February 25, 2008

SAN MARCOS MAN INJURED IN DUI ACCIDENT

SAN MARCOS ---- Two people were injured early Sunday morning, including one who was arrested, in a suspected drunken driving crash in San Marcos, authorities said.

The single-vehicle collision was reported at 12:38 a.m. in the 900 block of East Mission Road, when the driver reportedly misjudged a curve in the roadway, causing him to crash his Nissan Sentra head-on into a tree, sheriff's deputy T.A. Bennetts said.

The collision trapped the car's passenger inside, Bennetts said. He had to be freed from the vehicle by firefighters, and was taken to Palomar Medical Center in Escondido for treatment of a broken leg and cuts to his lower lip, the deputy said.

The car's driver, Rafeal Zarate of San Marcos, was also taken to Palomar, Bennetts said. He was subsequently released and booked into the Vista jail on suspicion of felony driving under the influence.

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February 24, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: Chief justice drops bid to speed up death penalty appeals

SAN FRANCISCO -- Chief Justice Ronald M. George has told the state Judicial Council that because of California's fiscal problems, he is withdrawing a proposal to amend the state Constitution to speed up death penalty appeals.

The amendment was put forth by the seven-member state Supreme Court in November and would have enabled that body to refer some cases to intermediate-level appellate courts for initial review. Since California became a state in 1850, the high court has had exclusive oversight of capital appeals, but a serious backlog has developed. It takes an average of 17 years to execute a condemned convict in California -- twice the national average.

The proposal drew support from some members of the judiciary and some prosecutors but was opposed by the California Public Defenders Assn. and California Attorneys for Criminal Justice, which believed it could lead to inconsistent rulings and make the system even more cumbersome.

George had asked the Legislature to put the amendment on the November 2008 ballot, but that was before California's budget situation deteriorated. On Friday, George told the 21-member Judicial Council, which includes judges, legislators and attorneys, that he was withdrawing the proposal for now because of budgetary concerns.

"Although the Judicial Council supported the proposal, the chief justice said it was always the intent [of the Supreme Court] that there be sufficient money available for additional Court of Appeals staff to handle these matters and for the necessary defense and attorney general's staff to be able to handle the increased number of cases to be processed plus the backlog we already have," Beth Jay, George's chief counsel, said recently.

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February 22, 2008

MEXICO POLICE SAY 100 PERCENT OF DRUG SMUGGLING MURDERS COMMITTED WITH SMUGGLED US GUNS

TIJUANA, Mexico -- Assassins blasted Ricardo Rosas Alvarado, a member of an elite state police force, with a blizzard of bullets pumped out of AK-47 assault rifles.

Alvarado crumpled at the wheel of his sedan, yet another victim of the weapons known here as "goat's horns" because of their curved ammunition clips, and which can fire at a rate of 600 rounds per minute. The killing, Mexican authorities said, was a panorama of blood, shattered glass and torn metal that brutally showcased the firepower of Mexico's drug cartels. But that was just the warm-up.

Two hours later, a small army of cartel hit men descended on a federal police office and bunkhouse in this crowded city at one of the world's busiest border crossings. None of the officers, who had recently been sent here to crush the drug gangs terrorizing the city, were killed in the hail of more than 1,200 bullets, authorities said. But police veterans understood the message delivered to the newcomers: "Welcome to Tijuana. Our guns are bigger than your guns."

The high-powered guns used in both incidents on the evening of Sept. 24 undoubtedly came from the United States, say police here, who estimate that 100 percent of drug-related killings are committed with smuggled U.S. weapons.

The guns pass into Mexico through the "ant trail," the nickname for the steady stream of people who each slip two or three weapons across the border every day. The "ants" -- along with larger smuggling operations -- are feeding a rapidly expanding arms race between Mexican drug cartels.

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February 20, 2008

COPS CAN'T SEARCH CONTAINERS WITH CO-HABITANT'S CONSENT ONLY

The 9th Circuit (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect.

The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep.

The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception.

The 9th Circuit held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th Circuit also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.

U.S. v. Murphy, No. 06-30582 (2-20-08).

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February 18, 2008

CALIFORNIA DUI DEFENSE NEWS: CRIME LAB CHIEF RESIGNS OVER PROBLEMS RAISED ON FAULTY DUI EVIDENCE

The head of the state labs in Washington that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

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February 16, 2008

CONSERVATIVE BUSH FEDERAL JUDICIAL APPOINTEE GETS ARRESTED FOR DUI WEARING BLACK COCKTAIL DRESS, HEELS AND FISHNET HOSE

BOSTON - A federal bankruptcy judge was arrested for driving drunk last week, but perhaps the most shocking part about the ordeal was that he was wearing women's clothing at the time.

Robert Somma, 63, was arrested on Feb. 6 after his Mercedes-Benz hit a pickup truck on a Massachusetts road. When authorities removed him from the vehicle, they said he wore a black women's cocktail dress, fishnet stockings and high heels.

Wednesday, Somma struck a plea deal with prosecutors in which he pleaded 'no contest' to a misdemeanor DUI charge and agreed to pay roughly $600 in penalties. He also agreed to a 12-month suspension of his judicial license.

The arresting officer did not mention the judge's unusual attire in the arrest report, but did write that Somma "had a difficult time locating his license in his purse."

Somma reportedly failed a sobriety test following his arrest, which was located near the town of Manchester. Officials believe the judge drove from Boston because his wife was out-of-town and no one in Manchester knew who he was.

Friday, Somma resigned from his post as a judge effective April 1.

Somma was appointed a First Circuit Court bankruptcy judge in 2004. Officials of the court said Somma is a judge in good standing and has no history of problems.

Click HERE for Photos.

February 15, 2008

CALIFORNIA SEARCH AND SEIZURE: CUSTOMS AGENTS ARE ENTERING YOUR LAPTOPS AND CELLPHONES

CUSTOMS NOW ENTERING LAPTOPS AND CELLPHONES

An article in ythe Washington Post reveals that Customs is entering citizen's laptops and cellphones to look for anything that they want. In short, customs searches are no longer confined to luggage, or the person, as the case may be. See Ellen Nakashima, Clarity Sought on Electronics Searches / U.S. Agents Seize Travelers' Devices:

Nabila Mango, a therapist and a U.S. citizen who has lived in the country since 1965, had just flown in from Jordan last December when, she said, she was detained at customs and her cellphone was taken from her purse. Her daughter, waiting outside San Francisco International Airport, tried repeatedly to call her during the hour and a half she was questioned. But after her phone was returned, Mango saw that records of her daughter's calls had been erased.

A few months earlier in the same airport, a tech engineer returning from a business trip to London objected when a federal agent asked him to type his password into his laptop computer. "This laptop doesn't belong to me," he remembers protesting. "It belongs to my company." Eventually, he agreed to log on and stood by as the officer copied the Web sites he had visited, said the engineer, a U.S. citizen who spoke on the condition of anonymity for fear of calling attention to himself. Click HERE for state agents' search of Blackberries. Click HERE for searchs of iPhones.

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February 15, 2008

CALIFORNIA CIVIL RIGHTS LAW: COPS INVOLVED IN HIGH SPEED CHASES GET QUALIFIED IMMUNITY IN CIVIL RIGHTS CASES

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BINGUE v. PRUNCHAK

In Onossian v. Block, we applied the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and held that a police officer in a high-speed chase-whether he injures the fleeing suspect or a bystander-is entitled to qualified immunity unless his behavior "shocks the conscience" because it demonstrates an intent "to cause harm
unrelated to the legitimate object of arrest." 175 F.3d 1169, 1171 (9th Cir. 1999) (internal quotation marks omitted).

We were not called upon to consider whether the district court must apply this "intent to harm" standard to all high-speed chases, or only those chases that involve "emergencies" or "split-second decisions." Today we refine our Onossian analysis and hold, following the Eighth Circuit, that police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. § 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc).

The officer involved in the high-speed chase in this case is entitled to summary judgment based on step one of the qualified immunity analysis as set forth in Saucier v. Katz, 533
U.S. 194 (2001). We thus reverse the judgment of the district court.

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CONCLUSION

We conclude that high-speed police chases, by their very nature, do not give the officers involved adequate time to deliberate in either deciding to join the chase or how to drive while in pursuit of the fleeing suspect. We hold, therefore, that Lewis requires us to apply the "intent to harm" standard to all high-speed chases. Since Prunchak's actions do not meet this stringent standard, Bingue's claim fails under the first step of the Saucier analysis and Prunchak is entitled to dismissal. Consequently, we reverse the judgment of the district court and remand for an entry of judgment for Prunchak on the § 1983 claims.

REVERSED and REMANDED.

Continue reading "CALIFORNIA CIVIL RIGHTS LAW: COPS INVOLVED IN HIGH SPEED CHASES GET QUALIFIED IMMUNITY IN CIVIL RIGHTS CASES" »

February 14, 2008

WASHINGTON STATE CRIME LAB CHIEF RESIGNS AFTR PROBLEMS RAISED ON DUI EVIDENCE

Seattle, Washington:

The head of the Washingtin state labs that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

"Barry has done an excellent job of addressing the issues during this difficult period," State Patrol Chief John Batiste said. "But he and I agree that forward momentum will require different leadership."

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

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February 12, 2008

KILLING A DOG IS A "SEIZURE"

Killing of plaintiff's dog was a "seizure" for Fourth Amendment purposes, but it was reasonable under the circumstances. After having fatally shot the dog, the officers put it out of its misery.

Viilo v. City of Milwaukee, 2008 U.S. Dist. LEXIS 10900 (E.D. Wis. February 12, 2008).

Comment: So, cops kill your dog, and after they fatally injure you dog - which is a seizure - they get to finish the job off? That's sick.

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February 10, 2008

CALIFORNIA CRIMINAL LAWYER NEWS: SEARCH OF A BLACKBERRY REQUIRES MORE BRIEFING

The defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (February 1, 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone's dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006).

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The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone.

February 10, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: WAR ON DRUGS LEADS TO EXPLOSION OF FEMALE INCARCERATIONS

Women Behind Bars
War on drugs leads to explosion of female incarcerations
By Silja J.A. Talvi

Oklahoman Tina Thomas has been caught up in the American war on drugs.

In many respects, she fits the common profile of a woman doing time for a drug-related offense. Her crimes have ranged from possession to check forgery and theft, including an arrest for trying to steal a $64 comforter from Wal-Mart. Eventually sentenced to a two-year state prison term, Thomas admits that she committed her crimes to feed the "800-pound gorilla on my back that I just hadn't been able to shake."

Thomas is part of an alarming statistical trend and a modern-day American phenomenon. For starters, she is one of half a million people (roughly one-fourth of the total prison population) locked up on drug-related charges. Thomas is also an inmate in a state that locks up women at one of the highest per capita rates-129 per 100,000 residents, a figure that is right behind Texas, the federal system and California. Oklahoma's imprisonment of women rose a stunning 1,237 percent from 1997 to 2004.

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February 4, 2008

JUVENILE SUSPENSIONS OR DELAYS OF DRIVER'S LICENSES

JUVENILE SUSPENSIONS OR DELAYS OF DRIVER’S LICENSE -- The below is a comprehensive listing of vehcile code violations that will cause a juvenile's driver's license to be suspended.

NOTE: Delays are from date of eligibility to obtain a driver’s license

1) MANDATORY SUSPENSIONS: a) Note that a mandatory suspension is not also a mandatory delay unless noted
b) VC § 13202.5 Suspended or delayed for 1 year
i) Business and Professions Code
(1) Purchase or sale of alcohol § 25658
(2) Attempt to purchase alcohol § 25658.5
(3) False ID § 25661
(4) Minor in possession § 25662
ii) Possession or being under the influence of controlled substances HS §§ 11000 et seq
(1) Includes possession of less than an ounce of marijuana
iii) Drunk in public PC § 647(f)
iv) Alcohol related Vehicle Code violations
(1) “Wet reckless” §§ 23103/23103.5
(2) Minor driving with 0.05 BAC §§ 23140
(3) Drunk Driving
(4) Possession of alcohol of less than an ounce of marijuana in a vehicle§§ 23222, 23223, 23224, 23225, 23226
(5) Refusal to take test §23557
c) Vandalism VC § 13202.6
i) Suspension for not more than 2 years
ii) Delay for not less than one year nor more than three years from eligibility date
iii) Can work off suspension
(1) 1 hour Community Service for a day suspension/delay
(2) 1 day for a day if County has adopted a Graffiti Abatement Program (PC § 594 (f))
d) Felony ADW with a vehicle VC § 13351.5
i) Life time suspension
e) Vehicular Manslaughter
i) Gross Vehicular Manslaughter PC § 191.5
ii) DUI related PC § 192(c)(3)
iii) DUI boat related PC § 192.5(c) or (d)


2) DISCRETIONARY SUSPENSIONS
a) For any reason the court can support with facts WIC § 730
b) Suspension cannot be for more than 1 year
i) In re Colleen S. (2004) 115 CA4 471
ii) VC § 13556
c) License suspension on conviction of specified misdemeanors VC § 13201.
i) For not more than six months
ii) Offenses
(1) Hit and run VC 20002.
(2) Reckless driving proximately causing bodily injury to a person under § 23104 or 23105.
(3) Failure of the driver of a vehicle to stop at a railway grade crossing as required by § 22452.
(4) Evading a peace officer in violation of §§ 2800.1, 2800.2, or 2800.3
d) Auto Theft (VC § 10851) VC § 13357.
i) VC § 13357 only mentions suspension so I contend that the court can’t delay a CDL.
e) Speeding or reckless driving VC § 13200.
i) Not to exceed 30 days upon a first conviction,
ii) For a period of not to exceed 60 days upon a second conviction,
iii) And for a period of not to exceed six months upon a third conviction
f) Driving in excess of 100 miles per hour VC § 13200.5.
i) Violation of subdivision (b) of VC § 22348
ii) Not to exceed 30 days.
g) Conviction of minor for offense involving concealed firearm VC § 13202.4.
i) May suspend the minor's driving privilege for five years.
ii) May delay for five years subsequent to the time the person becomes legally eligible to drive.
iii) For each successive offense, may suspend or delay for one additional year.
iv) Minor may reduce suspension time by performing community service
(1) At least 50 percent of the suspension or delay period has expired.
(2) The person has not been the subject of any other criminal conviction during the suspension or delay period.
(3) Reduced at the rate of one day for each hour of community service performed.
h) Truancy VC § 13202.7
i) Up to one year suspension or delay
i) Road Rage VC § 13210.
i) Conviction of PC § 245
ii) Up to 1 year first offense, 2 years subsequent offense

3) REQUIREMENT OF JUVENILE COURT “FINDING”
a) VC § 13105 requires a “finding” by the Juvenile Court that a juvenile has committed an offense.
b) A “finding” by the juvenile court is made on Disposition (WIC § 725)
c) DEJ pursuant to WIC §790 is not a “finding”
i) “A minor's admission of the charges contained in the petition pursuant to this chapter shall not constitute a finding that a petition has been sustained for any purpose, unless a judgment is entered pursuant to subdivision (b) of Section 793.

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February 3, 2008

THE iPHONE MEETS THE FOURTH AMENDMENT

To date, fewer than a dozen courts across the country have addressed searches of cell phones incident to arrest.

The Fifth Circuit’s recent 2007 in United States v. Finley is representative. Police arrested Finley after a staged drug sale. The police then searched Finley incident to arrest and found a cell phone in his pocket. One of the investigating officers searched through the phone’s records and found text messages that appeared to relate to drug trafficking. One incoming text message said “So u wanna get some frozen agua,” a common term for methamphetamine. Another text message said “Call Mark I need a 50,” a likely reference to asking for $50 worth of narcotics. Finley was convicted of aiding and abetting drug possession with intent to distribute.
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In United States v. Park et al. , the United States District Court for Northern District of California reviewed a case where several subjects, including Edward Park, were arrested as San Francisco officers were about to execute a search warrant. Several individuals, including Park showed up at the location of the warrant. These subjects were detained while the warrant was executed and arrested after the police found significant amounts of marijuana growing at the location.

When the subjects were brought to the station there cellular telephones were seized. After one to one and a half hours the phones were searched. During a search of each phone, evidence was found in the address book which implicated the subjects in the illicit operation. The government sought to use this information in the prosecution of these subjects while the defense sought to suppress the evidence from the phones.

In reviewing the search of the phones the trial court noted: “Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007).” The court then distinguished this case from Edwards on the grounds that the cellular telephones were possessions within the arrestees control rather than that which is on their person.

In doing so, the court cited the United States Supreme Court decision in U.S. v. Chadwick in which a footlocker seized from an auto was searched without a warrant. The Supreme Court ruled in Chadwick that a warrant should have been obtained once the item was in police custody. The Supreme Court subsequently overturned the Chadwick rule in California v. Acevedo. In a footnote the court in this case attempted to distinguish Acevedo due to the fact that the footlocker was taken from a vehicle and the search was based in probable cause rather than incident to arrest.

The court in this case concluded that the investigators should have obtained a warrant before searching the contents of the phone back at the station. The court left open whether the officers could have searched the phone at the time of the arrest. Some other courts have not agreed with this Federal trial court.

Now, a college professor has authored an article disputing the Park line of cases and suggesting that courts and legislatures adopt stronger protections against searches of iPhones. See below.

The iPhone Meets the Fourth Amendment

ADAM M. GERSHOWITZ
South Texas College of Law
--------------------------------------------------------------------------------
January 15, 2008

Abstract:
Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Click HERE to get article.


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February 3, 2008

SAN DIEGO DUI DEFENSE: BREATHALYZER TESTS ARE AN INACCURATE MEASUREMENT OF BLOOD ALCOHOL CONTENT

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

The Breathalyzer is by far a less accurate test than a blood test. A blood test actually measures blood alcohol concentration (BAC). But a Breathalyzer merely estimates it. It measures "breath" alcohol concentration, and requires a difficult mathmatical conversion to correlate it to a "blood" alcohol concentration.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. There are, in fact, there are numerous chemical compounds that can fool a Breathalyzer machine.

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According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for a period of time prior to administerting the test. In California, police should watch the suspect for at least fifteen minutes to make sure he or she did not burp, hiccup or regurgitate prior to applying the test. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Two years ago, when I attended the Intox 8000 Certification seminar in New Orleans (the San Diego Police Department had just implemented the machine), I was able to get a Fort Lauderdale judge who was acting as a guinney pig for us to blow a .20 breath alcohol level using the Intox 8000 machine. His true blood alcohol level at the time was .02 (he had one drink in him). I got the machine to measure a breath alcohol concentration of ten times the actual true blood alcohol level. How? I just manipulated the machine and the judge's breathing techniques.

If you think I can do this, imagine the flawed results an inexperienced cop might use against you?

Continue reading "SAN DIEGO DUI DEFENSE: BREATHALYZER TESTS ARE AN INACCURATE MEASUREMENT OF BLOOD ALCOHOL CONTENT" »

February 3, 2008

CALIFORNIA DUI: WOMEN BEWARE-HAVING A "DIET COCKTAIL" COULD GET YOU A DUI

CALIFORNIA WOMEN'S DUI DEFENSE NEWS: Having A “Diet Cocktail” on your girls’ night out may be a good way to cut calories, but the unknown consequences can be earth shattering if you’re driving later on.

Women who consumer an alcoholic drink with a sugar free artificial sweetened mixer may cut calories, but it will also cause blood alcohol levels to spike unusually high, according to a recent study.

The problem, Australian researchers found, is that drinks made with "diet" mixers pass through the stomach more rapidly and, therefore, make blood alcohol levels spike particularly high.

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The findings, published in the September issue of the American Journal of Medicine, are based on an experiment with eight healthy young men. The volunteers had their blood alcohol levels measured repeatedly in each of two conditions: once after having a vodka beverage made with a sugary mixer, and once after drinking the same amount of vodka with an artificially sweetened mixer. The researchers also used ultrasound tests to measure each volunteer’s rate of stomach emptying after having the drink.

They found that with the diet mixer, the men’s stomachs emptied about 15 minutes sooner than when they drank the regular mixer, and that blood alcohol levels peaked at around the same time - 30 minutes after having the drink - regardless of which mixer was used. The difference, however, was that alcohol levels surged higher with the low-calorie mixer (to 0.05 percent, on average, versus 0.03 percent with the naturally sweetened mixer).

In some jurisdictions, this would mean the difference between driving legally and driving drunk, according to the study authors, led by Dr. Christopher K. Rayner of Royal Adelaide Hospital.

The difference in peak blood alcohol levels was "striking," the researchers write, and it shows that a drink's alcohol content isn't the only factor people should consider.

In general, women's blood alcohol levels soar higher than men's after drinking the same amount alcohol. And women may be particularly drawn to diet mixers in order to cut calories, the researchers note.

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February 1, 2008

RICHARD HATCH OF "SURVIVOR" FAME LOSES TAX EVASION APPEAL

The convictions and sentence for filing false tax returns imposed on Richard Hatch, the first winner of the CBS reality TV show "Survivor," are affirmed over claims that: 1) the district court violated his Sixth Amendment rights by curtailing his explanation of why he believed the show's producers had paid the taxes on his "Survivor" winnings; 2) in a variety of ways, the court improperly limited the defense's right to cross-examine; 3) the court wrongly allowed the government to use what defendant called "unqualified experts" while excluding some of the testimony of his own expert; and 4) his sentence was unreasonably harsh.

Guess he didn't know how to play the game so well, after all.

US v. Hatch, No. 06-1902

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