm's way. He does not seem to recognize nor care about that fact; however, I'm sure both his family and Ms. Jackson's family would care a great deal if something bad happened. Notice in the video that Ms. Jackson falls to the side right into the traffic lane, the officer nearly has to catch her. The officer is standing nearly in the middle of the travel lane. Somebody is going to get killed and then it will be all Ms. Jackson's fault because she was stopped for this alcohol offense.

Just recently there was an officer in Maryland who was tragically struck and killed as he attempted to stop a vehicle for speeding. Apparently he performed the dangerous maneuver of stepping out directly into traffic in order to direct the driver to pull over. The driver was in fact speeding but there was no alcohol involved. The driver could not or did not stop in time and struck the police officer. He later died of his injuries. They are now conducting an investigation into whether the procedure of stepping into the street in order to stop speeding cars is safe.

The purpose behind traffic law enforcement is to save lives, not risk lives. In both of the aforementioned cases, lives are being needlessly risked or lost. The majority of DUI stops take place at night when drivers can not necessarily see as well as during the day. If the arresting officer wants to stand in the middle of the street and if he wants you to perform field tests on the shoulder of the street with cars flying by, do everybody a favor and tell him no! Field tests should not be attempted in the first place because you only give the officer evidence to use against you, but if you are going to voluntarily attempt the test, make sure that you are in a position of safety, perhaps on the sidewalk and encourage the officer to get into a position of safety too. After all, what kind of notes can the officer take regarding your field sobriety tests if he has to constantly be concerned about oncoming traffic. Likewise, how can you perform these tests to your full capacity if you are worried about being struck by a car.

This way you can both enjoy your July 4th holiday.

Continue reading "Let's try to be more careful" »

July 3, 2007

I know how it works- so what should I do?

Now you know a little more about how the magic box on the cop's desk works and how it may not be reliable, what do you do about that when asked to blow?

1. Were you read your DR 15 rights? If you were not properly advised of your rights and signed off on the form you are not required to do anything. Albeit if the officer somehow failed to advise you of your rights, you may not elect to bring this to his attention just to allow him to fix the problem.

2. If you were properly advised it is very important that you have the advice of counsel to further evaluate your situation prior to you giving evidence against yourself. That is, blowing in the machine will result in evidence against you. Your government has somehow come to the conclusion that this is non-testimonial evidence and therefore you lose certain safeguards but that is a post for another day. The important thing is to contact counsel, if possible, for advice.

3. If DUI counsel is not available then you should understand that your failure to provide a breath sample will result in your driver's license being suspended administratively for 120 days. This

oftentimes
is untenable for a DUI suspect so they may be compelled to blow against their better judgment.

4. However, if this is a multiple offense for the driver, ie. second, third or fourth, one may want to consider very carefully the ramifications of blowing and severely hurting one's case versus loss of license (which may be modifiable by an interlock) because on a multiple offense the very real possibility of jail time becomes magnified and enhanced.

5. If one does provide a sample which is over the legal limit, some of the administrative penalties can be avoided and one always has the potential defenses to the machine as discussed in earlier posts regarding reliability.

So, what to do if arrested for DUI? It's a personal decision which can be assisted if counsel is available to discuss the matter. Ironically, as an arrested driver pending a test, not only do you have the absolute right to speak with counsel prior to giving a breath sample, you have the right to a face-to-face communication with your attorney at the police station prior to blowing if you request same. Here's where it gets fun because most police either do not know that you have this right or they will not allow you to exercise the right if you request it. Therefore, be sure to exercise your constitutional right and ask to speak with counsel prior to giving any test. Should the police deny your right to counsel, the evidence obtained or lack thereof will probably not be admissible against you in court.

July 2, 2007

To blow or not to blow part 4

To this point I have discussed a number of reasons why a person should be skeptical of the results obtained by a breathalyzer. Unfortunately, many judges are not as skeptical so one must be educated on these matters in order to make an informed and voluntary decision regarding whether to blow or not to blow. Before leaving the issue of the reliability (or lack thereof) of the machine I want to discuss the difference between absorption and post absorption and how that affects your true BAC versus your machine number.

A common problem that a driver may run into is being tested by the machine shortly after leaving a restaurant or drinking event. If a driver is stopped shortly after consuming alcohol, chances are the driver is in the absorptive phase. That is, his body is still absorbing the alcohol that was recently consumed. The absorptive phase generally lasts from 45 minutes to as much as two hours after drinking has abated with peak absorption generally at one hour whereupon the driver has reached equilibrium. Equilibrium meaning that the alcohol is evenly dispersed throughout the driver's body. The biggest factor that controls absorption is food intake. Food in the stomach can have a significant impact on when alcohol passes from the stomach to the small intestine for absorption.

In the absorptive phase, the alcohol in the body is not evenly distributed throughout the body but rather resides in higher doses in different parts of the body. In the post absorptive phase, the alcohol content has evened out and is more uniform throughout. In the absorptive phase, one of the most significant aspects is that alcohol content in arterial (artery) blood will be higher than in venous (vein) blood. When you give a blood sample it is drawn from a vein. During peak absorption arterial BAC can be as much as 50-60 percent higher than venous blood. So, why is this important in breath cases?

This is very important because the alveolar sacs of the lungs where the air exchange takes place between the blood and the lungs are immersed in arterial blood, not venous blood; therefore the breath sample obtained by the machine will be based upon pulmonary BAC which during the absorption phase will be markedly higher than the veinous BAC if a blood draw was performed.

This fact regarding absorption stage is well known and supported among the experts in the field including Dr. Kurt Dubowski, a prominent professor at the University of Oklahoma, however, if you were to ask a breath operator about this point, he would look at you like you had 3 eyes.

Continue reading "To blow or not to blow part 4" »

July 1, 2007

To blow or not to blow part 3

So now you know a little bit more about how the magic box works, what do you need to know next? The important thing to know is that they can be highly unreliable. These magic boxes that sit on the police officers dusty old desk are not all they are cracked up to be. Unfortunately the boxes are powerful, they have the power to single handedly convict in the overwhelming majority of cases, then when you add on top of that the arresting officer's 100% candid and non-biased statement of facts resulting from the arrest, things can get pretty gloomy.

Let's take a look at a few ways these machines are not accurate or fair. As indicated in my prior post, the machine bases its calculation on a ratio of alcohol from blood to breath of 2100:1. That is 2100 units of alcohol in the blood for every single unit of alcohol in the breath. The machine bases its entire existence on this ratio but the problem is many people do not fall into this "average person" category. True "partition ratios" can run from as low as 900:1 to as high as 3500:1. If a driver's ratio is different than what the magic box bases its formula on, then the driver gets an inaccurate number and quite possibly a faulty conviction. The machine uses the same ratio for all people, men, women, big or small; the smallest woman versus the biggest man, the machine says you are all the same. Hmmm.

I have represented petite woman who have sworn they only had 3 glasses of wine yet they blew a .12; I have represented males under 5 feet tall, I have represented folks with known lung disorders, folks with cancer, all the same results. Numbers high enough to convict because the machine says so, but in all likelihood the box was wrong. Naturally none of these folks went to jail, even when they were multiple offenders, but they still had to retain counsel to fight the darn box. They still had to go through a very uncomfortable and expensive process all because their individual partition ratio was different than what the machine says it should be.

Other than partition ratio, are there any other problems you should know about regarding the accuracy of the box? Why yes, funny you should ask. If you are a diabetic the machine can misread, if you are on a diet and have recently lost significant weight, the machine can misread, if there is radio interference in the police station (ie. cop radios), the machine can misread, if you recently placed anything in your mouth before blowing, the machine can misread, if you have a temperature at the time you blow due to menstruation, general illness or any cause, the machine will misread high.

Studies have shown and articles have been written regarding the temperature of the sample. The core body temperature is generally 98.6 degrees F. However, in the article Body Temperature and the Breathalyzer Boobytrap, 721 Michigan Bar Journal (Sept 1982) it discusses the fact that for every 1 degree higher than core temperature, the breath sample will register 7% higher secondary to Henry's law of gases.

This list does not even begin to exhaust the possibilities of error regarding this box. Even Maryland law recognizes that the machine has a .01 margin of error before even getting into the aforementioned matters. There are other issues innate to the machine which can cause false high readings. Interestingly, most police officers/machine operators themselves are unfamiliar with the various short comings of the machine. Ask an breath test operator about the .05 mask which is built into the machine which allows the machine to operate on a blank air sample even though it registers up to .005, he won't even know what you are talking about. However, the manufacturer of the machine does know and has discussed this in prior court testimony. The result, when you blow, the sample can read .005 higher than whatever your true number is without even considering any of the foregoing matters.

Oh yes, there is one other minor matter that has a very significant impact on the accuracy of your number which I will discuss in the next post.

Continue reading "To blow or not to blow part 3" »