Georgia DUI Blog

Today in an per curiam decision, the United States Supreme Court reversed the Virginia Supreme Court and remanded the case to Virginia in light of Melendez-Diaz v. Massachusetts.  This is good news for the lawyers and defendants everywhere that wish to challenge scientific evidence in their trials.  It means that the government still has to bring live witnesses to trial to testify and be subject to cross-examination.  It was widely thought that the four dissenters in Melendez-Diaz granted cert on this case in an effort to quickly overturn Melendez-Diaz after Justice Souter retired and was replaced by Justice Sonya Sotomayor.

Thanks to Bruce Edge in Oklahoma for tipping me off to this one.  Had to post it because this is very valuable information.Justin M. Rohrs successfully represented himself in Tax Court after the IRS rejected a deduction that he made on his tax form and demanded that he pay additional taxes, plus a penalty.Rohrs had taken a casualty loss deduction for his 2006 Ford F-350 pickup truck after he failed to properly negotiate a turn and went off the side of the road and into an embankment, totaling his truck. He was cited for the crash when his blood alcohol limit tested at .09, just over the legal limit in California.Rohrs filed a loss with his insurance carrier, which was turned down. He then attempted to recover his loss by filing for a casualty loss deduction of $33,629 on his federal income tax return. The IRS disallowed the deduction and assessed a $6,230 federal income tax deficiency, plus a $1,246 penalty. Rohrs took the matter to court.The pivotal question of the trial was whether Rohrs’ drunk driving was considered a willful act. The IRS’s case relied on Treas. Reg. 1.165-7(a)(3), which states that you can claim a casualty loss for damage to a vehicle only if the damage is not due to the willful act or willful negligence of a taxpayer.After listening to Rohrs’ testimony, the judge found that “[w]hile petitioner’s decision to drive after drinking was negligent, that alone does not automatically rise to the level of gross negligence.” The judge also said there was no evidence that Rohrs’ drinking was the cause of the accident and ruled in his favor. (You can read the Rohrs Tax Court opinion here.)

http://cgi.ebay.com/ebaymotors/ws/eBayISAPI.dll?ViewItem&item=150385696050&viewitem=#ht_500wt_1077Currently, the bid is over $10,000.00.This is just crazy.

     Whole blood is comprised of red and white blood cells, platelets and other clotting and cellular material, dissolved salts, amino acids, fats, and water.  Those solid materials are frequently referred to as “hematocrit.”  The hematocrit level is, therefore, the percentage of the total volume of blood taken up by the solid particles.  Determining a person’s hematocrit level at the time the blood is drawn is the only way to know what the correct conversion ratio is for the person who was tested at the time of the blood alcohol test.

     The average hematocrit for men is 47% with a “normal” range between 42% and 52%.  The average for women is 42% with a range from 37% to 47%.  Studies have shown, however, that over time an individual’s hematocrit can vary by up to 15%. 

     In general, the higher the hematocrit level, the higher the reported blood alcohol concentration in a serum or plasma test, which is the kind most frequently encountered in a hospital setting.  The higher someone’s hematocrit level, the less liquid we can expect to find in their blood.  Since the alcohol will migrate or remain with the liquid portion of the blood, a person with a higher hematocrit will have a higher blood alcohol test result when that blood alcohol test is a plasma or serum test performed in a hospital. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     GERD is an acronym for gastroesophageal reflux disease.  It is manifested by heartburn and the regurgitation of stomach contents back into the esophagus.  The condition is caused by a problem with the lower esophageal sphincter, which is the valve that relaxes to allow food to enter the stomach and then closes in order to keep it there.  When a person has GERD, that sphincter simply does not remain shut but allows stomach contents to escape back into the esophagus.

     Numerous medications such as Prilosec and Nexium are now available.  Other means of minimizing the effects of GERD include not drinking alcohol, avoiding spicy food, and losing weight.  The most common symptom of GERD is heartburn or acid indigestion, which is a burning sensation just above the stomach. 

     It has been suggested that many people who suffer from GERD would be unable to continuously blow into a breath testing device long enough to provide an adequate sample, thus leading to a false accusation that an individual refused to take a state administered test.  However, the most serious problem is the potential for distorting the breath alcohol test result.  It has been recognized for many years that mouth alcohol can cause falsely elevated breath test readings, which accounts for the fifteen or twenty minute waiting period required in many states.

     If alcohol is still in the stomach at the time a breath alcohol test is taken, it may find its way into the mouth via regurgitation, hiccupping, or belching.  The absorption of alcohol may be delayed by a pyloric spasm or by simply eating a meal.  Furthermore, eating spicy foods, smoking cigarettes, and drinking alcohol are all known to cause GERD symptoms. 

     New studies have shown that the slope detector software (designed to “catch” mouth alcohol) is not sensitive enough to always detect mouth alcohol  when the amount in the mouth is fairly small.  Therefore, GERD cannot be ruled out, especially when the amount of alcohol consumed is inconsistent with the breath alcohol test reading, and the person has a history of GERD.  The most prolific student of the phenomenon, a professor emeritus at Ohio State University, has observed breath test results double the actual blood alcohol concentration when testing GERD patients.  More experimental work may be needed with people of different ages and gender and with different doses of alcohol and under different drinking conditions.  However, it appears that GERD is a problem, and anyone who suffers from the condition should be aware of the problem if arrested for DUI. 
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

For many years the state of Florida used the same breath alcohol testing device currently used in Georgia, and it helped to convict tens of thousands of DUI defendants across the state. Now evidence that the Intoxilyzer 5000 might not have been as reliable as prosecutors portrayed is coming to light.  About 70 times each month in Florida the new Intoxilyzer 8000 rejects a breath test because control tests (calibration checks) are not acceptable.  Therefore, Florida defense attorneys contend that similar problems should have been at least as common with the older model.

Two top experts have said that the Intoxilyzer 5000 breath test machines, which Florida used for about two decades before the state changed to the updated machines in 2006, could not meet today’s scientific requirements for ensuring accurate results.  The Intoxilyzer 5000 was only “inspected” once per month to see if the machine was working properly.  The machine now in use, the Intoxilyzer 8000, runs two calibration checks, as recommended by the National Safety Council, during every breath test.  The testimony of those experts now prevents prosecutors from introducing the Intoxilyzer 5000 breath tests in court in the small number of remaining cases where that older machine was used.

Due to the inadmissibility of the Intoxilyzer 5000 test results dozens of DUI defendants in different counties around the state have had charges dropped or reduced to reckless driving.  Unfortunately, it is too late for anyone already convicted with results from the Intoxilyzer 5000 to benefit from the situation.  Many prosecutors continue to claim that the Intoxilyzer 5000 machines were reliable, even if the scientific community now calls for better safeguards to make sure the machine is accurate.  On the other hand, defense attorneys say it is frightening to contemplate how many innocent people were convicted or saw no choice bu to plead guilty, and also lost their driver’s licenses, based on a test whose reliability is now in question.

In depositions in DUI cases this year, two state experts say the currently accepted practice is that a control test must be performed during each actual test to ensure accurate results.  Florida authorities used to say that a calibration check once per month was sufficient, but they have finally conceded that the scientific community has favored a calibration check at the time of each test for decades.  Prosecutors can still proceed with the older DUI cases without breath tests; however, a conviction requires a jury to believe that a driver was intoxicated based on police testimony or video recordings of the traffic stop.

The issue regarding the Intoxilyzer 5000 and whether its results were scientifically valid arose during the battle for access to the computer source code that runs the machines.  Defense attorneys in about 450 DUI cases questioned the reliability of the machines, and judges have ruled that the defendants should have access to the computer code inside the Intoxilyzer 5000 and 8000.  After the manufacturer refused to disclose the code, many judge have ruled that prosecutors would only be able to introduce the results if the established the admissibility of the test via expert testimony in each case.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

As a follow up to the post about forced blood draws, check this out.

The following news article was a story that I found on Yahoo.com on Sept. 13, 2009.  I predict that in the near future we will begin to see police officers trained to draw blood from DUI suspects that refuse to take chemical tests of their breath after being arrested for DUI.  Currently, if someone arrested for DUI refuses to take the test, they lose their license for one year with no work permit or provisional license of any kind.  Is that not enough?  Are we really ready to start straping down our citizens, forcing needles into their arms against their will and drawing their blood?  For what reason would we do this?  Their are already provisions in place where the police can go get search warrants from a Judge and have the blood drawn at a hospital.  This is routinely done on cases involving serious injuries and death.  So why do we need to do this for the guy that gets stopped for his tag light being out and then refuses testing?  Is it worth the risk to the police?  What risks are presented to the driver?  Here are a few that I can think of off the top of my head:

1. Injury
2. Infection
3. Lawsuits on the police
4. Battery
5. Officer Safety
6. Spread of disease
7. Fear of needles

One possible good result of this practice is that the Judges may start taking motions attacking a police officer’s probable cause a little more seriously.  It is becoming almost a rubber stamp with the courts deferring to the officer’s decision on the side of the road.

I think this is a can of worms that Georgia should be reluctant to open.  We have sufficient procedures in place to get a test when it is needed.  This is just going to get many drivers hurt and many officers sued.  Although, the medical malpractice lawyers are probably salivating at the idea of poorly trained officers sticking needles in folks.

BOISE, Idaho – When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he’ll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver’s arms, as he tries to search for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’” Dowell said.

It’s all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program’s aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage police nationwide to undergo similar training.

For years, defense attorneys in Idaho advised clients to always refuse breath tests, Ada County Deputy Prosecutor Christine Starr said. When the state toughened the penalties for refusing the tests a few years ago, the problem lessened, but it’s still the main reason that drunk driving cases go to trial in the Boise region, Starr said.

Idaho had a 20 percent breath test refusal rate in 2005, compared with 22 percent nationally, according to an NHTSA study.

Starr hopes the new system will cut down on the number of drunken driving trials. Officers can’t hold down a suspect and force them to breath into a tube, she noted, but they can forcefully take blood — a practice that’s been upheld by Idaho’s Supreme Court and the U.S. Supreme Court.

The nation’s highest court ruled in 1966 that police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner.

The practice of cops drawing blood, implemented first in 1995 in Arizona, has also raised concerns about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chair of the National Association of Criminal Defense Lawyers’ DUI Committee.

The officer phlebotomists are generally trained under the same program as their state’s hospital or clinical phlebotomists, but they do it under a highly compressed schedule, and some of the curriculum is cut.

That’s because officers don’t need to know how to draw blood from a foot or other difficult sites, or from an infant or medically fragile patient, said Nicole Watson, the College of Western Idaho phlebotomy instructor teaching the Idaho officers.

Instead, they are trained on the elbow crease, the forearm and the back of the hand. If none are accessible, they’ll take the suspect to the hospital for testing.

In a nondescript Boise office building where the Nampa officers were trained, Dowell scanned his subject and prepared to draw blood. Chase Abston, an officer taking his turn playing a suspect, recoiled a bit, pressing his back deeper into the gray pleather chair.

Dowell slid a fine-gauge needle into the back of Abston’s hand. Abston, who had been holding his breath, slowly exhaled as his blood began to flow.

All the officers seemed like they’d be more comfortable if their colleagues were wielding sidearms instead of syringes. But halfway through the second day of training, with about 10 venipunctures each under their belts, they relaxed enough to trade barbs alongside needle jabs.

They’re making quick progress, Watson said. Their training will be complete after they have logged 75 successful blood draws.

Once they’re back on patrol, they will draw blood of any suspected drunk driver who refuses a breath test. They’ll use force if they need to, such as getting help from another officer to pin down a suspect and potentially strap them down, Watson said.

Though most legal experts agree blood tests measure blood alcohol more accurately than breath tests, Oberman said the tests can be fraught with problems, too.

Vials can be mixed up, preservative levels in the tubes used to collect the blood can be off, or the blood can be stored improperly, causing it to ferment and boosting the alcohol content.

Oberman said law enforcement agencies should also be concerned “about possible malpractice cases over somebody who was not properly trained.”

Alan Haywood, Arizona’s law enforcement phlebotomy coordinator who is directing the training programs in Idaho and Texas, said officers are exposed to some extra on-the-job risk if they draw blood, but that any concern is mitigated by good training and safe practices.

“If we can’t get the evidence safely, we’re not going to endanger the officers or the public to collect that evidence,” he said.

The Phoenix Police Department only uses blood tests for impaired driving cases. Detective Kemp Layden, who oversees drug recognition, phlebotomy and field sobriety, said the city now has about 120 officers certified to draw blood. Typically, a suspect is brought to a precinct or mobile booking van for the blood draw.

Under the state’s implied consent law, drivers who refuse to voluntarily submit to the test lose their license for a year, so most comply. For the approximately 5 percent who refuse, the officer obtains a search warrant from an on-call judge and the suspect can be restrained if needed to obtain a sample, Layden said.

Between 300 to 400 blood tests are done in an average month in the nation’s fifth-largest city.

During holiday months that number can rise to 500, said Layden, who reviews each case to make sure legal procedures were followed.

Outside of Arizona, some law enforcement agencies in Utah have officer phlebotomists, and police in Dalworthington Gardens, Texas are cross-trained as paramedics and have been drawing blood for about three years. The NHTSA is in talks with Houston, Texas about doing the phlebotomy training there, he said.

They’re all attracted by Arizona’s anecdotal evidence.

“What we found was that the refusal rates of chemical testing lowered significantly since this program began,” Haywood said. “Arizona we had about a 20 percent refusal rate in 1995, and today we see about an 8 to 9 percent refusal rate.”

A report on DUI arrests was released on August 19th amid fanfare generated by NHTSA for their latest anti-DUI initiative. Speeches by Transportation Secretary LaHood and MADD President Laura Dean-Moody were along the lines you might expect, and there was a press release on the NHTSA website. The study is “Alcohol Impaired Drivers Involved in Fatal Crashes, by Gender and State, 2007-2008.” DOT HS 811 095.

The report indicates that between 1998 and 2007, DUI arrests for women increased almost 29%, while arrests for men dropped about 7.5%. The NHTSA study points out that the latest data shows that traffic fatalities involving women who were allegedly impaired by alcohol increased or stayed the same in 15 states, while for numbers remained the same or increased for men in 13 states. The study claims that this is significant in light of the overall 9% drop in alcohol related fatal crashes. What the NHTSA report did not emphasize is that in 40 states fatalities in “alcohol related” accidents involving women drivers actually declined or was unchanged. It only went up in 10 states. That doesn’t sound as threatening, but numbers that alarm justify NHTSA budget increases and larger grants for MADD. The overall numbers reflect a reduction in fatal wrecks involving alcohol impaired women of 1% from 2007 to 2008, so the trend apparent in the FBI data is a reduction in fatal DUI crashes last year..

CNN quoted the MADD president as blaming the increase in DUI’s among women as possibly attributable to increasing economic pressure (more women in the workforce who then drink to reduce the stress of being in the workplace) and television presentations of glamorous women who stay home and drink.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     Although a number of PBT’s are approved for use in Georgia, the most common is the Alco-Sensor IV, which is manufactured by Intoximeter, Inc.  This preliminary breath testing device employs a fuel cell technology that is not specific for ethyl alcohol.  Nevertheless, it is used by police as a “screening” device when making their DUI arrest decisions.

     An Alco-Sensor only captures one milliliter of breath.  It cannot be adjusted for a person’s actual blood-to-breath ratio, body temperature, or gender.  In addition, it does not have a “slope detector” to rule out errors from the suspect’s mouth alcohol.  When this preliminary breath testing device only captures one milliliter of breath and registers .08, the Alco-Sensor IV unit is analyzing .00000038 gram of ethanol, or .38 nanograms per milliliter.  One nanogram is the same as one part per per billion, so .38 is a little more than one-third of one part per billion. 

     Despite these shortcomings, some states have allowed an Alco-Sensor with an attached printer to serve as an evidential breath testing device.  After all, more admissible breath tests means more DUI convictions, and that is exactly what the neo-prohibition advocacy groups want - more convictions.  The Georgia courts, recognizing their limitations, have resisted the State’s efforts to introduce preliminary breath test results into evidence.  If the subject ever comes up, now you know why the Georgia courts are right.  

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     Fewer Americans are driving drunk, but roughly one in six drivers on weekend nights is driving under the influence of drugs, according to a data released Monday by the National Highway Traffic Safety Administration survey.  In a survey conducted in 2007, 2.2 percent of drivers had a blood-alcohol content of 0.08 percent or higher, which would exceed the limit for driving while intoxicated in all 50 states and the District of Columbia, the agency said in a news release.

     The first such survey, conducted in 1973, found 7.5 percent of drivers above the 0.08 limit, the release said. Other surveys were conducted in 1986 and 1996.
“I’m pleased to see that our battle against drunk driving is succeeding,” Transportation Secretary Ray LaHood  said in the news release.  “However, alcohol still kills 13,000 people a year on our roads and we must continue to be vigilant in our efforts to prevent drunk driving.”

     The 2007 survey was the first to also check for drug use while driving. It found that 16.3 percent of nighttime weekend drivers tested positive for drugs, according to the statement.  What the NHTSA report does not explain is what percentage of these drivers was under the influence of drugs or even impaired to the slightest degree.  The drugs used most commonly by drivers were marijuana (8.6 percent), cocaine (3.9 percent) and over-the-counter and prescription drugs (3.9 percent), it said.  The last group would include such popular medications as Xanax, Lorcet, and Valium.  “This troubling data shows us, for the first time, the scope of drugged driving in America and reinforces the need to reduce drug abuse,” said Gil Kerlikowske, director of the Office of National Drug Control Policy.

     The survey involved setting up random sites across the country to question drivers who participated voluntarily and on condition of anonymity.  In total, almost 11,000 eligible drivers entered the survey sites, with 9,413 drivers agreeing to breath-alcohol measurements, 7,719 providing oral fluid samples and 3,276 nighttime drivers submitting blood samples, the news release said.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     What used to be known as typing is now known as “texting” by the young and the technologically savvy not-so young, so long as it is done on an electronic apparatus that transmits the typed message to another electronic apparatus. Driving under the influence has become such a social taboo thanks to nearly three decades of government paid advertising that most people recognize the acronym DUI (driving under the influence). However, according to a growing body of research and empirical observation, “driving while texting” is a potentially worse hazard than DUI, and should be just as socially unacceptable as driving drunk.

     Driving while texting (DWT), which is typing on something much smaller than a bread box, is now afflicting our culture as a consequence of cellphone addiction. Had we asked thirty years ago, which is worse - driving drunk (much worse than today’s “impaired to the slightest degree”) or driving while typing - the nearly universal response would have been the latter. Now it seems that there must be a study of everything.

     Sure enough, the U.K. Transport Research Laboratory study, commissioned by the Royal Automobile Club Foundation, has concluded that motorists sending text messages while driving are “significantly more impaired” than those who drive drunk. The study showed texters’ reaction times deteriorated by 35 per cent with an incredible 91 per cent decrease in steering ability, while similar studies of drunk driving indicate reaction time is reduced by about 12 per cent. By that measure, DWT is three times more dangerous than DUI, and logically ought to be treated as severely, if not more so, under the law and in terms of social disapproval.

     Studies by the U.S. National Highway Safety Administration show that 85 per cent of all motor vehicle crashes are caused by distracted driving- not drunk driving. However, laws banning DWT are still quite rare. After all, who thought about driving down the highway at 65 miles per hour while typing thirty, twenty, or even ten years ago? Maybe some day soon the folks at MADD will become irate about this issue too. Nah, I almost forgot. Outlawing DWT has nothing to do with virtual prohibition - MADD’s real goal.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     As far back as the 1930’s it was recognized that re-eqilibration of the alcohol and breath occurs at the lower temperature (as opposed to core body temperature) of the upper respiratory tract during expiration in such a manner that temperature controls the alcohol content of the expired alveolar air.  In the earliest “drunk-o-meter” invented by Professor Rolla Harger of Indiana University it was assumed that 61.5% of the collected breath sample was alveolar air and that 2100:1 was the appropriate partition ratio.  Partition ratio in this instance refers to the amount of alcohol in the blood compared to the amount in the breath.

     During a twenty-year period he and his colleagues conducted numerous experiments, which confirmed that the partition ratio varies at different temperatures.  In other words, breath alcohol test results will be different at different temperatures.  During all of this testing it was assumed that the average expired breath temperature was 34 degrees centigrade (Celsius), which in turn led to the conclusion that the average blood:breath partition ratio for breath alcohol testing is 2100:1.  The National Safety Council adopted this number in 1952, and so it has become engraved in the statutes of the several states over the last half century. 

     Researchers have questioned the use of a constant breath temperature and partition ratio since at least 1975.  Beginning in that year leader experts in the field began to question whether airway alcohol exchange played a bigger role in breath alcohol testing than was previously recognized.  More and more research has proven that the average expired breath temperature is closer to 35 degrees Celsius, including the German study of 1995 and a similar study sponsored by the Alabama Department of Public Safety three years later.

     As a result of the Alabama study that state adopted the Draeger 7110, which makes an adjustment for an elevated breath temperature.  In fact, the Alabama testing sequence includes two breath samples (like Georgia), two methods of analysis for every breath test, specifically infrared and fuel cell (unlike Georgia), breath temperature monitoring and correction for each breath test (unlike Georgia), and two calibration checks at .02 and .08 at the time of each breath test (unlike Georgia).  In addition, a comprehensive data collection package including breath exhalation profiles was included in the software designed for Alabama DPS (unlike Georgia).  The downloaded data includes a total review of all breath tests in the State (unlike Georgia).   This enables the state to identify and address both instrumental and operational problems.  In Georgia there is a handwritten log on which officers may make entries, but nobody knows how often it is used or how often it is ignored. 

     The Alabama program is truly a model program other states should emulate.  Before switching to the Draeger, Alabama (like Georgia) used the Inoxilyzer 5000.  That makes me wonder: If it’s not good enough for Alabama, why are we still using it?

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

     The problems with mouth alcohol in breath testing are well known.  The screening devices used at roadside by police officers in Georgia are incapable of detecting mouth alcohol since they are not even programmed with slope detection capabilities.  Supposedly, the Intoxilyzer 5000, which is used for evidential breath alcohol tests in Georgia, is different.

     In cases where dental appliances are not removed from a subject’s mouth before breath testing, a small amount of alcohol can remain under the dentures or other device.  If food particles are trapped, it is also possible that some of the alcohol will be absorbed into the food particles.  In either case the elimination of this alcohol during the twenty minute observation period (which is only a suggestion in Georgia) will not be complete and will cause an elevated reading on the Intoxilyzer 5000. 

     In one experiment a man with both upper and lower dentures registered a BrAC of .00 when the experiment began.  After swishing with alcohol and waiting for 20 minutes, the tests were indeed flagged as “invalid samples,” which means that the machine detected mouth alcohol.  Both the dentures and mouth were then rinsed with water.  Approximately sixteen minutes later he was tested again using the same protocol, and the results were .029 and .021.  After rinsing the mouth and dentures yet again and then submitting to another sequence of breath tests, the results were .038 and .17 less than one minute apart.  At the beginning of each testing sequence a baseline BrAC of .00 was obtained before swishing the alcohol.

     Additional testing has confirmed these findings.  Elevated breath alcohol results were consistently reported without the detection of mouth alcohol when people talked and breathed normally during the “observation period.”  Most significantly, there was no decrease between the two test results in the sequence as would be expected with mouth alcohol.  These observations make it fairly certain that breath alcohol tests results may be inflated when an individual has dentures or other significant dental work, such as a bridge, in his or her mouth.

 Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

    

     Linearity is determined by testing known samples of various concentrations, which should ensure that the tests of other samples of unknown concentrations should yield accurate results.  Linearity enables an analyst to have confidence in the results of a particular test based on the results of other tests.  For example, if a known alcohol concentration of .10 is determined to be .10 and a known concentration of .20 is determined to be .20, this greatly increases the likelihood that a reading of .15 is accurate.

     In most cases the linearity of a gas chromatograph is checked at the beginning of each set of tests (a “run”) by injecting calibrators of varying amounts in the GC.  By plotting the amount of each calibrator versus their relative instrument responses, a linear relationship may be established.  The concept of linearity is associated with the “range” of the instrument, which is the interval between the highest and lowest concentrations that have been determined to be not only linear but accurate and precise.  Accuracy means that the testing device has correctly determined the true result, while precision is the ability of the instrument to replicate the test result.

     It is generally agreed that good laboratory practice requires the use of six calibrators spanning the range of 50 to 150% of the expected range of results the analyst expects to encounter in typical cases.   In other words, the concentration of the calibrators should be such that they bracket the anticipated concentration of the specimen.   The Laboratory Guidelines of the Society of Forensic Toxicologists recommends “at least three calibrators.”  If any result exceeds the range, the substance being tested should be diluted and retested.  If the concentration of the specimen is less than that of the lowest calibrator, in most cases an additional calibrator below the expected range of the analyte in the sample should be set up. 

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court.  This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska.  Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg.  Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer.  The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists.  Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.

 “Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”  A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”

I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team.  Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well.  This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here?  The court gave it’s blessing to two different ways to handle these witnesses.  Some states can require them in every case.  Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object.  Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial.  Additionally, I believe that this case invalidates OCGA 40-6-392 (e) (1-3) and (f).  These statutes all deal with testimonial evidence that the defendant has the right to confront.The State had better bring the area supervisor to testify in their next breath test case if they want to get those certificates in.  All lawyers need to read this case and be able to articulate the proper objections.

Donte Stallworth who was arrested March 14, 2009 for DUI manslaughter in Miami has pled Guilty to the charges against him.  This brings closure to the victim’s family and they have been kept in the loop and given their blessing to the sentence.  Mr. Stallworth will receive the following:

1. 30 days of jailtime
2. A LIFETIME license suspension
3. 2 years of house arrest
4. 8 years of probation
5. 1000 hours of community service
6. Alcohol and Drug Counseling

This may sound like a light sentence for the charge, but it is actually quite serious and very much is an appropriate sentence fashioned by people that know the facts of the case much better than of the talking heads on TV or MADD.  There was a lot of mitigation that I am sure played a big part in the outcome.

1. He stopped immediately.
2. He called the police.
3. He admitted he hit the man.
4. He cooperated with the investigation.
5. He took full responsibility.
6. He has compensated the family saving them the long drawn out civil case.
7. The man ran out in front of him apparently trying to catch a bus.
8. The man was not in a crosswalk.
9. He has no criminal history.

The simple truth is that the prosecution may not have been able to prove causation in this case.  Simply put, they had a strong DUI case, but couldn’t necessarily prove that the DUI was the cause of death.  A sober driver in that same spot may have killed him too.  The strength of the case is one of the primary factors considered in plea negotiations and I suspect it weighed heavily here too.

If the prosecutor had insisted on years in jail, then the case would have most certainly gone to trial.  This would have caused more harm to the family and potentially more harm to Donte Stallworth.  The prosecutor would have been between a rock and a hard place, with a mediocre case at best.  That kind of “all or nothing” situation is rarely good for anyone.  I think they did the right thing in the nature of a compromise.

From a public relations standpoint, Donte Stallworth and his lawyers have done a marvelous job  putting this to rest in just a few short months. He has been suspended from the NFL and may never play again, we will see.  It’s a sad case.  There are no winners here.  There is no celebrity treatment here.  However, all these folks that think they know to best run the legal system, need to go to lawschool, sit for the bar exam, then go out and change the world.  Until then, I wish they would leave the legal business to those that know it best…the prosecutor, the defense lawyer and the judge.

Today, the Georgia Supreme Court issued this opinion striking down Georgia’s statute on improper left turns.  Since the statute is vague and can be read in two opposing ways, it fails to give fair warning of what conduct is illegal.

My friend Mark Stevens in New Hampshire writes this timely post before Memorial Day weekend.

Hello everyone.

Your chances of having an unwanted encounter with the police this Memorial Day weekend are higher than ever before. That is because the government has issued massive money for roadblocks and saturation patrols. The problem with that strategy is that roadblocks do not usually lead to many real DWI arrests. Typically, the police have to stop about 100 cars to hope to find one person who they even SUSPECT of DWI. What they end up citing though are lots of other motor vehicle arrests, people with warrants and the like so they can report “SIX ARRESTED AT DWI CHECKPOINT”, etc. If you peel back the onion you will find that only one or two were DWI arrests, and the rest were a flotsam and jetsam of sundry motor vehicle code offenses or benign inspection violations. Some points that might be helpful to bear in mind if you drive at night over this weekend are:

1. Make Sure Your Inspection Stickers and Registrations Are Valid. An important reminder if you are driving this weekend is to make sure that your car has a valid inspection sticker, as well as a valid registration. When you drive into a roadblock, or even drive by the police this weekend without a valid inspection sticker you can count on being stopped and hassled. Like all the motor vehicle code, the police often co-opt this to see if you have been drinking or have drugs in your car. The penalty for a violation of this section of the motor vehicle code is $60, but the real penalty is when the police smell alcohol or suspect that you have been drinking after stopping you for the lack of an inspection sticker. Many drivers who are initially stopped for this minor violation end up charged with DWI, DUI or OUI. AVOID one potential for this by making sure your inspection stickers are up to date.

2. Make Sure Your Plate Lights and Other Lights Work. Everyone driving at night should check their brake lights, plate lights, and other lighting, as well as their inspection stickers and license plates, to avoid some unwanted interaction with police. The cheesiest of motor vehicle stops begin with a passive equipment violation such as those I’ve just mentioned. In these types of stops, the driver is not exhibiting any signs of impairment. The driver may be obeying the speed limit, maintaining appropriate lane control, and otherwise following every rule of the road, but he finds himself in the flashing blue glow of police lighting wondering why he was stopped.

This high number of stops for equipment violations in recent years is not because the police have taken a sudden interest in the functioning of plate lights, or their concern for whether drivers are using turn signals late at night when there is no one else on the road to signal. Rather, the police have a broader goal: the police have co-opted the motor vehicle code to fight the war on drugs, and many DWI arrests ensue after these stops when the police can’t find any drugs after the stop.

Avoid giving the police some of these chances to legally stop you by making sure that all your lights are functioning, your registration and inspection stickers are up to date, and your license is valid.

PREPARATION FOR THIS WORST CASE SCENARIO. It is not a bad idea to prepare for this event. Have your license and registration in an easy place to find and an easy place to quickly and effortlessly produce upon demand. Don’t put your license in a difficult spot to pull it out quickly when you need to. Practice taking your license out of your wallet in the safety of your home. CONSIDER GETTING A REGISTRATION HOLDER TO KEEP YOUR VEHICLE REGISTRATION IN. If you do not have one send me an email with your mailing address and I will send you a registration holder for every one of your vehicles free of charge. Then practice producing your license and registration fairly frequently. It will make it easier to do if you ever have to produce them under a pressurized roadside situation.

Have a safe weekend,

Mark Stevens

http://www.ByeByeDWI.com

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”

U.S. v. Wade, 388 U.S. 218, at 256-258 (1967), Justice White, concurring and dissenting.

Rob Leonard is DUI lawyer practicing in Cobb County, Georgia. He is certified as a field sobriety testing instructor and as an evidentiary breath alcohol technician. Visit Rob's Website