Search results for category: Court Rulings

Breathalyzer Code Found to Be Poorly Written

Source code determines blood alcohol content in DWI cases.

For a number of years DWI defense lawyers have questioned the reliability and accuracy of breathalyzers. At issue was the source code used to determine BAC during an investigation into driving while intoxicated. Given the constitutional right of a defendant to challenge accusations of guilt and the fact that breath test results are often the sole basis for determining guilt, access to the code is considered judicially prudent. Several state courts, including Florida, Minnesota and New Jersey, have agreed, and mandated reviews of the source code. Manufacturers, despite fines and court orders, have resisted making the software available.

A landmark case involving New Jersey DWI criminal lawyer Evan Levow has lead to a court ordered audit of the source code for the Alcotest 7110 MKIII-C manufactured by Draeger. In two separate studies, one commissioned by Draeger and another by the defendant, both found that the code does not meet industry standards for software design and that it contains ‘bugs’. The test requested by the manufacturer found no malware but noted excessively complex and poor maintained code. It also located at least one reproducible bug. The test requested by the defendant found 24 major defects, including one that disables safeguard features intended to detect and prevent invalid or corrupt instructions. Concern was raised by the researchers over the discovery that the decimal precision is not consistent throughout the code. The code was found to return arbitrary default values when the test failed and to ignore errors. That increases the potential for inaccurate results and a false arrest for drunk driving.

It is the potential legal, social and financial impact of a conviction for DWI based on the results of a breathalyzer that demand independent verification of the machine’s accuracy and its ability to successfully complete its intended critical task.

The risks are huge for Draeger too as an agreement between the company and the state of New Jersey stipulates the return of nearly $7 million if the state Supreme Court deems the breathalyzers unreliable.

Have you been charged with DWI in NJ?

Man Claims Novel Pennsylvania DUI Defense

44-year old accused of drunk driving in Northampton County says he is his own country.

Scott Allan Witmer is accused of driving under the influence in Pennsylvania. In his defense, he filed paperwork claiming sovereignty and thus immunity from state laws. He told the court, “I live inside myself, not in Pennsylvania.” He added that there was no victim in the drunk driving offense and asked to go to trial.

A Northampton County judge said the 44-year old defendant cannot be released from jail until he undergoes a mental examination. A Pennsylvania DUI lawyer is on standby for a more conventional legal defense.

Are you searching for a Northampton County, PA DUI attorney?

Evidence Tossed in Florida DUI Cases

Judges challenge operating plans for DUI checkpoints in Sarasota County.

Two Sarasota County judges tossed out evidence in 13 cases of suspected driving under the influence in Florida. The ruling finds that the sheriff’s department’s plans for sobriety checkpoints gave deputies too much power. As a consequence, prosecutors cannot present the result of breath-tests and field sobriety tests nor the arresting officer’s observations during arrests made at DUI checkpoints. Sarasota Florida DUI lawyer Darren Finebloom, whose firm represented seven of the defendants, said there is subsequently “no case” and he anticipates dismissal or reduction of the DUI charges.

The law requires specific plans be in place that limit the discretion of deputies at DUI checkpoints in order to protect motorists from unlawful searches and seizures. An officer cannot select motorists based on unlawful acts, such as racial profiling. The Sarasota Sheriff’s Department plan allows the supervisor of the checkpoints to make any change to the operation at any time. The sheriff’s department needs to simply reword its plan and then follow it. The Sheriff’s office however has said it will not do so until it hears from prosecutors about plans to appeal the ruling.

The recent ruling could lead to the filing of more appeals by Florida DUI defense lawyers, as the sheriff’s department used the same, illegal plan throughout 2008. A judge in Manatee County used the same position to throw out evidence in three cases of drunk driving in Florida. The Manatee Sheriff’s department has subsequently modified its plan.

Do you need to retain a Florida DUI attorney?

License Suspension Refusal Goes Before CA Supreme Court

The California Supreme Court will use a San Mateo County case to decide whether a suspected drunken driver can have her license suspended for refusing to be tested for alcohol even if police never saw her driving.

All seven justices voted Wednesday to review Terry Troppman's appeal of her one-year license suspension. The court will hold a hearing at a future date Troppman was spotted by a Belmont police officer slumped in the driver's seat of a parked van in January 2003. She failed field sobriety tests and admitted she had been drinking from a wine bottle found in the van, but testified later that she had pulled over and parked before starting to drink. She was unable to complete a breath test and refused to take a blood test, according to court records.

Under California law, anyone who drives a car implicitly agrees to submit to a test for alcohol or face a license suspension. In upholding Troppman's suspension by the Department of Motor Vehicles, a state Court of Appeal panel in San Francisco ruled in February that the requirement covers any case in which police reasonably suspect the person had been driving while drunk.

To go further and require proof that the person had actually been driving "would undermine the policy goals of encouraging cooperation in testing and deterring of drunk driving,'' said Justice William McGuiness.

But Troppman's lawyer, John Halley, said in a Supreme Court appeal that implicit in the law is a requirement that authorities show proof of actual driving, because "it is the act of driving from which consent (to be tested) is implied.'' The case is Troppman vs. Gourley, S13249.

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DRUNK DRIVING - LICENSE SUSPENSION - NO EVIDENCE OF DRIVING REQUIRED

Troppman v. Gourley (2005) Cal.App.4th , 05 C.D.O.S. 1190 First Dist., 2/8/05, A105287

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT - DIVISION THREE (PDF Download)

License of suspected drunk driver may be suspended or revoked for refusal to submit to chemical test even in absence of finding that person was actually driving a car at the time of the offense. Follows its prior decision in Rice v. Pierce (1988) 203 Cal.App.3d 1460, and declines to follow Jackson v. Pierce (1990) 224 Cal.App.3d 964 (from the Fifth).

Use Note: the driver in this case was slumped over the wheel of a stopped car, and was the only occupant. I think the result would be different if a drunken licensee was being driven home by a designated driver. Here the arresting officer had reasonable cause to believe licensee had been driving.

By Bob Egelko, Chronicle Staff Writer

Friday, May 20, 2005

Are you in need of a California DUI Attorney?

Tags: California DUI |  Court Rulings

What is Considered Driving?

Driving a Vehicle: You don't have to be operating, moving or driving a car to be arrested and convicted of a DUI!

For many persons arrested for driving under the influence the question of driving becomes an issue. Is someone sleeping in their car "driving" according to the law?

What about someone who is outside of their car sitting on the fender, or someone with the keys in the ignition, are they "driving" their car?

These and many other similar and not so similar circumstances have forced the court to come up with a definition of what constitutes "driving".

Driving has two accepted components:

The operation of a vehicle and the controling a vehicle.

Operating a vehicle is what is common referred to is DRIVING or having the car MOVING. Seems simple enough, but it isn't.

Moving is not the only element in driving. Controling is the other element and this has to do with the keys (controling).

If you have the keys you have CONTROL.

I presently have a gentleman in my class convicted of driving when he was sleeping in his car, legally parked at a Bart Station. He says he was dropped off by his friends and decided NOT to drive home since he realized, after being dropped off, that he was unable to safely drive home. He was convicted because "if it looks like a duck, smells like a duck, it must be a duck" (1+1=2). Like it or not YOU DON'T HAVE TO BE OPERATING OR MOVING OR DRIVING A CAR TO BE ARRESTED AND CONVICTED OF A DUI!

Circumstantial Presence Evidence

People v Bellomo (1984) . . . there was no need to decide whether or not the defendant was driving in the presence of the arresting officer when the defendant was found asleep behind the wheel, with the engine running, in a traffic lane, awaiting a red light . . . guilty (40300.5)......that was 84' and it just evolved into.......if you've got the keys...and you are in the vehicle or about the vehicle and "if it looks like a duck, smells like a duck, it must be a duck".

Have you been arrested for drunk driving and you were not behind the wheel of your car?

Also See:

• High Court Affirms Conviction

Tags: Court Rulings

Supreme Court Ruling

State Supreme Court Upholds Judge Stern Ruling
March 13, 2006

The Tennessee Supreme Court has upheld a ruling of Criminal Court Judge Rebecca Stern in a case involving a traffic stop.

Judge Stern had ruled out evidence that led to DUI and obstructing traffic charges against Kirk Williams.

The Tennessee Court of Criminal Appeals overturned the decision of Judge Stern, saying the stop and seizure were valid.

But the decision written by Supreme Court Justice William M. Barker of Signal Mountain reinstates the Stern ruling.

The state high court said, "We hold that the defendant was seized by the officer when the officer approached the defendant in his patrol car and activated his blue emergency lights. Under the facts of this case, a seizure occurred regardless of whether the vehicle was already stopped at the time the officer approached. We also uphold the trial court’s determination that the officer did not have reasonable suspicion to justify the stop. Therefore, the trial court correctly granted the defendant’s motion to suppress the evidence obtained as a result of the stop. The decision of the Court of Criminal Appeals is reversed, and the decision of the trial court suppressing the evidence is reinstated."

Source: http://www.chattanoogan.com/

Tags: Court Rulings |  Tennessee DUI

DUI Ruling Gives Suspects More Room to Fight

Kentucky Supreme Court Overturns DUI Ruling

DUI Defense Gets a Little Easier

COURT OVERTURNS CONVICTION CLAIMING ALCOHOL LEVEL WHILE DRIVING DIDN'T MATTER

By Brandon Ortiz

HERALD-LEADER STAFF WRITER

A Kentucky Supreme Court ruling yesterday gave suspected drunk drivers room to question blood-alcohol tests that are narrowly above the legal limit.

The court unanimously overturned the 2003 driving under the influence conviction of Nelson Lopez of Lexington. It said county prosecutors erroneously argued that it did not matter what his blood-alcohol level was when he was driving, so long as it measured above the legal limit of 0.08 within two hours of his leaving the car.

Defense attorney Fred E. Peters argued that such a standard could allow prosecutors to convict someone who hadn't taken a sip of alcohol before he was on the road. He listed several hypothetical scenarios, including one of a stranded motorist who has a drink while waiting for assistance with his broken-down car.

He also said it can take as long as 60 to 90 minutes after alcohol is consumed for it to actually enter the bloodstream, though he offered no evidence of that at trial.

Lopez was charged with DUI on Oct. 11, 2002, and blew a 0.08 blood-alcohol level about an hour after his arrest.

In an interview yesterday, Peters said the ruling is a small win for defense attorneys. He said some local judges have prohibited defendants from arguing that an alcomonitor test didn't reflect their blood-alcohol level when they were actually driving.

"It's still a tough sell, but it at least gives you a chance to put on a defense," Peters said.

Fayette County Attorney Margaret H. Kannensohn said the ruling creates confusion for prosecutors. She said it effectively prohibits them from arguing a third of the jury instructions in drunken driving cases.

"It would be as if a soldier were given three bullets with instructions to fire them," she said, "then told that they had wrongly fired the third bullet, which leads to confusion."

She said county prosecutors will have to review the decision to figure out how to proceed. She added that she hopes the General Assembly clarifies the issue during its next session.

The state chapter of Mothers Against Drunk Driving worried that the ruling will hinder prosecution of drunken drivers.

"When the public believes or perceives that the DUI laws don't have teeth, then it breeds disdain for the law," state executive director Angela Leigh said.

See Article: www.kentucky.com

more:

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LEXINGTON, Ky. A Kentucky Supreme Court ruling now gives drunk drivers room to question blood-alcohol tests that are narrowly above the legal limit.

Yesterday the court unanimously overturned the ruling of a Lexington man, who was convicted of driving under the infuence.

Nelson Lopez was charged with a D-U-I on October 11th, 2002, and blew a 0.08 blood-alcohol level about an hour after his arrest.

The court says county prosecutors wrongly argued that it didn't matter what his blood-alcohol level was when he was driving, as long as Lopez's level measured above the legal limit of 0.08 within two hours of his leaving the car.

Defense attorney Fred E. Peters says that standard could allow prosecutors to convict someone who hadn't taken a sip of alcohol before driving on the road.

See Article: WKYT 27

Tags: Court Rulings |  Tennessee DUI

Tennessee Supreme Court Overturns ID Roadblocks

Tennessee Supreme Court finds an ID roadblock illegal because it was used to issue traffic tickets in the name of safety.

On Thursday, the Tennessee Supreme Court unanimously found the use of roadblocks to check identification papers, driving licenses and automobile registrations to be unconstitutional. The court struck down a Chattanooga Housing Authority (CHA) "residency" checkpoint at Poss Homes on 2409 Washington Street. The authority, which has its own police force, claimed the stops would protect residents from crime and illicit drug use by turning away non-residents.

CHA Police Officer Ralph Brown had stopped Jerry W. Hayes, Jr. at 6:30pm on August 13, 2002, asking him if he was a resident and if he had his papers. Hayes produces his driver's license which had been suspended because of an overdue fine. Brown also noticed unopened bottles of beer in the car and charged Hayes with possession of alcohol because, at the time, Hayes was just two months short of twenty-one.

The high court overturned Hayes' conviction because it did not believe, contrary to police claims, that the primary purpose of the checkpoint was safety. The evidence showed the roadblocks were successful instead at issuing expensive tickets.

"There are elements of subterfuge evident in the operation of this entry identification checkpoint," the court wrote. "If the checkpoint was being operated solely to establish a legitimate connection between the would-be entrant and the community, however, Officer Brown had no reason to 'also' demand the person's driver's license if he or she had already produced a Poss Homes identification badge... Because persons may legitimately drive vehicles belonging to others, however, a vehicle registration document is of questionable value in determining the identity of the driver. Proof of insurance is relevant to nothing other than determining compliance with the provisions of Tennessee Code Annotated chapter twelve."

The court saw no evidence that the checkpoint increased the safety of residents, nor that the crime was solely being conducted by "outsiders." Because the police had no list of residents or guests, there was no real way to tell from a driver's license whether any stopped individual belonged in the complex or not.

"In their zeal to preserve and protect, however, our police officers must respect the fundamental constitutional rights of those they are sworn to serve," the court concluded. "Entry identification checkpoints of the type used here result in the abrogation of one of those fundamental constitutional rights. Such checkpoints cannot, therefore, be countenanced, no matter how lofty their goals. The ends, in this case, simply do not justify the means."

Source: Tennessee v. Hayes (Supreme Court of Tennessee, 4/20/2006) http://www.thenewspaper.com/

Tags: Court Rulings |  Tennessee DUI

TN Roadblock - No Good

Tennessee - State Appeals Court Throws Out DUI Conviction From Roadblock

July 2, 2004

CHATTANOOGA (AP) -- A state appeals court says that when Dennis James Varner pulled up at a checkpoint with an open beer, smelling like alcohol and slurred speech, it was Hamilton County officers who made a mistake.

The Court of Criminal Appeals ruled that Hamilton County Sheriff's Department officers did not set up the road block primarily to catch drunken drivers so Varner's conviction stemmed from an unconstitutional search.

The appeals court in throwing out the conviction and dismissing the charge Monday said it was significant that officers had no equipment to test blood alcohol content.

The judges also took exception to the presence of a drug dog.

Varner's attorney, Jerry Summers of Chattanooga, says abuses of checkpoints by law enforcement agencies are not uncommon.

Summers says they say they are doing one thing but are using subterfuge to determine other types of activity.

Copyright 2004 by The Associated Press. All Rights Reserved.

Tags: Court Rulings |  Tennessee DUI

Ohio Court Rules on Hospital's Certification

Aggravating the DUI Menace

October 6, 2005

The Ohio Supreme Court's narrow decision in a Dayton aggravated vehicular homicide case will be cheered by criminal defense lawyers throughout the Buckeye State, but it seriously obstructs public efforts to rid the highways of dangerous drunken drivers.

The court, voting 4-3 in a ruling written by Justice Judith Lanzinger, threw out the conviction of John Mayl, who was at the wheel of a pickup truck that struck and killed a construction worker, Lorna Dingess, 30. The woman was part of a work crew repairing potholes on I-75 in Dayton around midnight on Nov. 19, 2000.

About 40 minutes after the incident, a sample of Mayl's blood was taken in a hospital during treatment for minor injuries. The test put his blood-alcohol content at 0.207, more than twice the state's 0.08 threshold to prove drunken driving and, thus, aggravated vehicular homicide.

It would seem like a slam-dunk case, but the court ruled the test was invalid and threw out the conviction because the hospital was not certified by the state health department to perform the forensic procedure for use in court, and because it disposed of the blood sample within five days rather than holding it for one year.

According to the court decision, no one quibbled with the accuracy of the blood test, or claimed that the blood analysis was conducted improperly by hospital personnel or the laboratory.

While we are mindful that the law must be scrupulously followed, this is one of those cases that rends the heart of anyone who expects justice in the courts. The perpetrator of the crime is acquitted, but the victim is still dead.

Mayl, who had objected to the blood test but was told it was needed for medical reasons, did not go entirely unpunished. He pleaded no contest, was given a four-year prison term, and served a year before being released on appeal.

Nonetheless, the Supreme Court - which reversed opinions by at least six state appellate courts with its ruling - has made it unnecessarily difficult for authorities to gain convictions in drunken driving cases. None of Toledo's hospitals currently is certified by the state for these particular tests, even though doing so seems to be largely a matter of paperwork rather than expertise or equipment.

This means that perfectly competent hospitals and laboratories must now go to the considerable extra trouble of obtaining health department permits, or the legislature must amend the law, or both. The sooner a solution is accomplished, the safer that motorists will be in this state.

The DUI law already is among the most complicated and heavily nuanced statutes in Ohio's law books, a legacy of the bad old days when drunken driving was winked at rather than vigorously prosecuted. Creating an additional hoop for authorities to jump through to get convictions is probably not what the court intended, but that is the practical effect of its ruling.

It is especially distressing when the list of Ohioans with a dozen or more DUI arrests continues to grow.

Toledo Blade

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Glitch in DUI May Be Trend

Oct. 06, 2005 Judge tosses out a charge because a breath test operator was not certified on particular machine.

By DAVID WEISS dweiss@leader.net

WILKES-BARRE ­ A judge's ruling that stopped a police officer from testifying about a man's blood-alcohol level in a drunken-driving case could weaken other cases, attorneys said.

Luzerne County Court of Common Pleas Senior Judge Patrick Toole on Tuesday ruled Wayman Miers, an officer at the county's DUI Processing Center, could not testify about the suspect's blood-alcohol level because Miers was not certified to operate a particular breath-test machine.

An official at the center insists Miers is certified and the decision just highlights a mix up regarding the equipment used at the center.

Miers used the center's Breathalyzer, called an Intoxilyzer 5000EN, to learn David Kresge had a blood-alcohol level of 0.21 percent after he drove a vehicle into a Wilkes-Barre building in November. An adult driver is considered intoxicated with a blood-alcohol level of 0.08.

Kresge's attorney, Joseph Albert, challenged Miers' qualifications to operate the machine saying Miers was certified on the Intoxilyzer 5000, not the Intoxilyzer 5000EN, so he should not be allowed to testify.

Toole agreed, and one count of drunken driving was dismissed.

The jury still convicted Kresge on a separate drunken-driving charge that does not require a blood-alcohol level.

Despite the conviction, attorneys say the ruling will shorten Kresge's sentence and could impact all pending cases from the center.

Under the drunken-driving law, Kresge would have most likely faced a sentence of 90 days to five years in prison based on the high blood-alcohol level and a prior drunken-driving arrest, said local defense attorney Ferris Webby .

Because the blood-alcohol level charge was dismissed, that level could not be used against Kresge at his sentencing, Webby said.

That should reduce Kresge's sentence to five days to six months in prison, Webby said.

Webby said the new drunken-driving law has defense attorneys scrambling for ways to fight the blood-alcohol level because the punishment increases with higher levels.

Because of the ruling, he expects defense attorneys handling drunken-driving cases to subpoena more records related to the testing .

The center's coordinator, Frank Martin, said he and the center's other processing officers have certification cards indicating they are qualified to operate the Intoxilyzer 5000. The certification makes no reference to any specific model number, Martin said.

He said he checked with the state when the center began using the EN model about eight years ago. The state said the officers needed no additional certification to operate the newer model, according to Martin.

Besides, he said, the officers do nothing different in operating either of the machines or analyzing results. The only difference in the machines is an internal element, he said.

"It's like buying a Chevrolet Impala. You could get a four-door, you could get a two-door," Martin said. "It's not going to make the car run any different. It's just a loophole they found."

Defense Attorney James Haggerty said the state's departments of health and transportation set up the rules regarding the breath tests.

Those rules call for a processing officer to be trained on the "particular" machine they are using to take the sample, Haggerty said.

What the word "particular" means, though, is the critical issue, he said.

"Decide what particular means," Haggerty said. "Does it mean the Intoxilyzer 5000, all versions, or does it mean the Intoxilyzer 5000 version one, version two, or version nine?"

Haggerty said he has never raised this issue in a drunken-driving case. But it could become more of an issue after Toole's ruling.

"I think that any lawyer that has a DUI case will need to carefully examine whether the DUI examiner is certified for the particular machine," he said.

The center handles hundreds of drunken-driving cases per year and is open to all Luzerne County police departments during its operating hours of 9 p.m. through 5 a.m., Thursday through Sunday.

Luzerne County Assistant District Attorney C. David Pedri said he argued against Albert's challenge in the Kresge case, claiming the machine Miers used requires no different skills than the machine Miers was certified to use.

"It's operated the same way," he said. "That's my understanding."

Pedri conceded the ruling will likely reduce Kresge's sentence, but Pedri said he will not appeal the ruling because he still secured a conviction.

The prosecutor said he will try to do some legal research on the issue to advise the center of any changes that are needed.

But Haggerty, who is also the mayor of Kingston, said he does not fault the processing center for any errors. He believes any errors that occurred at the center should be attributed to the "complexity of the rules."

Haggerty praised the work of the center, saying it helps police officers and communities save money and time.

David Weiss, a Times Leader staff writer, may be reached at 831-7397
See Article: Times Leader

Tags: Court Rulings |  Ohio DUI