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.
Bellingham DUI Statistics Misleading.
This past weekend the Western Front and local News Radio, reported the following story:
The Washington State Liquor Control Board recently released a list saying 38 people who were arrested for a DUI in 2010 told police they had their last drink at Rumors.
Just behind Rumors, 30 people said they had their last drink at The Royal Inn.
While this might not surprise some Western students familiar with the Bellingham nightlife, Sheriff Bill Elfo says most DUI problems actually come from casinos in Whatcom County.
Behind The Royal Inn, 19 people said they had their last drink before getting a DUI at the Silver Reef Casino, in Whatcom County.
To the average reader or listener, who is likely to be uneducated in the realm of DUI, this may be taken at face value, but, like all things DUI, information relayed to the general public is misleading at best and flat out wrong at worst. As a defense attorney, I see the reports filled out with this “admission” frequently. The information comes from question 28 of the WSP DUI Interview that is included in every DUI arrest regardless of the agency that made the arrest, as they all use this same pre-printed form. The officer generally asks the questions from the form. If the person answers, it is recorded here. After this “interview” the breath test machine is prepared and one of the prompts from the machine asks the officer for the “drinking code.” Every establishment licensed to serve alcohol in the county and state, has been assigned a code. These liquor service codes are maintained in a book close to every breath test machine in the State. If the officer is so inclined, s/he will look up the code that corresponds to the answer on question 28 and enter it into the machine. The database of the machine records this information and stores it. The information is available to anyone who knows how to look up these databases online.
It is from this source that reports in the form of the above come from. However, they are misleading because, not everyone answers the questions due to invoking their right to silence, or by speaking to an attorney upon being taken for a breath sample, which automatically invokes the right to silence and therefore an officer is prohibited from asking any questions. Also, as mentioned above, not every officer records the drinking code even if they have the information as it is not mandatory.
Furthermore, an arrested person may have had their last drink at the disclosed location, but by no means became impaired at the disclosed location. Consider a person who has a drink at a location and then heads to a friends house for a few more, but this is not disclosed to the officer. Sometimes a person does not even drink at the location, but admits to have left that location and it is assumed by the officer that consumption took place there when it really was not. While it was likely designed to be a way of tracking the locations that may be guilty of chronic over-service, it is by no means an accurate measure due to these issues outlined here. Nor should it be relied upon to sanction the most “popular” establishments found in the database. This is an excellent example of how, in a DUI charge a client who testifies on their own behalf is considered to be unworthy of trust, or as having to much of an interest in the outcome of the case, unless of course the information provided such as this, tends to be trustworthy to find an accused guilty.
As with any news, information, or media, it is also good to research the information for yourself before making any conclusions. Especially when it comes to crimes like DUI. An allegation of DUI is always sensationalized and while it may be considered news worthy, in my experience, DUI stories as more likely “stories” that grab viewers attention than accurate facts. As potential members of a DUI jury in the future, it is a good practice to not jump to conclusions.
A DUI charge is full of complex evidence that is easily manipulated and presented in the worst possible light. As a result only the most experienced DUI lawyer can demystify and expose its limitations and “secrets.” 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.
Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertianty” Disclosed To Jury.
Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing. Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range. The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.
In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15. The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers. Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty. Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation. In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation. Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.
Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.
As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place. There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different? It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime. In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country. In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach. It is only then that we can be satisfied that the person was in fact guilty of the crime charged.
Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it. Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.
Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit. However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem. It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures. Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved. These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County. This ruling remains intact as of today’s date.
In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt. This cannot be achieved unless its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1. This is what the law is build upon. This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is experienced, dedicated, and a 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 at 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.
