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.

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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

Image by ...-Wink-... via Flickr

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

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Operating a Stroller While Intoxicated?

Image via Wikipedia

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

Image via Wikipedia

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.

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