November 21, 2013

Law Offices of Mary Prevost: CALIFORNIA COURT REVERSES VANGELDER....BUT THERE'S A SILVER LINING.

This morning People v. Vangelder came down. it was argued by Chuck Sevilla.

The Court reversed the Court of Appeal which had reversed a DUI conviction for excluding an expert who would have testified that the breath test machines used: 1) measure no alveolar air, and 2) had unreliable test result from variable in the breath sample due to factors like breathing
variations, temperature of the lung air, etc.

The Court ruled that 1) the Title 17 regulation requiring "essentially alveolar air" to be measured merely means to test the last expired breath. (See p. 45, et seq --you read that right). 2) The Court ruled that variables that alter breath alcohol out the mouth were close enough to
partition ratio rules (despite the expert's testimony that he was not comparing blood/breath ratios) to warrant exclusion also under that doctrine. (p. 49.)

They do all this because the state adopted the fed regulations for approvals of machines and since the machines are federally approved, this creates an irrebuttable presumption of accuracy. (See p. 46, you read that right). In other words, there can be no global attacks on approved breath machines because that would have the witness "nullifying the legislature." (You read
that right, see pp. 45-46).

AN AREA FOR LITGATION: The court finds that approved PAS machines are evidential breath tests. See p. 40, fn 23. This may give rise to the defense later that any subequent test must be suppressed (per Fiscalini) as being unnecessary and without justification.

May 4, 2012

SAN DIEGO DUI DEFENSE: EXPERT TESTIMONY CONCERNING PHYSIOLOGICAL VARIABILITY AFFECTING BREATH TESTING IMPROPERY EXCLUDEDg Breath Testing Improperly Excluded

Chalk one up for Chuck Sevilla and Chris Plourd (now The Hon. Chris Plourd!) for their great work in Vangelder. But, as usual, the young'uns in the misdemeanor unit of the City Attorney's officer have stamped their feet and cried "foul" all the way up to the Supreme Court. Don't they know that the Supreme Court will not baby sit them as many of our local judges will? Well, here goes. Below is a synopsis of Vangelder.

People v. Vangelder (2011) ___Cal.App.4th___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

Held: The trial court prejudicially erred in refusing to allow scientific testimony to be presented that would have raised doubts about the reliability of the EC/IR and PAS breath testing devices, with respect to the physiological variables that can affect the sample of breath or air taken.

Distinguishing the California Supreme’s Court’s prior decision in People v. Bransford (holding that evidence of partition ratio variability is irrelevant and inadmissible on the per se charge (i.e., driving with a .08 percent or higher alcohol content), the Court noted that this was not an attack on the partition ratio employed, but rather a critique on the assumed nature and quality of the breath samples.

Continue reading "SAN DIEGO DUI DEFENSE: EXPERT TESTIMONY CONCERNING PHYSIOLOGICAL VARIABILITY AFFECTING BREATH TESTING IMPROPERY EXCLUDEDg Breath Testing Improperly Excluded" »

July 5, 2011

CALIFORNIA CRIMINAL EVIDENCE: WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING

A series of cases being handed down by the U.S. Supreme Court and California Court of appeals are being heralded by prosecutors as "new law." Once such case is the U.S. Supreme Court's decision in Bullcoming. Another is Vangelder, discussed below.

What is frightening about this prosecutorial harkening, however, is that none of this really is new law at all. It's always been the law. It's just that prosecutors and rogue judges' deviate from it. The "norm" has been: Violate Due Process and the evidence code in order to assist the prosecution in obtaining convictions.

But the U.S. Supremes recently, and now the California Court of Appeal, are pinning their ears back. And they better listen.

COURT OF APPEAL SAYS WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING DEVICES

The California Supreme Court has held that we can't challenge the partition ratio used to prove that a defendant was driving at or above .08. Note that we can challenge it on the DUI charge itself, though only if we can show a problem with this specific defendant, not just general problems with partition ratio. (McNeal, 46 C4th 1183.)

Here, the trial judge entirely barred the defense expert from testifying that breath testing devices (PAS and breath testing machines) are unreliable because of problems getting pure data about blood alcohol from the intake of air. The expert would testify to problems affecting the amount of alcohol found in the alveolar air supposedly being tested. The California Court of Appeal says that the exclusion of the expert's testimony was error, with respect to both the .08 and the DUI charges. The California Court of Appeal says that this differs from partition ratios. Big defense win; Chuck Sevilla, San Diego PC, was successful appellate counsel.

People v. Vangelder; 2011 DJ DAR 9949; DJ, 7/5/11; C/A 4th, Div. 1

July 30, 2009

San Dieego Dui Defense: San Diego County is Not one of the Counties that will Initiate a First Offender Ingition Interlock Device

The California Senate Public Safety Committee has cleared a bill which would require four counties to require first time DUI offenders to install Ignotion Interlock devices after conviction. The counties are Sacramento, Los Angeles, Alameda and Tulare.

Note: There is a clear equal protection issue here. Additionally, the bill requires outside funding to take effect. We suspect a big attack on this by defense counsel.

http://http://www.prlog.org/10276694-california-ignition-interlock-bill-ab-91-clears-senate-public-safety-committee.html

July 10, 2009

SAN DIEGO DUI DEFENSE: PARTITION RATIO DEFENSE LIVES! AT LEAST ON A CHARGE OF DRIVING UNDER THE INFLUENCE

A breath test measuring alcohol involves a conversion from breath to blood; that conversion is the partition ratio. The machine testing the breath is set with a standard, which is supposedly the human average: 2100 to 1.

But it turns out that partition ratios vary among people.

In Bransford (8 Cal.4th 885), the Cal. Supremes held that any evidence of variation was irrelevant to a charge of driving at or above .08, thereby barring the defense from presenting any evidence of variations in partition ratios.

But what about the (a) count? The Cal. Supremes hold, "If the defendant in a section 23152(a) case offers competent evidence showing that the use of a 2,100-to-1 conversion ratio may have yielded an inaccurate representation of his blood-alcohol level, introduction of this evidence is permissible."

So you CAN defend a DUI charge with a partition ratio defense; you just can't defend a .08 charge.

People v. McNeal; 2009 DJ DAR 10127; DJ, 7/10/09; Cal. Supremes

June 5, 2008

MINNESOTA ATTORNEY GENERAL ENCOURAGES CONCEALMENT OF BREATH TESTS' CRITICAL FLAWS

Minnesota Attorney General Encouraged Concealment of Breath Tests' Critical Flaws Roseville, MN. June 5th, 2008 ---- Criminal Defense Attorney Chuck Ramsay announced today that he will intercede in The Minnesota Department of Public Safety's federal lawsuit against intoxilyzer manufacturer CMI of Kentucky, Inc.

In March 2008, The Minnesota Attorney General's office filed a federal suit against CMI on behalf of the Minnesota Department of Public Safety. The suit alleges that CMI breached the contract for the sale and maintenance of a fleet of evidentiary breath test instruments to be used by the State, for the purpose of investigating and prosecuting the crime of DWI. In that contract, CMI agreed to sell and maintain the fleet of instruments and to release information pertaining to each respective instrument when ordered to do so by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.

Ramsay claims the state filed suit only in response to judges' complaints of aggressive litigation by criminal defense attorneys demanding access to the software from the courts.

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Ramsay states that as early as 2006, the Minnesota Bureau of Criminal Apprehension knew its 200 plus intoxilyzers were malfunctioning. Minnesota's Intoxilyzer 5000 displays a driver's alcohol results on its LED readout; yet sporadically records a higher result on the final test record. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005. This prompted the BCA to complain to CMI about the discovered oddities. A BCA employee sent the complaint via email to five CMI representatives and four BCA employees.

This email uncovered by Ramsay exposed what Ramsay calls a smoking gun, evidencing the need for independent review of the Intoxilyzer's software. The State continues to use the bug-riddled software to operate its more than 200 Intoxilyzers, administered to nearly 34,000 drivers annually.

According to the BCA employee, the Attorney General's office, fearing an escalation in the so-called source challenge, advised the BCA to wait until the challenge had lost momentum.

Ramsay intends to file a motion to intervene in the federal lawsuit the AG filed against CMI, a Kentucky corporation. "Its clear the AG will not protect the rights of Minnesotan's in that law suit. I'm intervening to ensure justice prevails. Otherwise, the AG will use this case only for appearance."

"These black boxes not only deprive citizens' of their right to drive, but also put innocent people in jail. The Minnesota Attorney General, our state's chief prosecutor, chose to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine that the public, police and courts believed, and still believe, to be 100% accurate."

Continue reading "MINNESOTA ATTORNEY GENERAL ENCOURAGES CONCEALMENT OF BREATH TESTS' CRITICAL FLAWS" »

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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Continue reading "WASHINGTON STATE CRIME LAB CHIEF RESIGNS AFTR PROBLEMS RAISED ON DUI EVIDENCE" »

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" »

December 6, 2007

NEW CALIFORNIA DUI LAWS WILL SNAG MORE CALIFORNIA DUI PROBATIONERS WITH FALSE EVIDENCE

A new California law aimed at raising the penalties for DUI will require all people on probation for a California DUI to take a Preliminary Alcohol Screening test (PAS) if lawfully detained for suspicion of a new DUI. If the person's blood alcohol level is .01 percent or greater, it's back to the big house.

Doesn't the state legislature know by now that these roadside PAS tests historically post false results? Do we really need more false convictions using junk science? Must we stuff the courts with violations of the probation condition "do not drive with any measurable alcohol in your system" when those little roadside handheld machines historically read alcohol that isn't there?

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Maybe we can get this undone before it goes into effect in 2009? AB 1165 (Maze) will locate its new 0.01 violation in CVC 23154. Look for it in 2009.

Here's the script:

SEC. 5. Section 23154 is added to the Vehicle Code, to read:
23154. (a) It is unlawful for a person who is on probation for a
violation of Section 23152 or 23153 to operate a motor vehicle at any
time with a blood-alcohol concentration of 0.01 percent or greater,
as measured by a preliminary alcohol screening test or other chemical
test.
(b) A person may be found to be in violation of subdivision (a) if
the person was, at the time of driving, on probation for a violation
of Section 23152 or 23153, and the trier of fact finds that the
person had consumed an alcoholic beverage and was driving a vehicle
with a blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test or other chemical
test.
(c) (1) A person who is on probation for a violation of Section
23152 or 23153 who drives a motor vehicle is deemed to have given his
or her consent to a preliminary alcohol screening test or other
chemical test for the purpose of determining the presence of alcohol
in the person, if lawfully detained for an alleged violation of
subdivision (a).
(2) The testing shall be incidental to a lawful detention and
administered at the direction of a peace officer having reasonable
cause to believe the person is driving a motor vehicle in violation
of subdivision (a).
(3) The person shall be told that his or her failure to submit to,
or the failure to complete, a preliminary alcohol screening test or
other chemical test as requested will result in the suspension or
revocation of the person's privilege to operate a motor vehicle for a
period of one year to three years, as provided in Section 13353.1.


Continue reading "NEW CALIFORNIA DUI LAWS WILL SNAG MORE CALIFORNIA DUI PROBATIONERS WITH FALSE EVIDENCE" »

December 2, 2007

CALIFORNIA DUI DEFENSE: INHALERS CAN GIVE FALSE POSITIVES IN DUI BREATH TESTS: CALIFORNIA DUI ATTORNEYS BEWARE

California DUI lawyers beware of a new study showing asthma inahlers can give false readings on DUI breath tests.

Spanish researchers have shown that asthma inhalers can give readings in breath alcohol tests that are, in most cases, above the legal limit fixed by Spanish traffic police. Most worrying is the fact that aerosols without ethanol as the vehicle produced false positive results, says University of Cádiz pharmacologist Juan Manuel Ignacio-García, lead author of the report (Medicina Clinica 2002;118:332-4).

The study was on 60 volunteers with asthma attending the Hospital Comarcal de Ronda in Cádiz. Ten minutes before the participants were given an inhaler to use, they underwent a breath test on the Alcotest 7110-E device, an infrared breath alcohol analyser manufactured by Dräger, based in Lübeck, Germany, and widely used in Spain and France. The researchers then studied the effects on further test readings of different inhalers containing salbutamol, salmeterol, formoterol, budesonide, and fluticasone, administered as two puffs, in homogeneous groups of five patients.

Readings were taken at 1, 2, 3, 5, and 10 minutes after puffing. At baseline all readings were negative, but all the inhalers resulted in positive readings in the first few minutes after administration, the values decreasing rapidly and linearly to zero at 10 minutes.

The mean readings for salbutamol, salmeterol, and budesonide were 0.45, 0.44, and 0.32 mg of alcohol per litre of air, respectively, at one minute. At three minutes these values were 0.08, 0.09, and 0.07 mg/l. In France and Spain the maximum permitted level of alcohol is 0.25 mg/l. In Britain it is 0.35 mg/l.

The researchers then compared the effects of inhalers with and without alcohol as a vehicle in two groups of five patients. Each group was administered two puffs of either Butoasma (salbutamol with ethanol) or Ventolin (salbutamol without ethanol). No significant differences between the groups were found at baseline.

At one minute, the mean readings on the breath test were 0.45 mg/l (SD 0.17) in the patients who were given Butoasma and 0.35 (0.21) in patients given Ventolin.

Dr Ignacio-García says the only confounding factor that could have led to the false positive result in the study was the propellant gases used in the aerosols, in particular chlorofluorocarbons. He says the next challenge is to find out what happens with puffer devices that don't use propellants—for example, dry powder inhalers (Accuhaler, Diskhaler, and Turbohaler

Continue reading "CALIFORNIA DUI DEFENSE: INHALERS CAN GIVE FALSE POSITIVES IN DUI BREATH TESTS: CALIFORNIA DUI ATTORNEYS BEWARE" »

September 25, 2007

DEFENDANT MAY ADMIT EVIDENCE OF "PERSONAL" PARTITION RATIO IN DUI CASE

DRUNK DRIVING - EVIDENCE OF PARTITION RATIOPeople v. McNeal (C.A. 4th, 9/21/07, E041226) 07 C.D.O.S. 11514

Because evidence is admissible to challenge the ultimate fact of intoxication under the generic DUI statute, and personal partition ratio evidence is relevant to that fact, we hold that a defendant may introduce otherwise admissible evidence of his personal partition ratio in defense of a generic (Vehicle Code section 23152(a)) DUI charge.

But testimony about general partition ratios is irrelevant. Court erred in not allowing defendant to present evidence of personal partition ratio, but error harmless in light of strong evidence that defendant's driving was impaired.

I will be assessing the impact of this on DUI trials in future posts. I suspect upon proper analysis, this case may end up being a two-edged sword for the defense. Stay tuned.
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