Information About DWI

New Laser Device May Be A Drunk Driver's Worst Nightmare

2014-11-13T21:32:00.001-08:00

Scientists in Poland may have come up with a powerful new deterrent to drunk driving. It's a laser-based device that can detect alcohol vapor--like that exhaled by someone who's been drinking--inside a car as it passes by.

The device works by detecting subtle changes in the laser beam as it passes through the alcohol vapor.
"We all are already familiar with laser instruments used by the police for speed-limit enforcement," Dr. Marco Gianinetto, a Polytechnic University of Milan researcher who has no connection to the Polish research, said in a written statement. "In the future, a similar technology may be developed to detect different chemical compounds, enabling the detection of drivers under the influence of other intoxicants."

The researchers, from the Military University of Technology in Warsaw, successfully tested the device by aiming its laser at a car passing by at a distance of up to 20 meters. The car's interior had been filled with alcohol vapor, simulating the exhalations of a drinker inside the car.

An illustration of how two lasers involved in the study reflected off of mirrors to reveal the presence of alcohol vapors in a test car.

The device is in a very early stage of development. But the researchers envision that police could use it in much the same way that they use speed guns to catch speeders. The device could alert police to drunk drivers or could be equipped with a camera that sends out a photo of a drunk driver's car.

Of course, the device has some limitations. It could alert police to cars in which someone who is drunk is only a passenger and not the driver.

Also, "from the practical point of view, there seem to be some countermeasures, such as driving with windows open, solar screens on the side windows, etc., that can be applied by drivers to deceive the system," the researchers wrote in their study's conclusion. "However, such situations are very easily detected by the system, which sends this information to the policeman indicating that the car should be checked."

A paper describing the device was published online in the Journal of Applied Remote Sensing on May 19, 2014.

When Will Texting And Driving Be As Taboo As Drunken Driving?

2014-11-08T03:31:00.001-08:00

When it comes to texting and driving, the problem isn't a lack of awareness about the risk. Ninety-eight percent of people know that it's dangerous, yet three in four are offenders, according to a new survey that AT&T designed with Dr. David Greenfield, founder of The Center for Internet and Technology Addiction and assistant clinical professor of psychiatry at the University of Connecticut School of Medicine.

Texting while driving has been shown to be more dangerous than drunken driving, and it is the leading cause of death for teens in the U.S., according to a 2013 study. Greenfield talked with The Huffington Post about why people continue to text and drive, how they can make themselves stop, and what it will take for it to become as taboo as drinking and driving.

This study showed that nearly everyone knows texting while driving is dangerous, but most people do it anyway. Do people tend to think they are better at multitasking than everyone else?

There are a number of reasons. One of the reasons is that people have the false belief that there is such a thing as multitasking, and they are somehow going to be better at that than other people. That's a distortion. They're assuming that because they're doing it, they must be better at it. But when you roll the dice, the dice have no memory. So each time you get in that car and you text, your chances of having an accident are equal. It's just a matter of statistical odds that eventually you're going to run out of room.

When we hear a text come in, what are the psychological and behavioral triggers that make us want to read it, even though we're aware of the dangers?

People compulsively use their smartphones. Part of it is dopaminergic, meaning there is an elevation of dopamine when there's either an anticipation of receiving a text or when you have checked one and it's positive in nature. That elevation of dopamine is experienced as pleasure, and we like pleasurable things. We tend to repeat them. That can develop into a compulsive pattern. There's the FOMO phenomenon -- the fear of missing out -- that if they don't respond or check in, they're missing out. People also feel like they're going to disappoint people if they're not answering right away.

Why do so many people still text and drive, even though it's been shown to be more dangerous than drunken driving?

If you track the history of drinking and driving, and the drinking and driving movement, there are some very strong analogies. Thirty or 40 years ago, the attitude toward drinking and driving was very much where texting and driving is now. What happened was that Mothers Against Drunk Driving was formed, and some of the mothers of these younger individuals who were killed became very active. There was a multipronged effort aimed at increasing public awareness, public education and some legislative changes, as well as offering medical treatment to people who had problematic drinking. So over time, the consciousness and the norm has shifted drastically around drinking and driving. It's unacceptable, not just from a legal perspective but from a social perspective. And we're not there yet with texting. We joke about being addicted to our phones, and we don't take it seriously that you're five to six times more likely to be in an accident when you text than when you don't.

Is that because people have this distortion that texting doesn't impair their ability to drive?

People completely distort the neurological data that clearly show that it's impossible to drive safely while you're texting. It's not even in the realm of possibility. If you don't get into an accident or don't cause an accident, you just have been lucky. But eventually your luck will run out.

It's not that hard to avoid driving after you've been drinking, but most people have their phones on them all the time. How can they ignore their phones in the car when they rely on them for maps and navigation?

There's no doubt that the integration of the smartphone into our daily lives has been significant. There's nothing wrong with that, but you have to stop when you bring it into the car. I believe the DriveMode app allows you to use your GPS functions but not your messaging functions. People don't get addicted to using their GPS, but they are compulsive texters. And with texting you can't do it without touching the phone, and that's where people run into problems.

Do you have clients who have actually been helped by this type of app?

Among the people I'm involved with in my practice, people have used them very successfully. We always recommend some sort of external app, or we recommend turning the phone off while they're driving. Some people will actually put it in their backseat or put it in their trunk. People have come up with various ways to keep it limited, but the app is the most sophisticated way to do it because you can use some of the functions you might want to use.

If you had to make a prediction, when will we get to the point where texting while driving is considered as bad as drinking and driving?

I don't think it's going to happen in the next six months. I think we're talking about many years. But we've reached a tipping point where it's going to become less acceptable to act like it's no big deal. And as that shifts, people's consciousness and people's willingness to go against social norms will change.

The survey was released in conjunction with expanded access to AT&T DriveMode, a free app that is now available for the iPhone and silences texts when a phone is moving faster than 15 miles per hour.

11-year-old Brooklyn boy in drunk driving crash dies of injuries

2014-11-08T03:29:00.001-08:00

Anthony Pollydore, 65, at Kings County Criminal Court, where he was ordered held without bail and his license was suspended after getting charged with aggravated vehicular assault and aggravated drunken driving with a child.

The 11-year-old Brooklyn boy who was hurt in a DWI accident has died, a prosecutor said Monday.

Little Dylan Perry succumbed to injuries suffered when his stepfather Anthony Pollydore, 65, crashed into a light post Sunday morning, authorities said.

Pollydore, dressed in a dapper all-white three-piece suit and matching loafers, said nothing when the death of his stepson was announced during his Brooklyn Criminal Court arraignment.

He was ordered held without bail and his license was suspended after getting charged with aggravated vehicular assault and aggravated drunken driving with a child.

Those counts will be upgraded in light of the child's death, a source said.

"He just found out. He's heartbroken," defense lawyer Joseph Ostrowsky said of the tragic loss. "It's just a terrible, terrible thing."

Another 12-year-old stepson, identified as Alex Perry, and Pollymore's son, 5-year-old Kyle Pollymore, were also in the 1995 Toyota during the 8 a.m. wreck in Brownsville.

None of the kids were wearing seat belts, said prosecutor Wilfredo Cotto.

The youngest child was thrown into the front of the car but "didn't have any injuries, which is a miracle," a source said. The 12-year-old had minor injuries to his leg.

ALEX RUDThe car Anthony Pollydore was driving, at Dean Street and Eastern Parkway after he crashed into a light pole Sunday morning. His alcohol blood level was measured at 0.094, authorities said. Pollydore’s 11-year-old stepson died Monday morning from injuries sustained in crash.

But Dylan suffered head and lung trauma and was pronounced dead Monday morning, said the source.

"The defendant was observed by two witnesses driving in a high rate of speed" before hitting a median and crashing head-on into the pole, Cotto said in court.

Pollymore's alcohol blood level was measured at 0.094, well over the legal limit of 0.08, the prosecutor said.

Pollymore has two DWI convictions from 2004 and 2009, he added.

On July 4, 2009, he registered a 0.147 blood alcohol level after being involved in a one-car accident in Queens, according to court documents. He pleaded guilty and paid a $500 fine, records show.

Ostrowsky said after the hearing that he has "unconfirmed information that (my client) was cut off" before the Sunday crash.

He said Pollymore, of Bed-Stuy, was returning from a social gathering, describing him as a war veteran and "a very nice gentleman."

Am I a Drug Addict or Just Really Fun? (VIDEO)

2014-11-08T03:27:00.001-08:00

When I arrived in Los Angeles at 18, I had a strict "no drugs" policy. I was a product of a generation that had experienced fifth-grade D.A.R.E. and had been traumatized when Jessie Spano hat gotten addicted to caffeine pills on Saved by the Bell. No thanks, drugs! I will be taking care of my body and mind and simply drinking myself into a blackout.

However, when I got hired to work in a gay club as a go-go boy, I found that drugs were almost an integral aspect of the party scene. I caved and decided to just try them. At first it was innocent enough: a bump of cocaine before work, a harmless pill of E at an all-night rave, something called "Liquid X."

In episode 5 of Go-Go Boy Interrupted, Danny decides to clean up his act and get a real job (as a babysitter). However, the interview goes south when Danny's partying history catches up with him.

Detainees Protest at Australian Offshore Detention Center

2014-10-12T23:33:00.006-07:00

Nauru, Australia

SYDNEY—
Rights groups say asylum seekers at an Australian-run detention center on the Pacific island of Nauru are continuing to protest against refugee policies. Activists say some inmates have sewn their lips together and drunk detergent, while one man reportedly cut his own throat in protest at Canberra’s plans to deny detainees resettlement visas in Australia.
Refugee campaigners say there is anger and dismay among asylum seekers detained on Nauru after Australia confirmed they would not be allowed to apply for Temporary Protection Visas, or TPVs.
The permits will only apply to asylum seekers currently held in immigration camps in Australia, or those who have been released on bridging visas into the community. Inmates in offshore processing centers on Nauru or Papua New Guinea will not be eligible.
Activists claim the ruling has triggered demonstrations on Nauru, with various cases of self-harm reported, including a young girl who has reportedly swallowed detergent, and a man who cut his own throat. Others have apparently sewn their lips together.
Ian Rintoul, from the Refugee Action Coalition in Sydney, said tensions are high on Nauru.
“The mood is not good. I think you can only describe it as desperate and despairing. So you have got protests that have been happening now for five days inside the detention center and amongst the people who have actually been released as refugees,” said Rintoul.
Minister for Immigration Scott Morrison has yet to respond publicly to allegations of self-harm on Nauru. It is standard government policy to refuse to divulge information about such incidents.
Canberra is seeking to reintroduce Temporary Protection Visas and is seeking support for its plans in the Australian parliament.
Critics say that TPVs will condemn asylum seekers, who mainly come from countries in South Asia and the Middle East, to an uncertain life in limbo.
But Morrison said the system will provide security for thousands of people.
“TPVs will be granted to for a maximum of three years and will provide access to Medicare, social security benefits and work rights as occurred under the Howard government. TPVs will provide refugees with stability and a chance to get on with their lives while at the same time guaranteeing that people smugglers do not have permanent protection visa product to sell to those who are travelling illegally to Australia,” said Morrison.
After three years, refugees must re-apply for the temporary visas, at which time officials will reassess the situation in their home countries before determining if they remain eligible for the program.
Last week, Canberra struck a multi-million deal with Cambodia to resettle refugees in the impoverished Southeast Asian nation. Other agreements have seen asylum seekers who arrive in Australia by boat transferred to offshore processing camps in the South Pacific. Ministers say the policy is deterring other asylum seekers, while the military has also been brought in to turn refugee boats away from Australian waters.
Australia grants refugee visas to about 13,000 people annually under various international accords.

California Signs Sexual Consent Law

2014-10-12T23:33:00.001-07:00

California Gov. Jerry Brown, speaking in this Sept. 4, 2014 during a gubernatorial debate in Sacramento, has signed a bill that makes California the first in the nation to define when "yes means yes."
California has become the first U.S. state to adopt “yes means yes” rule that requires students on university campuses to have clear consent before engaging in sexual activity.
The law also prescribes requirements for colleges to follow in investigating sexual assault report.
Sunday, Governor Jerry Brown of California signed the bill, which advocates say it will change the understanding of students on what consent means.
UCLA student Savannah Badalich agrees, saying this is an "amazing" development.
“It is going to educate an entire new generation of students on what consent us and what consent is not ... that the absence of a 'no' is not a 'yes,'" she added.
But critics say the new law provides a broad, dangerous definition of sexual assault.
The bill stipulates silence or lack of resistance does not constitute consent. The rule further states that someone who is drunk, drugged, unconscious or asleep cannot grant consent.
States and universities across the United States are under pressure to better handle rape allegations.
President Obama launched a campaign last January to fight sexual assault, particularly on college and university campuses.
Some information was provided by AP, Reuters.

USA Swimming Suspends Phelps after Drunk Driving Arrest

2014-10-12T23:28:00.003-07:00

FILE - United States' Michael Phelps swims in the men's 4 X 100-meter medley relay at the Aquatics Center in the Olympic Park during the 2012 Summer Olympics in London.

The United States governing body for competitive swimming has banned Olympic superstar Michael Phelps from competing for six months after a drunk driving arrest.
Phelps, who has won the most Olympic medals in history, was pulled over in his hometown of Baltimore, in the eastern U.S. state of Maryland, last week, driving 135 kilometers per hour and crossing lanes inside a traffic tunnel.
USA Swimming says Phelps' actions are detrimental to the the sports' image, reputation and code of conduct.
He can still train with the team but cannot swim in any world events until March.
Phelps has apologized for his behavior and says he is seeking help.
This is the second time Phelps has been charged with driving while impaired. He was also banned from competition in 2009 when he was photographed smoking what appeared to be a marijuana pipe.
Phelps has won 22 Olympic swimming medals in the 2008 and 2012 games, including 18 golds - making him the most decorated athlete in modern Olympic history.
He has said he hopes to compete in the 2016 games in Rio de Janeiro.

VOANews : 06 Oct 2014

Austin Man Arrested For DWI After 0.0 Breathalyzer Test

2014-09-10T08:02:00.001-07:00

Austin Man Arrested For DWI After 0.0 Breathalyzer Test
Larry Davis was arrested for driving while intoxicated (DWI) back in 2013 after a breathalyzer test showed his blood alcohol content (BAC) level to be 0.0%. The incident occurred in Austin, TX, when Davis was pulled over in his Buick on a routine traffic stop. When the police asked Davis if he had been drinking that night, he repeatedly insisted that he only had one beer. Despite his claim of only consuming one beer, Austin police believed Davis displayed signs of alcohol intoxication and placed him under arrest for DWI. Unfortunately for Davis, despite having blown a 0.0% breathalyzer test, he still spent the night in jail.
Davis’ attorney said that he was simply shocked that his client was even arrested for DWI after this circumstances. Davis also agreed to submit a blood test, which also came back negative, in addition to the breathalyzer and field sobriety tests. Davis has been fighting the arrest in court for a year now, however, Austin police have stood by the arrest citing their “take-no-chances” policy. Austin police say that it was the one leg stand test Davis performed that made them suspicious. Austin police say that Davis “needed his arms for balance” during the sobriety test and with regard to the clean blood test, they suggested that marijuana could still have been in his system without showing up on the test. Davis is currently trying to have his arrest record wiped clean and plans to file a grievance against the officer that arrested him.
Do you think the Austin Police Department made the right call? Or should Larry Davis have gone home that night?
If you have been arrested for driving drunk, contact an experienced and skilled Texas DWI attorney for legal assistance.
Posted Friday, February 28, 2014

Colts Owner Jim Irsay Arrested For DUI

2014-09-10T07:57:00.003-07:00

Colts Owner Jim Irsay Arrested For DUI

Jim Irsay, owner of the NFL’s Indianapolis Colts, was arrested for DUI on March 16, 2014 in Carmel, Indiana. In addition to his DUI, Irsay was also charged with possession of a controlled substance and faces a total of 4 felony counts. The incident occurred Sunday when police spotted Jim Irsay stopping on the roadway, driving at a slow rate of speed and failing to use a turn signal. In a press release, Lt. Joe Bickel of the Carmel Police Department said that Irsay “failed several roadside field sobriety tests“.
According to Bickel, “multiple prescription drugs were discovered in pill bottles“, however, the drugs found were not associated with any prescription bottles in Irsay’s vehicle. The Colts have officially issued a statement, saying “The Club continues to fully support Mr. Irsay but must refrain from commenting further at least until formal charges have been filed“. Jim Irsay has long since admitted to an addition problem with prescription medicine. In 2002, Irsay said that his dependency on prescription pain medications came after several years of orthopedic procedures and operations, which led to extensive bouts of chronic pain. Upon being released from jail Sunday afternoon, Irsay tweeted a message of thanks to his supporters.
If you have been arrested for driving drunk, contact an experienced and skilled Indiana DUI attorney for legal assistance.
Posted Wednesday, April 2, 2014

Humble ISD Teacher Gets DWI On Her Way To School

2014-09-10T07:56:00.000-07:00

Humble ISD Teacher Gets DWI On Her Way To School

Patricia Almond, a 48 year-old middle school teacher with Humble ISD was arrested for DWI while driving to work on May 8, 2014. According to authorities, Almond was seen driving erratically by police, swerving in and out of lanes on Highway 59. Police pulled the Humble ISD teacher over just after she grazed a retaining wall. When police began investigating Almond, they noticed several signs of alcohol intoxication such as having an odor of alcohol, difficulty maintaining balance and red, glassy eyes.
Since her arrest, Humble ISD has released a statement, saying, “The incident is being addressed through the court system, as it happened off campus, outside of school hours, and did not involve students. Human Resources will be reviewing the police report and then meeting with the staff member to discuss options“. Another teacher, Monica Quintero, in the Humble ISD was also arrested just a week before Almond when police caught her dealing drugs out of her apartment. Quintero, along with her felon boyfriend, were found to be in possession of various forms of meth, heroin, syringes and firearms among many other things.
If you have been arrested for driving drunk, contact an experienced and skilled Texas DWI attorney for legal assistance.
Posted Thursday, May 15, 2014

David Cassidy Sentenced To Rehab And Probation For DUI

2014-09-10T07:55:00.001-07:00

David Cassidy Sentenced To Rehab And Probation For DUI

David Cassidy, former “Partridge Family” star, has been sentenced to probation and must attend alcohol rehabilitation following his third arrest for DUI in January. Cassidy will have to stay at a live-in rehabilitation center for 90 days and will be on probation for 5 years. An attorney for David Cassidy entered a plea of no contest on Monday, March 24, 2014. In addition to various fines, Cassidy will also have to attend a 9 month alcohol education course. On the night of his arrest, Cassidy blew a .19% alcohol breathalyzer test, more than twice the legal limit.
The Partridge Family star was arrested for DUI after arriving in Los Angeles where he was going to submit a deposition in a lawsuit he had filed against Sony Pictures Television. Cassidy is allegedly suing the company over money he believes he is owed for merchandising baring his image. His manager, Jo-Ann Geffen said that Cassidy had been doing fine avoiding alcohol until a stressful round of questioning pertaining to his lawsuit led to a relapse. Cassidy’s attorney said that his client has already voluntarily spent 102 days in rehab and would even remain in rehab longer than his new sentence required.
If you have been arrested for driving drunk, contact an experienced and skilled California DUI attorney for legal assistance.
Posted Thursday, May 15, 2014

Woman charged in DUI after neighbor catches her ramming husband’s scooter

2014-09-10T07:53:00.001-07:00

A California woman has been charged with driving under the influence after she was caught on camera running over her husband’s electric mobility scooter.
ABC 7 News reports that Laura Cox, 47, of Huntington Beach, is seen on a 65-second YouTube clip captured by neighbor Sarah Oliver pushing her unidentified husband off the vehicle before getting behind the wheel of an SUV and backing over it twice.
“Insanity,” Oliver told the station. “I felt really bad for him, so I called the cops.”
Cox, who suffers from mental illness and had apparently stopped taking her medication before starting to drink, was later charged with driving under the influence. Her husband, meanwhile, said the video was misleading and claimed the vehicle was not totaled.
“I wasn’t hit,” he said. “It was a thing of just trying to stop someone from drinking and driving.”
Oliver said the incident is not the first time Cox has shown bizarre behavior.
“This was kind of more serious,” she said. “It was always something I showed to friends to kind of laugh, like ‘Look at my crazy neighbors.’ Now it’s turned to this.”

Published September 09, 2014

FoxNews.com

Are Prosecutor’s Office Policies Legal?

2013-09-29T23:05:00.002-07:00

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:

1. Offering the maximum probation period for misdemeanor DWIsi or
2. No reductions (nonDWIs) on repeat DWIsii, breath or blood test cases allegedly over 0.08.iii
Inherent in an office policy is the disregard for the defendant’s particular circumstances such as lack of criminal history or specific facts mitigating a case (health issues, physical disabilities, etc.). The assistant district attorneys enforcing these office policies established by their superiors do so under direct orders without regard to the facts of a particular case. Yet, they are concerned more about their individual job security. Job security in the form of a paycheck is misguided. DWI Lawyers must first concern themselves with their ability or license to practice law. This is predicated on following ethics and laws.

DWI-Modern Day Salem Witch Hunts

2013-09-29T23:04:00.001-07:00

Judge Daryl Coffey of County Criminal Court number 8, in Tarrant County, Texas once remarked to me that all a prosecutor has to do to win a DWI case is just make sure that the three letters “DWI” are mentioned at least 15 times in a trial.1 It is this type of environment that has allowed history to repeat itself. All we have to do is look back to the Salem Witch Hunt trials of 1692 where 19 convicted “witches” lost their lives on “specter” evidence.2 Evidence in DWI trials has not come a long way from 1692 where claims of apparitions only visible to their victims were enough to get one hung. The greatest challenge to DWI practitioners these days and to those accused of DWI/DUI related crimes is that courtrooms have not kept pace with the science. Bad science is rubber stamped with approval by the majority of the judiciary as long as the government sponsors it.

Horizontal Gaze Nystagmus

The horizontal gaze nystagmus test, or HGN, is alleged to be 77% accurate (80% accurate with the W&T) in determining if a person is .10 BAC3 or more.4 The first problem with this test is the particularity. Police officers are not ophthalmologists trained in the detection of eye movements and or eye pathologies. There are forty-seven types of nystagmus in individuals, separate from Horizontal Nystagmus:

(1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky’s); (5) Audio kinetic (induced); (6) Bartel’s (induced); (7) Brun’s; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbiturate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner’s (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer’s); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotropic, Bechterew’s, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.5

It is unrealistic given this extensive laundry list -which includes medical conditions- that a police officer can make the important distinction that he is indeed observing horizontal gaze nystagmus. Even if he could, the next issue is causation. Officers jump to an incorrect premise that if they do isolate horizontal gaze nystagmus this must be indicative of ethanol intoxication. There are actually 38 different causes of horizontal gaze nystagmus unrelated to alcohol as judicially recognized in Schultz v. State:

(1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff’s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eyestrain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anticonvulsant; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide; (35) extreme chilling; (36) lesions; (37) continuous movement of the visual field past the eyes; and, (38) antihistamine use.6

Another real problem with the horizontal gaze nystagmus test is the timing of its presence and an actual alcohol concentration. The HGN, as administered by the National Highway Transportation Safety Administration’s (NHTSA) protocol for the Standardized Field Sobriety Tests (SFST) has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range.7 So it is a fallacy to use this test to determine that someone may be over .08 BAC. What is also alarming is the fact that nystagmus can remain for some time once the BAC has reached .000. In a dose/response study of 89 subjects,8 62% of the dosed subjects exhibited nystagmus in one or both eyes at BAC levels of .00% when tested immediately after all alcohol was cleared from their blood and 56% of those subjects still exhibited nystagmus one hour later.9 In the same study, it was determined from 66 healthy, well-rested subjects10 who did not consume any alcohol and completed 5.5 to 8.0 hours of sleep after being awake for 9 to 14.5 hours (average 11.2) that they had distinct nystagmus in one or both eyes.11 Afterwards these same subjects were re-examined with an average awake time of 24.5 hours and distinct end position nystagmus was observed in one or both eyes in 55% of the group.12 What is particularly troublesome is the stamp of imprimatur by the American Optometric Association13 touted by prosecutors in laying the foundation for the test ’ s admissibility.14 It is important to distinguish that no such resolution of acceptance for the HGN exists by the American Academy of Ophthalmology. It is unsettling how eager the American Optometric Association has been to embrace the possibility of providing expert testimony as a puppet of the government without any legitimate scientific inquiry of their own. The seminal scientific research article on HGN states it best:

In an article designed to inform optometrists how to provide expert testimony on the HGNT (HGN), the only evidence of a correlation between BAC and nystagmus given is a reference to the NHTSA’s work. Specifically the article stated “through a series of studies, the National Highway Traffic and Safety Administration (NHTSA) has been able to establish a high correlation between alcohol concentrations in the body and performance on a series of field sobriety tests.” It is interesting, and perhaps revealing, that no other evidence is referenced to support this correlation.15

One only needs to look at the criticism of NHTSA = s foundational research16 -which led to the development of the HGN test- to understand that this is yet another example of agenda government science which misses the mark. It is interesting to note that researchers have determined that percentages generally cited by the courts in support of HGN exist only in NHTSA publications.17 Jurists and prosecutors in the United States have been quick to embrace the HGN test as hardcore science but this component has not been adopted by Great Britain.

Standardized Field Sobriety Tests

Outside of the HGN, DWI cases concentrate on psychomotor skills known as standardized field sobriety tests; but just how good are these tests? This requires some basic understanding of testing fundamentals. The first incorrect presumption with this framework is that these tests measure impairment related to driving. They do not.18 The walk and turn and one leg stand are purported to have “face validity,”19 that is the tests relate to actual driving tasks. Face validity is the lowest form of validity a researcher can achieve and is generally not accepted by academia because “face validity rests on the investigator’s subjective evaluation of the appropriateness of the instrument for measuring the concept rather than whether the instrument measures what the researcher wishes to measure.”20 For a test to be valid, there must be high reliability and validity both measured by a correlation coefficient ranging from 0 to 1.0 (highest end of the scale).21 Reliability relates to the consistency of scores based on re-testing. Validity relates to the ability of a test to predict particular benchmarks. Intelligence tests such as the Wechsler Intelligence Test have a reliability of .90. According to the 1977 SCRI study which developed the 3 part standardized field sobriety tests the validity correlation coefficient22 was .48, the walk and turn was .55.23 In layman = s terms what this means is that using a one leg stand to predict a .10 BAC is only 25% better than chance.24 The HGN interestingly enough had only a correlation coefficient of .67 equating to an approximate 33% better prediction than chance.25 Use of the walk and turn is only 27-28% better than chance.26 The overall error rate (wrong percentage of decisions to arrest) was 47%.27 In 1981, laboratory field sobriety tests (this time just the HGN, walk and turn, and one leg stand) were researched again and the error rate was found to be 32%.28 Validity correlation coefficients were not mentioned in this study. Reliability correlation coefficients were given for this study: HGN .66, walk and turn .72.29 For a test to be reliable the coefficient must be .85 or higher.30 When different officers performed the test on the same subject at the same BAC the coefficients dropped down to .59 for the HGN and .34 for the walk and turn, to whit a 66% error rate was indicated for the walk and turn and the one leg stand error rate equated to a 40%.31 Dr. Burns herself indicated that the > 77 and > 81 error rates were unacceptable.32 In response to a cross-examination question as to whether 32% was acceptable, she replied, “It is getting there.”33 This is the meat and potatoes of what still exists today.

Once one gets over the initial shock of how unacceptable these tests are according to government research the next logical step is to look at the relevant scientific peer review community. Dr. Spurgeon Cole and Ronald Nowaczyk did just that in 1994 in a field sobriety study sponsored by Clemson University. According to this study, field sobriety tests which included the walk and turn and one leg stand test were compared to normal tasks such as reciting basic information and walking in normal manner for 21 sober individuals all with a BAC of .000. Forty-six percent of the officers determined the subjects intoxicated by SFST(s) with only fifteen percent of said subjects determined to be intoxicated by normal tests.34 The promulgation of these tests, the HGN, walk and turn and one leg stand may be good enough for government work but are a far cry from reliable, scientific standards. Because of this, innocent people are being convicted every day on these premises, which are taken at face value and not questioned despite their invalidity. When most states lowered legal limits to .08, the government found itself in a quandary of which they still have not been able to solve; hence, the continuation of the misleading 1981 percentages of accuracy: HGN 77%, walk and turn 68%, one leg stand 65%.35 The Colorado,36 Florida37 and San Diego38 studies attempted to quantify accuracy at .08 but none proved worthy of the mission. Such roadblocks as documented by Steve Rubenzer, Ph.D., included but were not limited to the following critiques:

1. The field studies validated the arrest decisions of the officers in the studies, not the SFSTs.

2. The police officers and the degree of supervision in the field studies were not typical of typical DWI stops.

3. The studies were insufficiently documented for scientific papers as cited in U.S. v. Horn, 185 F. Supp.2d 530, 558 (D. Md. 2002).

4. The authors did not report the accuracy of arrest decisions for stops that were observed vs. those that were not, or for SFSTs performed under adverse climate conditions versus those that were not.39

The new purported levels of accuracy in the recent validation studies regarding the same field tests at lower limits are proof of the tests = inherent low reliability correlation coefficient. How these statistically unreliable and invalid tests are somehow more purportedly valid at lower limits is yet proof positive how radical the DWI religion has become to lawmakers and jurists alike in blind disregard of the science.

Leading Jurisdictions

Despite ignorant, widespread acceptance of the validity of the HGN, walk and turn and one-leg stand tests, there are some jurisdictions which have started down a very unpopular but judiciously righteous path in respect of scientific principles and constitutional liberty. In Homan v. State, the court determined that in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures .40 The court at least recognized that “testing” requires standardization and not haphazard administration if scoring criteria is to be used. What is key in this case is the court = s threshold requirements merely address admissibility at the probable cause level. The mistake in Homan is to give the standardized tests any scientific evidentiary value at all. It however at least recognizes that adherence to protocol is necessary to admissibility as opposed to weight. In U.S. v. Horn, Judge Grimm wrote:

There is no factual basis before me to support the NHTSA claims of accuracy for the WAT and OLS tests or to support the conclusions about the total number of standardized clues that should be looked for or that are missing a stated number means the subject failed the test. There is very little before me that suggests that the WAT and OLS tests are anything more than standardized procedures police officers use to enable them to observe a suspect = s coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition--all of which are visual cues that lay persons, using ordinary experience, associate with reaching opinions about whether someone has been drinking.41

Some of the more notable premises the Horn case stands for are that 1) The results of properly conducted tests may be considered for probable cause.42 2) The SFST(s) cannot be correlated with a specific BAC43 3) The court where requested by counsel should take judicial notice of the fact that there are many causes of HGN outside of alcohol.44 4) Value added descriptive language regarding the SFST(s) such as “failed the test,” “exhibited” a certain number of “standardized clues” or any other bolstering attempts by the officer is not allowed.45 SFST(s) or any specialized information learned from law enforcement or traffic safety instruction should not be referred to as scientific, technical or specialized.46 Judge Paul Grimm, much like Governor William Phipps of Salem Massachusetts who suspended the special court of Oyer and Terminer,47 which based convictions on specious “specter” evidence, has through his opinion echoed some reason and common sense that is necessary in a court of law in the wake of mass hysteria over DWI prosecutions. Special recognition goes to courts responsible for cases like State v. Doriguzzi,48 where HGN was ruled not admissible because the State had failed to show Frye acceptance and reliability and Young v. City of Brookhaven,49 where the HGN test was ruled as a scientific test but not one generally accepted by the scientific community. These courts provide hope in proving that science is the voice of reason and we have a long way to go in spreading such reason to all parts of the country because science has no jurisdictional bounds.

Special thanks to:

Dr. Ron Henson of Beron Consulting and Lab Works, Peoria, Il.

Richard Essen of Essen, Essen, Susaneck, Canet, & Goodis P.A., Aventura FL 33180 (and paralegal Jason Hedges), Dr. Joe Citron, Atlanta, Ga.

Steve Oberman, Law Office of Steve Oberman, Knoxville, Tn.

Notes

1Unlike most jurists, Judge Coffey has a scientific background- a Bachelor of Science in Agriculture from Western Kentucky University.
2 See Rosemary Ellen Guiley, The Encyclopedia of Witches and Witchcraft, 234-299 (1989).

3 Indicating the chemical concentration of alcohol in the blood as being greater than .10%.

4See V. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, DOT-HS-805-864, U.S. Department of Transportation, NHTSA, Washington (1981).

5 Dr. L. F. Dell = Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Ophthalmology 147 (1989).

6 Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995).

7See A.J. McKnight, ET AL., Sobriety Tests for Low Blood Alcohol Concentrations, Accid. Anal. Prev. 2002 May; 34(3): 305-11.

8See J. L. Booker, End-position nystagmus as an indicator of ethanol intoxication, 41 Science and Justice 113, 115 (2001). (79 men and 10 women between the ages of 22 and 67 who were well rested and in good health, alcohol levels determined by blood and urine assays conducted by gas chromatography and breath concentrations determined by CMI Intoxilyzer 5000 instruments with wet-bath reference units operated at 34 E C).

9 See Id. at 115.

10See Id. at 114-15. ( The study consisted of 44 men and 22 women between the ages of 20 and 57 who denied use of alcohol or drugs within the preceding 24 hours).

11 See Id. at 115.

12 See Id. at 115.

13 See Karl Citek, HGN and the role of the Optometrist, in Admissibility of Horizontal Gaze Nystagmus Evidence: Targeting Hardcore Impaired Drivers, 15 (Am. Prosecutors Research Inst. 2003). (The following resolution was adopted by the American Optometric Association House of Delegates, on June 1993:

Whereas drivers under the influence of alcohol pose a significant threat to the public health, safety, and welfare; and

Whereas optometric scientists and the National Highway and Traffic Safety Administration have shown the Horizontal Gaze Nystagmus (HGN) test to be a scientifically valid and reliable tool for trained police officers to use in field sobriety testing; now therefore be it

Resolved that the American Optometric Association acknowledges the scientific validity and reliability of the HGN test as a field sobriety test when administered by properly trained and certified police officers; and be it further

Resolved that the American Optometric Association urges doctors of optometry to become involved as professional consultants in the use of HGN field sobriety testing.)

14 See Predicate Questions: Optometrist ....Appendix K (visited June 18, 2004) < http://nhtsa.com/people/injury/enforce/nystagmus/app_k.html>. ( Direct Examination questions for the state’s expert optometrist end with: 88. Are you familiar with the 1993 resolution "Horizontal Gaze Nystagmus as a Field Sobriety Test" passed by the House of Delegates of the American Optometric Association? 89. Is this a copy of the resolution? 90. Please read it to the court).

15 Charles R. Honts, Susan L. Amato-Henderson, Horizontal Gaze Nystagmus Test: The State of the Science in 1995, 71 N.D. L.Rev. 671 at 6 (1995). (citing David V. Tiffany, Optometric Expert Testimony: Foundation for the Horizontal Gaze Nystagmus Test, 57 J. of Amer. Optometric Ass = n 705 (1986)).

16 See Id. at 15.

17 See Joseph R. Meaney, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics J. 383, 385 (1996).

18 Jack Stuster and Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, DOT-HS-808-839 6, (1998).

19 See Id . at 27-28.

20 Chava Frankfort-Nachmias & David Nachmias, Research Methods in the Social Sciences, 150 (6th ed. Worth Pub. 2000).

21 See Trial Transcript at 14-16, later reported as State v. Meador , 674 So.2d 826 (Fla. Dist. Ct. App. 1996) .

22 See Id. at 21, (The formula is actually the square root of 1.48.).

23 See Id. at 20.

24 See Id. at 21.

25 See Id. at 20, 22.

26 See Id. at 22.

27 See Id. at 29.

28 See Id. at 37.

29 See Id. at 42.

30 See R. Rosenthal & R. L. Rosnow, Essentials of behavioral research: methods and data analysis (2 nd ed. McGraw-Hill 1991).

31 See Meador, supra note 21, at 31.

32 See Id. at 141.

33 Id. at 141.

34 See Spurgeon C. Cole & Ronald H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, 79, 99-104, (1994).

35 See Tharp, supra note 4.

36 See Anderson, Ellen and Marcelline Burns, PH.D., A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, November 1995.

37 See Dioquino, Sgt. Teresa, ET AL., A Florida Validation Study of the Standardized Field Sobriety (SFST) Battery, (date of publication is unknown).

38 See Burns, supra note 18.

39 See Steven Rubenzer, DWI- Part 1 The Psychometrics and Science of Standardized Field Sobriety Tests, The Champion, May 2003, at 24-34.

40 See Homan v. State, 89 Ohio St.3d 421 (2000). Most unfortunately, and without any respect for scientific realities this case was later abrogated by legislation.

41 U.S. v. Horn , 185 F. Supp. 2d 530, 557 (D. Md. 2002).

42 See Id. at 532-33.

43 See Id. at 533.

44 See Id. at 533.

45 See Id. at 533.

46 See Id. at 533-34.

47 See Guiley, supra note 2 at 299.

48 334 N. J. Super. 530 (App. Div. 2000)

49 693 So.2d 1355 (Miss. 1997).

As published in the National Association of Criminal Defense Lawyers magazine, "The Champion". November, 2004

Florida switches from Frye to Daubert

2013-09-29T23:03:00.003-07:00

Beginning July 1, 2013 Florida law changed. Florida had been using the Frye standard; however, we have now switched to what is known as the Daubert standard. The Daubert standard comes from the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.

The old standard, Frye, focused on the underlying scientific principles looking to see if they are sufficiently established and have gained general acceptance in their field. Florida’s new law is found in section 90.702 which was amended to abolish the Frye standard. Now evaluation of expert testimony is patterned after Daubert and Federal Rule of Evidence 702 adding the federal three prong test for determining whether expert testimony is admissible.

Expert witness testimony will now be admissible if such testimony is (1) based on sufficient facts or data, (2) the product of reliable methods and principles, and (3) the expert witness has applied those principles and methods reliably to the facts in the case. Of course, the threshold question of whether the evidence will assist the trier of fact in deciding the matter, and whether or not the expert is properly qualified must still be asked. An expert is properly qualified if they have specialized knowledge, skill, experience, training, or education.

For clients accused of DUI, this has several ramifications. First, those who are administered the Field Sobriety Test known as the Horizontal Gaze Nystagmus have a new tool to challenge the admission of the results. Second, otherwise admissible breath test results will not be admissible unless the state can show that the data are the product of reliable methods and principles. In reality, under the new law, prior to the admissibility of their evidence, the state will have to prove that the test is reliable and incorporates valid science. Both the HGN and the Breath Test are allegedly scientific tests which would require adherence to the new standard. As of this writing, I am unaware of a local State Attorney’s office attempting to meet the new standard. However, a properly trained and experienced DUI defense attorney should be able to raise significant challenges to the reliability of either of the two tests.

The attorneys at Katz & Phillips, P.A. are available to discuss how the new rules can be used to help you. Please visit our website for more information or call us at 866-464-0782.

Is DUI by Beer on the Decline?

2013-09-29T23:03:00.001-07:00

Research Shows Flavor of Beer Alone Triggers Dopamine Release

In a study conducted by Indiana University School of Medicine and reported in USA Today, researchers found that the flavor of beer alone is enough to trigger the brain to release dopamine, the chemical associated with pleasure and reward.

The participants in the study received tiny spritzes of either Gatorade or their preferred beer (15 ml total over 15 minutes), so they were able to taste the beer without any intoxicating effects. The researchers monitored the participants’ brain activity with positron emission tomography (PET scans), and the scans showed significantly more dopamine activity when the participants tasted beer instead of Gatorade.

Alcohol and other drugs of abuse have long been linked to the release of dopamine, but this study is the first to show that the brain responds to the flavor of beer alone. Research has consistently shown that sensory cues such as tastes, smells, or the sight of a bar can cause cravings and relapses in recovering alcoholics, and this study furthers the idea that dopamine may play a significant role in cravings.

The study also found that men who had a family history of alcoholism had the most pronounced dopamine reaction to the taste of beer. David Karaken, a senior author of the study and a professor in IU School of Medicine’s Department of Neurology, notes that a heightened dopamine response may be an inherited risk factor for alcoholism.

The Knoxville, TN DUI defense lawyers at Oberman and Rice try to stay current on developments and research on alcohol-related topics. Awareness of the many underlying causes and effects of alcohol use enables us to have a better understanding of the many issues at play when we represent clients. We believe this type of research is helpful in discovering why some people crave beer. This will lead to a decline in people driving under the influence (DUI/DWI) in Tennessee.

Anyone arrested for DUI (driving under the influence), or another related charge, should immediately contact a Tennessee DUI Attorney familiar with Tennessee DUI laws. For more information about the crime of DUI or about your legal rights, Steve and Sara are available by calling 865-249-7200. You may also wish to visit www.tndui.com for more information about the offense of driving under the influence in Tennessee.

The Science of Fear & Field Sobriety Tests

2013-09-29T23:02:00.002-07:00

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

Illegal Immigrants to Practice Law in California

2013-09-29T23:02:00.000-07:00

In the waning hours of the legislative session on Thursday, a California bill to let undocumented immigrants become lawyers passed the state Assembly and now lies in the hands of Governor Jerry Brown. This bill would allow qualified applicants to become licensed as a lawyer regardless of their immigration status pending California Supreme Court approval. The current law in the state does not allow applicants to be licensed if they are undocumented.

The subject of illegal immigrants in the United States, and particularly in California, has been at the forefront of the Government’s agenda for quite some time. Just a couple of months ago the predominantly Democratic United States Senate passed a bill that would allow for millions of immigrants living illegally in the United States to become citizens. The current state of the bill, however, is unlikely to pass in the Republican-controlled House of Representatives.

DON’T RIDE OUI WITH MOLLY

2013-09-29T23:01:00.001-07:00

Miley Cyrus is dancing with her, Kanye West sings about her. So who is Molly? Molly is a fairly common street drug that causes hallucinations and euphoria but also promises a terrifying and horrific crash.
In addition to the drug’s advertised purity and potency, celebrity endorsements are boosting its popularity. What’s not as widely advertised is the fact it’s dangerous, addictive and even deadly.
Molly is short for chemical molecule, referring to a purer form of 4-methylenedioxymethamphetamine (MDMA). The same white powder as what’s in the drug Ecstasy – raises serotonin levels in the brain and induces feelings of euphoria, pleasure, empathy and closeness, often leading to unprotected sexual activity. The high can last three to six hours and the crash that follows is worse than any hangover you’ve ever experienced.
Molly is claiming lives nationwide, in particular in connection with dance music events. Just last week a University of New Hampshire junior died at a music festival in New York after allegedly using Molly, and the number of deaths is growing at an alarming rate. Like bath salts, MDMA is man made and makers of MDMA can add anything they want to the drug, so its purity is always in question. Most users of Molly take a pill, tablet or capsule, which often look like candy. The pills come in different colors and shapes and sometimes have cartoon images on them. Molly’s deceptive look coupled with it’s newly found paparazzi like media attention has brought this deadly drug to a new more enlightened public. So tell your kids, don’t take Molly to the dance because it just may be the last dance they’ll ever attend.
Don’t drive OUI in Maine. These issues are just the beginning of a full analysis of any DUI/OUI/DWI case. If you have been accused by the police in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs”, possession of a controlled drug or any alleged motor vehicle or criminal offense, feel free to call Attorney John Webb today at 207-283-6400 and arrange a free consultation to discuss your case or visit: www.nicholswebb.com, www.OUIhotline.com.

Colorado DUI Enforcement: The Myths Behind the Numbers

2013-09-29T23:00:00.003-07:00

Law enforcement officials in Colorado say they made 1,342 DUI arrests between August 16 and September 3 — a time period during which they typically ramp up enforcement efforts in preparation for Labor Day Weekend, reports TheDenverChannel.com.
Just to put this in context, because it sounds like a lot, this works out to an annual number of 24,973 arrests. The 10-year average is usually between 30,000 and 35,000 consistently. 1,300 arrests for 100 agencies over 19 days is two arrests every three days per entire agency. If they don’t sound like they are doing something special, they won’t get that extra grant funding for their next holiday ‘crackdown.’”

This same propaganda gets spread throughout the news channels over every holiday weekend and DUI checkpoint. The reality is that these “crackdowns” are no more effective than normal every day enforcement, except they come at a higher cost and the public is paying for it.

Even though the Labor Day arrests weren’t as plentiful as the media outlets have made them seem, it’s still important for all drivers to make responsible decisions before getting behind the wheel of a vehicle. With Halloween, Thanksgiving and Christmas coming up in the next few months, it’s likely that law enforcement officials will continue to step up their efforts to crack down on drunk drivers around the holidays.

If you’ve been charged with DUI or any other driving-related offense, you owe it to yourself to find the best legal representation in the state. At The Orr Law Firm, our Denver DUI lawyers work tirelessly to defend our clients’ rights throughout the entirety of the legal process, ensuring that they are treated fairly. We offer all of our clients sound advice, and we aggressively defend their best interests in order to achieve favorable results.

Blood Draws in the Wild, Wild, West.

2013-09-29T23:00:00.001-07:00

Texas is following Arizona on what appears to be a slippery-slope which will be affecting more states as time goes on. A new law went into effect on September 1st, 2013 which was passed by the 83rd Texas Legislature. The new law allows Emergency Medical Technicians (EMT) paramedics to take a blood specimen to test for alcohol concentration at the request of a police officer. The law allows paramedics to test for alcohol concentration or other intoxicating substances.A paramedic may take a blood specimen if they believe they are complying with an officer’s request or order.

At least in Texas, the people drawing blood have some medical training–and that’s similar to how it all began in Arizona. Many people don’t realize that in Arizona, cops have been drawing blood since 1996. It started when a police officer, who was also a paramedic, drew blood from a DUI/Fatality suspect in a hospital setting. No one could really complain about the training of the officer, or about the setting. Moreover, throw a fatality into the equation and not many people would even cast a second glance at the officer’s conduct.

Flash-forward a little more than 15 years, and Arizona now has “phlebotocops” (poorly trained police officers who stick people with needles by the side of the road). In Arizona, one needs a license just to cut hair, but there are no licenses needed to puncture a vein and draw blood. Since there are no license requirements, technically, anyone may draw blood–including the police. Yet, it seems that the phlebotomist must still be “qualified” under Arizona law to draw blood in a DUI investigation context. Arizona Revised Statute 28-1388 reads:

“If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.”

The police now take a 3-day-long course where they learn how to stick people and draw blood called “Phlebotomy for Law Enforcement.” Day One of the course consists of classroom education where they learn about safety (i.e. how not to stick yourself, how to dispose of sharps, how to clean up). Day Two consists of learning where to stick people and they get to practice on each other and practice on fruit–typically oranges. On Day Three, they head out to a Veteran’s Hospital, or some other government-run facility where they have to have 50 (it used to be 100) successful blood draws.

What is the definition of “a successful blood draw”? It is defined as a blood draw where the phlebotocop gets a full tube of blood and did not ask for help. It doesn’t matter how many times the cop attempted the blood draw. Nor does it matter whether the patient suffered nerve damage, infection or even death. As long as the cop filled a tube of blood and did not ask for help, it is counted as one of the 50 successful draws.

Once the cop has passed the course (and no one has ever failed it), they are “another qualified person” according to Arizona law. But even if they were not qualified, the statute still has no teeth as it makes qualifications irrelevant: “The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.” Why even have the statute if it does not prohibit admissibility of a blood test result performed by someone other than those named in the statute?

Since the inception of the Arizona Phlebotocop Program, police have been drawing blood from people standing, unsupported by the side of the road, in the backseats of patrol cars and on the hoods and trunk lids of patrol cars. The police have been hurting people in the process.

In 2005, the Arizona Court of Appeals found no constitutional problems with police drawing blood by the side of the road. In State v. May, 210 Ariz. 452, 112 P.3d 29 (Ariz. App. Div. 2, 2005), found that despite the testimony, which showed that drawing blood by the side of the road, standing at the trunk lid of a patrol car, unsupported, risked injury, infection and nerve damage to the subject, the blood draw was a reasonable search.

Other states are looking to Arizona to model their phlebotocop programs. Idaho, Texas and Utah have sent some police officers to Arizona for training. It’s a slippery slope and it truly is the Wild, Wild, West.

Michigan Law Ignores Child Endangerment While Drunk Snowmobiling

2013-09-29T22:59:00.002-07:00

According to the DNR:

With its unique combination of abundant annual snowfall, exciting terrain and extensive trail network, Michigan is a popular destination for snowmobilers far and wide. More than 6,400 miles of designated snowmobile trails criss-cross state forests, three national forests and many acres of privately owned lands. In fact, Michigan is one of only a handful of states that offer a large network of groomed and signed snowmobile trails.

With all this snowmobiling in Michigan, you would think it would be illegal to operate a snowmobile while drunk with a child on board. Ironically, despite the fact that snowmobiling is inherently dangerous even while sober, Michigan drunk driving law does not enhance drunk snowmobiling with children.

The same is not true of drunk driving a car with a child on board. If you operate a motor vehicle on a roadway in Michigan with a person under the age of 16 and have a bodily alcohol content of .08% or more, then you can be charged and convicted of the crime of “child endangerment.”

A first offense for child endangerment is a misdemeanor crime. If you are convicted then the judge could put you in jail for up to one year. The judge will also order you to pay $200.00 to $1,000.00 in fines, plus court costs. Your driver’s license will also be suspended for 90 days, with no driving whatsoever during this 90 day period.

These penalties make a Michigan first offense child endangerment more serious than a standard Michigan first offense drunk driving but less serious than a Michigan second offense drunk driving.

A second offense of “child endangerment” in a car within 7 years or three convictions in your lifetime is a felony in Michigan.

Needless to say, child endangerment in a car is treated as a very serious offense in Michigan. Drunk boating in Michigan is however treated considerably differently.

But, unlike drunk driving in a car, there is no separate offense of child endangerment for snowmobilers. This means that no matter how many children you endanger, the worst that can happen to you is a charge for standard drunk snowmobiling charge with no enhanced penalties.

Also, the legal limit for intoxication on a snowmobile is .10 rather than .08.

It should be noted however that if you operate a snowmobile on a road open to the public then you are subject to same laws as cars. So, if you are crossing a road to get from one trail to the next, have a child on board and are drunk, then in this situation you can be charged under the motor vehicle statute for child endangerment.

Latest battle with the West Virginia DMV

2013-09-29T22:58:00.003-07:00

A couple weeks ago, I had the privilege of appearing in Kanawha County Circuit Court, in front of the Honorable Judge Bailey, on behalf of a fellow West Virginia citizen who had been accused of driving under the influence in the Fall of 2011.

The nature of my appearance was in regards to a Writ of Prohibition appellate action that I had filed on behalf of said citizen against the West Virginia Division of Motor Vehicles (WV DMV) seeking to have the Kanawha County Circuit Court order that the WV DMV cease and desist with attempting to suspend my client’s West Virginia driver’s license. (In West Virginia, one must file these type of legal actions in our state capital county of Kanawha in Charleston, West Virginia due to said locale being where the Division of Motor Vehicles is headquartered.)

The central issue of the appellate action was whether or not the WV DMV can institute licensing suspension action against a citizen when the statutorily required 48 hour time period for the arresting officer to file the necessary paperwork with the WV DMV, in which to ignite licensing suspension action against the citizen, has long since past.

In West Virginia, per statute, a law enforcement officer who arrests a citizen for DUI must file with the WV DMV a “statement of arresting officer” within 48 hours of said arrest in which to ignite licensing suspension action against the citizen by the WV DMV.

In prior case rulings by the West Virginia Supreme Court of Appeals on this issue, to which the WV DMV is relying, all such cases had some nexus to the 48 hour time period requirement. (i.e. portion of paperwork submitted past the 48 hour deadline with some filed timely, 72 hours in one case, etc.). In these cases, our state high court held that the citizen must show some form of substantive detriment to the citizen due to the 48 hour rule having been violated.

In my instant case there is absolutely no connection to the 48 hour time period whatsoever. Furthermore, there is the potential of significant detriment to my client if the WV DMV is allowed to seek the suspension of his West Virginia driver’s license.

Specifically, my client was arrested in early November of 2011. In late January of 2013, nearly 14 months past his arrest date, he received in the mail a Notice of Revocation submitted by the WV DMV advising that the arresting officer had submitted a statement of arresting officer (on December 27, 2012) and thus the WV DMV was seeking to suspend my client’s West Virginia driver’s license. (*The underlying suspension period is for one year followed by two years mandatory interlock installation in his vehicle.)

Further, in Fall of 2012, approximately one year post arrest, and based in large part that there was no pending license suspension action against my client by the WV DMV, he elected to enter a no contest plea to his DUI charge, thus insuring that there could never be a jury finding or plea entry of guilty in which to ignite on its own said licensing suspension action. Noting that per West Virginia law, and while still a criminal conviction for lifetime record purposes, a citizen is entitled to an administrative hearing in which to challenge the suspension of his or her driver’s license even if there has been a no contest plea to the DUI charge entered in the criminal court, where a guilty plea or finding of guilt will close that door and on its own ignite licensing suspension action,

Of additional note, my client testified before Judge Bailey as to the detriment he would suffer if the WV DMV were allowed to now, thirteen plus months later, seek to suspend his WV driver’s license. He testified to taking a job two plus hours away from home to which requires him to drive to and from; and moreover, in the interim thirteen months, he also commenced with adoption proceedings of a 7 year old little girl from a foreign country, to which also depends on my client’s ability to drive to and from his employment to earn a living to pay for the care of this little girl. All of which, my client collectively undertook months after his arrest when it was clear that the arresting officer had not filed the proper paperwork with the WV DMV not only within the required 48 hour time period but at all. And all of which my client now stands to lose if this blatant violation of West Virginia law is allowed to be done by our WV DMV.

Upon a representative of the WV DMV taking the stand under oath, I came to learn that the WV DMV legal division assigned this individual with the responsibility of “investigating” all DUI criminal court convictions received from around the state to see if there is any licensing suspension action that was enforced or that can be enforced due to said plea, or at minimum, that there is licensing suspension action against the citizen pending by the WV DMV.

In the event that there is not any suspension action pending, or ever instituted by the WV DMV, said representative is to contact the arresting officer in which to demand that he or she file the proper paperwork or face contempt proceedings.

So, in the instant case, over a year post my client’s arrest, the WV DMV contacted the arresting officer and had him file with the WV DMV a statement of arresting officer over one year removed from my client’s arrest.

The WV DMV legal division argues this is completely permissible and in compliance with fundamental concepts of due process and the United States Constitution. For their role is to, “…take drunk drivers off the road.”

Unconstitutional Blood Draws

2013-09-29T22:58:00.001-07:00

There is a good deal of debate in the legal community about whether warrantless blood samples taken from DUI suspects are constitutional following the U.S. Supreme Court’s decision in Missouri v. McNeely. The core of this debate is whether “implied consent” laws constitute an exception to the Fourth Amendment’s warrant requirement, or whether such consent is “involuntary consent” because it is based on the threat and imposition of a license suspension.

The McNeely decision did not invalidate “implied consent” statutes such as the operative one in California which is Vehicle Code section 23612. What the holding does make clear is that a drunk driving suspect may withdraw his or her implied consent (subject to being penalized with a license suspension). If the police have a blood sample forcibly taken without a warrant, or threaten to do so, then there is no lawful consent and the blood-alcohol or blood-drug evidence is subject to suppression under the federal exclusionary rule unless some other exception to the warrant requirement is established by the government.

The voluntariness of consent is measured by the “totality of circumstances.” Make sure you have legal counsel who is knowledgeable in this esoteric area of the law.

New tool to protect your constitutional rights: police mounted video cameras.

2013-09-29T22:57:00.001-07:00

The Chesapeake Police Department in Virginia has drastically increased its use of video recording. The TASER Company reported on their website that in April of 2013 that Chesapeake deployed 85 additional AXON Flex cameras. These are small on-officer cameras with multiple mounting options and a 130 degree wide-angle lens. The video quality is surprisingly good. Growing evidence also suggests that the tiny video camera may be surprisingly good at protecting your constitutional rights.

Just this year, Judge Shira A. Scheindlin of the Federal District Court in Manhattan held that New York police officers used unconstitutional stop-and-frisk tactics for years. Statistical experts estimated that 4.43 million stops were conducted between 2004 and 2012. Her remedy to these warrantless, suspicionless seizures was unique: she ordered the officers from the worst offending precincts to wear video cameras to record their actions for one year.

A Cambridge University study showed that when the City of Rialto, California required its officers to wear video cameras, the use of force by officers dropped almost 60 percent and complaints filed by citizens against officers fell by 88 percent. A UK Study reported that many agencies experienced a 100% decrease in complaints.

An article by Ronald Bailey said it best “watched cops are polite cops.” They are also apparently (constitutional) law-abiding cops.