Skagit County Judges Require Scientific Standards In DUI Prosecutions.
Recently, Skagit County District Court Judges David Svaren and Warren Gilbert heard testimony from expert witnesses in support and in opposition to a defense challenge to the admissibility of breath tests due to the lack of adherence to scientific principles. Their ruling requires State Prosecutors to provide evidence of uncertainty in DUI prosecutions where a breath test was given. (Skagit Co Uncertainty Ruling)
The defense expert witness, Ashley Emerey, a UW professor, testified that the generally accepted principles in the scientific community require a statement of “uncertainty” if the measurement is to be considered valid and reliable. This additional information is required for any measurement. Breath testing is a measurement and therefore requires a statement of uncertainty.
The current manager of the State Toxicology Lab, Jason Sklerov, did not deny the generally accepted requirement of uncertainty, nor did he disagree with almost all of Dr. Emery’s testimony. However, what he did disagree with was the actual need to perform this calculation, despite the fact that the Lab currently does the calculation, it is only upon specific request. Although the Judges denied the motion to suppress, the ruling requires the State to provide very specific information: “To be admissible, breath test results for alcohol must be stated in terms that include an estimate of uncertainty associated with the measurement.”
As a result, the State will now need to provide testimony that was previously glossed over and never provided to a jury. Absent this information, a breath test in a DUI trial will not be provided to a jury because the evidence is deemed unreliable since it fails to follow scientific standards.
This challenge is being heard around the state and was recently argued here in Whatcom County earlier in June. Due to the length of time it takes to provide testimony from Dr. Emery and Mr. Sklerov and court congestion, there was not enough time to finish so the hearing will reconvene on the 24th. It is hoped that the afternoon will provide the necessary time to compete the hearing. We anticipate a ruling within the first few weeks of July. Once the District Court ruling is issued there is the possibility that other courts in the County that handle DUI cases; Bellingham Municipal, Ferndale Municipal, Lynden Municipal, Blaine Municipal, and all other county municipal courts, will follow the ruling issued. This will likely be done on a court by court basis, if each court choses to adopt the decision.
Some may feel that this is a defense tactic to find a loophole that allows those charged with DUI in Whatcom County to have their case dismissed: this is not the case. Rather, what defense attorneys are seeking is that the State simply follow the rules of evidence and in so doing only present to a jury evidence that is in keeping with the science it is said to rely upon. If the State only provides accurate and reliable information to a jury then we can be sure that there are no wrongful convictions especially when the states evidence is close to the legal limit of .08. A statement of uncertianty in this type of breath testing evidence that the accused driver’s breath sample is just as likely UNDER the legal limit as it over the legal limit. It is these types of misunderstood, yet important challenges that experienced and tenacious DUI lawyers are privy to.
If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | jrands@jonathanrands.com | 360.306.8136.
DUI Or ADD/ADHD? A Case Of Wrongful Arrest & Prosecution.
You may have seen or heard about Washington Roadside DUI “Sobriety Tests” and that officers use them not just here, but nationwide to justify their arrests. In Washington the law allows use of the tests as “evidence” to help prosecute drivers for DUI. In Washington state, the prosecuting attorneys does not need a breath test to move forward with DUI prosecution if the driver performed these roadside tasks. However, these tests do not account for the disability of ADD/ADHD that is recognized by the American Disability Act and these tests will likely be the basis of a wrongful DUI conviction.
The roadside tests are called Standardized Field Sobriety Tests, they are essentially divided attention (psychophysical) “field sobriety tests” and observations of the defendant based upon scientific studies commissioned by the National Highway Traffic Safety Administration (NHTSA). While the researchers and authors did take note of some, but not all, physical disabilities impacting the validity of each test, and have accommodated several of these disabilities with either special instruction,or elimination of certain tests because no accommodation could be made the disability of ADD/ADHD, it has never been addressed by NHTSA or the National Sobriety Testing Resource Center.
A common condition which is often misunderstood due to lack of training is attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) which can be confused with the common signs and symptoms of intoxication. References to a driver being confused, unable to follow direction and showing abnormal behavior can be a sign of ADD/ADHD. Adults with ADD/ADHD struggle daily with self regulation: regulating their attention, regulating their impulses in talking and action, and regulating their emotions. However, without special training, time and attention, will the police officer who pulls over a driver with adult ADD/ADHD give him the benefit of the doubt?; Will the police officer be able to spot ADD/ADHD and differentiate it from other signs and symptoms of alcohol consumption?; Unlikely. Consequently, without any specialized training, or recognition of ADD/ADHD, within the SFST training curriculum, the symptoms of ADD/ADHD will be misconstrued; not only misconstrued by the officer, but they will be reported as evidence of intoxication/impairment to the jury by the officer.
Adults with ADD/ADHD have problems in six major areas of executive functioning: Procrastination; difficulty getting started on projects; Excessive disorganization and messiness; Inability to prioritize tasks; Underestimating the time needed to finish a task; Inability to screen out distractions; “Zoning out” when others are talking; Randomly skipping from topic to topic in conversation; Reading words over and over to grasp the meaning; Difficulty sustaining effort over long periods of time; Starting multiple tasks, but never completing any of them; Missing deadlines; Trouble going to sleep at night and staying alert during the day; Easily bored; Low tolerance for frustration and stress; Unstable, unpredictable moods; Quick temper; Constant worrying; Trouble remembering things, even for a short time; Does not recall conversations, things others said; Forgetting appointments; Constantly losing or misplacing things; Inability to delay gratification; Speaking without thinking; Acting impulsively (e.g., impulsive spending, sudden change of plans) without regard to the consequences; and Jumping to conclusions.
As a result, ADD/ADHD can be a big stumbling block and in terms of roadside tests and potential evidence, lethal to your defense. The symptoms of disorganization and inattention, in particular, pose problems for those being tested using the standard NHTSA scoring for field testing where the idea and criteria for failure is an inability to divide attention under stressful situations.
As a result of these problems, the results of the tests which challenge a person to divide their attention under stressful situations will be “failed” and used to prove sobriety; when in fact the driver who suffers from ADD all of the symptoms the tests are designed to look expose while being administered in a stressful and distracting environment.
A colleague of mine, Scott Robbins, recently shared some research some of his research with and what follows is a very basic outline of the issue and if you suffer from ADD/ADHD and have been arrested for DUI after these tests, the evidence supporting the arrest is likely inadmissible but a successful challenge requires DUI and SFST expertise.
In its most basic form, drivers who undergo roadside tests are being discriminated against and such discrimination can lead to wrongful DUI convictions. The Americans with Disabilities Act of 1990 provides clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101 (b). On September 25, 2008, President Bush signed the Americans with Disabilities Act (ADA) Amendments of 2008. The amendments to the ADA expand the definition of disability to include an impairment that limits one of major life activities. Specifically, among the list of major life activities are “concentrating, thinking, [and] communicating.” 42 U.S.C. § 12102(2)(A). As a result the Tests should NEVER be provided to a jury when the driver suffers from this condition because the testing criteria for divided attention field sobriety tests cannot accommodate this disability.
While ADD/ADHD is a very specific and unique example of how these tests work against a driver, there are numerous other flaws in the design and interpretation of these tests and this is why you should never do these tests. The tests are voluntary in the State of Washington and there is no penalty for not doing them. However, many citizens do not know this and find themselves placed in precarious and uncomfortable positions on the side of the road and then quickly under arrest for DUI.
If you are in such a situation you need an experienced DUI lawyer who has training and experience in the area of sobriety testing in order to expose the flaws and limitations. Jonathan Rands, is trained and qualified to administer these tests and will ensure that they are challenged and exposed to a Judge and Jury as being unreliable. Since the tests are standardized, they MUST be administered and interpreted in a very specific and precise manner. Regardless of where you were arrested: Oak Harbor-Island County, Mount Vernon-Skagit County, or Bellingham-Whatcom County, Jonathan will challenge these tests in your defense and in so doing provide an expert witness who is an instructor of these tests . On Call now for a free consultation.
If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | jrands@jonathanrands.com | 360.306.8136.
