Don't Plead Guilty

noreply@blogger.com (Joshua L Garrett) — Wed, 12 Mar 2014 20:07:00 +0000

The AND problem.

"Legal technicality means that if you were charged with a DWI over the past several months, you can go free" has been a continuous talking point lately. Over the past few weeks, newspapers have covered the story of a "mistake" in the law that threaten the admissibility of breath tests for people suspected of driving under the influence. (See here and here).

The basics of the controversy are as follows: For some time, 19 CSR 25-30.051(2), the law that controls how breath test machines must be calibrated, read as follows: Standard simulator solutions, used to verify and calibrate evidential breath analyzers, shall be solutions from the approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;

(B) 0.08%; AND

Simply put, breath test machines operate by measuring the amount of alcohol in the breath. The only way to judge whether or not the machine is reading accurately is to test it every 35 days by using an approved solution that has been measured to contain .10% .08% and .04% alcohol. By using these solutions as a control group, the breath test is calibrated so that the suspects' breath can be more accurately measured.

Here's where the controversy starts. For years, despite what the law said for the past 14 months, law enforcement throughout the state has only been calibrating the devices using one of the approved solutions instead of all three. It had been their practice to do so prior to the change in the law and they never updated their practices. Defense attorneys have therefore argued successfully against the admissibility of the breath tests because law enforcement did not follow the scientific procedures the law told them to follow.

After picking up on the story, the press has been labeling this as a "legal technicality" and that it may let thousands of drunk drivers go free. This is the wrong way to approach the message of this story. First of all, even if the breath test is not admissible, the rest of the case against the purported drunk driver should still be admissible. The breath test is not the only part of a prosecutor's case, nor should it be. The idea that because one piece of evidence is inadmissible so the charges get dismissed is ludicrous, it just makes the case against the person less of a slam dunk.

Secondly and more importantly, this should not be dismissed as a simple "legal technicality". It is a scientific technicality. When dealing with an infrared spectrometer that attempts to measure the content of a substance to one-one-thousandth of a percent, technicalities are vital. Despite what the press and prosecuting attorney offices tell the public, this machine is not a magic box that tells us whether or not a person has control of their faculties and should or should not be driving. It is a highly technical device that requires constant maintenance and calibration to ensure that it can do its job effectively. This maintenance includes testing the device using fluids with pre-established alcohol contents. Without this calibration, using the device to detect alcohol content in deep lung air is about as accurate as blowing on a magic 8-ball and having it determine whether people should go to jail and have their lives ruined by a DWI conviction.

Others have dismissed the change in law and the blunder by law enforcement as simply a scrivener's error, or that the law was just written incorrectly, and therefore judges should still admit the breath test results. To do so sets a very dangerous precedent that would seem to state that it's ok when a court or law enforcement wants to change the law on their own. It says that cops and judges can pick and choose which laws they choose to enforce and dismiss those that they don't feel are correct.

Besides that, there are ample reasons why this is likely not just a mistake in writing the law. It's not like using more than one calibration for breath testing devices is unheard of. In fact other states mandate it. Pennsylvania for example mandates that machines are calibrated using a .05, .10, and .15 solution to ensure that the machine accurately measures the correct range of likely breath tests. Think of it in terms of a thermometer. We know that a basic household thermometer used to measure one's temperature is accurate for a range of basically 90 degrees to 110 degrees because it is supposed to measure body temperature. We know this because the company that puts out the thermometer tests it at different temperatures, not just 98.6 degrees. If it was only tested at 98.6, there would be no way to determine the accuracy of its temperature readings at 94 or 105 degrees. Breath tests, as all other scientific measuring devices, are similar in this regard.

In short, a breath testing device that is calibrated at .10% only would be a good device at measuring the alcohol content of breath at .10% and that's all. A device calibrated at .04, .08 AND .10 would be an accurate device for measuring that range of alcohol content.

Don't dismiss this as a simple legal technicality or a typo. This was the law and its enforcement should be supported for scientific reasons. I would argue that the law should be changed back or even better should use Pennsylvania's range to ensure that these devices that can send someone to jail for a long time or can otherwise be a permanent black mark on their record are as accurate as possible.

If you have been arrested and/or charged with a DUI/DWI in Branson, Nixa, Ozark, Springfield, Greene County, Chrisitan County, Taney County, Stone County, or anywhere in the surrounding area of Southwest Missouri, please schedule a free consultation today by calling Josh Garrett at (417) 544-0315.

What if I get pulled over? (the arrest)

noreply@blogger.com (Joshua L Garrett) — Thu, 07 Nov 2013 22:09:00 +0000

What if I get pulled over? (Field sobriety testing)

noreply@blogger.com (Joshua L Garrett) — Thu, 07 Nov 2013 21:06:00 +0000

I will begin this post as I will begin many others; please don't drink and drive. It's stupid and REALLY expensive if you get caught, not to mention you might kill someone. DON'T DRINK AND DRIVE. That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.

Well, you've made it through the stop and the initial conversation, but somewhere, you messed up. The police officer is now asking you to step out of the car to do field sobriety tests. Here is what to expect and what the real tests are.

1. The first test is not something listed, it is how you get out of the car. Remember that checklist we talked about? Stumbling to get out of the car/using the car for balance is one of those things. Put both feet down, and step calmly and confidently out of your car without using the car to keep your balance.

2. There are several things you should do before beginning the field sobriety testing. First, take an in depth look at your surroundings. Is the road even? Is it covered in gravel? What's the weather like? Are you cold, hot, or is it raining? Is the road you are on seeing a lot of traffic? All of these things can help your attorney mount a case against the accuracy of the field sobriety testing. Secondly, before the tests, you should inform the officer of anything that might impact your ability to take the tests. Do you have a speech impediment? A limp or disability? Eye problems? A fever? Are you too cold outside your car? All of these things can significantly impact your ability to take the standardized field sobriety tests and while the cop probably doesn't care, you need to put this information out there so your attorney has something to question the officer about and provide an explanation as to why you couldn't walk a straight line.

3. No one passes these tests, but do not ever say "I probably couldn't pass these tests if I were sober!" or anything like that. See previous posts about shutting your mouth. The four tests you will be asked to endure are the horizontal gaze nystagmus test (HGN), the walk and turn, the one leg stand, and finally, the portable breath test, or PBT. These tests are designed so you will fail them. I will post at length about the scientific problems with these tests in the future, but here is a brief synopsis of what to expect and what is actuall being tested.

4. The horizontal gaze nystagmus (HGN) test.
    Although this test has a difficult name, it has an even more difficult application. According to the National Highway Traffic Safety Administration (NHTSA), the agency that came up with these tests and whose book is the training manual for all officers using this test, the HGN test measures the "involuntary jerking of the eyes occuring as the eyes gaze toward the side." This is measured by the officer making you follow a fixed point (often a penlight) with your eyes without moving your head. The thought is, if your eyes twitch while tracking the object, you must be drunk. Here, the officer is looking for three clues: the lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees. This test's accuracy is dubious in nature, as it is very difficult for even a well-trained officer to accurately know when the object you are tracking is at 45 degrees. It is so unreliable, that courts throughout the United States (and even the legislature in Missouri) have made the HGN test inadmissible to show impairment, only to show probable cause. The main thing to keep in mind here is smooth pursuit.
    Also, try to note if there are any passing cars while you are performing this test. Nystagmus falls under three different categories, neural (what your brain is telling your eyes to do), vestibular (what the rest of your body, like the inner ear, is telling your eyes to do), and patholigical disorder nystagmus (what a disorder, like a brain tumor, is telling your eyes to do. Police are looking for neural nystagmus, which may be caused by alcohol consumption, but can also be caused by "the eyes fixat(ing) on an object that suddenly moves out of sight," like passing cars. This type of nystagmus is referred to as optokinetic nystagmus and is indecipherable from alcohol induced nystagmus when cars are passing behind the stimulus (penlight).

5. The walk-and-turn test.
    You may think this is just a test to walk a straight line, and that is certainly the appearence of the test the officer will offer you, but they are in fact testing much more than that. The test begins by the officer instructing you to put your left foot on a line, to put your right foor on the line agead of the left foot with heel of the right foot against the toe of your left foot, place your arms at your sides, and maintain this position until I have completed the instructions. He will also demonstrate all of the things he just showed you. Little do you know, the test has already started! There are several things the officer is looking for during the "instructions" part of the test. If you interrupt the officer, even to ask a question about the instructions, you just showed a clue of intoxication. If your feet come apart or you raise your hands above a few inches from your waist during this portion, you just showed another clue of intoxication. If you sway while waiting for the instruction to start, you just showed a clue. Finally, if you begin the test before explicitly being told to begin the test, you just showed a clue. The NHTSA says that if you show two or more "clues" of intoxication during this test, you have failed the test, so you can fail before you are asked to even walk! Remember this and act accordingly.
    After the "instructions" phase, the officer will demonstrate and tell you to walk nine steps, turn BY KEEPING YOUR FRONT FOOT ON THE LINE AND TAKING A SERIES OF SMALL STEPS WITH THE OTHER FOOT, and take nine steps back, counting each step aloud and not stopping until the test is completed. That portion is put in caps for a reason, as no sane person turns around like that. If you do a simple about-face at the end of the line, you just showed another clue. Instead, you must keep your toe on the line, then walk, like a lunatic, in a small circle taking several steps with only one foot until you have turned 180 degrees while keeping one toe in place the whole time. If you turned like a normal person, you just showed a clue. If your arms leave your sides, you just showed a clue, if you stop, even to ask a question, you just showed a clue. If your feet don't touch heel to toe, you just showed a clue. If you step off the line, you just showed a clue. Hardly anyone passes this test, primarily because of the hidden tests within it, but now that you are armed with the information of what is actually being tested, hopefully you can do well enough to stay out of jail.

6. The one leg stand.
    The officer will now tell you to stand with your feet together and your arms down at your sides, and to not perform the test until you are told to. He will then tell you to raise one leg off the ground approximately six inches but parallel to the ground, both legs straight, arms at your side the whole time, look at your foot, and count out loud in the following manner "one thousand one, one thousand two, one thousand three UNTIL TOLD TO STOP." Notice caps again there? That's because this is where even the most straight laced teetotaler would fail the test. Most people count one thousand one, one thousand two, and so on until they get to around 12, figure that is sufficient, and drop their foot. That person just showed two clues of intoxication and is on their way to jail. What the officer does not include in the instructions is that you have to count to THIRTY! Not only is it very difficult to remain in that position for thirty seconds, you are never told to do so. Instead, you are just told to count out loud until being told to stop, which most people ignore, and then both put their foot down and stop counting (both of which are clues) after a reasonable amount of time has passed. As noted previously, it is also a good idea to take note of any conditions that may affect your ability to perform the test. The wind, the temperature, the shoes you are wearing, and even a headcold can seriously affect your ability to pass this test. Let your attorney know of all of these conditions.

7. The portable breath test (PBT)
   If you have shown any "clues" of intoxication on the field sobriety tests, (which you have, no matter how well you think you have performed), then the officer will then ask you to take a portable breath test. Depending on the manufacturer, these do not detect your actual blood alcohol content, merely the presence of alcohol. They are also notoriously unreliable, and in Missouri, (like the HGN) are inadmissible except to prove probable cause. You will also likely be told at this point that refusal to blow is a crime that you will be prosecuted for. Do not confuse this with a refusal to blow into the evidentiary device back at the station. Refusal to blow into a big breath machine like a Datamaster or Intoxilyzer is an automatic licence revocation (which can be fought, call an attorney if you have refused to blow within 15 days to get your licence back) but refusal to blow into a PBT is a non-moving violation which is not nearly as big of a deal. I cannot advise you whether you should blow or not, but I can say that if you are likely headed to jail anyway, there is no reason to continue to build a case against yourself if the only cost is a non-moving violation.

    Assuming you have completed all these steps flawlessly, then hopefully you are well on your way, but you're probably still going to get arrested (remember, the tests are designed to fail). If so, read the next posting of what to do after you've been arrested.

What if I get pulled over? (Conversation with the police)

noreply@blogger.com (Joshua L Garrett) — Thu, 07 Nov 2013 21:05:00 +0000

What do I do if I get pulled over? (The Initial Stop)

noreply@blogger.com (Joshua L Garrett) — Mon, 04 Nov 2013 22:12:00 +0000

What if I get pulled over? (Pre-driving checklist)

noreply@blogger.com (Joshua L Garrett) — Fri, 01 Nov 2013 17:34:00 +0000

A simplified explanation of why the law says you are drunk if you have a BAC (blood alcohol concentration) of .08 or higher, and why the law is wrong..

noreply@blogger.com (Joshua L Garrett) — Fri, 01 Nov 2013 16:23:00 +0000

Since 2004, every state has stated through legislation that if your blood alcohol content is over .08, than you are legally intoxicated and cannot operate a motor vehicle. But how did they reach this magic number to say that every person is drunk when it is reached? One would imagine that it is a series of scientific studies that were peer-reviewed, widely accepted as scientific proof. However, one would be incorrect in making these assumptions because the science behind the .08 number does not hold up.

To better understand why the .08 number is scientifically dubious, one must first consider the basics of the physiology of alcoholconsumption. Alcohol is a very light liquid. As it is consumed it is diffuses quickly into parts of the body that have some type of water content; the more water in that particular part of the body, the more rapidly alcohol is absorbed into it. For instance, blood is mostly water, so alcohol dissipates very quickly into it. Organs, (read: the brain) have much less water and therefore absorb alcohol at a much slower rate. As the alcohol is absorbed through the lining of the stomach and small intestines, it gets in the bloodstream via the portal vein. From here, the alcohol moves to the liver, then to the right side of the heart, and then the lungs. From the lungs, it then moves into the left side of the heart where it is finally pumped into the general circulatory system. Once in the general circulatory system, it can then finally move into the brain, the part of the body that actually becomes intoxicated.

One can already see where the basic problem lies. No law enforcement agency in the country tests the fluids in the brain (nor should they!) yet that is where the intoxicating level of alcohol must be absorbed to reach any type of inebriated state. The tests performed instead measure the level of alcohol in the blood, urine, or breath, all places where the alcohol travels in a much higher concentration before it gets to the brain. So why then, do we continue to permit shoddy science to fill our jails?

There are several answers to this question. First, it is hardly a popular political position to come out in any way in favor of driving while intoxicated. Legislators appearing "soft on crime" face a tough reelection battle. Secondly, groups such as MADD have huge lobbying budgets which go to fund these very candidates and ballot initiatives. But where is the science behind their claims that .08 is the magic number?

The answer comes from the 1930's, when a Sweedish scientist named Erik Matteo Prochet Widmark published a study identifying the average absorption and elimination rates of alcohol. He found that there was an average number which can be put into mathematical calculations that can show what someone's likely overall body alcohol content is (including the brain) by measuring the amount of alcohol in the blood. This number (the Widmark Factor R) is the ratio between the alcohol in the whole body divided by the alcohol in the blood. It must be noted here however, that this is only an average, as Widmark's own study showed a range of .46 to .86 in men, with an average number of .67. This number was different for women because of physiological differences between the sexes. Furthermore, the study only consisted of 20 men and 10 women, which is hardly the representative sample necessary to derive legislation supposedly based on science in all 50 states. Finally, the test was only conducted on these 30 people with empty stomachs and by consuming the alcohol all at once, which does not account for the variety of real-world differences in the consumption of alcohol.

The methodology to come up with the brain/blood/urine/breath number of .08 based on averages is obviously flawed. But more importantly, its conclusions are pointless if applied to individuals. Why have an average number, when individuals vary so greatly? An individual's alcohol tolerance can vary greatly to the next persons. Some people might have had a large meal before drinking, others on an empty stomach. There are numerous differences between men and women as well. . Compared to men, women do not have as much of the enzyme in the stomach lining (gastric alcohol dehydrogenase) that breaks down alcohol which results in different BAC readings. Even the menstrual cycle and medications that affect the menstrual cycle have an effect on alcohol absorption.

The bottom line is, when deciding whether or not to send someone to jail or take away their driver's license, the "average" is not good enough. We should demand more scientifically rigorous methods of determining when someone is intoxicated or not.

An introduction to the Don't Plead Guilty blog.

noreply@blogger.com (Joshua L Garrett) — Thu, 31 Oct 2013 20:16:00 +0000

One of the biggest problems in our criminal justice system today is defendants everywhere feeling like they have no choice but to plead guilty. Prosecutors, the police, and even the media have abandoned the idea that one is innocent until proven guilty, yet embraced the idea that constitutional rights are somehow a negative thing, only used by the guilty. These factors, along with the harsh penalties associated with crimes like drug possession and DUI/DWI (driving under the influence or driving while intoxicated) the criminal justice system has become a revolving door of people accepting plea "deals"; pleading guilty without asserting a single constitutionally afforded right.

The fact is, the cases against defendants are rarely as air-tight as the state would have you, the defendant, believe. Errors, constitutional violations, or the faulty reliance in poor "scientific" devices like breath tests that occur in the police investigations are more than just legal loopholes that can get a person out of trouble, they are the rules by which the government must play. If the government is not playing by the rules, they should not be able to carry out sentences on the defendants in question.
Yet these errors happen every day, and because of the previously mentioned reasons, citizens plead guilty without the benefit of knowing what their actual rights are, if they were violated, not to mention actually having a trial on the facts. This blog aims to change that by arming you with information that you need to avoid being pushed through the assembly line criminal justice industry. We will discuss primarily drugs and driving while intoxicated or driving under the influence and the law as it applies in Missouri. Hopefully you never need to know this information, but if you do, it is my aim to arm you the information necessary to avoid a guilty plea and the fines, jail, and permanent stain on your record that a guilty plea entails.

My name is Joshua Garrett, I am a licensed attorney practicing with Smith Law Firm in the city of Branson, Missouri. I cover criminal defense cases in most of the Southern Missouri region. Springfield, Ozark, Nixa, Branson, Greene County, Christian County, Taney County and Stone County. I can be reached at (417) 544-0315.