NCDD Blog

Can you get a DUI on a Bird or Lime Scooter?

Posted on July 04, 2019 in Uncategorized

Scooter

Now that motorized scooters are popping up all over the United States, the question becomes whether you can get a DUI on one? The short answer is depends on where you live. Los Angeles authorities have already obtained a DUI conviction for a person operating a motorized scooter. Looking around the web, it appears that Indiana, Illinois and Colorado residents would be at risk of a DUI arrest on a motorized scooter while Minnesota residents would not.

With the introduction of self-propelled scooters in Oklahoma City, the lawyers at the Hunsucker Legal Group are being asked "Can you get a DUI on one in Oklahoma"? Although we have not seen a case in Oklahoma yet, we examine state law for an answer.

Harsher Penalties for DUIs: How to Travel with a Conviction

Posted on June 29, 2019 in Uncategorized

NCDD Blog

Bill C-46 & Its Significant Impact on Canadian Admissibility

Bill C-46 amends the Canadian Criminal Code to create harsher consequences for impaired driving as well as new offences for driving after consuming drugs, particularly marijuana. Approved on June 21, 2018 and in effect December 2018, the Bill also grants police greater powers to test drivers for impairment and increases the maximum penalty for a DUI from 5 to 10 years. Impaired driving will soon be considered "serious criminality", raising the difficulty of overcoming inadmissibility to Canada. As a result, foreign nationals and temporary residents who could previously visit Canada may now be denied entry, and permanent residents may face deportation. To boost chances of entry to Canada, it will be increasingly valuable to avoid offences resulting in inadmissibility, especially by pleading down a DUI to a lesser offence.

California Repeat DUI Offenders – Things You Need to Know

Posted on June 26, 2019 in Uncategorized

NCDD Blog

CALIFORNIA REPEAT DUI OFFENDERS – THINGS YOU NEED TO KNOW

Even though repeat DUI offenders are only 27% of all convicted DUI offenders, they are still involved in 24% of the California's fatal DUI accidents and 63% of injury DUI accidents. After someone is a repeat offender, he or she is up to 47% more likely to reoffend within five years than first time offenders. Put simply – this is a slippery slope.

And the police know this. In fact, if you've had your license suspended or revoked in the state of California for a DUI offense, the police know exactly who you are – your name, address, photos, and vehicle description. You are now a potential repeat offender.

Good News and Potentially Devastating News Regarding the Court and the Arizona Medical Marijuana Act

Posted on June 20, 2019 in Marijuana

NCDD Blog

As is often the case in our respective lives, there is good news, and there is bad news. Such is the current state of affairs in the Arizona appellate courts with a couple of their most recent interpretations of the Arizona Medical Marijuana Act ("the AMMA") and how it applies in the DUI context, and in determining what is, and what is not "marijuana" (as opposed to "cannabis.")

The Good News – State v. Kemmish

First, let's start off with the good news. In late 2015, I had a jury Trial in largely rural Mohave County, Arizona, where my client was accused of misdemeanor DUI, and the State's allegation was that my client had been driving while under the influence of marijuana. My client had, in his possession, a physician's recommendation letter obtained pursuant to California's medical marijuana statute, at the time he was contacted by the law enforcement officer during the traffic stop.

A Practitioner's Guide to Attacking A DWI In North Carolina

Posted on June 14, 2019 in Uncategorized

NCDD Blog

The NCDD has provided great tools to DWI practitioners for becoming knowledgeable on defending clients charged with Driving While Impaired. I have used the NCDD's wealth of online materials countless times in preparing for DWI trials.

The valuable information provided by NCDD has helped me strive to improve my knowledge of how DWI investigations are performed (or, more appropriately, how they should be performed), the laws surrounding DWI investigations, using and challenging experts in DWI cases, issues related to chemical testing, and much more.

Orange County Crime Lab is Testing All Blood Samples For Drugs

Posted on June 07, 2019 in Uncategorized

NCDD Blog

Citizens arrested for DUI in Orange County, California need to know that if they consent to a blood test, agree to a blood test after giving an evidential breath test under "Trombetta" or have their blood draw pursuant to a warrant that blood will automatically be screened for marijuana, cocaine, opiates, Xanax, Valium, ambien and all other common controlled substances. If the screening test is positive for any drugs that may impair driving, the blood will then be subjected to confirmatory testing by GC or Mass Spec. Drivers who are arrested for suspicion of driving while under the influence of drugs or the combined influence of drugs and alcohol are supposed to be advised that choice between blood or breath is limited because they are suspected of drug use. which, at least for the time being, is not being tested with a breath device. Drivers who are merely suspected of driving under the influence of alcohol only are now being subjected to unconstitutional general exploratory searches of their blood. Any evidence of drugs obtained from these searches should be suppressed. See People v. Pickard (2017) 15 Cal.App.5th Supp.12, 222 Cal.Rptr. 3rd 686 for an excellent evaluation of the issue. This is a trend that you can expect to travel to your jurisdiction soon. See our blog for further information. Barry T. Simons

Self Driving Cars. You Might Want to Give it Some Thought

Posted on June 03, 2019 in Uncategorized

NCDD Blog

OK, anyone that does what we do for a living has heard it, "What are you going to do when they introduce self driving cars?"

Well, up to this point I've generally made some ridiculous comment about retiring, but early last month – as I was taking a torturous rush hour ride from LaGuardia to New York Law School to give a talk on blood testing – the answer came to me; nothing; no changes; because self driving cars can never be allowed to happen.

Now I know I've blogged on this before, but before stating my present position, let me digress a bit to another futuristic dream. Many of you may not know this, but long before the introduction of transatlantic Boeing 747 service in the 1970′s, there was luxury service available between Chicago, New York City and the capitals of Europe. Complete with signature china dining, grand pianos, smoking lounges, baths and full sleeping berths, these luxurious behemoths cruised effortlessly to London, Paris and Rome in record time. There was just one problem. As horribly demonstrated in Lakehurst New Jersey on May 6th, 1937, they blew up.

Specialization Ain't Just for Doctors Anymore

Posted on May 29, 2019 in Uncategorized

NCDD Blog

Along with my friend from Arizona, Jonathan Goebel, I am one of the two newest Board-Certified DUI Specialists in the country. Why should you consider taking my spot and being the newest yourself? You shouldn't! Unless, of course, you care about obtaining the upmost professional respect possible for DUI trial lawyers like ourselves.

I learned about the possibility of DUI Board Certification at my first NCDD seminar (MSE in Dallas in 2008). I immediately knew it was something that I wanted to achieve. I also knew that it would take time. I had to learn as much about DWI law and science as possible. So I did. I spent the next 8 years doing that, and along the way, I kind of forgot about Board Certification. That is mostly because I practice in a state where 98% of cases result in bench trials. At some point, I lost hope that I would even qualify to sit for the exam. I took another look at the qualifications, and I realized that any lawyer that TRIES DWI cases on a regular basis should qualify to sit for the exam.

Eyes on the Road: Automatic License Plate Readers

Posted on May 22, 2019 in Uncategorized

NCDD Blog

An automated license plate reader, or ALPR, is a computer-controlled, high-speed camera system. They are generally mounted on police cars or fixed objects such as light poles.

The ALPR system was developed for automated toll collection on toll roads. An ALPR camera has the ability to automatically capture an image of every license plate that comes into view. An ALPR can detect when any license plate enters the camera's field, capture an image of the car and its surroundings (including the plate), and convert the image of the license plate into alphanumeric data—in effect "reading" the plate. Each camera costs around thirty thousand dollars ($30,000), which can return revenue when used to catch toll road violators.

Board Certification. What You Need to Think About

Posted on May 18, 2019 in Board Certification

NCDD Blog

Steve Oberman was one of the forefathers of our NCDD Board Certification Process and remains integral to its yearly success. Never shy to comment, here's what Steve Oberman wants YOU to think about:

"You Should NOT Become Board Certified as a DUI Defense Specialist if you don't want to:

Receive additional respect from judges and your peers;

Become a better lawyer;

Be recognized for your accomplishments by the NCDD, the media and others;

Why I Became Board Certified by Don Ramsell

Posted on May 11, 2019 in Board Certification

NCDD Blog

Donald Ramsell is one of the most vocal and well known of our Board Certified members. As a Regent for the NCDD, he knew that the Certification Exam would be tough, but he had no doubts he could pass it! Have you mastered the subject? If so and are thinking about taking the exam, here's what Don wants you to know:

"There are several reasons why I became board certified. Knowing that only 50 or so attorneys in the world are so certified, I wanted to establish my position as a top attorney in the field of DUI defense amongst my peers. No one can argue with my qualifications after having earned the highest recognition in our field: this one can't be bought and you can only be certified if you are a proven trial attorney. Second, I felt that this would be the ultimate test of my knowledge in the law that I have made into my lifelong career. Finally, board certification is something that I can be personally proud of – and so too can my family and my friends."

Why Board Certification is Worth Pursuing

Posted on May 06, 2019 in Board Certification

NCDD Blog

Professional certification has been recognized for some time in a number of professions, especially in the medical field.

Traditionally, a person is certified as being competent to perform specialized services or tasks. This designation is usually conferred upon an individual after he or she has completed a program of study, passed an examination, and demonstrated exceptional skill in the performance of work experience in the related field.

Several years after the formation of the College, a number of us concluded that, if the College was to become the national authority for DUI education, as we envisioned it would, then we were perfectly situated to bestow Board Certification in DUI Defense. Such designation did not exist at that time anywhere in the country. It took many years of dedicated work by the members of the original Certification Committee as well as the entire Board of Regents to turn this dream into reality. Now we bestow, under the recognized approval of the American Bar Association, Board Certification in DUI Defense. No other such certification exists.

Yes Board Certification is Right for You

Posted on April 30, 2019 in Board Certification

NCDD Blog

I image that not everyone believes that Board Certification is right for them or may be concerned with whether it would be recognized in their home state. NCDD asked Board Certified Attorney Bruce Edge, what he thought about this. Here's what he had to say:

"The Oklahoma Bar Association does not recognize a ‘specialist‘ and does not allow anyone to advertise as one. I can say I am the only Board Certified Attorney in Tulsa according to the American Bar Association guidelines. The National College for DUI Defense is the only organization in the State who has recognition that can be mentioned in this manner.

Why I Became Board Certified

Posted on April 24, 2019 in Board Certification

NCDD Blog

I became board certified to prove to myself, to the profession, and to the public that I was an elite lawyer. In an era of hype and phony pay-for-play credentials, the NCDD board certification program stands alone as test as test of DUI defense knowledge, and courtroom skill. There's are two reasons why fewer than 60 lawyers in America have achieved board certification: the requirements for eligibility to take the exam are stringent, and the exam itself is very difficult. Accredited by the American Bar Association, it is the only credential that is officially recognized in my home State of Wisconsin, allowing me to lawfully say that I am a Specialist. The recognition that I received for becoming board certified has dramatically enhanced my career, reputation, and my practice.

Why Board Certification is Right For You

Posted on April 17, 2019 in Board Certification

NCDD Blog

A couple of weeks ago, Regent Paul Burglin gave an excellent presentation for the California DUI Lawyers Association at their annual DUI Seminar in San Francisco and his Board Certification clearly was a factor in having him be the first speaker. Paul's humor, motions materials and teaching technique were unique and even included a "hose"! You'll have to ask him about that

Paul gave NCDD information to share with you about board certification since our deadline for the upcoming exam is August 31st!

"Only serious DUI defense lawyers are members of the National College for DUI Defense (NCDD), and of its approximately 2,000 members less than 60 have attained its preeminent "Board Certification" distinction. This is an elite group of DUI defenders and the reason I sat for the exam is I wanted to be one of them.

Studying for Board Certification

Posted on April 10, 2019 in Board Certification

NCDD Blog

One of the very best experiences in preparing for Board Certification was that I talked myself through the fundamentals of being a successful DUI specialist: Knowledge, Preparation, Training and Talent. Reviewing the knowledge that I gained by being in court every day, running motions, talking with other DUI attorneys, reaching out to my mentors and getting "back to the basics," helped me organize and prepare for the written and practical part of the test. I also spent time reviewing a long list of materials suggested to me (see the NCDD website on Preparing for the NCDD Board Certification Examination). Reviewed in their entirety before the exam, and still reference books that I pull out regularly are Drunk Driving Defense by Taylor & Oberman, Medical Legal Aspects of Alcohol by Garriott, California Drunk Driving Law by Burglin, Simons and Kuwatch, and all of the validation studies.

Meet One of NCDD's Newest Board Certified Members, Jonathan Goebel

Posted on April 07, 2019 in Board Certification

NCDD Blog

On July 22, 2017 attorney Jonathan Goebel of Phoenix, AZ was awarded Board Certification in DUI Defense by The National College for DUI Defense®, Inc. ("NCDD"). He received this honor at the NCDD Summer Session Conference at Harvard Law School. He achieved his Certification by satisfying the rigorous criteria including passing both the demanding NCDD written and oral exams on DUI laws, DUI defenses, DUI science, DUI testing procedures and DUI defense practice ethics.

After graduating from Pepperdine Law School in Malibu, California, Mr. Goebel relocated to Phoenix, Arizona where he immediately began working as a Deputy County Attorney for the Maricopa County Attorney's Office where he prosecuted hundreds of felony and misdemeanor cases including DUI's. He also worked as an Assistant Attorney General where he prosecuted white-collar fraud and political corruption. He transitioned to private criminal defense where he has had the pleasure of representing hundreds of clients accused of both misdemeanor and felony DUI.

Why Everyone Should Apply for NCDD Board Certification

Posted on April 02, 2019 in Board Certification

NCDD Blog

NCDD Members:

Summer Session 2017 was a wonderful time of learning from some of the best in our business as well as finding and fostering new friendships. For those of you who missed it, we are pleased to announce that two of our esteemed members, John Goebel from Phoenix, Arizona and Brad Williams from Conway, Arkansas, became Board Certified in DUI Defense! Congratulations from all of us at NCDD.

If you haven't been to Summer Session, the incoming Dean of the College gives a "Dean's Address" and this year I had the privilege of delivering that address and discussed one of NCDD's greatest accomplishment and contributions to the practice of law, Board Certification.

What It Means to Be Board Certified

Posted on March 29, 2019 in Board Certification

NCDD Blog

Board Certification as a DUI Defense Specialist through the National College of DUI Defense is the most meaningful and significant professional development in my DUI Defense Practice. I am one of only two (2) lawyers practicing in New Hampshire with the designation and one of only (3) three practicing in Massachusetts with the designation. Prospective clients, colleagues and friends ask me, "what does the Board Certification mean?" I tell them that following a rigorous and thorough application process I was deemed worthy of being tested by the very best DUI Defense Lawyers in the Country to determine whether my DUI Defense skills were equal to those of the best lawyers in this highly specialized field. I appreciated the fact that the College required proof of at least sixty (60) contested DUI matters over a three (3) year period and verified the same with certified copies of Court Dockets. I pride myself on not being a "plea escort" service and finally a fringe benefit of trying so many cases emerged. I began to realize how many cases I actually bring to verdict, as compared to other lawyers, and how often I was successful on some very difficult cases. It was also rewarding to ask for, and receive, approving recommendations from six (6) separate Judges, three from each of my practice jurisdictions, all of whom had presided over dozens of my DUI trials.

NCDD Board Certification for You

Posted on March 26, 2019 in Board Certification

NCDD Blog

In 2001 when I applied for Board Certification, the designation was in its infancy. I have since been recertified twice. Preparation, then and now, really consists of being a solid DUI defense lawyer and brushing up on some statistics. You cannot, and should not, cram for this exam. There's a lot of talk about how difficult the exam is, but if you know your stuff because you're immersed in it every day, all you really need to do is refresh your memory on some of the finer points on subjects like SFSTs, breath and blood testing parameters. People assume that the test is loaded with trick questions on arcane information, but it is not. The test—in fact the whole process–is designed to test your substantive knowledge as a DUI defense lawyer.

How the NCDD Board Certification Exam Became ABA Approved.

Posted on March 21, 2019 in Board Certification

NCDD Blog

Our Board Certification Committee is often asked how the NCDD Board Certification Program came to be approved by the American Bar Association (ABA). In response to this query, allow me to provide a historical perspective.

In the mid-1990s, the NCDD made a historical commitment to create a Certification Program and focus on the promotion of Board Certification for DUI Defense across the nation. This need was necessitated by the concern for those accused of DUI who were (and continue) to be bombarded by advertisements of lawyers who promote themselves as DUI defense specialists, but in reality know little of the complex science and procedures unique to DUI defense.

3 Tips For Preparing To Take The Board Certification Exam

Posted on March 16, 2019 in Board Certification

NCDD Blog

If you are considering taking the Board Certification examination, congratulations! You are taking a huge step forward in the quality of representation that you provide to your clients. You are making a huge investment in what type of lawyer you want to be. That is a great thing. So, I want to provide you with 3 simple tips that I believe will benefit you greatly in preparing for the exam.

  1. It is never to early to begin compiling your application materials. Gathering the materials required to verify your trials and motions hearings will take a very long time. Do not allow that process and the work required to gather those materials to cut into your preparation for the exam and your practice. Start compiling those materials well in advance of the deadline.
  2. Rely heavily upon Taylor and Oberman's Drunk Driving Defense treatise. No one really likes to say what you should study in preparing for the examination, but I will. If you know Taylor and Oberman (and really know it), you will be ready for this test. I outlined the entirety of the book, and it was my primary source. (No, I'm not sharing my outline.)
  3. Start your brief early. You need to work on your brief early (and often). Do not squander those points. If you do waste those potential points, you will regret it later. Get started early so that your holidays are not consumed with writing it.
  1. Good Luck!

    Ben Sessions

Top 20 Myths of Breath, Blood and Urine Testing

Posted on March 15, 2019 in Uncategorized

top 20 myths

A. Myth #1: Breath means alveolar air

B. Myth #2: Breath test: DUI suspects are post-absorptive

C. Myth #3: Breath test: absorptive phase test is ok

D. Myth #4: Breath test: 2100:1 favors your client

E. Myth #5: Breath test: reporting BAC as BrAC cures blood:breath ratio problems

F. Myth #6: Breath test: temperature does not need to be measured

Board Certification: Its About a Lot More than You.

Posted on March 13, 2019 in Board Certification

NCDD Blog

When I originally took the Board Certification Test for DUI Defense it was solely about me. In fact, when I took it, the Florida Bar rules prohibited me from telling people I was Board Certified, however, I thought I was one of the better DUI attorneys in my area, but I had so much less experience than the others. I wanted to prove to myself that I belonged among the best.

I worked hard to qualify to sit for the test and took it after being an attorney for just over 5 years. Board Certification in DUI Defense put me among a small group of the best DUI practitioners I knew. I proved to myself that I could walk proudly in their company.Business wise, it certainly did not hurt that I was the only Board-Certified DUI Defense Expert with an office in Orlando, FL. Often, I would have potential clients come in and tell me that they were told to speak with me and a couple other DUI attorneys in my area. The Board Certification really made me stand out. My practice has continued to grow over the years in part due to my Board Certification, which I can now advertise.

Yes, You Should Take NCDD's Board Certification Exam, and Here's Why.

Posted on March 07, 2019 in Board Certification

NCDD Blog

Is it demanding? Yes. Is it challenging? For sure. Will it make you a better lawyer? Hell yes. And that reason alone is why you should take NCDD's Board Certification Exam. I practice in Washington State, where specialties and Board Certifications are not recognized by my State Bar Association. I had the same thoughts that many good DUI lawyers have – why should I take it? What is the benefit? Since my state doesn't recognize it, it's not for me. Then I talked to a number of board certified lawyers who I had met through the College. And I realized I was applying the wrong standard.

Successful Criminal History Challenge in Kansas DUI Cases

Posted on March 02, 2019 in Uncategorized

NCDD Blog

In a recent appeal, No. 112828, I argued that Kansas can no longer use some Missouri DUI convictions because the acts prohibited by Missouri's law differs from the acts prohibited by Kansas' law. The Kansas Court of Appeals agreed and the Kansas Supreme Court recently declined to grant the State's Petition for Review.

In Kansas, the penalty for DUI increases based on the number of the defendant's prior DUI convictions. See K.S.A. 2012 Supp. 8-1567(b). A prior conviction can be a conviction for a violation of another state's law that "prohibits the acts that the Kansas DUI law prohibits." K.S.A. 2012 Supp. 8-1567(i)(1), (3). This is important because, in Kansas, a person can be convicted for DUI under K.S.A. 8-1567(a)(3) only if they are "under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle." My client's prior Missouri DUI conviction, on the other hand, permitted a conviction if he operated a motor vehicle while in an intoxicated or drugged condition. Mo.R.S. 577.010(1).

Are Field Sobriety Tests a Search?

Posted on February 24, 2019 in Field Sobriety Tests

NCDD Blog

I have an appeal pending that addresses, in part, the State's ability to comment upon the Defendant's right to refuse a warrantless search. Georgia has well-established case law that precludes the State from commenting upon a Defendant's refusal to submit to a warrantless in "traditional" criminal cases, and I thought, perhaps naively that this rule should be extended to DUI suspects who are asked to submit to field sobriety tests. I was rather taken aback that it was suggested that field sobriety tests may not be a search. (The Justices of the Georgia Supreme Court did not appear to be so sure that field sobriety tests are a search.) If you are confronted with this issue, some case law that may help you is below. The overwhelming majority of states that have considered this issue held that field sobriety tests are a search:

Updates from the National Forensic Science Commission

Posted on February 17, 2019 in News & Events

NCDD Blog

The National Forensic Science Commission has fully reported on its last two meetings. Of concern, currently there are no practicing private criminal defense attorneys on the Commission. As of meeting ten, the Commission has come up with 14 recommendations to the United States Attorney General. Here are some highlights.

Meeting ten occurred on June 20-21, 2016 in Washington, D.C. The Commission reported that it is their view and position that "the overall accreditation of forensic science service providers could be strengthened by, at a minimum, full compliance with ISO/IEC 17011 standards for all accrediting bodies offering services to forensic science providers." They further mentioned requiring method validation to include both external sources and studies of the overall performance and reliability, in addition to internal studies of appropriateness. They are recommending both targeted (currently in place by the American Society of Crime Lab Directors knows as ASCLD) and random sampling in the audit process. This is a marked improvement over existing crime lab accreditations now in place.

Our Tone Matters – Particularly In More Difficult Cases

Posted on February 06, 2019 in Uncategorized

NCDD Blog

The vast majority of our time is spent investigating the evidence in our cases, reviewing the state's evidence, preparing to attack field sobriety evidence, preparing to cross-examine cops, and preparing arguments to discredit blood or breath tests. That time and work is important and, indeed, essential to our success.

However, we frequently overlook the importance of emotional aspects of our case. The importance of emotional aspects and the tone of the defense in death (vehicular homicide) cases and serious injury by vehicle cases cannot be overstated. We need to be cognizant of the tone of our defense, and we need to actually spend time readying ourselves to project the proper tone.The defense's emotional tone is always important, but it is exponentially more significant in vehicular homicide cases. Almost any time that we hear people talk about defending vehicular cases, we hear them say "death is different". The phrase is true. Anyone that has handled a trial, particularly a jury trial, involving a death will tell you that the way jurors react when they recognize that a death has occurred.

Update from the NCDD Forensics Committee

Posted on January 31, 2019 in News & Events

NCDD Blog

There have been 9 committee meetings by the NCFS (National Commission on Forensic Science) created by the Obama administration. The commission is comprised of scientists, judges, prosecutors and defense lawyers. Here are the highlights from each meeting:

Meeting 1: Update from the NIST committees, the objective focus has been on strengthening forensic science in the United States.

Meeting 2: Explored issues of cognitive bias and ethics in forensic science. Texas Court of Criminal Appeals Justice Barbara Hervey emphasized the need for judges to receive forensic training and education.

Why All Young Lawyers Should Attend NCDD's Summer Session

Posted on January 28, 2019 in Summer Session

NCDD Blog

I will never forget my first NCDD summer session. It was seven years ago and I was fresh out of law school. I'd been hired to work for Andrew Mishlove on a Monday, and was on a plane to Boston the following Wednesday. Having never handled a DUI case, I had no idea what to expect, but was hungry for experience and eager to impress my new boss. I could never have imagined the profound impact that a three-day seminar could have had on a new young lawyer. Front and center in the Harvard Law school classroom, I sat star-struck listening to the wits and knowledge of rock star attorneys who introduced me to the field of DUI defense. They set the bar high. These were not your average lawyers. They were the best. And watching them, I wanted to be the best. It was impossible not to be inspired.

My Summer Session Experience

Posted on January 21, 2019 in Summer Session

NCDD Blog

It was my pleasure to attend and participate in the National College of DUI Defense Summer Program. There were many familiar faces in the crowd and many renewed friendships. This year I was most impressed with, not only the quality of the program but the increase in the number of women attending. We had the opportunity to gather together for a group photograph, many rows deep and full of accomplished litigators. It was a far cry from my days as a new lawyer.

I came back to California, invigorated, inspired and ready to take on the challenges of being a DUI attorney. I received a "useful nugget" to incorporate in my practice from each speaker as well as one that I announced as "stolen" from one of the new attorneys in a break out session that Paul Burglin and I were leading.

Some Useful Tips for Getting the Most from the NCDD List Serve

Posted on January 15, 2019 in Uncategorized

NCDD Blog

If you are like me, I spend a LOT of time reading all the posts on the Listserve. I truly believe it is one of the very best benefits of membership of the NCDD! Sometimes, however, it may seem like certain days there are hundreds of emails that come through and keeping up can be time consuming. Below are excerpts from training with Google! Thanks for being a part of the NCDD family!

CLEAN UP CONVERSATIONS

A conversation is an email exchange that consists of multiple back-and-forth messages. Because most people just hit Reply to continue a conversation without deleting all previous text, you end up with lots of messages that are basically subsets of one another's content. The Conversation Clean Up feature goes through and finds these, deleting any messages that are completely contained within at least one other message.

Board Certification for You

Posted on January 10, 2019 in Board Certification

NCDD Blog

In 2001 when I applied for Board Certification, the designation was in its infancy. I have since been recertified twice. Preparation, then and now, really consists of being a solid DUI defense lawyer and brushing up on some statistics. You cannot, and should not, cram for this exam. There's a lot of talk about how difficult the exam is, but if you know your stuff because you're immersed in it every day, all you really need to do is refresh your memory on some of the finer points on subjects like SFSTs, breath and blood testing parameters. People assume that the test is loaded with trick questions on arcane information, but it is not. The test—in fact the whole process–is designed to test your substantive knowledge as a DUI defense lawyer.

How NCDD's Board Certification Program Became ABA Approved

Posted on January 04, 2019 in Board Certification

NCDD Blog

Our Certification Committee is often asked how the NCDD Board Certification Program came to be approved by the American Bar Association (ABA). In response to this query, allow me to provide a historical perspective.

In the mid-1990s, the NCDD made a historical commitment to create a Certification Program and focus on the promotion of Board Certification for DUI Defense across the nation. This need was necessitated by the concern for those accused of DUI who were (and continue) to be bombarded by advertisements of lawyers who promote themselves as DUI defense specialists, but in reality know little of the complex science and procedures unique to DUI defense.

Preparing for Board Certification

Posted on December 30, 2018 in Board Certification

NCDD Blog

One of the very best experiences in preparing for Board Certification was that I talked myself through the fundamentals of being a successful DUI specialist: Knowledge, Preparation, Training and Talent. Reviewing the knowledge that I gained by being in court every day, running motions, talking with other DUI attorneys, reaching out to my mentors and getting "back to the basics," helped me organize and prepare for the written and practical part of the test. I also spent time reviewing a long list of materials suggested to me (see the NCDD website on Preparing for the NCDD Board Certification Examination). Reviewed in their entirety before the exam, and still reference books that I pull out regularly are Drunk Driving Defense by Taylor & Oberman, Medical Legal Aspects of Alcohol by Garriott, California Drunk Driving Law by Burglin, Simons and Kuwatch, and all of the validation studies.

Yes, You Should Take NCDD's Board Certification Exam

Posted on December 27, 2018 in Board Certification

NCDD Blog

Is it demanding? Yes. Is it challenging? For sure. Will it make you a better lawyer? Hell yes. And that reason alone is why you should take NCDD's Board Certification Exam. I practice in Washington State, where specialties and Board Certifications are not recognized by my State Bar Association. I had the same thoughts that many good DUI lawyers have – why should I take it? What is the benefit? Since my state doesn't recognize it, it's not for me. Then I talked to a number of board certified lawyers who I had met through the College. And I realized I was applying the wrong standard.

Why You Should Take NCDD's Board Certification Exam

Posted on December 21, 2018 in Board Certification

NCDD Blog

For many years, I was of the opinion that I didn't need to take the Board Certification test. Oklahoma didn't recognize certification. I have never been asked by a potential client about it. I was competing for and signing up cases without it. I took the bar exam and wasn't taken any more exams. I had lots of reasons why I didn't need it.

Truth was that I wasn't up for the challenge. Was I really good enough to pass the test? Even though I had written many books on DUI Defense and had taught numerous courses on how to defend a DUI, did I really know the material that I used every day?

How to Tackle NCDD's Board Certification Exam

Posted on December 16, 2018 in Board Certification

NCDD Blog

You may have heard how difficult the DUI Board Certification test is. Unfortunately, there are many among us who allow themselves to be discouraged from taking the test because they have allowed themselves to believe it is too difficult.

The truth however, in my experience is a little different. Taking the test begins with the application process. This part of the task can seem to be the most difficult as you or your assistant must dredge up old files to find dispositions to send with the application. These days, however, as more and more parts of the country begin to have court records stored electronically, it may be as simple as pulling your cases up on the clerk's website and printing dispositions. Once you have compiled all the paperwork you need and obtained the letters of recommendation, you can submit your application. It is not as daunting as you might think. You will need to document 15 trials in the last 3 years (jury or bench), and 40 contested hearings, which can include pre-trial motions hearings and even driver's license hearings in most jurisdictions.

The Great Dichotomy of Birchfield v. North Dakota

Posted on December 10, 2018 in Uncategorized

NCDD Blog

There are various aspects to the United States Supreme Court's recent holding in Birchfield v. North Dakota (2016) ___ U.S. ___ (Docket No. 14-1468) that trial and appellate courts will have to address in future cases. A couple of them derive from the following two paragraphs in the opinion:

"It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.

The Incredible Shrinking Fourth Amendment

Posted on December 03, 2018 in Uncategorized

NCDD Blog

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches. The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Starting with the Supreme Court's decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law. Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment. The exclusionary rule exists to deter officers from breaking the law.

Can you travel to Canada after being convicted of a DWI or DUI?

Posted on November 27, 2018 in Uncategorized

NCDD Blog

Entering Canada after a DUI or DWI Conviction

If you have been convicted for a DWI, entering Canada may be a challenging proposition. This is especially true if your conviction was in the last 10 years. This article outlines the Canadian laws that create a barrier to entry and offer three solutions for individuals who have been convicted of DWI or DUI and wish to enter Canada.

How DUI or DWI Convictions May Bar a Person's Entry into Canada

Under Canada's Immigration and Refugee Protection Act certain individuals are deemed "inadmissible" into Canada. This includes individuals who are foreign nations who were convicted outside of Canada for an offense, that if committed in Canada, would have been a felony. (They use the terms "indictable offenses" and "summary prosecutions" to describe felonies and misdemeanors respectively.) Canada also has hybrid offenses, which are offenses that can be punished as either a misdemeanor or as a felony. Notice that it does not matter what the offense was considered in the jurisdiction where the person was convicted. Instead, a determination is made of the equivalent offense in Canada's criminal code, and it is the equivalent offense that determines whether the offense is treated as a misdemeanor, felony, or hybrid under Canadian law.

Going Against the Government's Adminstrative Scheme

Posted on November 23, 2018 in Uncategorized

NCDD Blog

When decisions are made behind closed doors, it's that much harder to get your hands on the evidence of impropriety in the decision making process. That's what happened with British Columbia's drunk driving scheme. When we finally got the evidence that Administrative Adjudicators were being told how to decide cases, we went to use the evidence for the benefit of our clients. The Government then sued us to force the truth back into the shadows.

Last week we received our decision in BC Supreme Court. It's ground breaking because for the first time we have the evidence of what's been going on in the backroom. We have communication between government officials telling adjudicators how to decide cases for political ends.

The Oldest Question In the Book: Do You Take a Test?

Posted on November 20, 2018 in Uncategorized

NCDD Blog

Well, it may not be the oldest question, but it may be the most important. Since the 1940's and the onset of cheap breath/blood alcohol testing, it is one that lawyers and defendants must initially face following a DWI arrest. Should your client take the test?

The answer to this, like everything else in law, is it depends. Like predicting the weather, the answer to this question turns on a variety of factors. While much of what I say here may be useful nationally, because I believe in staying within my own bailiwick, many of the salient points will be tailored to New York.

How the 2016 NCDD Winter Session Helped My Client

Posted on November 16, 2018 in Uncategorized

NCDD Blog

I attended the NCDD's 2016 Winter Session in Marina Del Rey for the sole purpose of learning how to try the hell out of a Pot DUI case that I had coming up for trial. I continued that trial until after the Winter Session, which was probably the smartest thing I could have done.

George Bianchi's materials on "Cannabis and Cars" was extremely helpful to me in understanding the basics on THC, Hydroxy-THC and Carboxy-THC. Additionally, the DRE and ARIDE Overview materials provided by Robert LaPier were also helpful (especially the charts he enclosed on the Indicators Consistent with Drug Categories).

Justice Scalia, One of the Last Champions for the Rights of the Accused?

Posted on November 10, 2018 in Uncategorized

NCDD Blog

The recent passing of Justice Antonin Scalia has surely ignited a political firestorm. But as students of the law, we should take time to carefully examine who Justice Scalia really was aside from all the political posturing and chest puffing. Clearly, some of his positions on abortion rights, the right to marriage equality, the meaning of the 2ndAmendment, do not sit well with a large portion of our country. However, a more focused examination of his opinions that effect the everyday landscape that the DUI defense attorney must navigate, shows that it is quite possible that no Justice, in recent times, has done more to protect the rights of the accused. Therefore, it is entirely possible that with cases before the SCOTUS from both North Dakota and Minnesota, wherein the criminalization of BAC refusals is in question, Justice Scalia's death may be a major blow to the rights of those accused of impaired driving.

My First NCDD Winter Session Thanks to the NCDD Diversity Committee

Posted on October 31, 2018 in Uncategorized

NCDD Blog

Warm Wishes from our DIVERSITY STAR AMANDA RIEK!

The NCDD "Cannabis and Cars" winter session surpassed my expectations. It allowed me to become familiar with and keep a pulse on the rapidly emerging field of marijuana impaired driving. The presentations were comprehensive, captivating, and cutting edge. It was the perfect blend of legal updates, science (or lack thereof), and inside information about the direction of impaired driving testing, defense, and prosecution. Not to mention all of the friends and colleagues I was able to reconnect with, all of the new members I met, and all in temperatures above zero degrees!

My First Winter Session, Thanks to the NCDD Diversity Committee

Posted on October 26, 2018 in Uncategorized

NCDD Blog

Must be something about the cold weather that made everyone so enjoy Winter Session! Read what our DIVERSITY COMMITTEE STAR YANINA TABACHNIKOVA had to say:

I cannot express how thankful I am for the diversity scholarship the NCDD granted me to attend the winter session. I learned a tremendous amount from the seminar and was inspired by the friendly and truly collegial atmosphere of the college. I especially found helpful the presentation on lab testing and protocols.

I am thrilled to have attended and could not have done so without your financial support. I am even more excited about now being a member of the College and attending more seminars like this one in the future.

News from the NCDD Diversity Committee

Posted on October 19, 2018 in Uncategorized

NCDD Blog

The Diversity Committee is looking for volunteers who would like to be identified as part of our "STAR" Program (Searching for Talent Around our Regions). One of the goals for the Diversity Committee is to Select, Train, Advance and Retain quality members. At the time the Diversity Committee was started in 2012 under the direction of then Dean Troy McKinney, the Committee began as a way to recruit women and minorities into our organization. After funding was approved by the Board of Regents, we are now able to provide scholarships to attend our educational programs throughout the year. Special emphasis remains on the selection and recruitment of women and minorities who are committed to high level training, volunteering and working within our NCDD family. Women and minorities bring a wide range of experience, knowledge, wisdom and eclectic working backgrounds to our organization and are known to "think outside the box" because they have been living it in their professional worlds! Are you interested in becoming more involved? If so, please contact Chairperson Virginia Landry at virginia@landrylaw.net or 949-585-7400.

The Mouth Alcohol Defense: The Importance of Knowing The Machine

Posted on October 10, 2018 in Uncategorized

NCDD Blog

No breath test device can completely eliminate the mouth alcohol problem. However, understanding the established limitations of the device in your case is tremendously helpful. Map out the basic limitations of the machine that was used in your case. For example, the Breathalyzer Models 900, 900A, and 1000, which are no longer in production, require the operator to determine when a deep lung breath sample has been provided. Unlike most modern devices, the Breathalyzer Models 900, 900A, and 1000 do not have an automated slope detection system.[1]

An Introduction to the Mouth Alcohol Defense: Why Is It Important?

Posted on October 04, 2018 in Uncategorized

NCDD Blog

  1. The Significance of "Mouth Alcohol" in Breath Testing

The mouth alcohol defense is premised upon the possibility of alcohol from some source other than alveolar air being measured by the testing device. It is important to recognize that the mouth alcohol defense is not limited to the presence of alcohol within the mouth. It is recognized within studies produced by state breath test agency employees that "[c]ontributions to breath alcohol concentration (BrAC) arising from alcohol in the mouth can falsely elevate the reading."[1] However, we need not (indeed, we should not) limit our consideration of extraneous sources of alcohol to the mouth only.

Using SFST Validation Studies in Your Next DWI Trial

Posted on September 27, 2018 in Uncategorized

NCDD Blog

he National Highway Traffic Safety Administration (NHTSA) spent many thousands of dollars on studies to develop a battery of DWI investigation tools called field sobriety tests.College Station Standardized Field Sobriety Testing The studies were funded by NHTSA to validate and standardize the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One-Leg-Stand tests. Standardization meant developing a method of administering and interpreting each test. Validation meant determining whether a correlation existed between test performance and a designated breath/blood alcohol content (BAC). Ever since, Texas prosecutors have used the Standardized Field Sobriety Tests (SFSTs) to prove driver impairment rather than estimate BAC. By driver impairment I mean proof the accused had lost the normal use of their mental or physical faculties. The police regularly portray the SFSTs as reliable indicators of impairment although the validation studies never established this correlation. Consequently, I routinely pack the validation studies for trial. Depending on my case theory, the studies provide ammunition to discredit the arresting officer's predictable opinion about the reliability and effectiveness of these tests for determining driver intoxication.

NCDD Members Gerstenzang and Epstein To Serve as Legal Defense Experts at Roundtable Discussion Held at the Department of Transportation Conference Center in Washington

Posted on September 20, 2018 in Uncategorized

NCDD Blog

Peter Gerstenzang and Steven Epstein Will Serve as Legal Defense Experts at an August 24th Roundtable Discussion Held at the Department of Transportation Conference Center in Washington, D.C.

Two NCDD members, Peter Gerstenzang and Steven Epstein, will participate in an August 24th meeting to review drug recognition and impairment research hosted by the Department of Justice (DOJ) in Washington, D.C.

Impaired Driving in Canada: Cost and Effect of a Conviction

Posted on September 17, 2018 in Uncategorized

NCDD Blog

By Jordan Tekenos-Levy (Aitken Robertson Professional Corporation)

‘Impaired Driving' is the official vernacular in Ontario and constitutes the equivalent of Driving Under the Influence (DUI) in the United States. Many people confuse this styling of terms as a result of American media and the high frequency of American news that is broadcasted in Canada. This paper serves to explain the definition of impaired driving, the costs associated with impaired driving, as well as other non-monetary implications of an impaired driving conviction.

Florida Bar Association to Recognize NCDD Board Certification Exam

Posted on September 11, 2018 in Board Certification

NCDD Blog

The National College for DUI Defense, Inc. is pleased to announce that The Florida Bar has approved the NCDD as the sole certifying body for DUI Defense lawyers in Florida seeking board certification in this specialty area of the practice of law. This is truly a welcome announcement for The College as it has been a goal several years in the making. Our application has been the subject of strict scrutiny by the Florida Bar Board of Legal Specialization & Education (BLSE), and the NCDD Board Certification Committee has been persistently responding to BLSE inquiries about our certification process. Last week, the NCDD received the wonderful news that our application has been approved. The NCDD is grateful to The Florida Bar Board of Legal Specialization and Education for the hours put in by their staff to learn more about this area of practice and the NCDD's commitment to educating lawyers in this specialty area.

The Real Financial Costs of a DUI

Posted on September 04, 2018 in Uncategorized

NCDD Blog

By Lavinia Inbar

Aitken Robertson Professional Corporation

Ontario, Canada

It is common knowledge that if a person is convicted of a drinking and driving offence, the financial costs to that person will be high. But just how high? This article provides a breakdown of most of the direct financial costs of a drinking and driving conviction in Ontario.

The Indirect Financial Costs

But before examining those direct costs, we pause here for a moment to consider that following a drinking and driving charge and conviction or even just a charge without a conviction, there will be indirect financial costs arising from the driver's licence suspensions, and (if there is a conviction), the criminal record. There is also the possibility of jail time. While these indirect costs are not easily quantifiable, they nonetheless can cause significant financial hardship.

DWI Asleep & Parked in Your Vehicle

Posted on August 30, 2018 in Uncategorized

NCDD Blog

You decide you have had too much, and you feel the right thing to do is pull over and sleep it off. Is this a DWI? According to a Tarrant County judge in a bench trial in case number 1366316, decided on February 12, 2015- yes it is. Do I respectfully disagree with the decision? Yes.

Here are the facts: my guy (Mr. "H") was asleep in his legally parked car at a QuikTrip in Keller, Texas. No one saw him drive. No one called the police on him. The QuikTrip attendant had no idea as to how long he had been there, but it had been "a while." The seat was in recline with Mr. H fast asleep. After waking him up, the police interrogation went like this:

MADD the Interlock and the Future of DUI Defense

Posted on August 25, 2018 in Uncategorized

NCDD Blog

MADD, the Interlock Industry, and the future of DUI/DWI offenses

I have the advantage after nearly forty (40) years professional life in criminal justice of seeing both sides of the equation involving DUI enforcement and DUI defense. In the first part of my adult life, I was a state trooper and saw the early stages of the "war on drunk driving" or "war on drunk drivers" (take your pick) in the early 1980s, the concern really was "drunk driving" and I have no disagreement with the concept that drunks ought not be driving on the public highways. I have no qualms whatever about arresting drunks (or substantially impaired persons) for driving a motor vehicle on a public highway. Drunk driving is both dangerous and irresponsible.

Justice Through Knowledge: An introduction to the value of NCDD Seminars

Posted on August 21, 2018 in Uncategorized

NCDD Blog

The last time I looked, I had one hundred and seventy cases listing my name as the defense

attorney. That's one hundred and seventy instances in which I am responsible for helping someone in a

time of trouble. The cases vary; so do the clients. However, I never want the quality of my

representation to vary. I love my job. I love who and what I represent. I love my late hours and my small

victories. Nevertheless, the difficulty of finding the balance between staying afloat in my case load, and

growing as an attorney is not easily conquered.

Free Public Defender Training – Birmingham, AL

Posted on August 17, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on Friday, February 20, 2015 we will be providing a training for public defenders at no charge to the participants in Birmingham, Alabama. Fellow Tommy Kirk will illustrate how to win through opening statements and closing arguments. Fellow Steve Oberman will demonstrate how to attack field sobriety tests. Fellow Phil Price will explain how to attack breath tests. Member Hays Webb (who organized this seminar) will teach attendees how to win your case through the state's witnesses. Member Mark Polson will present his "Top 10 Ways to Win Your Next DUI Trial." Member Patrick Mahaney will explain changes in Alabama law, and how to use the statute to win cases. For registration information, please contact Karen Salerno, at ksalerno@jeffcodefender.org. If you are interested in having a public defender training set up in your state, please send me an e-mail at joestlouis@azdefense.com. As the Chair of NCDD's Public Defender Education Committee, I would be happy to help organize a seminar.

NCDD To Offer Public Defender Training in Wyoming

Posted on August 11, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on Friday, February 6, 2015 we will be providing a training for public defenders at no charge to the participants in Caspar, Wyoming. Fellow Les Hulnick will demonstrate how to attack field sobriety tests and teach how to cross-examine the arresting officer. Regent Doug Murphy will show attendees how to contest breath test evidence and explain how to attack DRE evaluations. NCDD Faculty Member Erin Gerstenzang will instruct attendees in how to handle a blood test, and perform a model cross-examination of the law enforcement officer. Sustaining Member Mike Vang (who organized this seminar) will speak on Wyoming-specific pretrial motion issues. For registration information, please contact Diane Lozano, Wyoming State Public Defender, at diane.lozano@wyo.gov.

Ten Things to Know About DWIs and Your License in Texas

Posted on August 04, 2018 in Uncategorized

NCDD Blog

An arrest for Driving While Intoxicated in Texas carries with it more than criminal penalties. Here are ten things that happen after a DWI request with regards to your license to drive.

1

If You're Under 21:

When you are arrested for DWI, if you refuse to provide a sample of your breath or blood, and you're 21 or older, your license will be suspended for 180 days.

Free Public Defender Training in Florida

Posted on July 31, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on Wednesday, January 21, 2015, we will be providing a training for public defenders in Florida, at no cost to the attendees. Dean Steve Jones will teach attendees how to give more effective closing arguments. Fellow Steve Oberman will explain how to use the 2014 SFST manuals in cross-examination. Regent Lenny Stamm will demonstrate how to conduct more effective direct and cross-examinations of expert witnesses. Regent Jim Nesci will instruct participants on how to challenge breath tests. Regent Joe St. Louis will discuss how to challenge blood test results. Sustaining Member David Katz (who organized this seminar) will demonstrate how to more successfully cross-examine the arresting officer. State Delegate Thomas Hudson will train participants on more effective voir dire techniques. Founding member Alan Bernstein will teach participants more effective pre-trial motion practice. To date, 67 public defenders have signed up to attend this seminar.

The Oldest Question: Does Your Client Take a Test?

Posted on July 26, 2018 in Uncategorized

NCDD Blog

Well, it may not be the oldest question, but it may be the most important. Since the 1940's and the onset of cheap breath alcohol testing, it is one that lawyers and defendants must initially face following a DWI arrest. Should you or shouldn't you tell your client to take the test?

The answer to this, like everything else in law, is it depends. Like predicting the weather, the answer to this question turns on a variety of factors. While much of what I say here may be useful nationally, because I believe in staying within my own bailiwick, many of the salient points will be tailored to New York.

New York Court of Appeals Reffirms Allegiance to Aguilar-Spinelli

Posted on July 22, 2018 in Uncategorized

NCDD Blog

In People v. Johnson, a Deputy Sheriff armed with a 911 call describing "a sick or intoxicated motorist" stopped the Appellant for a "wide right hand turn" well outside of his jurisdictional limit. At a Mapp hearing (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 [1961]) to determine whether there existed sufficient probable cause for the stop of the vehicle, the Deputy admitted that he did not know the identity of the caller or the basis upon which the allegation was made. Since the Deputy was without jurisdiction to effect a stop for a traffic violation, the 911 call was essential. The Town Court denied the motion to suppress and the defendant was ultimately convicted. Following a loss in the County Court the motorist filed an application for Leave to Appeal to the Court of Appeals. While the application was pending, the United States Supreme Court decided Navarette v. California, – US – , 134 S.Ct. 1683, 188 L.Ed.2d 680 [2014] which, in a decision by Justice Thomas, found anonymous hearsay to be sufficient for the stop of a motor vehicle.

NCDD Diversity Committee to Sponsor Scholarships for Attendance at NCDD Seminars

Posted on July 17, 2018 in Uncategorized

NCDD Blog

The Diversity Committee of the National College for DUI Defense is pleased to announce that we are able to sponsor scholarships for partial, and sometimes full tuition fees at each of our four main seminars throughout the year. NCDD encourages minorities and woman to become better educated DUI/DWI defense attorneys through attendance at our seminars. In addition to the excitement of additional knowledge and skills learned by attending our seminars, we encourage our members to enjoy the friendships built with other NCDD members and the social benefits too of such a large and supportive association. Spread the word and invite someone to join our committees and bringing other dedicated DUI/DWI defense attorneys into our professional family.

Juror Can't Focus- Rushed Into Judgment: Wrong!

Posted on July 12, 2018 in Uncategorized

NCDD Blog

The Court of Criminal Appeals (the highest court in Texas) rendered that a rushed juror who regretted his decision and cooperated with the defense in a motion for new

trial is not good enough evidence to overturn a verdict. In Colyer v. State, 428 S.W. 3d, 117 (2014), the jury foreperson testified that his verdict was not a true verdict because he was rushed into judgment. He detailed that the late time of day, distance to the parking lot, approaching inclement weather, and amount of time it took for the Judge to respond to the jury's notes, caused him to rush to a guilty verdict that he later regretted. He meticulously described how he received an emergency phone call from a doctor regarding his daughter. After this, and worried about her serious condition, he stopped deliberating. He hurriedly rushed the other jurors to judgment, agreeing with them without forming his own true opinion. This information later came to the court's attention. The defense made a proper motion for new trial. The trial judge denied it. (Why would the trial court want to reclog the docket?) The appellate court granted it based on juror misconduct, only to have it finally reversed by the Texas Court of Criminal Appeals.

If You Drink Alcohol, You Should Read This- They Will Get a Warrant for Your Blood and Then

Posted on July 06, 2018 in Uncategorized

NCDD Blog

The Texas Department of Public Safety laboratory in Houston was responsible for thousands of botched results (some completely fraudulent) because of lab analyst Jonathan Salvador. This occurred from 2006-2012. The Texas Forensic Commission got wind of his questionable work and launched an investigation. One of the commissioners in the investigation, Dr. Nizam Peerwani concluded that the Texas Department of Public Safety lab's office "tolerated under-performance". So this was not just a problem from the analyst, but the whole lab shared culpability. Rather than properly address the problems after this scandal in order to improve testing, Texas DPS convinced our legislators to restricting test results in court only to them. Hence, Texas Code of Criminal Procedure 38.35 was enacted that restricts test results admitted to court to be limited to those of a lab with the Texas DPS certification. Laboratories like Max Courtney's was shut down immediately. Max Courtney's lab was instrumental in exposing the bad lab problems of Texas DPS. According to Dr. James Booker, an expert witness, the shoddiness and problems of Texas DPS continue unabated. It is just more difficult to see and expose because independent labs can't retest the samples. No lab seeking DPS certification wants to jeopardize it by exposing problems with Texas DPS testing.

Judge Chastises Jury After Verdict: Tells Them They Got It Wrong

Posted on June 30, 2018 in Uncategorized

NCDD Blog

Ohio Judge Amy Salerno is under heat now for approaching and chastising a jury after they found the defendant (name protected for expunction purposes the defendant may pursue) Not Guilty of Assault and Disorderly Conduct. She told them "99% of the time the jury is correct. Now it's 98%. You got this wrong." One juror, feeling berated, burst into tears and another juror requested an escort home for safety reasons as the judge's outburst was made in the midst of the alleged victim's agitated family and friends. The judge further went on to state she would have her chance to get the defendant regardless of the jury's verdict because he had other cases pending in her court (which were later dismissed by the prosecutor).

My Time at the Gerry Spence Trial Lawyers College

Posted on June 24, 2018 in Uncategorized

NCDD Blog

If I am to be trusted, I must be trustworthy. This seems like a basic moral principle and life rule – a little bit too trite to even spell out on paper. In a world, however, of sophisticated marketing, political mudslinging, and insincere lawyering, it bears repeating: If I am to be trusted, I must be trustworthy.

I recently spent 23 days at the Gerry Spence Trial Lawyers College, in Dubois Wyoming. There were fifty lawyers there from all over the country, living as students, dormitory-style. We scrubbed toilets, bussed tables, worked out hard every day, and went through the most intense lawyers' training in existence. This is the first in a series of blog articles about the Trial Lawyers' College experience. It was an extraordinary experience, where we were privileged to learn from one of the great masters of our craft: Gerry Spence.

NCDD Wisconsin Public Defender Seminar an Overwhelming Success

Posted on June 18, 2018 in Uncategorized

NCDD Blog

Back row, l to r: Joe St. Louis, Andrew Mishlove, Aaron Nelson, Deja Vishny, Karyn Missimer and Emily Bell; Front row: Lauren Stuckert, Lenny Stamm and Janine Arvizu. Not pictured: Mary McMurray, Michelle Tjader and Dennis Melowski.

On October 8-10, 2014, the National College for DUI Defense, Inc., sponsored a free intensive training course for Public Defenders in Delavin, Wisconsin. Thirty-five (35) Public Defenders from around the State spent three days learning to defend cases involving both blood and breath testing, and working to improve their trial skills. The seminar featured both lectures on a variety of topics relating to DUI charges, and breakout sessions where participants practiced trial skills. The faculty was comprised of Regent Lenny Stamm, Regent Andrew Mishlove, who organized this training, Regent Joe St. Louis, Sustaining Member Karyn Missimer, Wisconsin State Delegate Lauren Stuckert, Member Emily Bell, Member Aaron Nelson, Wisconsin Attorney Michele Tjader, Wisconsin Attorney Dennis Melowski, Deja Vishny, Adjunct Professor at Marquette University School of Law, Expert Witness Janine Arvizu, and Expert Witness Mary McMurray.

NCDD to Train Public Defenders in Wisconsin

Posted on June 11, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on October 8,9, and 10, 2014, we will be providing a free, three-day seminar for public defenders in Wisconsin. Wisconsinite and Regent Andrew Mishlove organized this seminar to provide a higher level of DUI defense education to those tireless warriors in the indigent defense community.

Regent Joe St. Louis, from Arizona, Regent Lenny Stamm, from Maryland, Regent Mishlove, and laboratory expert Janine Arvizu, from Arizona, will be on the faculty. Also on the faculty are NCDD members Aaron Nelson, Lauren Stuckert, Emily jane Bell and Karyn Missimer. Michele Tjader, Dennis Melowski and Deja Vishny round out the all-star line-up.

Power Nap or DUI, That is the Question

Posted on June 05, 2018 in Uncategorized

NCDD Blog

Author's note: This piece was written with respect to current DUI laws in the sate of Florida. DUI laws vary by state.

If you are intoxicated and asleep at the wheel of a non-moving car, you can be charged with DUI (even if the ignition is off)! Following are a few basics you need to know about drinking and driving.

Have you ever been in a situation where you've had more to drink than you planned, and need a safe way to get home? Perhaps you, like many people, believe that if you've had one too many to drink, it is safer to simply sit in your car in the parking lot where you'd been drinking — rather than drive while intoxicated. In the eyes of the law, though, in this situation you could be found to be in "actual physical control" of a motor vehicle while intoxicated, which is a crime in the state of Florida – and many other states.

DeKalb County, Illinois – DUI Checkpoint – Man v. Illinois State Trooper – Video

Posted on June 02, 2018 in Uncategorized

NCDD Blog

http://www.mintpressnews.com/video-belligerent-cop-loses-it-on-man-for-exercising-his-rights/196836/

A must see video of a young man questioning the legality of a DUI Roadblock and the officer's complete meltdown on him.

NCDD to Train Public Defenders in North Carolina

Posted on May 30, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on Friday, April 17, 2015 we will be providing a free training for court-appointed attorneys in North Carolina. Dean Emeritus Peter Gerstenzangwill teach attendees how to challenge breath tests. Fellow Les Hulnick will demonstrate how to attack field sobriety tests. Regent Virginia Landry will show attendees how to contest blood test evidence. All three instructors will continue to teach throughout the day, leading breakout sessions where participants will practice cross-examination on the topics covered during the lectures.

NCDD PUblic Defender Training in Connecticut

Posted on May 24, 2018 in Uncategorized

NCDD Blog

The National College for DUI Defense, Inc. is proud to announce that on Tuesday, October 21, 2014 we will be providing a free training for public defenders in Connecticut. Fellow Steve Oberman will be teaching cross-examination on standardized field sobriety tests. Regent Bruce Edge will be teaching how to use a theme throughout a trial. NCDD Faculty member George Flowers will be teaching how to challenge breath tests. NCDD Faculty member Jay Ruane, who is responsible for organizing this seminar, will be presenting a caselaw review and teaching motion practice with his father, Connecticut attorney Jim Ruane (How cool would it be to teach a seminar with one of your parents or one of your children?).

Now Silence May Be Used Against You, So Know What To Say

Posted on May 21, 2018 in Uncategorized

NCDD Blog

Now Silence May Be Used Against You, So Know What To Say

The Fifth Amendment to the United States Constitution states, "No person shall be compelled in any criminal case to be a witness against himself " Not only does the right apply at trial, but it also applies during custodial interrogation. Thus, once a suspect is under arrest he has the right to remain silent and not incriminate himself.

While acknowledging the existence of this right, the California Supreme Court recently held in a 4-3 opinion that the right is not self-executing—unless the police have advised him of his right to remain silent (i.e., Mirandized him), he must unambiguously declare he is invoking his Fifth Amendment right to remain silent or his silence may be used against him to show a consciousness of guilt! People v. Tom, Calif. Supreme Court – Docket No. S202107) (August 14, 2014). Yes, the accused must talk in California in order to be protected by the Fifth Amendment right to remain silent.

A Summer Session Perspective, From a First Time Attendee

Posted on May 14, 2018 in Summer Session

NCDD Blog

Another CLE Another seminar Another day away from the office with unanswered phone calls and problems to come back to on Monday morning. Or so I thought The NCDD Harvard experience was exciting, the curriculum cutting edge leaving its attendees refreshed for Monday morning.

One of the most unique things about the Harvard experience were the breakout sessions. Well versed and experienced DWI/DUI attorneys led each group which consisted of 5 students. Attendees were given advanced notice of the breakout sessions and encouraged to bring an opening statement. I had a trial the following Monday that I prepped for. I opted for trying something new and different as encouraged by Denis DeVlaming during his seminar on a powerful opening statement. I normally present my opening statement prior to any evidence, but felt with the facts of this case it would be more appropriate to wait until after the State had presented their evidence to present my secret weapon, aka the stomach virus. The leaders in each my breakout session gave each participant about 3-5 minutes to make their opening statement. They then critiqued each participant. With me and a couple of others the leaders explained a drill that would help me overcome my weaknesses. I like to try to contain my emotion and stay very fact based during my open statement and crescendo into closing. But the leaders explained how I could be more effective. After exercising the drill a couple times, we than gave the same opening statement again. It was amazing how we all grew as speakers in just a few short minutes. On Friday, a subsequent break out session followed in cross examination also very effective.

The ABA Has Re-Certified the NCDD as the Sole Certifying Body for DUI Defense Specialists in this Country.

Posted on May 07, 2018 in NEws & Events

NCDD Blog

The National College for DUI Defense, Inc. is pleased to announce that on August 11, 2014, the American Bar Association officially approved the renewal application of the NCDD for another 5 years. In 2004, The National College for DUI Defense, Inc. (NCDD) became accredited by the American Bar Association (ABA) to certify lawyers as specialists in the practice area of DUI Defense Law. The NCDD is the only organization in the history of the ABA that has been granted the authority to certify lawyers as specialists in this highly complex area of practice.

Lying Expert Witnesses: The Shabby State of Criminal Justice in Our Country

Posted on May 01, 2018 in Uncategorized

NCDD Blog

The American Criminal Justice System: "Houston, We have a Problem."

Mark Fuhrman, convicted of a felony perjury after the O.J. Simpson trial, is now a national Fox legal analyst, an "expert witness" on police matters. Last week, the 6th Circuit Court of Appeals in Cincinnati, Ohio, ruled "Dr." James Ferguson, a state toxicologist, convicted of perjury, could NOT be sued or found liable for lying in a murder case where his expert witness testimony was relied upon by the judge for the conviction. Fred Zain, toxicologist at the West Virginia Department of Public Safety, falsified lab results which resulted in as many as 134 wrongful convictions. Once under investigation, he merely picked up and moved to San Antonio, Texas to work as a toxicologist where an investigation found at least 180 cases in which fraud may have led to wrongful convictions. He died in the comforts of his Florida home in 2002. Picking up the pieces in Boston, Massachusetts, over 34,000 lab results are now in question after state toxicologist Annie Dookhan pled guilty to crimes related to falsifying results. These cases are just the recent ones. They are only the tip of the iceberg. If an athlete is caught cheating in the Olympics, he or she is stripped of their medal and the opportunity to compete. In the criminal courts of America, if a police officer or expert witness is lying to obtain a conviction, they get promoted and receive raises. If their lies are caught, the Courts protect them. The 6th Circuit Court rationalized, "Dr. Ferguson deserves absolute immunity in the case because all testimony, even if perjured, is protected to ensure witnesses will be candid without fearing lawsuit."

Judge Punches Defense Lawyer. The Big Picture.

Posted on April 26, 2018 in Uncategorized

NCDD Blog

What is wrong with this picture? On the surface of it, it looks like a judge challenged a defense lawyer to a fight and they both mutually agreed to duke it out behind the courtroom. However, this is NOT the case at all for MANY reasons. When you watch recent news clips, you don't see defense lawyers telling news reporters that Judge John Murphy has "issues." No, of course not ! How could they expect to get good plea bargains, rulings and judgments from the judge once they go on the news criticizing him? Let's get real. So what does the public really know for those who don't know the judge and who don't practice criminal law. Here is why this is SO important.

Involuntary Intoxication

Posted on April 20, 2018 in Uncategorized

NCDD Blog

"I no longer knew what was real and what wasn't. The lines between reality and delusion had become so blurred." ― A.B. Shepherd, The Beacon

This is what has happened to judges in courts across Texas when it comes to DWI charges. The penal code was created to punish crime and thereby deter others from committing the same crime. Most crimes involve people making bad moral choices, choices that hurt others. Most crimes involve intent to commit the crime. The law recognizes we cannot punish people for actions they did not or could not reasonably have intended. That is why we have defenses that include mistake of fact, mistake of law, duress, entrapment, self defense, and necessity to name a few. Yet the defenses for being intoxicated as a victim, either because of accident or being drugged unknowingly have been soundly rejected by Texas courts.

McNeely Continued: Do Warrantless Breath Tests Violate the Fourth Amendment?

Posted on April 17, 2018 in Uncategorized

NCDD Blog

In Missouri v. McNeely, the Supreme Court held: "In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." At first blush, it appeared the main impact of the decision would be in the few jurisdictions where warrantless blood tests were the norm before April 17, 2013, the date McNeely was decided. But upon further reflection, it appears that McNeely requires the suppression of all warrantless breath tests.

Man blows 0.00 on breathalyzer, gets arrested for DWI

Posted on April 14, 2018 in Uncategorized

NCDD Blog

http://news.yahoo.com/blogs/oddnews/man-blows-0-00-on-breathalyzer–gets-arrested-for-dwi-003450614.html

Many people falsely believe that if they pass a breath test, they will be free to go and not be charged with DWI/DUI. This belief is a fallacy. Take for instance Larry Davis, an Austin man arrested and charged with DWI even though he blew 0.00% on an Intoxilyzer 5000 (http://news.yahoo.com/blogs/oddnews/man-blows-0-00-on-breathalyzer–gets-arrested-for-dwi-003450614.html). Most people are in shock over this story, but regrettably, it is all too commonplace in every jurisdiction in America. It is common for a number of reasons. See the video of this man's arrestright here.

Prosecutions for Driving Under the Influence of Marijuana Based Upon Unreliable Evidence

Posted on April 07, 2018 in Marijuana

NCDD Blog

Due to the rise in the use of marijuana all over the country, including the state of Michigan, police are now being trained to investigate driving under the influence of marijuana and other drugs. It is the new craze in law enforcement but, because it is not as easy to detect and

identify as alcohol, false arrests and prosecutions are much more common. Law enforcement incorrectly believes that identifying persons intoxicated from drugs is the same as alcohol. They are completely wrong.

Marijuana is a schedule one controlled substance and so it ecstasy and MDMA. Michigan law prohibits a person to operate a motor vehicle with any amount of a schedule one controlled substance in their body. It is referred to as a zero tolerance law. That means if a blood test reveals the presence in any amount of an active amount of any schedule one drug in a driver he is guilty of operating under the influence of drugs (OUID). There is a zero tolerance for any active amount contained in a person's body. The penalties are the same as Operating Under the Influence of Alcohol.

Are Prosecutor's Office Policies Legal?

Posted on April 01, 2018 in Uncategorized

NCDD Blog

http://duinewsblog.org/2013/09/27/prosecutors-office-policies-legal/

Legislatures, representatives of the people, write the laws NOT prosecutors. Each legal law is a result of a complex process involving everything from public hearings, citizen and lobbyist input to sworn testimony. Penal code statutes have punishment ranges for a reason. Not everyone deserves to be treated the same when it comes to the same offense. Prosecutors are circumventing the laws by substituting their own punishment ranges in the form of "office policies" rather than considering the full range of punishments. District and County Attorney offices nationwide are resorting to cookie cutter approaches when handling cases by making plea bargain offers and trial decisions according to "office policies," particularly when it comes to prosecuting driving while intoxicated cases. For example, assistant district attorneys are finding themselves hand-tied when handling DWI cases by such policies as:

The Attention Needed for TSA Abuse

Posted on March 29, 2018 in Uncategorized

NCDD Blog

This video demonstrates the abuse of power that we as an advanced society must study and address. In 1971 Philip Zimbardo picked 24 Stanford University students & had them role play a simulated prisoner- guard experiment over six days. The results simulate what this TSA video so ashamedly shows the propensity for- psychological abuse.

It is inexcusable that all the way up the chain of command in this video the TSA employees were unfamiliar with the regulations that would have prevented unlawfully subjecting this woman to delay, aggravation, humiliation, fear & ultimately a missed flight (thereby financial repercussions).

NCDD Board Certification – Want to Learn More?

Posted on March 25, 2018 in Board Certification

NCDD Blog

On behalf of the Board of Regents of the National College for DUI Defense, we are please to provide some important information regarding the College's Board Certification program. In an effort to assist the public in recognizing lawyers who focus their practice on defending those accused of DUI and who have demonstrated their competence to do so, the National College for DUI Defense committed itself early in its history to institute a board certification program for DUI Defense Law practitioners. The Board of Regents certified its first lawyers in 1999.

Hero or Harasser ? Hero I Say.

Posted on March 18, 2018 in Uncategorized

NCDD Blog

Man gets arrested for warning drivers about upcoming speed traps. He is also against how the speed traps are being enforced (cops hiding behind signs and jetting out weaving in and out of traffic to catch the speeders is more dangerous than most of the speeding driving they are pursuing). My two cents: this is a free country, he has a right to protest, and he makes a good point. I realize most cities now earn a necessary part of their administration fees through the traffic ticket fines they collect but this does not make it right. Much like the current national agenda to go create DWIs rather than just pull over the ones that have probable cause for DWI or are involved in accidents, just getting in your car and driving to work has turned into an opportunity for government to exploit us, much like driving a vehicle after drinking a beverage(s). Thomas Jefferson once said, "My reading on history convinces me that most bad government results from too much government."

Oral argument in Navarette v. California – or – Can Police Stop a Car for a Crime That Can't be Prosecuted?

Posted on March 14, 2018 in Uncategorized

NCDD Blog

The U.S. Supreme Court held oral argument last week in the case of Navarette v. California. This case presents the important issue of when police can stop a car based on an anonymous tip without corroborating the details provided by the caller. An anonymous caller informed police that Navarette's vehicle was driving recklessly and almost ran them off the road. The caller provided a description of the vehicle. Police spotted the vehicle 19 miles down the road and followed for another 5 miles without seeing any bad driving. Ultimately, the vehicle was stopped and police found marijuana. Under the Fourth Amendment exclusionary rule, if the stop was illegal, the marijuana must be suppressed. That means the trial court couldn't consider it and Navarette would get off.

Diversity and the National College for DUI Defense

Posted on March 09, 2018 in Uncategorized

NCDD Blog

NCDD has established a Diversity Committee to find, recruit and assist minority attorneys to become members of the College. We are reaching out to each state (through the Diversity Committee Members, our State Delegates and each individual member) to implement our STAR program (to Search for Talent And Recruit). One of our primary goals is to develop and train STARS to continue to further their professional learning by attending our seminars and becoming engaged in opportunities such as mentoring, co-chairing trials and becoming fully engaged with all of the incredible resources available to our members.

Two American Stories that Illustrate the Presumption of Innocence

Posted on March 02, 2018 in Uncategorized

NCDD Blog

A DUI defense lawyer must be a scientist and a legal scholar. The most important skill of any trial lawyer, however, is storytelling. Stories are what we use to give emotional depth and impact to dry legal concepts. Personal stories are often best but sometimes stories from history are effective.

I have often used the story of the Boston Massacre trial to illustrate the significance of the jury system and the importance of the presumption of innocence. It goes like this:

Boston was a place seething with unrest in the winter and spring of 1770. It was a city of 20,000 souls, and to keep it in line, King George had sent 4000 redcoat soldiers. As a way of leveraging their impact, the soldiers were not housed in barracks. Rather, the people of Boston were ordered to quarter them, to house them and to feed them. It was an onerous burden. The soldiers commandeered the houses of patriots, invading their privacy, eating their food and intimidating their parents and children.

The Aging Process and Field Sobriety Tests

Posted on February 24, 2018 in Field Sobriety Tests

NCDD Blog

http://duinewsblog.org/2013/10/02/aging-process-field-sobriety-tests/

It is not surprising that every year 1.4 million Americans are diagnosed with cancer1, the second leading cause of death next to heart disease. It should be surprising that there are also approximately 1.4 million DWI/DUI arrests (1 of every 139 license drivers) in the country a year with 16,685 alcohol related fatalities in 2005.2 "Alcohol related" fatalities defined as at least one driver or nonoccupant involved in the crash having a blood alcohol concentration of .01 grams per deciliter or higher. These figures include fatalities that were NOT caused by the presence of alcohol.3 Boiled down, NHTSA has led a colossal campaign against DWI/DUI, arresting a disproportionate amount of people compared to the real threat of fatalities on the road (alcohol related fatalities representing 1% of the drivers being arrested). One does not need to be a mathematical genius to understand that this country has a problem, and it's not what MADD is concerned about. The field sobriety tests are a mechanism to convict people not test whether or not they are sober. The standardized field sobriety tests are a witch-hunt being perpetuated by law enforcement on our own people. Even a recent 2006 NHTSA publication admits, "Road tests have long been considered the gold standard for measuring driving ability. They have widely-recognized limitations." 4 One would not know this visiting the courtrooms across America. This paper addresses one of the most common sense problems contributing to false convictions, the condition and age of the subject.

A Chance to Rethink DUI Checkpoints

Posted on February 20, 2018 in Uncategorized

NCDD Blog

http://www.christianpost.com/news/dui-checkpoints-yay-or-nay-109476/

I wanted to re-post this very well written article from Rachel Alexander, who is an attorney and the editor of the Intellectual Conservative.

DUI sobriety checkpoints, also known as roadblocks, are one of those things that sound good until you think it through. No one wants drunk drivers on the road. But no one wants texters or people eating lunch on the road, either, which are even more dangerous. In order to catch the latter two, it would be necessary to set up video cameras either alongside the road or inside cars. Every year, several states that prohibit DUI checkpoints consider passing legislation to permit them. These laws are usually championed by Democrats.

The Science of Fear and Field Sobriety Testing

Posted on February 16, 2018 in Field Sobriety Tests

NCDD Blog

http://duinewsblog.org/2013/09/16/the-science-of-fear-field-sobriety-tests/

Read the Article here!

The Science of Fear & field sobriety tests:

Fear is not just mental. It is physical. It is involuntary. It causes one to lose normal mental and physical faculties. The field sobriety tests were developed in a vacuum. The greatest travesty NHTSA perpetuates on our citizenry is the application of these nonscientific tests without any proper scientific consideration to fear. Here is the article I wrote, very relevant for anyone arrested for DWI/DUI. (link above, on tcdla's archived website of Voice articles )

Blood Testing- Fermentation

Posted on February 13, 2018 in Uncategorized

NCDD Blog

http://duinewsblog.org/2013/05/22/blood-testing-fermentation/

On the topic of blood testing: Blood Test practice tip: "1-propanol, acetaldehyde, acetone, 2-propanol, isobutanol have been considered as biochemical markers.. to be flagged as suspicious for microbial contamination." Forensic Science Intl 174(2008) 133-151 Have seen many client chromatograms with these compounds Blood testing needs to be regulated. In Texas there are NO regulations for blood testing. Most labs still don't even report a margin of uncertainty. There should be a law that the lab videotape the entire blood testing process. Even in Florida, for pesticide testing on fruits/vegetables there must be 2 lab workers, one to test- the other to witness. There are too many ways the testing can go wrong, namely the wrong amount of standard is used or wrong volumes tested which totally change the result but undetectable on paper.

Orange County Crime Lab Blood Error Effects More DUI Defendants Than Government Acknowledges

Posted on February 08, 2018 in Uncategorized

NCDD Blog

The District Attorney of Orange County California and the Orange County Crime Lab have acknowledged that errors were made in the calibration of their blood testing equipment in DUI cases which effected the final analysis of forensic blood tests. Their public comments however minimize the scope of the problem by suggesting that the only citizens effected by their forensic flaws were those with marginal blood alchol levels in the 0.08% range and then boldly profess that they successfully prosecute drivers with blood alcohol levels of 0.07%. These public relations minimalizations deflect attention from the fact that many more citizens have been impacted by this calibration error. In California, under Vehicle Code Section 23538(b)(2) and Vehicle Code Section 23556(b)(3) drivers whose blood alcohol levels are above 0.15% and 0.20% are subject to ehanced penalties which include longer alcohol programs of 6 – 9 months instead of the 3 month program. These "Enhancement Programs" not only last 2-3 times longer but cost 2-3 times as much and extend a citizen's license restrictions until these programs are completed. The District Attorney has an ethical responsibility to notify all defendants who may be impacted by enhanced penalties for blood alcohol levels at or near the 0.15% or 0.20% levels. Defense Attorneys must also review their records and identify clients who may have been impacted and take action to strike enhancements where appropriate.

DWI/DUI Marijuana

Posted on February 05, 2018 in Marijuana

NCDD Blog

http://duinewsblog.org/2013/03/13/dwidui-marijuana/

This news article demonstrates the fervor of law enforcement to get a DWI/DUI even when there is no evidence. A person may show from a toxicology screen that they may have THC in their system with no evidence of impairment at the time of driving (some of these tests may show positive if the person smoked in the last 6 weeks). Scary stuff.

http://m.usatoday.com/article/news/1979905

The Dirty DUI

Posted on February 01, 2018 in Uncategorized

NCDD Blog

http://www.sfgate.com/crime/article/Ex-cop-Tanabe-convicted-in-Dirty-DUI-scandal-4784564.php

In the quiet community of Danville, California, desperate people will do desperate things. And what greed can do to an individual is only topped by what it can do to our entire system of justice. Gordon Gecko may have said "greed is good" but in American jurisprudence, it is toxic. And so goes the story of the "Dirty DUIs."

Oklahoma Breath Tests are Invalid

Posted on January 26, 2018 in Uncategorized

NCDD Blog

Oklahoma Court of Civil Appeals recently decided 6 combined cases regarding the validity of the breath test affidavit. Tulsa attorney Bruce Edge of Tulsa and Oklahoma City attorney John Hunsucker combined forces to bring this issue to a head

Because of their action—ALL breath tests and refusals where the affidavit was printed on the Intoxilyzer 8000 are invalid. This decision was handed down on October 9, 2013. DPS had known of the issue for several years but took no action to correct it. Within a matter of hours of the decision being issued, emails went out to all operators instructing how to correct the issue for future tests.

Do the Police Have to Read Miranda Rights to Me, When I am Arrested?

Posted on January 20, 2018 in Uncategorized

NCDD Blog

The short answer is "No." The triggering event for Miranda Rights is whether you are in custody or not. If you are not in custody, the police can ask you whatever they want to ask, and if you give an incriminating response, they can use it against you in a court of law. That's why the police will sometimes conduct criminal investigations over the phone. A detective may have a report of a crime and suspect that a specific person is involved. The detective will then call the person and ask him if he knows anything about the crime. Anything that the person says is not protected by Miranda Rights because the person could easily hang up the phone and end the conversation. Clearly, the person is not in custody. Even seemingly exculpatory comments are dangerous. For example, a detective may suspect that a person was involved in an vehicle break-in, but cannot even place that person at the scene of the crime. The detective calls that person and says that he knows that the person was involved. The person then says "I was there, but I didn't do anything–it was some other guys." The person, now called a "suspect," has now placed himself at the scene of the crime and the detective may be able to get a court order for the person to submit to fingerprinting for comparison with finger prints left on the vehicle. The phone conversation was unprotected.

The Downfall of the State of Colorado's DUI Blood Testing Laboratory

Posted on January 14, 2018 in Uncategorized

NCDD Blog

There were signs that the Colorado Department of Health's Laboratory Services Division had problems long before the bottom fell out in June. Many persistent Colorado DUI attorneys challenged the former supervisor of the state's toxicology laboratory over a long period of time. (Chet Hardin, Blood and circus – Why many DUI lawyers don't trust the state's drug lab,
Colorado Springs Independent, Nov. 7, 2012,). The former supervisor testified about her training and education many times in court from 2005 to the end of her tenure in May 2013. Transcripts of her testimony over the years reveal that her statements under oath about her degrees conflicted from court case to court case. Id. However, she remained in her position and supervised the testing of tens of thousands of blood samples.

Speaking of Reviews

Posted on January 08, 2018 in Uncategorized

NCDD Blog

Were we? Maybe not, but at any rate, the proliferation of reviewing websites are something that have been on my mind for a while. It all started when Jill and I had to buy a new dishwasher. The old one was a Kitchen Aid, which worked quite fine . . . until it didn't. I immediately told our appliance guy that it only seemed reasonable that the new one should be a Kitchen Aid as well. He agreed, texted me a couple model numbers and Jill being Jill, immediately began checking them out on her IPad. At Amazon she found the model and the price was in line with what our guy was charging installed. I said "do it", but she said "let's check the reviews". We did, and almost all were good, but there was one that troubled me. Whether you know it or not, the big feature with dishwashers these days is quiet. That being said, there was one review that, in sum and substance, said the machine was horribly noisy and the writer had to have it removed. Since this was the only review of its kind, we ignored it, but I have to tell you, when I ran the first load of dishes, I held my breath, albeit without cause. No worries, it was so quiet, you had to look twice to see if it was even running.

Are Breath Tests Really Accurate?

Posted on January 03, 2018 in Uncategorized

NCDD Blog

Are Breath Tests Accurate?

Keep in mind that a police-administered breath test creates an estimate of the amount of alcohol that is in your breath. Like all estimates, it can be accurate or inaccurate, depending upon the circumstance. However, breath alcohol levels do not necessarily accurately reflect blood alcohol levels. In other words, a sample of breath with a certain amount of alcohol in it may be accurately analyzed for the amount of alcohol in the specimen of breath, but it may bear little relationship to the amount of alcohol in the blood. This is because of several factors:

It May End, But Not Because of Technology

Posted on December 31, 2017 in Uncategorized

NCDD Blog

I'm a bit of a futurist. Well, maybe not as much as I used to be. Age has that affect upon you. It's hard to be truly excited about a future that you probably will not be around to see! I remember back at the turn of the century, I wrote a piece for one of the Gannett papers in which I contrasted, albeit favorably, predictions of the 21st century with what we actually achieved. Not that we hadn't accomplished a lot, but the century we were entering was nothing like those grainy "in the future" news reels they used to show in theaters.

In State v Moore South Carolina Court of Appeals Issues a Significant Opinion in the Field of Traffic Stops and Search and Seizures

Posted on December 26, 2017 in Uncategorized

NCDD Blog

http://www.upstatedui.com/dui-blog/in-state-v-moore-south-carolina-court-of-appeals-issues-a-significant-opinion-in-the-field-of-traffic-stops-and-search-and-seizures/

CCase Name: State v Moore (South Carolina Court of Appeals,

Opinion No. 5160; filed July 17, 2013) FACTS:

Officers Dale Owens, Donnie Gilbert, Ken Hancock and K-9 Deputy Jason Carraway, all of the Spartanburg County, Sheriff's Office) were patrolling US Interstate-85 in Spartanburg County around 1:00 a.m. Owens observed the defendant (Ashley Eugene Moore), traveling an estimated 10 miles an hour over the posted speed limit. Owens also observed Moore execute an improper lane change. Owens activated his blue lights and stopped the defendant. Owens testified that it took the defendant longer than the average motorist to stop and that he failed to release his left turn signal. Officer Owens observed Moore talking on his cell phone as he approached the vehicle. Owens opined that the average motorist would have ended the phone call when an officer approached their vehicle and that drug traffickers often leave a cell phone on so that their superiors can hear the contents of the traffic stop. An alcoholic odor emanated from the defendant's vehicle. Moore informed Owens that the vehicle was a rental and provided the rental agreement, along with his driver's license. Officer Owens testified that the defendant was extremely nervous, with his hands shaking noticeably and his breathing clearly accelerated. The defendant consented to a "pat down search". Officer Owens observed and seized "a large wad of money" from Moore's person. Moore had indicated he was unemployed. Moore stated he was travelling from a suburb of Atlanta to Marion, North Carolina to visit his grandmother. It was determined that a third party had rented the vehicle for Moore. Moore declined consent for Officer Owens to search the vehicle. subsequently, Owens issued a warning ticket to Moore for his moving violations. Critically, Officer Owens decided to detain Moore until the K-9 drug unit could arrive. The dog alerted to an odor inside the car and the officer searched the vehicle. Crack cocaine was found in two containers in a bag in the trunk, along with a semi-automatic weapon and a bundle of currency.

Building The Best DUI Lawyer

Posted on December 23, 2017 in Uncategorized

NCDD Blog

There's a growing, and I think, necessary, trend for lawyers to specialize/concentrate in a niche area of law, giving clients the most effective and experienced representation for their case. Strong DUI laws and sinister law enforcement techniques require a high level of training and experience in DUI practice.

There is a blueprint for becoming an excellent DUI lawyer.

Just like anything else, it requires effort, discipline and a genuine desire to focus on that area of criminal defense practice. The most effective DUI lawyer is someone who makes the commitment to practice almost exclusively in DUI defense. A lawyer who takes on Divorces and Real Estate Closings and Personal Injury Cases absolutely cannot be doing those things at a high level effectively. A "Jack of all trades, master of none" cannot provide the type of DUI defense these cases require. Even criminal lawyers who defend murders and drug trafficking cases are not necessarily the ones best-suited to take on a DUI case.

Horizontal Gaze Nystagmus - How It Works/How To Challenge and Exclude It

Posted on December 19, 2017 in Uncategorized

By W. Troy McKinney
Horizontal Gaze Nystagmus

The majority of States recognize that the Horizontal Gaze Nystagmus (HGN) test is scientific evidence.i As a scientific test it generally requires expert testimony for admissibility. Even States that have found, as a matter of law, that the scientific basis for HGN and the general method of applying it are sufficiently reliable to allow admission without proof of these elements in each case, generally require some degree of proof that the test was administered correctly on the occasion in question.

Ethics and Professionalism: 45 Years and Still Learning

Posted on December 16, 2017 in Uncategorized

NCDD Blog

The hardest part of writing or speaking about legal ethics and professionalism is to be able to do so in a manner that sounds neither superior nor arrogant. Please trust that I feel neither.

I was raised in the practice of law at a very fortunate time, one in which a premium was placed on collegiality and mentorship and not bloodletting competition. It was a time when you could just call any other lawyer, even one you did not know, to ask for guidance on dealing with an ethical dilemma. Even an opposing lawyer would take the time to assist a younger lawyer in becoming a better and more professional advocate. And trust me, there were many times I felt humbled by those "learning moments."

The Death of DUI

Posted on December 12, 2017 in Uncategorized

NCDD Blog

www.TheMcShaneFirm.com

For a long time people have predicted the end of DUI. From a traffic safety point of view, this vision of no more DUI has been the stated goal of enforcement and also legislatures for time in memoriam.

For the longest time, many thought it could be achieved through stiffer sentencing and longer license suspensions. This tough enforcement policy has failed because DUI is not typically a crime of prolonged premeditation. Very few offenders when asked say that when they started to drink that they did so with full and complete intent to purposefully break the DUI laws. Most of the time, it is either situational (the designated driver left him or her at a bar and no one would give them a ride, or that they got caught up in the moment losing track of their number of drinks) or that they do not realize how intoxicated they truly are. As such it is not a crime for which harsh sentences make for a general deterrence. The statistics show that harsher sentences and longer suspensions do not act as a specific deterrent to those who are true problem drinkers and who continue to drive while drunk.

Is America More Concerned About Texting and Driving Than Drunk Driving?

Posted on December 09, 2017 in Uncategorized

NCDD Blog

http://www2.potsdam.edu/hansondj/files/Driving-while-Texting-Six-Times-More-Dangerous-than-Driving-while-Drunk.html

Is America more concerned about texting and driving than drunk driving? One recent study suggests that. However, law enforcement and politicians have not raised their level of concern to that of the public's. Why is that? The answer should be pretty obvious. Police Departments will not get bigger budgets because they need more officers out on the streets to bust those texters. Politicians will not get more votes by pounding on their chest and demanding tougher texting and driving laws. No, DUI still remains a political hot button, one that the government will use to increase budgets and decrease civil liberties. Yet the most recent studies suggest that texting while driving is far more dangerous than drunk driving. This is not to say that impaired drivers do not pose a significant safety risk to the public. Further, this is not meant to argue that we should not concentrate resources to keep our roads safe from impaired drivers. But why is the government not willing to shell out more dollars to prevent a problem where statistics show, without a doubt, that this is causing carnage on the roadway.

Michigan to Host 1 Day Boot Camp on Breath Testing; Metrology and Case Issues

Posted on December 03, 2017 in Uncategorized

NCDD Blog

One of the top dui litigators and teachers in the country headlines a 1 day seminar in the Motor City on September 21st. Justin "Encyclopedia" McShane will speak as the first of many nationwide experts on breath testing and metrology (the science of measurement). McShane will be followed by Ron Henson, PhD, who has been educating judges, juries, prosecutors and lawyers about breath testing technology and applications.

Ted Vosk, a scientist/lawyer who consulted with the defense team in "People v Jabrocki" and helped force a change in the Michigan State Police method of blood testing and to educate the Michigan criminal justice system on uncertainty, will highlight the afternoon.

Jury just says

Posted on November 26, 2017 in Uncategorized

NCDD Blog

The City of East Lansing pulled no punches in trying to convict a man of OWI based on his breath alcohol content. The man was pulled over for making an illegal turn in the middle of a street that was under construction with no traffic around. The officer smelled alcohol and asked him to step from the car after performing a "partial HGN" test on his eyes.

However, once the man stepped from the vehicle – that is when things got interesting. He performed the roadside evidence gathering exercises almost flawlessly including the A-Z; numbers and months of the year. The officer attempted to administer the National Highway Traffic Safety Administration (NHTSA) tests. The jury picked up right away on the failure of the officer to adhere to his training.

DC Attorney General Dismisses Intox. 5000 Cases

Posted on November 20, 2017 in Uncategorized

NCDD Blog

The District's attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city's breath analyzers were first revealed in February 2010, when it was discovered the machines' results were inaccurate. Since then, the D.C. medical examiner's office has refused to sign off on the accuracy tests of new analysis machines, officials said.

Drugs Found In One Of Three Drivers Killed In Crashes

Posted on November 13, 2017 in Uncategorized

One in Three Fatally Injured Drivers Tested Positive for Drugs

-New Traffic Fatality Analysis Reveals High Percentage of Drivers Killed Had Drugs In Their System; Percentage of Victims Testing Positive Increasing Even As Overall Number of Fatal Crashes is Declining – Washington, DC ­ Today, Gil Kerlikowske, Director of National Drug Control Policy (ONDCP), called attention to the alarmingly high percentage of fatalities on our Nation¹s roadways involving drivers that had drugs in their system and called on communities to act immediately to prevent drug use before it starts in light of a new traffic fatality analysis released by the National Highway Transportation Safety Administration (NHTSA).

Jury Awards $89 Million In DUI Fatal Crash

Posted on November 06, 2017 in Uncategorized

Jury awards $89 million against drunken driver for fatal crash

ST. LOUIS POST-DISPATCH

11/25/2009

Franklin County — A jury has awarded $89 million in damages to the family of a man killed in a 2008 crash with a drunken driver, and to the man's fiancée and daughter.

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"The eye-popping numbers were the jury's attempt to send a message the only way they could," said attorney Mark Bronson, whose firm won the case Monday after a one-day trial in Franklin County Circuit Court.

New Study Shows Decrease in DUI But Increase In Drugged Driving

Posted on October 30, 2017 in Uncategorized

The number of drunk drivers on the roads has fallen sharply during the past 30 years amid tougher laws, stiffer enforcement and a shift in societal views on alcohol, a government survey found Monday.

A roadside survey released by the National Highway Traffic Safety Administration found that 2.2 percent of drivers had blood-alcohol levels of 0.08 or higher in 2007. The results represented a steady decline compared with studies conducted since 1973, when 7.5 percent of the drivers surveyed were legally intoxicated.

A separate government survey found for the first time that 16.3 percent of nighttime weekend drivers tested positive for drugs. The most commonly detected drugs were marijuana (8.3 percent), cocaine (3.9 percent) and methamphetamine (1.3 percent). Researchers said the presence of drugs can remain in a driver's system for weeks, making it difficult to know whether those drivers were impaired.

California Supreme Court holds that partition ratio evidence is admissible to challenge charge of driving under the influence of alcohol

Posted on October 27, 2017 in Uncategorized

The California Supreme Court has joined a handful of other courts in the country that have said Breathalyzer results mean different things for different people and ruled that suspected drunken drivers can attack the test results in court.

Defense attorneys lauded Thursday's unanimous ruling for deferring to science, which has shown for years that the test results are highly variable. Prosecutors, however, predicted the move will undermine California drunken driving cases.

At issue is how authorities use booze breath to determine how much alcohol is in the bloodstream.

When consumed, alcohol is absorbed in the blood and carried through the brain to the liver and heart before diffusing in the lungs, where it is exhaled in breath.

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