Archive for May, 2011

New Law: No Right to Jury Trial in DUI Cases

Tuesday, May 10th, 2011

For those of you who follow this blog, you’re familiar with the steady erosion of constitutional rights in drunk driving cases — what I refer to as "The DUI Exception to the Constitution".  See, for example, Are DUI Roadblocks Constitutional?, Forced Blood Draws by Cops: Constitutional?, DUI and the Disappearing Right to CounselBelieving You Have Constitutional Rights in a DUI Case Can Be DangerousThe Disappearing Right to Jury Trial…in DUI Cases and Who Cares About the Rights of Those Accused of Drunk Driving?  

The right to jury trial is one of many constitutional rights quietly disappearing in MADD’s "War on Drunk Driving"….

New DUI Law Wasn’t Vetted

Phoenix, AZ.  May 8
– Two big, emotional issues collided at the Legislature: the scourge of drunken driving and the right to trial by jury.

But you didn’t know.

First-time, non-extreme DUI defendants have lost the right to request a jury trial.  

But the public didn’t find out until after Gov. Jan Brewer signed the bill.

Is this a good move or a bad one? What does it mean for public safety? For justice? How does it square with the state Constitution?

We never had a chance for debate.  Like so much legislation this year, it all happened too fast, too far under the radar.

The restriction on jury trials was a last-minute amendment to Senate Bill 1200, which dealt with penalties for driving under the influence. It was part of the onslaught of bills in the pell-mell race to end the session on April 20.

Here was legislation about core values. We should have had a chance to explore them…

As Edmund Burke once said, "All that is needed for the triumph of evil is for enough good men to do nothing."


More Massive Breathalyzer Failures…

Wednesday, May 4th, 2011

Ok, I’ve posted ad nauseum about how breathalyzers are inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t.  And I’ve printed numerous articles in recent months about massive failures of the machines across the country, leading to questions concerning the wrongful convictions of hundreds of citizens.  See, for example, Attorney General Finds Widespread Breathalyzers; Police Shut Down All Machines (2 months ago),  Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (just over a month ago),  More Defective Breathalyzers (hundreds of convictions in Ventura, CA – 2 weeks ago),  400 Wrongly Convicted in Washington: Faulty Breathalyzers.   

If you still think they were aberrations, read today’s news:

Santa Clara County DA Reviewing 865 San Jose DUI Cases After Breathalyzers Deemed Faulty 

San Jose, CA.  May 4 — A faulty breathalyzer used by San Jose police to arrest 865 DUI suspects could lead to drivers walking free — even if they were drunk behind the wheel, authorities revealed Tuesday.

The Santa Clara County District Attorney’s Office said it would undertake a special monthlong review to determine how many of the cases it would drop because San Jose police officers used the Alco-Sensor V breathalyzer as part of their field sobriety tests. The breathalyzers — one of the methods used by officers to determine whether to arrest DUI suspects — may have shown incorrect readings because of a manufacturer’s error that can cause condensation to build up in the tube…

San Jose officers had been using the device exclusively since November but stopped Friday after discovering the tests are not reliable. County crime lab officials, prosecutors and police began looking into the breathalyzers after discovering that Ventura County authorities began reviewing hundreds of similar cases more than a week ago.

An unknown amount of DUI cases in Palo Alto, where officers have been using the device since April 2010, could also be affected. The San Mateo County DA was not expected to know until Wednesday whether any cases there were suspect…

San Jose police said all 60 breathalyzers its officers used in the past five months were the defective Alco-Sensor V’s, until they sent them back to the manufacturer on Friday night. The department received a shipment of 30 older, nondefective models from the same company Saturday morning and has been using them since.

The company that makes the gray and yellow instruments, St. Louis-based Intoximeters, says on its website that the breathalyzer was approved by the U.S. government’s National Highway Traffic Safety Administration.

Still confident that the breathalyzers used in your city are accurate?  Accurate enough to convict your fellow citizens — beyond a reasonable doubt? 


How Do You Know the Blood They Tested Was Yours?

Wednesday, May 4th, 2011

Let me tell you about one of my law firm’s cases that ended up in a Los Angeles Times article entitled "DUI Case Botched by Blood Mixup".

One of our attorneys, Lane Scherer, had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, the lab also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type O — the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.

Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confident that the lab did not make a mistake.

One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys.

As always, the police claim infallibility: "We do not make mistakes.  It was the nurses".

So how could this have happened? The truth is that it probably happens far more commonly than you might think.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large batches. A batch is a group of vials, perhaps 40 or more which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another.

Of course, it is critically important that the sequence of vials tested by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

"How do I know the blood they tested was mine?"  Simple — if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around.

Otherwise, I guess you’ll never know…