Arizona DUI Defense Blog

THE NEW ARIZONA DUI LAWS ARE HERE!

Lawrence Koplow — Sun, 08 May 2011 20:36:06 -0700

It's true - Arizona has reduced the penalties for DUI convictions. Here are some of the highlights:

The interlock requirement has been reduced from 12 months to 6 months (for first time non-extreme DUI.)

The mandatory jail requirements have been modified / reduced. There is a lot of legalese with this particular change. I will do a detailed post on the specifics soon. However, you should know the judges now have more discretion to reduced jail time for both extreme and non-extreme DUI convictions.

Home detention (an electronic ankle bracelet) will now be available in justice courts and the judges now have some more latitude to utilize these ankle bracelets instead of long jail sentences;

Certain driver's license suspensions now allow for restricted driving permits that previously did not;

There are a lot more changes in the new law. The legislature, without a public debate, removed the statutory right to jury trial for non-extreme DUI cases. However, all extreme DUI charges and all second DUI charges still have an automatic right to a jury trial. There may still be a right to jury trial in regular DUI cases under Arizona's common law. In any event, the jury trial has not disappeared - there will be a big legal fight to come on this issue.

I will be posting additional details on the new laws in the coming days.

Lawrence

Blood Testing Is About More Than A Machine

Lawrence Koplow — Sat, 05 Feb 2011 14:32:01 -0700

In DUI cases, an accurate blood test result requires more than just the blood tester to be working properly. A reliable test results requires more than than what the machine (the blood tester) provides. As shown below, see the machine is just a fraction of the process need to obtain an accurate and reliable result.

BLOOD TESTING IN ARIZONA DUI CASES

View more presentations from Lawrence Koplow.

Usually the government only puts safeguard in place to prevent machine errors. Consequently the majority of the blood testing process will go unchecked and subject to human error.

Interview with KTAR's Jay Lawrence

Lawrence Koplow — Tue, 26 Oct 2010 12:36:45 -0700

This past Sunday I was interviewed by local radio station KTAR's Jay Lawrence on a number of Arizona DUI issues, including:

current Arizona charges and penalties,
changing enforcement standards for DUI charges based on jurisdiction (Scottsdale, for example),
measurement and testing,
drug-based DUI charges - both legal prescription and illegal,
differing charges while a child is in a vehicle, and
timelines for resolution of DUI charges.

The entire interview, along with my answers to various phone-in questions, is now available as a downloadable podcast, starting at the 11:00 minute mark.

Many thanks to Jay Lawrence and KTAR for having me.

The Dirty Little Secret (of Arizona DUI First Offense)

Lawrence Koplow — Wed, 25 Aug 2010 09:27:01 -0700

Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM. It makes perfect sense, right. Who would risk more than a month in jail for a few drinks.

Apparently - lots of people. Maybe even more people now, than when the penalties were previously lower. Unfortunately the State's math is flawed. Let me give you some anecdotal evidence.

A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called. Before the judge started calling cases he told the packed court room about Arizona's DUI penalties. After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law. "Fair or not these are the laws I am required to follow."

Well it is not everyday a judge, in open court, makes such a candid admission. Moreover, the judge's speech was absolutely correct about the Arizona DUI laws. Those of who are involved in Arizona DUI cases, "all know" the math is wrong. We all know, law enforcement included, raising penalties does not reduce the number DUI cases. One reason is the real consequence of a DUI is not jail, but taking someone's life. If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.

However, I have an idea of what may work. In part two of this post I make my case for how I believe we should address the problem. That is, if we are serious about solving it - which I hope we are.

Lawrence Koplow

The DUI With No Driving - Part 1

Lawrence Koplow — Wed, 21 Jul 2010 07:39:32 -0700

DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.

However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol. Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.

Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:

•   Sitting in his car
•   The engine was off
•   His hand on the wheel, and
•   The keys in the ignition,
•   Alcohol in his system

Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio.   He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.

The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts.   The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.

The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.

The new instruction will be published in Part II of the blog post.

If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

Scottsdale DUI: Home Detention Is Here (Almost)

Lawrence Koplow — Fri, 09 Jul 2010 07:14:41 -0700

I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program. It appears that they have finally implemented the program. Here are the minimum qualifications based on the information I was given at court.

The date of your offense must be after May 27, 2010; and
You must start your self-surrender date on or after October 1, 2010

There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions. In addition, keep in mind: (1) admittance into the program is not automatic. The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program. Thus, this program is for lengthier terms of incarceration.

If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.

Lawrence Koplow

Scottsdale DUI: Home Detention Update

Lawrence Koplow — Thu, 10 Jun 2010 06:01:22 -0700

While the City of Scottsdale has approved a home detention program, it has not released any of the program's details. The most anticipated detail is the start date. As of yesterday, the start date has not been released. There has been speculation that it may not start until the end of summer. However, no one really knows. As soon as the details become available I will post them here.

Scottsdale DUI: Changes in the Scottsdale Courts

Lawrence Koplow — Mon, 22 Feb 2010 05:31:12 -0700

What is going on in Scottsdale? In the last 30 days two judges have been let go by the City Counsel. What is coming next?

Best DUI Blog Posts: December 2009

Lawrence Koplow — Wed, 16 Dec 2009 15:35:33 -0700

I am starting a new list of the best DUI blog posts for the past month. I am admittedly stealing the idea after reading Kevin O'Keefe's Best In Law Blogs. However, as I am one of Kevin's clients, I don't think he will mind (as long as the check clears.) Here are the posts that I found most interesting for the past month:

United States Tax Law Encourages Drunk Driving - I guess we have to give credit to a very clever accountant.

DA Appeals Ruling in Massachusetts DUI Blood Testing Case - It should be obvious to any prosecutor that to get laboratory results into evidence, there needs to be a someone to testify to them. I am sure I just jinxed this attorney by making this statement.

Minnesota DWI Lawyers Pissed about Urine Cases: What Happens When Judges Assume the Role of Scientist - This post is very technical. There is an excellent discussion regarding urine testing. More importantly, the post has a great title.

DUI Innocence Project: 93% Wrong-False Use of Roadside Tests Can Lead to False Arrest - This post presents a very good idea and a clear presentation of the truth about field sobriety testing.

And Introducing The Unethical Attention-Whoring Crappy Douchebag Lawyer - This is the most entertaining post of the month by far.

If there are any DUI lawyers that think I should have put their post here, let me know.

Thanks,

Lawrence

When Lawyers Attack

Lawrence Koplow — Mon, 14 Dec 2009 21:53:30 -0700

Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:

So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.

The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…

Towards the end of the post, Gideon concludes:

The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).

Another site that comes up? New lawyer darling Avvo.

So yeah. Douchebag.

Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.

Arizona Extreme DUI: The Out of State Visitor Dilemma

Lawrence Koplow — Wed, 18 Nov 2009 08:37:23 -0700

The harsh penalties for an Arizona extreme DUI conviction have been well chronicled in this blog. However, what happens when we apply these penalties to people who were only visiting Arizona and charged with DUI?

One could take the view: who cares? When people come to "our state" and commit crimes, they deserve whatever they get. On the other hand, you could look at what I believe are the unintended effects of these penalties on visitors to Arizona. Moreover, these unintended consequences really demonstrate the disconnect between what should be the goals of the law (deterrence) and the means (more jail) used to carry out those goals.

Here are some basic facts. First, for obvious reasons, we get a lot of visitors to Arizona. Second, we have DUI laws and enforcement that are much stricter than in most states. And third, despite the promise that increased penalties (i.e. jail time) would prevent DUI offenses, it appears law enforcement agencies are still arresting the same amount (or more) of people for DUI. If there is a reader of this post who has some statistic showing my third premise is incorrect, please post it in the comments and I will publish it. However, I am doubtful that anyone will find such a statistic. In addition, I contend that the increased DUI penalties fail to deter both in-state and out-of-state visitors. Thus, visitors to Arizona, lots of visitors to Arizona, are getting charged with DUI offenses.

Let's add the penalties for an Arizona extreme DUI conviction to the equation. For a first time extreme DUI offense (i.e. blood alcohol result of .150 and below a .200), even if the judge believes you are the best person on the planet, the minimum sentence is 30 days jail. Combine this with certain prosecuting agencies that offer a plea agreement of 30 days jail (or close to it), and out-of-state visitors have a real problem.

For the Arizona resident, 30 days jail is a tremendous burden. However, at least with work release, you should be able to keep your employment. If you live in California and are sentenced to 30 days jail in Arizona, your job (your career) is now in jeopardy. How many employers are going to say "sure, take thirty days off to go serve a jail term in Scottsdale, no problem?" This misdemeanor offense can have penalties that could ruin someones livelihood.

Here are the solutions we have found in the past. An out-of-state visitor can request an order to do their jail in their home state. That request is almost always granted. However, the judge will tell you it is "your" responsibility to find a jail in your home state that will comply with the incarceration order. In my experience, the average person can find a jail that will take them for a day or two, but 30 days - good luck! To solve this problem, we have had to employ former law enforcement officers and had them assist with getting our clients accepted into the facility. Even using this method, it is still difficult. Moreover, how many people can afford this service?

The other option is going to trial. If you can convince the jury that your blood alcohol concentration was merely over .08 but below .150, then the minimum jail is reduced to one (1) day.

In sum, Arizona has set up a terrible dilemma for out-of-state visitors charged with extreme DUI. My experience is that prosecuting agencies have little sympathy for the unique problems they face. The reality is law enforcement takes the attitude - "its your problem - deal with it." Dealing with it may be a lot harder for out-of-state visitors.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact Koplow & Patane Online or by phone at (602) 494-3444.

How accurate is blood testing for alcohol?

Lawrence Koplow — Wed, 28 Oct 2009 14:05:07 -0700

The truth of the matter is we don’t really know. Most labs in the Phoenix Arizona area claim to be accurate within 5%. That means if your blood result came back at .08, then the true result can be anywhere from 5% lower or 5% higher.

Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.

After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.

To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.

Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.

As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.

In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.

Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.

Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.

As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.

No Consent, No Warrant, No Blood

Lawrence Koplow — Fri, 04 Sep 2009 07:03:14 -0700

Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.

For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.

In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.

However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.

On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:

Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).

We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.

In sum, there is nothing “obvious” about Arizona DUI laws.

5 Things You Should Know About Arizona Super Extreme DUI Convictions

Lawrence Koplow — Thu, 30 Jul 2009 10:54:46 -0700

Arizona is one of a few states that has created something referred to as "Super Extreme DUI." A DUI is "Super Extreme" if a person's blood alcohol concentration is .200 or above. While this crime is still a misdemeanor, it carries a minimum jail term that is greater than most first time felonies. There are several characteristics of this crime that make it unique. Here are the five most important:

1. An extended period of an Ignition Interlock Device. All Arizona DUI convictions require a person to install and maintain an ignition interlock device. For a first time regular DUI, the minimum period is one year. A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)

2. Extended jail period. For a regular DUI conviction, there is a minimum jail term of 1 day. For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days. For an Arizona Super Extreme DUI, the minimum jail term is 45 days.

3. A better chance of getting your name in lights. The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders. While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")

4. Out of state offenders will probably go to trial. If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer. Many prosecuting offices offer long periods of jail for these cases. It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost. For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention. However, out of state offenders may not have these options. While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them. Finding a jail in someone's home state for a few days can usually be accomplished. When it comes to jail terms of 30 to 45 days, it is nearly impossible. Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation. If successful, on that count alone, the minimum jail can be significantly reduced. Thus, trial is often times the best option in these cases.

5. Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI." While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible. There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations? Moreover, there are many other factors that may affect the outcome of the case. The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.

In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies.

What Do Field Sobriety Tests Prove?

Lawrence Koplow — Mon, 29 Jun 2009 12:53:02 -0700

The short answer is not much. At best, they may correlate to someone having a blood alcohol concentration over a .08. At worst, they prove nothing at all. To understand their meaning you must look at how they came into existence and who developed them.

In the late 1970’s, NHTSA (the National Highway Traffic and Safety Administration) paid for some research to see if tools could be developed for law enforcement to identify people who are potentially DUI / DWI.

There were several studies paid for by the government. Specifically, there are six primary studies relied on by law enforcement. However, none of the studies have been subject to peer review.

1977 Study (Not Peer Reviewed)

1981 Study (Not Peer Reviewed)

1983 Study (Not Peer Reviewed)

Colorado Study (Not Peer Reviewed)

Florida Study (Not Peer Reviewed)

San Diego Study (Not Peer Reviewed)

According to Wikipedia, peer review has been defined as:

...the process of subjecting an author's scholarly work, research, or ideas to the scrutiny of others who are experts in the same field. Peer review requires a community of experts in a given (and often narrowly defined) field, who are qualified and able to perform impartial review...Pragmatically, peer review refers to the work done during the screening of submitted manuscripts and funding applications. This process encourages authors to meet the accepted standards of their discipline and prevents the dissemination of irrelevant findings, unwarranted claims, unacceptable interpretations, and personal views. Publications that have not undergone peer review are likely to be regarded with suspicion by scholars and professionals.

Thus, the research has not been subject to scrutiny in the scientific community and begs the question why not? Only the government can answer this question.

So what does the government say these studies show? Unfortunately, much of law enforcement does not even know what their own research says. If you ask most officers who regularly conduct DUI investigations, they will tell you that field sobriety tests show “impairment.”

However, the government’s own research concludes this is not the case. If you are willing to accept these non-peer reviewed studies, then you may merely conclude that a poor performance correlates to a blood alcohol concentration above a .08. Moreover, the tests were previously used to show a blood alcohol concentration above a .10. Then the law changed in several jurisdictions, and somehow it also changed scientific results.

Consequently, even if you believe NHTSA’s own research, these agility tests do not show driving impairment.

A Person Accused Of DUI Deserves A True Second Opinion

Lawrence Koplow — Mon, 15 Jun 2009 18:08:27 -0700

Arizona DUI cases almost always involve a chemical test. There is a movement in Arizona towards the exclusive use of blood testing. It is well settled that blood testing is more accurate than breath testing. But how accurate is blood testing? Can it truly determine a person's blood alcohol concentration? I believe that these are reasonable questions to be asked by a person accused of DUI and facing 30 to 45 days in jail.

Under our system of justice we should demand better answers from the government than "because we said so" or "because our lab has the highest standards." Simple conclusions are not good enough in science and they should not be good enough in justice.

So who checks the government's test results in Arizona? The simple answer is the government. They merely claim to check themselves. I have yet to see one Arizona crime lab that conducts blind testing by an independent party.

Here is how the actual process works. In Arizona DUI cases, The government expert will tell juries that they do double check their work. That is, they have a quality assurance program to make sure the blood alcohol test results are accurate. But the government's oversight of their work is not what you my think. Instead retesting every sample, or randomly retesting a portion of the samples, the lab merely does a technical review.

A "technical review" is not retesting. The Government toxicologist usually puts between 30 to 40 blood samples into a blood tester. Then they turn the blood tester on and leave. The blood tester commonly runs overnight and the printed results are reviewed by the government lab person.

This review of the printed documents is what is known as a technical review. The actual documents are called chromatograms. They are simply pieces of paper with graphs and data on them (retention times, area counts, etc...) If the run has the usual 30 to 40 samples there could be well over 100 pages of data.

In court, the government will tell the jury that they "double check" all the tests. What they actually do is take those 80 to 100 pieces of paper and give it to another employee of the same lab. That person then reviews the data. As long as the data appears to be consistent, they conclude it is an accurate test. In Court, they tell the jury they got a second opinon from another analyst to ensure the accuaracy of the tests.

A nationally recognized expert, Dr. A.W. Jones, has opined that in forensic testing of blood samples retesting should be done, not a mere a "technical review." It is his opinion, that a mere technical review is inadequate to ensure the accuracy of the test results.

This standard makes perfect sense in DUI cases because the level of punishment is often dependent upon the test result. If a person's blood alcohol concentration result is .165 the person is facing a minimum of 30 days in jail. If he was under a .150 then he is merely facing 1 day in jail. Is it too much to ask the government to check their work when 29 days of jail is at stake? I guess the answer depends on how important the result is to you.

If you were at the doctor and she said "the blood tests were back," "we need to operate," let's "prep for the mastectomy." Most people would seek a second opinion. Why...because the issue is too important to merely rely on the first test. When it matter to you - you retest.

P.S. I will address the Defendant's ability to do their own retesting in my next entry.

A Well Written Post on The Source Code Issue

Lawrence Koplow — Mon, 26 Jan 2009 20:44:46 -0700

I ran across an excellent post discussing the source code issue. That is, the fight between criminal defense attorneys and the maker of the breath tester (CMI) to disclose the code used in their breath testers. CMI will not allow an inspection of the code. Consequently, it cannot be checked for accuracy. CMI essentially tells everyone charged with DUI to "just trust us."

Ed Brayton, a journalist and the co-founder of Michigan Citizens for Science, discusses the source code litigation in Florida.

Here's a very interesting case from Florida, where an appeals court has upheld a lower court ruling that threw out evidence from a breathalyzer test in a drunk driving case because the manufacturer of the device refused to release the source code and allow defense experts to analyze the accuracy of the machines.

The results of breath tests in more than 100 local drunken-driving cases will not be allowed at trial, a judge announced Tuesday.

The validity of those breathalyzer tests has been challenged for more than three years because of the Intoxilyzer 5000, a machine that uses a breath sample to measure a person's blood-alcohol content.

Manatee County Judge Doug Henderson ruled two years ago that any Intoxilyzer 5000 tests were inadmissible in trial, but prosecutors appealed. On Tuesday, Henderson told lawyers that his ruling had been affirmed by the Second District Court of Appeal and Circuit Court.

Breath analysis machines are notoriously inaccurate and this has been a problem for a very long time. Dr. David Hanson, a sociologist who has written on this issue for decades, writes:

Breath analyzers (Breathalyzer, Intoxilyzer, Alcosensor, Alcoscan and BAC Datamaster are common brand names) don't actually test blood alcohol concentration (BAC), which requires the analysis of a blood sample. Instead, they estimate BAC indirectly. Different types of machine use different techniqes and larger machines generally yield better estimates than do hand-held models. Therefore, some states don't permit data or "readings" from hand-held machines to be presented as evidence in court. South Dakota does not even permit evidence from any type or size breath tester but relies entirely on blood tests to ensure accuracy and protect the innocent.

A major problem with some machines is that they not only identify the ethyl alcohol (or ethanol) found in alcohol beverages, but also other substances similar in molecular structure. Those machines identify any compound containing the methyl group structure. Over one hundred compounds can be found in the human breath at any one time and 70 to 80 percent of them contain methyl group structure and will be incorrectly detected as ethyl alcohol. Important is the fact that the more different ethyl group substances the machine detects, the higher will be the false BAC estimate.

The National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics can have acetone levels hundreds and even thousand of times higher than that in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines.

One investigator has reported that alcohol-free subjects can generate BAC readings of about .05 after eating various types of bread products.

Substances in the environment can also lead to false BAC readings. For example, an alcohol-free subject was asked to apply a pint of contact cement to a piece of plywood and then to apply a gallon of oil-base paint to a wall. The total activity lasted about an hour. Twenty minutes later the subject was tested on an Intoxilyzer, which registered a BAC of .12 percent. This level is 50% higher than a BAC of .08, which constitutes legal intoxication in many states.

Similarly, a painter with a protective mask spray painted a room for 20 minutes. Although a blood test showed no alcohol, an Intoxilyzer falsely reported his BAC as .075.

Any number of other products found in the environment can cause erroneous BAC results. These include compounds found in lacquers, paint removers, celluloid, gasoline, and cleaning fluids.

Other common things that can cause false BAC levels are alcohol, blood or vomit in the subject's mouth, electrical interference from cell phones and police radios, tobacco smoke, dirt, and moisture.

Breath testers can be very sensitive to temperature and will give false reasings if not adjusted or recalibrated to account for ambient or surrounding air temperatures. The temperature of the subject is also very important. Each one degree of body temperature above normal will cause a substantial elevation (about 8%) in apparent BAC.

Many breath testing machines asume a 2,100-to-1 ratio in converting alcohol in the breath to estimates of alcohol in the blood. However, this ratio varies from 1,900 to 2,400 among people and also within a person over time. This variation will lead to false BAC readings.

Physical activity and hyperventilation can lower apparent BAC levels. One study found that the BAC readings of subjects decreased 11 to 14% after running up one flight of stairs and 22-25% after doing so twice. Another study found a 15% decrease in BAC readings after vigorous exercise or hyperventilaion.

Some breath analysis machinnes assume a hematocrit (cell volume of blood) of 47%. However, hematocrit values range from 42 to 52% in men and from 37 to 47% in women. A person with a lower hematocrit will have a falsely high BAC reading.

It's about time a judge took a stand on this issue.

I Need to Hire the Guy that Made This Video.

Lawrence Koplow — Sat, 03 Jan 2009 06:01:47 -0700

Here is a very well researched and produced video regarding an Ohio DUI case. While I do not agree with everything he argues, her certainly makes some vaild points. Enjoy:

Please Think About This Before You Drink And Drive This Holiday Season

Lawrence Koplow — Sat, 20 Dec 2008 10:14:56 -0700

There is significantly more drinking and driving during the holidays. It happens every year, in every place. I have plenty of business. However, I don't want you to become a customer. Trust me, you have better things to do than hang out with me in a courtroom for the next three or four months. Thus, I am going to republish a post that I have previously written. The post is titled: "3 Things I Wish People Knew Before Drinking & Driving."

Before you read the post, please watch this video. The story is more persuasive than anything I could ever write.

This post was originally published on 07/31/08:

It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour. He drove himself to the restaurant. When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them. The waiter comes to the table and asks Joe: "can I get you something to drink?" Before Joe answers this question, I wish he would consider the following facts:

There is no crime of Drunk Driving in Arizona. Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol. This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
If Joe is stopped by the police, they will stick a needle in Joe's arm. Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test. Many police agencies are now using blood testing instead of breath testing. If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken. The results of the blood test will probably take at least 30 days to come back. While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood. Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test. If Joe says "no," he will then lose his driver's license for 12 months. Moreover, the officer will then make a phone call to the judge. Within minutes, the judge can then issue a telephonic warrant. If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein.

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer? I think the average Joe would say: "Yes...Diet Coke."

Please consider the above before you drink and drive. Moreover, if you know someone who needs to become aware of these "3 Things" please use the "email this post" button at the bottom and send it to them. This is a subtle way of possibly preventing a life changing tragedy. Thanks!

This Video Demonstrates True Field Sobriety Testing

Lawrence Koplow — Wed, 17 Dec 2008 22:35:47 -0700

In case you ever wondered what happens on the side of the road when a person is stopped for DUI, here is a video showing exactly what goes on. Enjoy:

DUI Stop from konu on Vimeo.