Flawed blood draw procedures in DUI cases not uncommon

Image via WikipediaEvery jurisdiction has specific procedures in place for DUI blood draws. These procedures exist for a very good reason: to prevent improper draws that could result in flawed test results and the subsequent conviction of innocent people. However, it's not uncommon for local police departments to ignore the important procedures in place and allow unlawful blood draws to occur. This recently happened in Tracy, California. As explained in this Recordnet.com article, for almost 8 months, the Tracy Police Department allowed firefighters to draw blood from suspected drunk drivers. This occurred even though California law specifically excludes firefighters from drawing blood for DUI cases since they are not certified paramedics. According to the article, this error is expected to have an impact on pending and closed DUI cases:

Gil Somera, a Stockton attorney who has defended clients charged with driving drunk, said the validity of the blood sample is vital to a DUI case.

"It is probably the most important component of the evidence," he said.

Somera said the fact that the blood was drawn by firefighters could affect closed cases.

A similar issue was encountered in Indiana last year, resulting in a change to the state's DUI laws, as described in a recent WIBC.com article:

The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification. In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.

However, even after the Indiana law was amended to expand the classifications of people authorized to draw blood, local police departments still allowed unqualified people to draw blood for DUI cases. As explained in the article, in one recent case, an unsupervised and unqaulified lab technician drew blood in the absence of any protocols. Accordingly, the blood test results obtained from the blood draw have been held to be inadmissible, resulting the dismissal of the DUI-related charges pending against David Bisard. The danger of DUI blood and breath testing is in the inaccuracy. There is so much room for error, whether from faulty equipment, errors in the underlying software programming, calibration errors or human error in obtaining the breath or blood sample. These cases are further examples of how error-prone these procedures can be and just go to show that what at first glance might appear to be a fool-proof case against someone accused of DUI, in many cases, is just the opposite.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Don't drink and drive...a lawn mower

Image via WikipediaSo, we've learned that it's unwise to drink and then drive a: Russian tanker, Barbie cars, motorized lounging chair, golf cart, and a stroller. Now it's time to add a lawn mower to the growing list of odd vehicles operated by DUI suspects. Last week, a Bloomfield, New York man was charged with operating a "lawn tractor" while under the influence of alcohol, as reported in this WHEC.com article:

Pool was allegedly driving on Route 20A when he turned left without signaling. Deputies say Pool had an open can of beer and was operating the tractor in an intoxicated condition.

Once again, the moral of the story seems to be that if you've been drinking, maybe you should just plant to stay wherever you are rather than getting creative about your mode of locomotion. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Datamaster calibration errors in Alaska

Image by Getty Images via @daylifeAlaska now joins the ranks of municipalities investigating errors in calculating BAC levels in suspects charged with DUI. As we've discussed in the past, other states include Pennsylvania, Colorado, California, and Indiana. In Alaska, it recently came to light that the Datamasters used to conduct BAC testing in over 2500 cases over the last few years were calibrated improperly. The specific problem is explained in this Anchorage Daily News article as follows:

The problem involves dry gas tanks, also known as “alco bottles,” used in confirming the accuracy of the DataMaster instruments, which drunken-driving suspects blow into to determine breath-alcohol content. The tanks contain a known sample of alcohol that the instrument measures before and after every test to ensure it is functioning properly. When the state crime lab prepares the bottles, the alcohol levels are measured 10 times and the results are entered into a spreadsheet, which calculates the average value. Because air pressure can affect the test results, the average value is then adjusted to a standard barometric pressure from what it was on the day the tank was tested. But back on Feb. 16, 2006, a trainee and an analyst thought the correction factor didn’t appear right and decided to invert the fraction, said Orin Dym, director of the crime lab. And because it was in a spreadsheet that calculated the values automatically, no one noticed until Dec. 8, 2009... By the time the error was discovered, 48 of the 663 tanks prepared in the years involved had been affected, according to the state. That means 2,465 tests were conducted with equipment that was prepared with the inverted fraction and that had been corrected for the barometric pressure in the wrong direction, according to the Department of Public Safety.

The state concedes that the equipment was tested using flawed quality control standards, but claims that the error didn't affect the actual BAC testing--instead, it allegedly impacted only the quality control checks that accompany each test. According to the State, only 2 DUI cases were affected by the error. Alaska criminal defense attorneys aren't buying that theory and at least one is already moving forward with challenging his client's DUI conviction. The Alaska calibration error is just one more example of how tenuous and error-prone the process of measuring blood alcohol levels can be. People's liberty lies in the balance--and in many cases, faulty lab test results or improperly calibrated breath test equipment is the deciding factor. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Honesty. Sometimes it's the best policy.

Image by edwin.bautista via FlickrFrom "On the Record in Cook County" comes this helpful tip from a DUI defendant: Tastes not great, less filling? (From a video exhibit during trial for aggravated DUI.) Defendant - I had three Gumballhead beers and a shot of Jack Daniels. Officer - Three what? Defendant - Gumballhead beers. They're manufactured by Three Floyds Brewing Company. Have you ever had those? Officer - No. Defendant - Well they taste terrible. Even my girlfriend thinks so. ***** Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Latest Criminal Defense and DUI Links

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Here's a list of recent links from around the criminal defense legal blogosphere that are worth a second look:

• High Breathalyzer Results: Drinking...or Dieting?--DUI Blog
• The problem with (prescription) drugged driving--The Defense Rests
• Implied Consent: It Doesn't Matter if You Don't Understand--Pennsylvania DUI Blog
• Know Your Rights When it Comes to Police Stops--TalkLeft
• Are Bad Readings Coming Out Of Minnesota Intoxilyzers?--InjuryBoard Blog Network

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Operating a Stroller While Intoxicated?

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These days, it seems you're at risk of getting stopped for DUI as long as you're operating anything with wheels--Russian tankers, Barbie cars, motorized lounging chairs, golf carts--and now a stroller. As My Fox Boston reports in this article, a Boston father was stopped for operating a stroller while intoxicated:

Police said 24-year-old Steven Melendez appeared to be intoxicated while pushing the stroller near his home. The officer said he showed the common signs of being drunk: glassy, bloodshot eyes; slurred speech, unsteady balance and there was a strong alcohol odor coming from him. He also wasn’t able to stand without leaning on the stroller, the officer said.

It appears that the arresting officers wisely chose not to charge Melendez with operating a motor vehicle while intoxicated, since it's difficult to envision any circumstance where a stroller could be considered a "motor vehicle". Instead, he was charged him with public drunkenness and endangering children--also somewhat questionable charges under the circumstances. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

"If you're drunk, take a cab" redux

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We've all heard the familiar refrain, "If you're drunk, don't drive, take a taxi." Seems like good advice, no? Well, maybe not. According to this article from The Australian, an inebriated Australian bloke too that advice a bit too literally:

The Cairns Post said the 21-year-old man allegedly stole the taxi from the central business district of Cooktown, North Queensland about 6pm (local time) on Friday.

Police allegedly found the driver, who was unlicensed, at home where he recorded a blood alcohol level of .209 per cent - four times the legal limit.

Yep, he followed the sage advice and took the taxi--can't blame him, right? The moral of this story seems to be that the next time you offer advice to one of your drunken friends, make sure to enunciate, speak slowly and use words that are free of misinterpretation, lest you end up bearing some responsibility for unknowingly encouraging your friend to go on a drunken crime spree. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Access to Computer Data is Imperative when Defending DUI Cases

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A recent New York Law Journal article discussed the important issue of defense access to computer data in "Database Access and the Defense." In it, the author, Ken Strutin asserts that evidence obtained from computer profiling and databases should be available to the defense and requires extensive judicial scrutiny before it reaches a jury. In support of his argument, he argues that a lot of computer-based data is less reliable than it seems, often including coding errors, and yet jurors are typically more likely to assume that this "scientific" data is fool proof. Examples of computer and scientific data that have been called into question include: 1) the source code for breathalyzers 2) poorly calibrated breathalyzer equipment 3) fingerprint databases, such as the Automated Fingerprint Identification System 4) DNA databases and 5) Vehicle Identification Number (VIN) databases. The importance of access to these databases during pre-trial discovery is imperative in order for criminal defense attorneys to mount a strong defense on behalf of their clients. The reason for this is simple: errors have been found, sometimes long after the accused has been imprisoned. Or, as aptly explained in the article:

"Certainty" is the bell that cannot be unrung, which is why in the light of re-evaluated forensic matching techniques, expert conclusions claiming "scientific certainty" are being carefully scrutinized.[FOOTNOTE 10]

Evidence drawn from computer profiling and database analyses deserves a long, hard look before reaching a jury. Legislatures and courts ought to uniformly recognize the essential right of the accused to contest computer-based identification or to access these resources to prepare a defense.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Sleeping While Intoxicated-Not a Crime in Pennsylvania

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Last month, we learned that sleeping at the wheel while intoxicated isn't a crime in New Mexico. The issue in cases like this is whether the person asleep behind the wheel exercised sufficient control over the vehicle and elicited an intent to operate the vehicle. This very same issue was recently addressed by a court in Pennsylvania. As explained in this Times Leader article, the accused was found asleep behind the wheel of a vehicle with the engine running. When discovered by the police, he smelled strongly of alcohol and a subsequent blood-alcohol test later revealed he had a level of 0.197, nearly 2 times the legal limit. The Pennsylvania court reached the same decision as the New Mexico court, concluding that there was insufficient evidence to establish that that the accused actually operated the vehicle while intoxicated. The rationale for the judge's decision is explained in the article:

The vehicle was parked at the time Verdekal, 27, of West St. Mary’s Road, was discovered, and police could not prove that he had actually operated the car in an intoxicated state...

The key issue in the Verdekal and other cases revolves around a provision within the drunken driving statute that permits police to charge a driver - even if the vehicle is not moving - as long as the officer can show the operator was in “actual physical control” of the vehicle. The problem for police has been in how appellate courts have interpreted what constitutes “actual physical control,” McMonagle said...

(T)he courts have held that police must look at the “totality of the circumstances” in making that call. There must be some other evidence – such as the car being stopped in the middle of the road, or its tire up on a curb – that would indicate the driver had driven the vehicle while intoxicated prior to the arrival of police at the scene.

Once again, the court's decision focused on evidence of control over the vehicle, rather than simply the fact that he was found behind the wheel of a stationary vehicle while in an intoxicated condition. This makes sense. After all, the intent behind DUI laws is to prevent people from driving while intoxicated, since that's when the risks inherent in driving while intoxicated kick in. If you drive a car while under the influence of alcohol, you put others on the road at risk. However, that danger is not present when a person sleeps in a vehicle while intoxicated. For that reason, many states have adopted the rationale behind the New Mexico and Pennsylvania courts' decisions. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Potent, High-Alcohol Beer Headed to U.S.

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Beware the wicked brew, beer drinkers. According to this National Post article, a highly alcoholic Scottish beer will soon be available in the United States. It's called "Tactical Nuclear Penguin" and has an alcohol concentration of 32%. That 8 times the alcohol concentration of a typical glass of beer, which is just 4% alcohol. The new brew will initially be sold in California and New York and will be available at Whole Foods, among other locations. As explained in the article, surprisingly, Tactical Nuclear Penguin, although initially reigning supreme as the strongest beer, has since been replaced by others:

It had a brief reign as the world's strongest beer, until a German company released Schrosch Bock, with a terrifying 40% concentration. Of course, BrewDog couldn't let this affront to Scottish pride stand, and quickly released Sink the Bismarck!, an even-more-leg-wobbling 41%.

These new classes of high-alcohol beers are just one more reminder to pay attention to what you're drinking and how much. This nifty website is a good start and explains the basics, including how much alcohol can be found in different types of drinks and provides helpful definitions of common terms. The bottom line: drink carefully and responsibly, and when you've had too much, don't drive. That way, the roads will be safer, you'll be safer, and you won't have to hire a DUI attorney. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

7 Myths About the Cops--Brought to You by TV

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Via Cracked.com comes this great list of "7 Bullshit Police Myths Everyone Believes (Thanks to Movies)":

1. Forensic Science is Magic
2. The Insanity Defense Lets You Get Away With Murder
3. Not Talking To Cops Equals Obstruction of Justice
4. Undercover Cops Have To Identify Themselves If Asked
5. Tracing a Call Takes a Long Time
6. Criminals Must Be Read Their Miranda Rights or They Will Go Free
7. Everyone Gets One Free Phone Call

If you only do one thing today, make sure that you head over and read the entire article. You never know when you'll cross paths with a cop--getting stopped for a DUI is more common than you might think. So, it's important to understand your rights and know how the legal process works. Arm yourself with information so that you can make smart decisions and protect your rights. Better safe, than sorry. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Is "erratic driving" alone cause for a DWI investigation?

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A few weeks ago we asked a similar question. In that case, an Illinois driver, the son of the local mayor, ran into stationary cars in a parking lot and then drove off from the scene of the accident. When police tracked him down later that evening, a breathalyzer test was not issued since there were no outward signs of intoxication. In a remarkably similar case, a DuPage County Judge, Kenneth L. Popejoy, was likewise not required to submit to a breathlyzer test. As reported in a Daily Herald article, on the evening of June 29th, a number of witnesses allegedly called 911 after seeing Judge Popejoy run into a parked vehicle, run a stop sign and nearly hit a jogger. When police arrived at his home, he refused to answer any questions. According to Glen Ellyn Deputy Police Chief Bill Holmer, because he showed no signs of intoxication, he was not investigated for DUI:

"We can't compel him to take (a breathalyzer test)," Holmer said, adding: "There weren't any of the typical signs of impairment that we look for, such as smell or slurred speech. None of that was apparent."

In the article, Don Ramsell, of our office, agreed with Holmer's assessment of the situation:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver fled without reporting an accident, there's no cause to give a Breathalyzer or field-sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Although Judge Popejoy was not charged with any DUI-related offenses, he was charged with charged with reckless driving, failure to give information after striking an unattended motor vehicle and failure to reduce speed to avoid an accident. The investigating police departments contend that preferential treatment was not a factor in the decision not to pursue a DUI investigation, and it is noted in the article that both towns "have handled recent high-profile DUI arrests of public officials, such as those of a Glendale Heights cop and U.S. Supreme Court Justice Antonin Scalia's daughter." Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Fumes from hand sanitizing gels can lead to false positive BAC tests

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In yet another shining example of why breathalyzer tests are so unreliable, it was recently reported that hand sanitizing gels that contain alcohol, such as Purell, can lead to false positive test results. As explained in this Metro.co.uk article, the gels give off 80% proof fumes that, when inhaled, can result in breathalyzer results indicating a high level of blood alcohol content:

The surprise result arose after staff at a secure unit for psychiatric patients tested a woman who claimed she had not been drinking but failed a breathalyster (sic)...

Despite insisting she had not ‘touched a drop’, the unnamed patient tested positive for alcohol. Staff investigated her denial and asked a clinician to reproduce the test, by first disinfecting hands in the normal way before using the ‘alcometer’ device.

They were stunned when the result recorded was equivalent to drinking two units of alcohol – the same as an average strength pint of beer or a glass of wine.

They determined that alcohol used in the gels was lingering in the atmosphere in such quantities that traces could be inhaled during a breath test and massively skew the readings.

Following this discovery, it is now recommended that, in British hospitals, breathalyzer tests be administered at least 5 minutes after hand sanitizing gels are used, so that the test results won't be affected. Who knows how many other "quirks" exist that affect breathalyzer tests--and how many innocent people have been convicted of DUI because of inaccurate test results? It's a troubling question and one that deserves a definitive answer. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Latest Criminal Defense and DUI Links

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Here's a list of recent links from around the criminal defense legal blogosphere that are worth a second look:

• "Misdemeanor Arrest Rule in New Mexico DWI Cases" Albuquerque Criminal Lawyer blog
• "Plea bargains in DWI cases? Are you serious?" The Defense Rests
• "No Probable Cause Necessary for DUI?" DUI Blog
• "When Innocence Isn't Enough" Gamso-For the Defense
• "No Lawyer, No Crime? A Troubling Case In Oregon" Norm Pattis

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI satire compliments of The Onion

Here's a priceless piece of vintage satire from the Onion: "DMV Reconsidering 'One For The Road' Driver Relaxation Campaign." Here are a few choice excerpts from the 1997 tongue-in-cheek article:

SPRINGFIELD, IL—With the drunk-driving fatality rate nearly tripling in Illinois in the past year, the state's Department of Motor Vehicles announced Monday it will re-examine its controversial "One For The Road" driver-relaxation promotional campaign...

According to Penn, the One For The Road program had its roots in a DMV study revealing a positive correlation between alcohol consumption and driver confidence.

"We found that people who had consumed at least four beers or two mixed drinks before getting behind the wheel were twice as likely to believe they were in no danger of getting hurt or killed," Penn said. "When operating a serious piece of machinery like a car, that's just the kind of confidence you need."...

In the time since the September 1996 launch of One For The Road, some 2,300 DUI-related fatalities have occurred in Illinois, a 275 percent increase over the previous year.

"Perhaps we need to reconsider certain aspects of the program," said Bill Gerhardt, co-creator of the program. "We need to ask ourselves, 'What parts of this program are not working, and how can we fix them?'"...

While Illinois DUI laws aren't perfect, at least our legislators have a bit more common sense than the fictional characters in this article.

And, if you're so inclined, you can read the entire article here.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Intoxilyzer breath test results under fire in Minnesota

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In Minnesota, we learn of yet another case of allegations regarding inaccurate breath test results. The Intoxilyzer machine at issue has been regularly used by law enforcement throughout Minnesota for years, but came under fire in 2006 when a DUI defendant challenged the accuracy of the test. Since that time, the Minnesota Supreme Court has twice considered claims challenging the device. Later, in 2008, the state sued CMI, Inc., the manufacturer the device, seeking access to the machine's source code. CMI resisted at first, but ultimately relented and allowed DUI attorneys access to the information. Now, there are more than 2000 cases pending in state courts that challenge accuracy of the machines, which were recently consolidated. As reported in this TwinCities.com article, a 2006 email from a Minnesota Bureau of Criminal Apprehension toxicologist is key evidence in support of the claims in the consolidated cases that the devices produce inaccurate results:

In an e-mail dated Sept. 27, 2006, a Minnesota Bureau of Criminal Apprehension toxicologist alerted CMI that the Intoxilyzer "on occasion" printed out blood-alcohol readings different from what it displayed on its screen.

He also noted that the amount of air required for a breath sample varies depending on the version of software running the machine.

The minimal amount of air necessary to provide a breath sample is 1.1 liters of air blown at .17 liters per second. But if a driver blows too hard, the minimum sample required increases to 4.1 liters, according to the toxicologist's e-mail.

"The minimum value quadrupled," Sheridan said. "And by doing that, it would exclude about 80 percent of women. ... The shorter and older you are, you're virtually guaranteed you'd be unable to provide a sample."

The misfires are recorded as test refusals, and that can have disastrous legal consequences. Punishments for test refusals are in some cases more severe than the penalties for drunken driving.

Once again, arguably faulty breath test machines continue to be used despite clear evidence that they may produce inaccurate and misleading results. If people's liberty wasn't at stake, perhaps this egregious conduct could be overlooked. However, where people arguably innocent of a crime are being wrongfully convicted and, in some cases, sent to jail, ignoring the glaring problem with the Intoxilyzer's used in Minnesota simply isn't an option. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Sleeping While Intoxicated-Not a Crime!

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Unfortunately this is not a headline from the online satirical "news" website the Onion, it's not. Instead, it's just one more example of the sad state of affairs in this country when it comes to DUI jurisprudence. As explained in this post at the Albuquerque Criminal Lawyer Blog, until very recently, it was apparently a crime in New Mexico to fall asleep behind the steering wheel of a car while intoxicated:

The New Mexico Supreme Court reversed the Courts of Appeals ruling from last year which legitimated DWI/DUI charges against individuals who were sleeping in their vehicles effectively taking the driving out of drinking and driving.

The court's decision in the case that was just recently overturned effectively held that an intoxicated person found asleep behind the wheel of his vehicle--where there were no keys in the ignition--was in "control" of the vehicle while intoxicated and thus "operated" the vehicle while intoxicated even though he never intended to drive it. The failure to consider the intent of the defendant thus resulted in a ridiculous decision that defied common sense. Fortunately, as explained in the post, the appellate court wisely reversed this inane decision:

The Supreme Court in State v. Simms stated that there must be intent to drive. In effect, there can no longer be a generalized intent to drive as evidenced by proximity to the vehicle. Neither can the issue be couched entirely in the terms of control of the vehicle...The Court in essence adopted the public policy rationale of allowing drivers to sleep off their intoxication.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Is a car accident alone evidence of intoxication?

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Does the mere fact that an automobile accident occurred warrant testing to determine if the driver was intoxicated? What if the driver of the vehicle left the scene before police arrived? What if witnesses to the crash claimed that the driver was acting erratic? What if the driver was the mayor's son? These are just a few of the questions that arose from a recent automobile accident that occurred in Elk Grove Village, Illinois. As described in this Daily Herald article, the accident occurred in the parking lot of an apartment complex. Witnesses claim that a pickup truck ran into stationary cars parked in the lot. The driver exited his vehicle and was shaking and talking to himself. He then got back into his vehicle, despite the urging of witnesses to remain at the scene, and drove off. His license plate remained behind, however, and responding police officers were able to determine that the vehicle belonged to Craig Johnson Jr., the son of the mayor. Officers then located him that same evening, brought him into the station, questioned him, and issued him a series of tickets for traffic violations, none of which were DUI-related. He was never given a breath test or asked to perform field sobriety tests. Some claimed that he received special treatment because he was the mayor's son. However, Don Ramsell, of our office, explained that Johnson did not necessarily receive preferential treatment:

Wheaton DUI and criminal defense attorney Donald Ramsell said that while police have a responsibility to investigate why a driver hit three parked vehicles, there's no cause to give a Breathalyzer or field sobriety test without an odor, impaired speech or some other indication of alcohol.

"It would be improper to administer a breath test if you have no outward sign of alcohol consumption," Ramsell said. "It's illegal to fish for a crime."

Still, "it's not like the parked car jumped in front of him," so Johnson should have been asked to provide a satisfactory explanation for the crash, such as bad weather or a sudden obstacle in the road, Ramsell said.

In Illinois, the odor of alcohol combined with an accident is enough probable cause for a breath test, Ramsell said.

So, an accident alone isn't sufficient evidence to support the inference of intoxication. And in this case, there were no allegations that the driver smelled of alcohol, so perhaps the police were justified in not administering a breath test or sobriety tests. A further review of police records would assist in making this determination, but as it stands, based on the facts known at this time, the actions of the police weren't necessarily suspect.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Some people can't hold their liquor

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Apparently, cops, guns and alcohol just don't mix. We learn this lesson straight from the heart of Texas, where it was reported last week via Fox News that a highly intoxicated Dallas police officer fired her gun into the floor of a police vehicle. From the article:

According to the Dallas Police Department, Officer Kelly Beemer was off-duty and heavily intoxicated when another off-duty police officer tried to help her into his personal vehicle.

When Beemer attempted to exit the moving vehicle, two officers who were on-duty came to the scene.

Beemer was seated in the back seat of Officer Zachary Helm’s squad car when she unfastened a revolver strapped to her ankle and fired into the back right floorboard, police said.

It seems this cop was as loaded as her gun! Fortunately, no one was hurt and an investigation is pending in the matter. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

More flawed tests result in wrongful DUI convictions-this time in DC

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First we told you about the faulty DUI lab test results in Pennsylvania, then Colorado, California, and Indiana. The latest is Washington, D.C., where it was recently reported that hundreds of DUI convictions were based on flawed breath test results. The Washington Post reported earlier this month that since the fall of 2008, nearly 400 people were convicted of DUI based on evidence obtained from the faulty machines, and nearly half of the people convicted were incarcerated. The breath test machines were working improperly because the police calibrated them incorrectly. As explained in the Washington Post article:

The District's badly calibrated equipment would show a driver's blood-alcohol content to be about 20 percent higher than it actually was, Nickles said. All 10 of the breath test machines used by District police were wrong, he said. The problem occurred when the officer in charge of maintaining the machines improperly set the baseline alcohol concentration levels, Nickles said.

One of the difficulties in defending DUI cases is that jurors generally presume that scientific results, obtained from blood tests and breath test machines, are accurate and infallible. The truth is, they're not. In the past we've pointed out instances of flawed lab testing where blood tests were determined to be inaccurate long after people were wrongfully convicted of DUI. Now we learn that, like lab test results, breath test results can be inaccurate due to faulty equipment and human error. Innocent people's lives are turned upside down because of DUI prosecutions and convictions. When DUI prosecutions are based on inaccurate scientific results that could have been prevented if more care had been taken, it's an outrage. These errors aren't simply unfortunate--they're travesties of justice. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Tip of the day

Next time, send a cab: Thanks to the Fail Blog. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

More DUI convictions suspect--this time in California

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Yet again we're reminded that lab test results used to convict individuals accused of DUI are anything but perfect. Just last week we learned that in Colorado Springs, lab test results were being thrown out due to allegations of hundreds of errors made by a lab technician. This week brings yet another example of the inaccuracy of lab test results in drunk driving cases. This time, DUI convictions in San Francisco, California may turn out to be based on lab testing that was performed improperly. In late May, the Seattle Times reported that a San Francisco coroner's supervising toxicologist, Ann Marie Gordon, had a history of improper conduct in Washington state. It was revealed that prosecutors had previously told a Washington court that, while Ms. Gordon ran the state's toxicology lab, she had been a "perpetrator of fraud." As explained in the Seattle Time article:

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases...since being hired in 2008. She has also testified in trials.

Prosecutors say they were unaware of her Washington history until April.

Because of the accusations against Ms. Gordon, over 100 criminal cases were dismissed in Washington and she quit her job in 2007. Now that her prior history has come to light, pending cases in San Francisco are being subjected to greater scrutiny. This case is yet another example of the problems inherent in many of the crime laboratories across this country. Between tainted tests, sloppy lab work, and improper procedures, the accuracy of the lab test results are questionable at best. Likewise, equally as questionable are the DUI convictions resulting from these tests. We deserve better. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Colorado Springs Crime Lab-Another Case of Sloppy Testing

Image by Horia Varlan via Flickr

Another day, another crime lab making sloppy errors that deprive innocent people of their liberty. This time it's the Colorado Springs crime lab. In April, the Colorado Springs crime lab errors were disclosed to the public. It was revealed that the results of an internal investigation revealed that 167 tests were flawed in 2009 and discovered 39 more flawed tests from 2007. All of the errors were the work of a chemist who had since left the department. District Attorney Dan May explained that "only" 9 of the 206 faulty tests actually affected the rights of those accused of committing a crime. In other words, only 9 people that we know of--people who were potentially innocent of any crime--had their lives ruined because of the egregious errors of Colorado Springs lab technician. Questions still remain following the announcement of the massive string of errors, as explained in this article from the Colorado Springs Independent:

Senior chemist Bobby Striebel frankly says he can't explain how a colleague of seven years made mistakes that boosted the alcohol content of some blood samples by more than 40 percent.

"The error was very difficult to identify," he says, with no apparent pattern or equipment failure to explain.

The lingering uncertainty is uncomfortable. Tim Bussey, a Colorado Springs defense attorney who specializes in DUI cases, puts it bluntly: "If they never really identified the problem, how do they fix it?"

These tests were caused by human error or malfeasance. Who knows how many errors are caused by faulty equipment or materials. The bottom line: blood and breath testing for DUIs is a horribly inaccurate "science" for any number of reasons. The continuing pattern of errors in labs across the country is simply further evidence of that fact. Perfection isn't possible and it's not required, but predictable accuracy is. Until that standard is met, innocent people will be convicted of drinking and driving offenses and injustice will continue to reign supreme. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

"Confessed" killer released from prison when victim resurfaces after 10 years

Image by Ken_Mayer via Flickr

A recent case of exoneration in China is yet another example of the utter worthlessness of most confessions. As explained in a Reuters article, 10 years after an alleged killer supposedly confessed to the murder of another man, the murder "victim" unexpectedly reappeared--alive--in his hometown. 10 years prior, Zhao Zuohai was accused of murdering the "victim" following the discovery of a headless corpse in the small Chinese town. Zuohai was interrogated by police and purportedly confessed that he'd killed the "victim" during the course of a hatchet fight. Zuohai claims that the confession occurred only after he was tortured by police, an apparently common practice in China, as explained in the article:

Convictions in the Chinese court system are strongly dependent on confessions, motivating police to use force to get a confession and close the case...

The courts conducted an audit of all death penalty cases after a woman in Hubei province reappeared over a decade after her husband, She Xianglin, was jailed for her murder, in a case that also rested on his confession to police.

Relatives who maintained She's innocence were also jailed.

The imprisoned Zhao's brother told the local Dahe Newspaper that police had forced him to drink chili water and set off fireworks over his head to force the confession.

The imprisoned Zhao narrowly escaped being executed for the crime. His sentence was commuted from a death penalty with two years' reprieve.

When the victim reappeared, Zuohai's conviction was reversed and he was released from custody after serving 10 years of a 29-year sentence. While he was incarcerated, his wife left him for another man and 3 of his 4 children were put up for adoption. Surprisingly, this unfortunate case reminds me of a lawyer joke I heard a while back:

A noted criminal defense lawyer was making his closing argument for his client accused of murder, although the body of the victim had never been found. The lawyer dramatically turned to the courtroom's clock and, pointing to it, announced, "Ladies and gentlemen of the jury, I have some astounding news. I have found the supposed victim of this murder to be alive! In just ten seconds, she will walk through the door of this courtroom." A heavy quiet suddenly fell over the courtroom as everyone waited for the dramatic entry. But nothing happened. The lawyer continued, "The mere fact that you were watching the door, expecting the victim to walk into this courtroom, is clear proof that you have far more than even a reasonable doubt as to whether a murder was actually committed." Tickled with the impact of his cleverness, the lawyer confidently sat down to await acquittal. The jury was instructed, filed out, and filed back in just ten minutes with a guilty verdict. When the judge brought the proceedings to an end, the dismayed lawyer chased after the jury foreman: "Guilty? How could you convict? You were all watching the door!" "Well," the foreman explained, "Most of us were watching the door. But one of us was watching the defendant, and he wasn't watching the door."

Except in this case, Mr. Zuohai would have looked toward the door, innocent man that he was. This case is not unusual. Innocent people are wrongfully convicted of crimes due to forced, false confessions every day across the United States and worldwide. And, like Zhuohai, if and when they are ultimately exonerated, their lives are in shambles, ruined by the overzealous--and arguably criminal--actions of police officers using unlawful and cruel tactics to force confessions from innocent people. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Motorized lounging chairs and alcohol--a bad combination.

So far we've learned that Russian tankers, Barbie cars and golf carts are poor vehicle choices--especially if you're intoxicated. Today we're advising you that motorized lounging chairs--even if they're really cool and souped up--are also a bad choice. Unfortunately, Iowa resident Dennis LeRoy Anderson learned that lesson the hard way when he was arrested for driving a "motorized La-Z-Boy lounge chair" while he had a BAC of 0.29%. As reported in this Deluth News Tribune article, Anderson was traveling in style on the night of his arrest:

Proctor Deputy Police Chief Troy Foucault said the chair was powered by a converted lawnmower with a Briggs & Stratton engine. It has a stereo, cup holders and other custom options, including different power levels.

A National Hot Rod Racing Association sticker is posted on the chair’s head rest. The chair had a small steering wheel, about a third of the size of a golf cart’s, coming straight up from the middle of the La-Z-Boy.

The Proctor Police Department wisely recognized that the chair, an obvious shoe-in candidate for "Pimp My Ride," had some value. So they did what any reasonable, tech-savvy police department would do: they auctioned the car on eBay. The auction was halted temporarily when La-Z-Boy complained about the use of their corporate name in the auction title. It was later re-listed as simply a "DWI chair. " The winning bid netted $10,099.99 and the proceeds were slotted to "benefit Proctor tax payers." Meanwhile, as reported in this KTLA.com article, Mr. Anderson was convicted of DUI and his family was last seen attempting to recoup legal fees by selling a picture, on eBay, of him driving the infamous motorized chair. Of course, this entire fiasco could have been avoided if Mr. Anderson had made a better choice. So, we remind you once again to heed our advice: don't drink and drive. Walk, take a cab or call a friend.

Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Avoid drinking and driving-that way you won't have to hire us.

This is a very moving video that serves as a reminder to avoid drinking and driving in the first place--rather than having to hire us afterward. (WARNING: There are some graphic images toward the end of the video). Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Sloppy lab work leads to Toxicology Chief resigning in Indiana

Image via Wikipedia

Two weeks ago we discussed how lab errors in California, Colorado and Pennsylvania resulted in challenges to DUI convictions and the dismissal of a multitude of DUI cases. It looks like Indiana is joining the club. According to this article from IndyStar.com, the director of the Indiana State Department of Toxicology, Michael A. Wagner, has resigned amidst charges of inexcusable lab errors. Allegations include sloppy lab work, excessively long delays in processing specimens, and the failure to perform inspections as required by state law. In the article, Indianapolis defense attorney John L. Tompkins explained the basis for the allegations:

Tompkins, who teaches blood-testing issues to lawyers for their continuing education requirements, said sloppy work is not unusual from the state Department of Toxicology.

Within the past few months, he said, blood-testing reports have come back showing clotted blood being used -- a mistake -- and incomplete documentation of the testing machine's calibration.

Tompkins also contends that the department ignores a state law enacted in 2007...(which) requires the Department of Toxicology to conduct examinations of the people performing blood-alcohol detection tests and inspections of the equipment they use.

If the allegations are true, the resignation of Wagner is only the first step toward achieving justice for those who have been wrongfully convicted of DUI in Indiana. Simply put, the accusations of sloppy lab work are inexcusable. Where the life and liberty of a person accused of a crime is at stake, it is imperative that lab test results be performed carefully, accurately and in a timely manner. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!