Jonathan Rands Completes Annual DUI Defense Advanced Training To Ensure Fair Trial And Use Of Best Evidence.
Late this past summer as well as last month I attended 2 annual 3 day seminars and conference dedicated to trial skills and techniques, as well as advanced understanding and challenging various types of advanced evidence issues in DUI cases.
The first of these two was presented by The National College Of DUI Defense, an organization I have been a General Member of since 2005. The conference was held at Harvard Law School and keynote speaker was F.Lee. Bailey. College General Members represent the most experienced DUI defense attorneys in the country and are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country. Training always embraces the most innovative and creative methods of DUI defense as well as polishing the corner stone of trial work like cross examination.
The second seminar was and advance evidence seminar. The previous year I attended this same conference, but also lead a specialized breakout session on roadside sobriety tests. These training session are important because as a DUI defense attorney, my clients freedom and driving privilege (to name only 2) depends on my skills and knowledge that are accumulated and practiced to the point where they are instinct and second nature. Spending time with other attorneys from around the nation who have likewise dedicated their legal careers and practices to the defense of citizens accused of DUI creates a scholastic environment where we are all dedicated to the same cause, and share our success and failure in the courtroom. Believe it or not, defense attorneys, secure less Not Guilty verdicts than Guilty verdicts, but it is usually the cases we fight hard and lose that are our best teaching aids.
This annual conference allows a lawyer student to choose their own schedule of lectures and breakout sessions so that the lawyer can sharpen their skills, or gain a greater understanding of procedures, protocols, and highly technical areas of science that DUI prosecutions are steeped in. The program is also designed to allow DUI defense lawyers to practice in front of other lawyers and thereby receive constructive criticism and share ideas and concepts that enhance the lawyers skill set.
At this years program I choose to revisit blood testing and the Drug Recognition Evaluation (DRE) protocol for Drug based DUI prosecutions.
The science of blood testing is “regulated” by national scientific standards, but even so, one should never under estimate the power of human error and the fallibility of machines that are programmed by the human hand. Blood testing uses Headspace Gas Chromatography. This is a type of testing where a vial of blood is shaken and mixed for a period of time and then the blood itself is NOT actually tested. Rather, what is tested is the airspace above the blood level (the “Headspace”) as it is sealed in a “vacutainer” tube. The tube is a vacuum sealed space with suction helping to fill the tube from the subjects body when blood is drawn. To analyze and test the head space above the blood after it has been shaken, the machine doing the analysis injects a small needle into the top of the soft rubber tube (stopper) and a small bit of gas is sucked out and then ran through a machine. The gas substance is injected into another know gas and then forced to travel through a tubular line where at the end of this journey the substance is quickly burned up in a actual flame. It is this end process that results in the analysis of the substance and the alcohol concentration.
This is a very rudimentary description of the process, but suffice it say, most do not understand that the blood content itself is NEVER actually tested. Furthermore, many do not realize that the machine is used to test all sorts of other fluids and compounds and the cross contamination potential is huge. Add to that fact that the machine is an automated one and most times the analysis is done without human oversight. As a result of these and other issues, a complete understanding of the process is necessary to adequately challenge, not only the end result, but the process itself, because what is generated is a number. What is presented is nothing more than a number to which the prosecution points to as guilt beyond a reasonable doubt. However, in Washington State, and most other States, the accuracy and the reliability of that final number is always a critical issues that must be addressed in arriving at a final decision.
While this overview is not intended to be comprehensive, but instead an brief review of a complicated process fraught with potential error and to show that the net result of spending time learning from other attorney’s who excel in this and other scientific areas where it intersects with the law, benefits not only future clients, but helps a defense attorney explain to a jury the limitations of the testing utilized in any given case.
The difference between exposing error by pulling back the curtain on pseudo-scientific, and unreliable evidence can mean the difference between lockup or liberty. While this may seem dramatic, consider how many recent cases there have been where legitimate science has exonerated previously convicted persons who were convicted by the use of evidence that was of poor quality, and was either misunderstood, or presented as infallible, and was not challenged by an advocate with adequate knowledge? The fact that the charge of DUI is “unpopular” is no reason to allow less than adequate evidence to untested, unscrutinized, and unchallenged if it fails to be collected and analyzed properly.
The other practice area i choose to spend more time on was the Drug Recognition Program, or DRE. This is an area of law that is NOT based upon science, NOR supported by rigorous peer reviewed research, NOR endorsed by any agencies other than the those law enforcement agencies that promote the circular reasoning of: “the program works because we say it works.”
While I have previously completed a 16 hour course on the DRE program overview, it had been a while since I represented a citizen accused of a Drug-DUI, so a close review of the materials presented, and the companion workshops where a critique of courtroom skills was done was a welcome review and challenge.
The DRE program is a book unto itself and a short blog will not adequately capture the program, but from a brief overview perspective, the program starts with ruling out alcohol suspected impairment and then runs a subject through a series of “sobriety” tests that are not related to drug impairment. This entails, a physical examination that requires monitoring of blood pressure, physical inspection of the subjects arms, a dark room examination, and a custodial interrogation of the person that usually leads to a disclosure of a substance the person previously ingested. Final steps are the rendering and recording of an officer’s opinion of what category of drug the person ingested as well as the actual drug the officer suspects. For example, category could be “Cannabis,” and actual drug being “Marijuana.” Guess what?- The officer’s typically render an opinion that the suspected substance ingested is the same as that confessed to! Brilliant detective work! The final step in the process is the drawing of a subjects blood and an analysis of the blood as described above.
This is not the whole procedure, but the suffice it to say, it is the “meat and potatoes” of the program. Pulling back the curtain on false assumptions, coercive procedures, and the close examination of the blood analysis itself is critical and exactly why rigorous training and experiences in these cases is paramount to be a successful DUI defense attorney.
Recently, two newsworthy and related events have come to pass; First – Amanda Knox verdict was over turned due to a showing that the investigation was less than adequate, in fact scientific evidence was processed incorrectly and failed to support the allegations; Second- the Seattle Times reported on unlawful and abusive Police Behavior, with respect to preservation of exculpatory evidence, failure to turn over such evidence, destruction of this evidence,and a denial that it even exits!
These may be extreme examples, the fact of the matter remains that they gained notoriety because the evidence was challenged, because the defense lawyers dared to pull back the curtain and say, “look at this with a critical eye!” We live in a country where proof beyond a reasonable doubt means something, but all to often jurors, judges, and prosecutors settle for what they think is simply “good enough” as a result of the type of charge the accused person is facing. If defense attorneys fail to to educate and then use that education to examine the evidence with the legal tools provided by the Constitution and State Court rules then they have failed their client, the system which requires them to be critical, and their oath as a defense attorney.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. Confronting all witness and exposing the limitations of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, or simply based on officer observations. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Breath Test Devices Manipulated To Show Higher BAC Levels.
This past Summer the BC government lowered the breath alcohol limit and increased penalties to be imposed on the roadside by police officer’s. Not surprisingly it is now discovered that in the absence of checks and balances to their unfettered roadside police power, the device employed by the officers provide false readings- falsely high readings.
Lawyers Claim Faulty Use Of Breathalyzer
BY KIM WESTAD, POSTMEDIA NEWS MARCH 4, 2011
A class-action lawsuit challenging impaired driving penalties given out under new drunk driving legislation was filed Thursday in Vancouver.
The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device, which determines a driver’s blood-alcohol level.
Legislation came into effect Sept. 20 that penalizes drivers whose bloodalcohol concentration is between .05 and .08. The level is determined by a roadside breathalyzer, which indicates “warn” if a person’s blood-alcohol level is between those numbers.
The lawsuit alleges that until Nov. 19 police used improperly programmed breathalyzers to determine the reading, which resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.
On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.
The units were re-set so that a “warn” reading is obtained if the driver blows .06, recognizing the potential machine error.
“The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn’t done in this time period,” Thomas said.
Police either improperly programmed the devices or failed to detect that they weren’t programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.
For a driver with one “warn” reading in the past five years, the minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee -and the likely loss of one’s vehicle for the three days, plus towing and storage fees. For those with more than one reading above the legal limit, the penalties escalate.
In a class-action suit, one person sues on behalf of all the people who have similarly suffered.
The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.
He will ask for repayment of costs incurred by people who were improperly penalized.
This week, Solicitor-General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.
That would make no difference to the lawsuit, Thomas said.
On the heels of this lawsuit, the BC government announced that there will now be an appeal process for a driver who wishes to contest this roadside suspension, but the appeal may be too little, too late.
Here in Washington, breath testing is subjected to numerous and rigorous challenges by defense attorneys such as myself. These challenges routinely target the claimed accuracy of testing in a DUI prosecution. These challenges are important due to the fact that what hangs in the balance is not only the potential loss of a drivers license, but most importantly freedom vs. incarceration.
It is well known, and established by law here in Washington that the same handheld devices described above, used by law enforcement here, are not reliable proof of anything other than establishing that a person has consumed alcohol. Administration of these tests and the readings provided are only admissible in a hearing to challenge the lawfulness of a driver’s DUI arrest. They are not admissible in a trial due to their unreliability. This is set forth in Washington Administrative Code (WAC) 448-15. The devices use “Fuel Cell” technology and this type of technology will provide false positives as a result of cold weather conditions, recently consumed pizza, and dozens of other factors.
The more advanced technology used utilizes “Infrared” testing. The basic explanation is that light passes through a small sample of air blown into the machine by an arrested person. While this technology is better, it is far from perfect and currently it is behind the “scientifically reliable curve.” As a result, Washington has cleared the way for a new generation of breath testing machine, and has purchased about half of the units needed. While this leap into the current breath testing generation is admirable, i cant help but wonder why the units purchased simply sit in storage rather than be deployed immediately? Perhaps it impeaches the accuracy and reliability of the current machine in use that has been around since the last century (1987).
A DUI charge is full of complex evidence that only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.” As a result whether you are over .02 (Minor DUI), .04 (CDL DUI), or .08 (DUI), or if you are under the legal .08 limit, the charge is not to be taken lightly nor is it for the inexperienced. A successful outcome requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
New Year Brings Changes To DUI Laws.
The title is a little misleading, as the law on DUI in terms of the legal limit has not changed, but rather the laws related to a DUI arrest or conviction have changed. Some may say for the better, while others will strongly disagree. Regardless of the camp you may be in on this, what matters is that those who could not drive previously, now can, but with significant supervision and consequences. The changes relate to who is eligible for a Ignition Interlock Device (IID) as well as the fairly new Ignition Interlock License (IIL).
For the most part the changes create an “Extension of Eligibility” so that those previously unable to legally drive, regardless of whether they have an IID, now are able. Among the most important extensions is the ability of a those arrested or convicted of a drug related DUI and Physical Control convictions to obtain an IIs. Previously a alcohol based DUI was permitted an IIL while a drug based DUI was not. Both alcohol and drug based DUI conviction are NOW able to obtain an IIL.
Further extensions are to those who have had their licenses suspended or revoked due to a DUI related Vehicular Assault and Vehicular Homicide Arrest and Conviction. Where they were previously unable to obtain an ILL, they can now do so.
There is now and IID exception, meaning no IID is necessary on specific vehicles. So a person who ordinarily would be required to have a IID on their “personal vehicle” does not need one on vehicle “owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as requirement of employment during working hours.”
This new exception allows people like mechanics to test drive vehicles they work on, or persons who job requires a rental car when they fly somewhere.
With respect to the IID and Convictions & Sentencing, the IID and requirement to obtain an IIL is now at the discretion of the Court and Judge for ALL drug and alcohol related convictions. This means that a DUI reduced to a lesser charge that is still alcohol related permits a Judge to order an IID or IIL even though there law does not specifically mandate it.
Alternatively, a Court may waive IIL application requirement if: (1) driver lives out of state with no reasonably available devices; (2) person does not operate a vehicle; or (3) not eligible for IIL. However, in such scenario’s the Court shall order other alcohol monitoring if no ILL and abstinence is ordered.
The meaning of priors within a seven and or ten year period is also now entrenched in statute, rather than the case law, although the statute is exactly the definition stated by the Supreme Court. “Within seven years” means that the arrest for a prior offense occurred within seven years before or after the arrest for the current offense; and “Within ten years” means that the arrest for a prior offense occurred within ten years before or after the arrest for the current offense.
Similarly a legislative fix from the same court case clarifies a “prior offense” in the form of a Deferred Prosecution when a second offense has been found to have been committed, yet the Deferred not yet revoked. This prevents “second offenses” as was the case previously. So as of now the legislature has again entrenched the Supreme Court ruling; the law is now that “ a deferred prosecution revoked based on a subsequent conviction for an offense, the subsequent conviction shall not be treated as a prior offense of the revoked deferred prosecution for purposes of sentencing.”
Also related to a Deferred Prosecution, it was previously the case where the person was forced to obtain an IIL and that required SR22 insurance, despite there being no license suspension. This years amendment, undoes that requirement and a IIL is no longer required for a deferred prosecution, HOWEVER an IID is STILL mandatory for at least 1 year as always.
Another legislative New Year’s resolution was to increase the penalty for an IID violation while participating in a Deferred prosecution to that of a gross misdemeanor. Previously if a person violated the IID requirement they were only at risk to have a Judge revoke the Deferred, but now face an additional sentence up to 1 year in jail and a $5,000.00 fine rather than a 90 day jail term and a $1,000.00 fine. Furthermore, the Department Of Licensing now has the authority to suspend a person license who is on a DP if they are non-compliance with IID. This does not require any order.
In addition to adding some requirments, what the legislature giveth, it taketh away. A person may remove an IID (post conviction of course) if they can 4 consecutive months without: (1) an attempt to start with a BAC of 0.04 or more; (2) failure to take or pass any retest; or (3) failure to appear at IID vendor.
Another change stems from a case closer to home. In April 2009, a jury returned a verdict in favor of Hailey French who was injured in a head-on collision with a drunk driver who had been released from a prior drunk driving arrest by a state trooper one hour and 39 minutes previously. The Whatcom County District Court Probation Department was a party in the suit due to the fact that the drunk driver had been under a court order to drive only a car equipped with an alcohol interlock device, but the probation department had failed to follow-up on the judge’s court-ordered requirement. As a result there are NOW Liability Limitations. The probation department as an agency of Government now has liability limited if probation verifies installation of IID via written documentation from IID vendor.
Additionally, violations of IIL or IIL requirements are now a gross misdemeanor, when they were previously NOT crimes.
While this is a fairly specific recitation of the changes, a person should always look up and read law with their own two eyes, or make sure that they obtain clear and concise information from an attorney well versed in the DUI laws of THIS state. As it can be seen from the above, numerous laws change and change frequently. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
