Intoxilyzer 9000 DUI Breath Testing Forgeries – NBD

A recent article in the Denver Post details the discovery by DUI defense attorneys in Colorado that hundreds of “certifications” of Intoxilyzer 9000 machines have been forged. The Colorado state health lab is supposed to calibrate and test each breath test machine and then issue a certification that the machine is accurate. Under Colorado law, the machine is assumed to be working properly and accurately if it is certified. But, it turns out that hundreds, maybe thousands, of those certifications were faked. In addition, many of the certifications bore the “signature” of a technician who had quit a year before the certification was issued. Naturally, the health department and the governor shrug and say no independent investigation is necessary – no big deal.It is a big deal. The certification is supposed to substitute for live testimony from a scientist that the breath test machine was working properly. Judges and juries rely on breath test results alone to convict people of DUI everyday. At least in Kansas, every DUI conviction means a minimum of 48 hours in custody up to a maximum of one year in jail. The breath test machine alone can put people in jail. All that is required to admit a breath test result into evidence in Kansas is to show that the machine was certified, the operator (police officer) was certified, and that the test was run according to a 7 step protocol (basically push the button and tell the person to blow). The certification is important.The Intoxilyzer 9000 is the breath test machine used exclusively in Kansas. I have seen multiple occasions where police departments in Kansas forged the documents required by law to be sent in to the Kansas Department of Health and Environment to prove that the machine was being tested and the calibration checked. Did those agencies lose their certification to run breath tests? No. No big deal. The Department of Health and Environment, the agency that is supposed to administer the breath testing program in Kansas, has routinely and repeatedly watered down the quality control standards for maintaining reliability in breath testing and the certification of machines and breath test operators. No big deal. The machines are supposed to be tested (once) every “calendar week” by the individual police departments to make sure they are working properly. When agencies fail to do the tests every seven days, the Department of Health and Environment covers for them and says that a “calendar week” means up to 13 days. Hilarious.They used to at least give the appearance of compliance with modern scientific standards but no longer. Almost every state in America requires two breath tests. Because anyone who was taught science in 7th grade knows that scientific accuracy means the ability to repeat results. You do a test and then a confirmation test. No doctor on the planet would make a diagnosis based on a single test result. But, not in Kansas. One test is all you are given. If the single result is .08 or greater, you are looking at jail time.So, some lawyers in Colorado looked into the certification of the machines in that state and found out that corners were being cut and documents were being forged. Who is looking out for people in Kansas who are accused of DUI? The breath test machine has to be investigated in every case.

Source: Intoxilyzer 9000 DUI Breath Testing Forgeries – NBD

The whole is not always the same as its parts : Arizona DUI Defense Blog

You are going to buy a new home.  The house is 2000 square feet on a 3/4 acre lot.  You hire Rich (the termite inspector) to check it out before you buy. After all, no one wants to buy a house with termites. Good news!  The house passed.  No termites.  Thus, you buy the house.Bad news!  A month after the sale closes you discover – termites.  What?  How could this happen? You go back and look a little deeper in the method of inspection Rich relied upon.  You find out his methodology was to only check “one square inch” of the floor in the house.  When he did not find anything wrong within the “one inch” he assumed everything else was also termite free. How do you feel now? A part of something does not always represent the whole. Determining how many termites are in “one square inch” of a house does not really answer the question whether you have a termite problem. The termite inspector committed what logicians call the all things are equal fallacy.  This occurs when when it is assumed, without justification, that conditions have remained the same at different times and places. The same danger is present when attempting a forensic measurement.  For example, in a typical DUI case where a blood sample is taken, the lab will test less than a M&M size sample of blood.  However, in Arizona the legal definition of an alcohol concentration is grams per 100 micro-liters. Translation, the legal definition of an alcohol concentration requires multiplying the results of the “one inch” by about 1000 (assuming the M&M is about 100 micro-liters). The danger is assuming the rest of 1000 micro-liters (or 100 milliliters) has a proportional amount of ethanol in it.  Small errors multiplied by 1000 can easily mislead you to believe that a person’s alcohol concentration is above a legal limit when it is not. Like the termite inspection, it is up to the crime laboratory to prove their justification for assuming using such a tiny amount below the legal definition of an alcohol concentration answers the question – is the person above the legal limit?  After all, no one wants termites…or people being wrongfully convicted.

Source: The whole is not always the same as its parts : Arizona DUI Defense Blog

My husband was pulled over for driving

My husband was pulled over for driving after drinking and is spending the night in jail. Does he need an attorney before he goes to court tomorrow?

People in custody are represented by Public Defenders.

Not sure I need a lawyer

Not sure I need a lawyer. I refused the test. I believe that is an admission of guilt. it is also likely that they did a blood test at the hospital as I hit a parked car. I did not leave the scene. I called the cops.

Refusal of the test is not an admission of guilt. You need a DUI lawyer no matter what the facts. It is a complicated process and you need to protect your rights.

Late Discovery at Trial

Can discovery “video cam” be presented after discovery was completed and trial started. Video cam was presented to proscuting attorerny.

It is up to the judge. I have had success in the past keeping out late discovery.

What Should I Expect Upon A 4th (or more) Conviction

I get a number of chats about what to expect. The easy answer based on sentences is 0 to 16 years in prison, because this is the range of sentencings to date. I hope the individuals who ask these questions are promptly meeting with a defense lawyer as soon as possible, because delay could reduce the chances of getting a result at the lower range of the scale.

DUI bill increases penalties for frequent offenders

Under current law, a person who commits a third DUI offense must spend a minimum of 60 days in jail. On the fourth offense, they may only face probation and never see the inside of a jail cell.

If this bill passes, anyone who commits a fourth or subsequent DUI offense will be in jail for a minimum of 90 days.

“Really surprising and shocking and horrifying that we would find someone with their fourth or fifth offense would actually serve no jail time at all in this state,” said bill sponsor Representative Lori Saine.

Mothers Against Drunk Driving (MADD) connects with survivors of DUI related incidents. The organization believe this bill would advocate for the victims.”

“We worked with several families victims who had been affected by repeat drunk drivers and their main question was why wasn’t something more done,” said MADD State Executive Director Fran Lanzer. “There would be accountability for people especially those who continue to drive drunk or impaired.”

Sponsors introduced the bill in March. It will go before representatives again on Thursday at 1:30 p.m.

http://www.thedenverchannel.com/news/local-news/dui-bill-increases-penalties-for-frequent-offenders

Sentences have ranged from no jail or prison up to 16 years in prison so far.

Plea deal in Castleton fatal car crash case – VTDigger

PLEA DEAL IN CASTLETON FATAL CAR CRASH CASE APR. 7, 2017, 5:20 AM BY ALAN J. KEAYS 3 COMMENTS A man charged in a single-vehicle crash that killed his girlfriend has reached a plea agreement that could let him avoid serving any time behind bars. The plea deal heads off a legal battle that had been brewing over the admissibility of a blood-test for alcohol impairment in light of a recent U.S. Supreme Court ruling in a North Dakota drunken driving case.

Source: Plea deal in Castleton fatal car crash case – VTDigger

If you had your blood drawn, this case could be to your benefit.

C.A. Again Upholds Deputy P.D.’s Driver’s License Suspension

Says Agreeing to a Blood Test, Conditioned on Officers Obtaining a Warrant, Does Not Meet Requirements of Implied Consent Law; No Excuse Seen for Refusing Breath Test

 

A deputy public defender, who won a rehearing in the Court of Appeal following its Jan. 12 decision upholding a one-year suspension of her driver’s license for failing to submit to a chemical test to determine her blood alcohol content, fared no better on Friday, with the Fourth District’s Div. Two again affirming the trial court’s denial of a writ of administrative mandamus.

The Department of Motor Vehicles properly ordered the license suspension even though motorist Bernice Espinoza agreed to a test of her blood, Justice Art McKinster said in the old and the new opinions in the case, because she conditioned her consent on the California Highway Patrol obtaining a search warrant, and did not give consent to a breath test.

Espinoza—who then worked for the Riverside Public Defender’s Office and now is a deputy public defender in Sonoma County—told officers that she knew the law, and that under the U.S. Supreme Court’s 2013 opinion in Missouri v. McNeely, they were obliged to obtain a search warrant.

That case, McKinister pointed out, dealt with nonconsensual searches.

In  Friday’s opinion, he added a footnote spelling out that a Vehicle Code section “requires a motorist to consent in writing to submit to chemical testing or to a preliminary alcohol screening test, when requested by a peace officer, as a condition of obtaining or renewing a California driver’s license.”

Supreme Court Opinion

In both the Jan. 12 opinion and the little-changed one filed Friday, McKinster made note of the U.S. Supreme Court’s decision last year in Birchfield v. North Dakota. He wrote:

“[A]s the Supreme Court clearly held in Birchfield, the Fourth Amendment does not prohibit the police from forcing a motorist to submit to a warrantless breath test incident to his or her arrest, the motorist has no right to refuse to submit to a breath test or to condition his or her submission on the police obtaining a warrant, and the motorist’s refusal to submit to the breath test may be the basis of criminal penalties….In light of that clear holding, we conclude refusal to submit to a breath test incident to arrest may also be the basis of imposing civil penalties under the implied consent law, including suspension or revocation of the motorist’s driver’s license.”

In a new passage, the jurist said:

“Prior to issuance of the decision in Birchfield, we would have agreed with the Department that Espinoza’s refusal to submit to a blood test would have been a sufficient basis for her license suspension, and we would have had no need to address breath tests. But…it is unclear whether the high court would approve of a civil license suspension based solely on a motorist’s refusal to submit to a warrantless blood test. Therefore, we err on the side of caution and affirm the suspension based on Espinoza’s refusal to submit to a breath test.”

References to Crying

The prior opinion said:

“Espinoza’s crying, her initial refusal to get out of her vehicle, her complete refusal to answer field sobriety questions or to perform field sobriety tests, and her repeated requests to be let off with a citation, were additional factors a reasonable officer could properly consider when determining whether there was probable cause to believe Espinoza drove while under the influence of alcohol.”

In the rewritten test, reference to her “crying” was omitted, though the opinion still relates that Espinoza “was crying and very emotional the whole time” an officer spoke with her following the traffic stop. Gonzalez spoke to her.

The case is Espinoza v. Shiomoto, 2017 S.O.S. 1609.

 

Copyright 2017, Metropolitan News Company

 

Source: Metropolitan News-Enterprise Online

The items cited in the opinion by themselves would not satisfy probable cause for an officer in Colorado to request a test. If you add an odor of alcohol, bloodshot eyes and slurred speech, then there would be.

St. Patrick’s Day weekend checkpoints lead to 66 drunken driving arrests | The Kansas City Star

66 drivers arrested during DUI checkpoints in Kansas City on St. Patrick’s Day weekend Sobriety checkpoints for second night in a row Saturday led to the arrest of 24 drivers on suspicion of drunken driving. That brought the total number of suspected drunken drivers arrested at checkpoints in Kansas City this St. Patrick’s Day holiday weekend to 66 people. Sobriety checkpoints held in Kansas City for the second day in a row overnight Saturday led to the arrest of 24 drivers on suspicion of drunken driving.That brought the total number of suspected drunken drivers arrested at checkpoints to 66 people for the St. Patrick’s Day holiday weekend.Kansas City police held their sobriety checkpoint at 4040 Main Street checking southbound traffic on Main.ADVERTISINGDuring the checkpoint, police checked 544 cars and arrested 14 drivers on suspicion of violating city and state driving under the influence laws.Police also indicated that there were three traffic and one narcotics violation. They also arrested one fugitive. Another 52 vehicles attempted to avoid the checkpoint.At the same time, the Jackson County Sheriff’s office had a separate checkpoint in the same location checking the northbound traffic on Main.Deputies stopped 590 vehicles and arrested 10 people on suspicion of drunken driving, including two drivers who were repeat offenders and will face felony charges.Deputies also arrested two people on felony possession of controlled substance.During the checkpoint, deputies also checked several taxi cabs, ride sharing cars and party buses with visibly intoxicated passengers.The sheriff’s office issued a special “thank you” to those passengers for selecting a safe ride home.The arrests came on a second night of sobriety checkpoint. On Friday night, the Missouri Highway Patrol, the Jackson County Sheriff’s office and Kansas City Police Department arrested 42 drivers on suspicion of driving under the influence.That checkpoint was at 33rd Street and Southwest Trafficway. Officers stopped 1,314 vehicles at the checkpoint.

Source: St. Patrick’s Day weekend checkpoints lead to 66 drunken driving arrests | The Kansas City Star

If you were arrested on St. Patricks Day and have not retained an attorney yet, you are not protecting your rights.