Archive for October, 2007

Selective Memory in DUI Trials

Tuesday, October 30th, 2007

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation conducted months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as “Where are you going? What time is it? Have you been drinking? What? When? Where? How much?” Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before he was told to? How many steps out? Did he turn as instructed? How many steps back? Which, if any, of the 18 steps were off the line? Where did each step land relative to the line? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

And the other three or four drunk driving field tests….In the horizontal gaze nystagmus test (“Follow my pen with your eyes without moving your head”), was there “smooth pursuit” of the right eyeball? What did the pupil movement look like? How many eye passes were there? Did “onset” of nystagmus occur before 45 degrees? At what degree? Was the white of the eye visible at the extreme range of deviation? Was there “distinct nystagmus” at this extreme? And what about all these same observations in the left eye?

And maybe two or three other field sobriety tests. And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two samples? And so on….

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath, and probably after dozens of other arrests in the meantime. How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a “DUI arrest report”. This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the other hand — the “gun hand” — be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems….

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe?

And this is just one test. And what about the other tests, and the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall three or four months later in trial everything that happened? He can’t just read from the report: He has to testify to what he knows — that is, to what he independently remembers happened.

But here the law permits him an “out”: He can “refresh his recollection” by reading the report after he is asked a question. Then he can testify with a newly “refreshed” memory — in reality, however, to what he just read in the report. In most trials, the officer has also “refreshed his recollection” just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s guilt. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot testify about things that happened but which are not in the report. And there will be little if anything in that report which will give the other side of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.


How to Lose a DUI Jury Trial Before You Begin

Wednesday, October 24th, 2007

Simple: Have two prosecutors….one wearing black robes.

The public perception of judges is that they are largely fair and impartial. Unfortunately, this is becoming ever less true — particularly, in the politically sensitive area of DUI litigation.

To begin with, the reality is that an increasingly high percentage of judges are former prosecutors; very few are public defenders or defense attorneys. In fact, a growing number of attorneys become prosecutors to obtain the “qualifications” for later election or political appointment to the bench. Not surprisingly, the rulings of these judges reflect a law enforcement rather than judicial orientation.

Backgrounds aside, is the judiciary objective in DUI cases? Well, again there is the political reality: the failure to “get tough” on DUI defendants tends to result in negative comments from MADD, prosecutors and police agencies come re-election time — maybe even in an endorsement of the latest prosecutor who wants the judge’s position.

However, a more concrete sign of the judiciary’s increasing bias in favor of the prosecution can be found by visiting a website entitled DUI: A National Online Resource Library for the Judiciary on Impaired Driving. The site is sponsored and maintained by the National Association of State Judicial Educators, under a contract from the National Highway Traffic Safety Administration. The organization conducts training seminars for judges nationwide, distributes written materials and provides resources on the website.

Let’s take a look at some of these online “resources” for training judges how to handle DUI cases and trials…..

For starters, there’s an article from the American Prosecutors Research Institute, entitled Overcoming Impaired Driving Defenses. The article “identifies the most common defenses used in DUI cases and provides specific strategies for overcoming these claims.”

Hmm….Why are judges being taught how to “overcome” an accused citizen’s defense in a DUI trial?

Another online article is Handling Impaired Driving Cases. According to the prefatory comments, this material covers “common aspects of impaired driving cases”, including “anticipating defense issues”. The introduction to the article describes various blood-alcohol problems in DUI cases and then observes that “Prosecutors can easily skewer defenses like those…” The article then presents specific “claims” often raised by the defense — and the supposed “reality” refuting those obviously false claims.

Why do judges need to “anticipate” legal issues which may be raised by a defendant? What about legal issues raised by the prosecution? And what is meant by “anticipating defense issues”? Clearly, judges are being taught (by prosecutors) what decisions to make — before ever hearing the evidence.

Another article on the judicial website, Admissibility of Horizontal Gaze Nystagmus, explains to judges “why it is the most reliable field sobriety test for detecting alcohol impairment” — again, before any testimony from the police or evidence from the defense. Yet another, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, teaches judges that “field testing found the SFST battery to be extremely accurate in discriminating between BACs above and below 0.10 percent”, apparently making defense cross-examination irrelevant. Then there’s the Annual Traffic Seminar: “In this two-day seminar, judges learn about the use of the Intoxilyzer 5000 and laying a foundation for police officer testimony…”

All of this, of course, makes due process and criminal justice much more….expedient. With judges already pre-instructed by the prosecution, there is no real need for things like testimony or evidence in a DUI trial.

Or for a trial.


Blood Draws by Cops: “Street Justice”

Monday, October 22nd, 2007

A few days ago I posted about the growing practice of cops forcefully taking blood themselves from citizens arrested for DUI.  The following is a comment to that post from a Deputy Public Defender:

Blood draws allow the police to  take out a little bit of “street justice” on suspects who refuse to cooperate, by sticking a needle in them…

I have a client who was stabbed with a needle 5 times by a police officer before they took him to the hospital to get a blood draw.  The client told the police that he had collapsed viens and they would not be able to get his blood.  The police did not listen because there had be a scuffle and they were angry with my client.  My client took pictures of the puncture wounds the next day.  We have a hearing on the matter in December.


Forced Blood Draws by Cops in Back Seat

Thursday, October 18th, 2007

I've posted in the past about the spreading practice of cops jabbing needles into DUI suspects to get blood for testing, often at roadside or in the back seat of a police car, rather than having a nurse or medical technician perform the draw or using a breathalyzer.  See Would You Want a Cop Taking Blood from You?,  Taking Blood by Force and Forceful Blood Draws by Cops: Constitutional?   The following recent news story shows one of the many reasons for questioning this barbaric procedure.

Blood Draws by Officers in

DUI Stops Questioned

Man files claim saying deputy infected arm
Phoenix, AZ.  Oct. 14  –  Attorneys are putting new scrutiny on a practice that has become common among law enforcement — having officers, not medical personnel, draw blood with syringes in suspected drunken driving cases.
That comes after a man developed a persistent infection at the site of a blood draw administered by a Pima County sheriff's deputy.
Law enforcement agencies say having officers do blood draws themselves is quicker and more convenient than going to a hospital and more accurate than a breath test.
The Pima County Sheriff's Department has relied exclusively on deputy-administered blood draws for years.
But defense attorneys have zeroed in on the practice, arguing police officers do not receive adequate training to do the blood draws, don't have the health and safety of suspects as their top priority and put suspects at unnecessary risk…
"I think most of the public does not realize that law enforcement personnel are doing the draws," said Michael Bloom, an attorney in the case.
According to the claim, James Green, a 31-year-old test pilot who works out of Pinal Air Park, was stopped by a sheriff's deputy March 27 and arrested on suspicion of driving under the influence. After being told his driver's license would be suspended for 12 months if he did not consent to a blood test, he agreed to allow the draw.
Even though they were within walking distance of Northwest Medical Center, the deputy performed the blood draw in the back seat of his squad car. It took two tries to get a sample.
The claim says Green's arm became swollen and very red around the site of the blood draw within a few hours. Five months later, he had undergone several rounds of treatment with antibiotics and still had the infection. The claim says Green can work only intermittently because of the infection and may face long-term health consequences.
Charnesky, who specializes in DUI cases, said the practice started in Arizona but now is spreading to some counties in Utah and Texas.
Lt. Karl Woolridge, the Sheriff's Department Special Operations commander, said deputies do blood draws because blood is more accurate than breath, and the closer to the time of the crime the evidence is collected, the more accurate it is…
In 2004, charges were dropped against a man facing misdemeanor DUI charges after he said deputies used a stun gun against him three times to force him to submit to a blood draw. He said he was afraid of needles.
While having police officers do their own draws is now common in Pima County, medical experts expressed surprise at the practice.  
(Bold emphasis added.)

(Thanks to Andre Campos and David O'Shea.) 

Second Manufacturer Must Reveal Breathalyzer Secrets

Saturday, October 13th, 2007

As I’ve posted in the past, when you are charged with drunk driving you will be afforded your constitutional right to trial — but a trial by machine.   Quite simply, the law reverses the presumption of innocence and presumes that you are guilty if the machine registers .08% or higher; the judge will instruct the jury they must convict you if you cannot prove your innocence. 

In other words, the accuracy and reliability of this gizmo is rather important.  And what runs the device?  A computer.  What runs the computer?  Software.  What programming code is contained in the software?  The manufacturers refuse to reveal it, claiming profits from protecting “trade secrets” trump a citizen’s right to due process and fair trial.  We must take it on faith that the breath machines made by various manufacturers are accurate and reliable.           

I recently posted about attorneys in New Jersey who were finally able to get the Supreme Court of that state to order the manufacturer of the locally-used breathalyzer model to reveal the machine’s software program.  In that case, the Draeger Corporation was ordered to reveal the software code for their AlcoTest 7110.  Defense attorney Evan Levow turned the code over to a computer laboratory to analyze.  The results are set forth in that post, “Secret Breathalyzer Software Finally Revealed”.  In essence, the lab concluded that there were no “trade secrets” involved, and that:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

As I’ve said repeatedly before, the simple fact is that that these machines are unstable, unreliable and inaccurate – and software problems are only one of the many reasons.

Attorneys in other states are also beginning to get the courts to recognize that perhaps defendants have a right to know if the machine which is acting as judge, jury and executioner is accurate.  Another manufacturer of another breathalyzer device is now facing a legal sanction they can understand — loss of profits — if it does not reveal the software code: 

CMI’s Refusal to Disclose Software ‘Source

Code’ Has Stalled DUI Cases 

Sarasota County, FL.  Herald Tribune  –  Facing court fines and the possibility of losing future sales, the company that manufactures the state’s drunken-driving breath-test machines has agreed to give DUI defendants a look at how one works.

What defense attorneys hope to find inside is proof of their suspicions that the software inside the briefcase-size machines makes mistakes while calculating a driver’s blood-alcohol content from a breath sample.

So far, they remain only suspicions. In courts across the country, CMI Inc. of Kentucky has refused to disclose the “source code” of the software in the widely used Intoxilyzer machines.

But now that refusal is hurting CMI in the pocketbook, and the company is agreeing to release the code under certain conditions.

Judges in Sarasota and Manatee counties — where more than 300 DUI cases are stuck in the system — have fined CMI more than $100,000 for not allowing computer experts for the defense attorneys to view the software’s source code.

And Minnesota is considering scrapping CMI machines for a competitor’s devices so prosecutors have results that will not be thrown out of court, according to Minneapolis-area defense attorney Jeffrey Sheridan.

“They’re starting to understand they’re going to lose their market share, and they’re starting to wake up and decide to do something,” said Sheridan, who won a state Supreme Court battle over CMI’s source code this year.

Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that defendants should know everything about a machine that could send them to prison.

A blood-alcohol content reading is the most powerful piece of evidence against a drunken driver, and errors in the software could mean drivers never know if the machine is working properly, defense attorneys say.

CMI has refused to turn over the source code, saying it is a trade secret that its competitors can use to learn how it is so successful — and does nothing to prove the accuracy of the machines.

For years, the big corporations have refused to comply with court orders to turn over the software running their machines — and convicting citizens of crimes they may not have committed.  Now that the “trade secrets” shield has been shown to be a fraud, the corporations are facing the ultimate sanction:  loss of profits.  And that trumps everything.