NCDD Blog

Category - Uncategorized

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.

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.

Successful Criminal History Challenge in Kansas DUI Cases

Posted on March 02, 2019 in Uncategorized

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).

Our Tone Matters – Particularly In More Difficult Cases

Posted on February 06, 2019 in Uncategorized

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. The change in the jurors disposition is profound and it clearly has an effect on whether jurors will accept your theory of the case. However, beyond saying "death is different" and recognizing that we need to approach these cases differently, very little substantive advice is given about how we should approach these cases.It doesn't matter what type of case that you are handling, your tone matters. And, as with everything that you do in your professional life, your tone should be purposeful. You can play fast and loose with your tone and emotions when someone else's future is not at stake (although we don't advise it), but when you are in court – particularly in cases involving serious injuries or death, your tone and control over your emotions really matters. Let's look at some of the areas where lawyers can use their emotional tone to connect with jurors and help them accept the defendant's theory of the case.

Considerations in determining the appropriate tone for your case

I truly believe that consistency in tone and the emotions that drive your case are important. If jurors agree with the tone of your case, they accept it and they want to know that they can expect it when they hear from you. This is one of the important considerations that you must have when you are trying a case with another lawyer. If you and another lawyer have vastly different voices in the courtroom, jurors might be taken aback. They might spend valuable emotional energy adapting to another lawyer's style rather than absorbing the content and facts that are critical to your case. So, be careful in deciding to have co-counsel present part of your case.

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

Posted on January 15, 2019 in Uncategorized

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.

The Great Dichotomy of Birchfield v. North Dakota

Posted on December 10, 2018 in Uncategorized

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

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

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

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.

As you may or may not know, I am available to answer this question 24/7 by means of our answering service. What follows is the analysis that I go through at 2:30 in the morning.

How the 2016 NCDD Winter Session Helped My Client

Posted on November 16, 2018 in Uncategorized

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). The case I just went out on involved a 67 year old man charged with a DUI, the (a) count, and a hit and run. Turns out, he caused a three car collision in Palm Desert (no bodily injuries, Thank God!). The last car that was hit in the chain-reaction accident was driven by an 80 year old Citizens on Patrol (bad fact). The D.A. charged a hit-and-run because once my client's vehicle flew over the center median, he drove through the intersection, where the incident occurred, to get out of the way of oncoming traffic. Client stopped shortly thereafter. D.A. was headstrong this case was to be treated as a 2TT/hit-and-run, and nothing else. I kept pushing for a Dry as client's BAC was 0.05 (PAS) and 0.04 (blood). Because client admitted he was taking heart meds, a full panel was done on the blood which came back negative for both THC, and Hydroxy-THC. It did test positive for Carboxy-THC (the secondary metabolite that is inactive) and also, benzodiazepines. Still, the police report revealed the criminalist's opinion that the benzo (Alprazalom) was within therapeutic levels, on the low end actually, and though she couldn't say it impaired him, she would say the mixture with alcohol (would not be recommended). So, with all that I learned at the Winter Session, I was confident to go forward with these facts. Additionally, client swears he did not take Alprazalom. Client takes 89 mg of Ecotrin 9 (an NSAID) daily for heart issues. I was prepared to argue a false positive as there is some literature that suggests NSAID's can result in a false positive result for benzo. But still, the confirming panel came out as Alprazalom, so I was unlikely to win there. After hearing all the motions in limine and my arguments that the Carboxy-THC was irrelevant and should not even be admitted, the matter settled for the Dry.

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

Posted on November 10, 2018 in Uncategorized

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.

Experts in DWI cases

Posted on November 04, 2018 in Uncategorized

Criminal Defense Attorney Benson Varghese explains the types of experts commonly used in DWI cases and considerations to keep in mind before deciding to use an expert in an intoxication-related case.

My First NCDD Winter Session Thanks to the NCDD Diversity Committee

Posted on October 31, 2018 in Uncategorized

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

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

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

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

  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

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

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

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.

By virtue of S. 253(1)(a) of the Criminal Code of Canada, impaired driving in Canada encompasses "every one who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not:

The Real Financial Costs of a DUI

Posted on September 04, 2018 in Uncategorized

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

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

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

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.

Driving Under the Influence (DUI) cases can be as tricky and as strenuous as any other case out

Free Public Defender Training – Birmingham, AL

Posted on August 17, 2018 in Uncategorized

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

Posted on May 01, 2018 in Uncategorized

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

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

"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

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

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.

Are Prosecutor's Office Policies Legal?

Posted on April 01, 2018 in Uncategorized

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

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).

Hero or Harasser ? Hero I Say.

Posted on March 18, 2018 in Uncategorized

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

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 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

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.

A Chance to Rethink DUI Checkpoints

Posted on February 20, 2018 in Uncategorized

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.

Blood Testing- Fermentation

Posted on February 13, 2018 in Uncategorized

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

http://www.duilawyerorangecounty.com/blog/tag/oc-crime-lab-blood-test-over-reporting

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.

The Dirty DUI

Posted on February 01, 2018 in Uncategorized

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."

It all began in in the late 1990′s in Contra Costa County, California. That's where Deputy Stephen Tanabe met fellow Deputy Christopher Butler. The two of them worked patrol together and became close professional colleagues as well as personal friends. But a few years later, Butler left the police department to become a private investigator. Among his many clients were divorce lawyers, often times engaged in bitter dissolution cases. Butler was often hired to "dig up some dirt" on these folks. But in some instances, he simply could not find any. What to do?

Oklahoma Breath Tests are Invalid

Posted on January 26, 2018 in Uncategorized

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

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

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

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

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:

- The Intoxilyzer 8000, which is the machine used in Arizona, is acknowledged to have up to a 10% random error factor by the government.
- How hard and long you blow into the machine can results in an overestimation or underestimation of your actual blood alcohol content by as much as 15% in either direction.
-Your end-expired breath temperature and core-body temperature can make a difference of 8.6% for each degree centigrade that your temperature varies from what the machine expects. Studies show that the average human end-expired breath temperature is 35̊C, but the machines are set to 34̊C, which means that the average subject's breath alcohol concentration is over-estimated by 8.6%.
- Hematocrit, which is the ratio of solids to liquids in your blood can have an effect of up to 14% in either direction.
- Partition Ratio is the ratio of alcohol in your blood to the alcohol in your breath. The machine is programmed to make a calculation, assuming that there are 2100 parts of alcohol in your blood for every one part in your breath. Unfortunately, humans vary from 900:1 all the way up to 3400:1, but the machine does not take that into account. This means that a person with a .034 breath alcohol content could have a police-administered test result that reads as high as .080 based on this factor, alone.
All of these factors are individual, which means that they can be additive, or cancel each other out. When added together, a police-reported breath test result could be as much as 105.6% too high or 109.6% too low.

It May End, But Not Because of Technology

Posted on December 31, 2017 in Uncategorized

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.

Let me state at the outset, I like Justin McShane. He is an outstanding lawyer and has handled referrals that we have made with expertise and skill. As A DUI lawyer, he's tops, but as a futurist, well, I have a few issues.

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

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

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.

Ethics and Professionalism: 45 Years and Still Learning

Posted on December 16, 2017 in Uncategorized

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

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

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

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

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

http://washingtonexaminer.com/local/dc/2011/02/dc-attorney-general-drops-drunken-driving-cases#

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.

CRIME STATS

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See stats around St. Louis and the nation in our searchable database.

"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.

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.

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

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