Monthly Archives: August 2007

Pity the Poor Prosecutor

Pity the poor prosecutor in a DUI case.  He has driving symptoms, field sobriety tests, at least one officer's obervations of the suspect's appearance and behavior, statements by the suspect, the officer's professional opinion of intoxication, breath or blood alcohol tests — not to mention the "DUI exception to the Constitution" working for them.  The accused is denied his Sixth Amendment right to counsel, his Fifth Amendment right against self-incrimination, his right to be presumed innocent, and increasingly his Fifth Amendment right to jury trial.   He has laws which presume the defendant to be guilty if the machine is .08% or higher — and further presumes that it was the same two hours earlier when he was driving.  The burden of proof in a DUI case is – by law – shifted to the defendant.

Not enough, some prosecutors complain.  American citizens shoud not have the right to refuse testing, they say.  And breath tests should not have to comply with state regulations designed to improve accuracy in order to be admitted as evidence. 

Prosecutors Face DUI Challenges

Casper, WY.  Aug. 27  -   Securing a DUI conviction in a jury trial in Wyoming is not easy, some prosecutors say.

They say it can be difficult to prove that a defendant had a blood-alcohol concentration of .08 or above at the time he was driving.

If a person refuses to take a test under the law, prosecutors often have scant evidence to convince a jury beyond a reasonable doubt that the person was impaired, said Keith Gingery, a deputy county and prosecuting attorney in Teton County.

Weichman also said blood-alcohol evidence is frequently suppressed at trial based on minor technicalities that must be followed under state law. He said that can result in acquittals.

In order to introduce blood-alcohol evidence, prosecutors must follow the state Department of Health’s rules and regulations under the implied consent statute…

And even if someone arrested for a DUI agrees to take a test at the police station, 30 minutes or more could have elapsed since he was stopped by law enforcement. Lorrie Pozarik, facilitator for the Governor’s Council on Impaired Driving, said a blood-alcohol test “could easily be done an hour and a half after a person was driving.”

That can be problematic for prosecutors, because a toxicologist can only estimate a defendant’s blood-alcohol concentration at the time of driving, Pozarik said, raising potential doubts in the minds of a jury…

(Teton County Prosecutor Steve) Weichman questions the wisdom of giving people arrested for DUI the option of refusing to take an alcohol test — even though such a refusal results in a driver’s license suspension…

Gingery advocates working on comprehensive DUI legislation in 2008 through collaboration with prosecutors in Wyoming. He said he hopes to introduce sweeping legislation in 2009.

Amazing!  With the DUI laws in this country already ignoring the constitution, prosecutors are now crying because they have to comply with breath testing accuracy regulations, because American citizens have the legal right to refuse to submit to these inaccurate tests, and because juries may reject the presumption that the blood-alcohol was the same two hours earlier!

(Thanks to David O'Shea.)

Judge: Divulge Breathalyzer Code…or Else

As I mentioned a few days ago, courts around the country are finally beginning to understand that a breathalyzer test result is no better than the software that runs its program.  As a result, a few courageous judges are starting to pierce the secrecy of how breathalyzers work — ordering manufacturers to divulge the software code that determines what the blood-alcohol reading will be (see "Secret Breathalyzer Software Still Secret"). 

Prosecutors are understandably reluctant to give this to the defense, and happily hide behind the manufacturers’ continued refusal to divulge the code on the laughable grounds of "trade secrets".

The latest in this battlefront:

Judge Tells Breath-Test Maker to Release


Sarasota, FL  Aug. 19  -  The company that manufactures the state’s drunken-driving breath-test machines must turn over the computer code that runs the machines or face stiff fines, a county judge has ruled.

Defense attorneys have argued that having their experts examine the Intoxilyzer 8000’s "source code" is the only way to ensure the machines correctly calculate a driver’s blood-alcohol content.

The Intoxilyzer 8000’s first glitch was discovered in April, a month after it was implemented, when state officials realized it failed in certain situations. The state then upgraded the software in machines across the state.

In Manatee and Sarasota counties, more than 32 DUI cases are delayed because Kentucky-based CMI Inc. has not responded to a subpoena ordering the company to turn over the source code for the Intoxilyzer 8000, Sarasota County Judge Kimberly Bonner wrote.

"The failure of CMI to comply with this court’s subpoena has created a tremendous backlog of cases," Bonner wrote.

The judge found the company in contempt and gave it 20 days to turn over the source code or it will be fined $3,200 per day, or $100 per case that cannot move forward in the case. Other cases not covered in the ruling are affected as well, the judge wrote.

The company has said that the code is a trade secret. It did not respond to the Sarasota County case, but took the issue to the Daviess District Court in Kentucky.

A judge there quashed the subpoena for the source code. But Bonner said that order has no jurisdiction over Florida courts.

So, just what is it that the manufacturers are so afraid to reveal about these machines which determine guilt or innocence?

(Thanks to Andrew Switlyk.)

Breath Tests Thrown Out by Judge

As I’ve written ad nauseum in the past, breathalyzers are inaccurate and unreliable – for dozens of reasons.  One of those is that the test results vary wildly depending upon the breathing pattern of the suspect being tested (see my post, “How to Fool a Breathalyzer”).

Breath Test Evidence Thrown Out

in DUI Cases

Tallahassee, Fl.  August 21 -   Leon County judge’s ruling to throw out blood-alcohol breath-test results in four DUI cases could have a big impact on others currently facing drinking-and-driving charges.

On Tuesday, Judge Augustus D. Aikens Jr. ordered that breath tests be thrown out in DUI cases involving four men arrested in 2006. Their breath samples showed blood-alcohol readings above Florida’s legal limit of 0.08…

In his ruling, Aikens found that breath-test results can vary depending on how long someone breathes into the device, called an Intoxilyzer 8000.

Aikens agreed with an earlier Bay County circuit-court ruling, which said, “Rules that permit a test operator to have the subject blow into the machine as long as he, in his undirected discretion wishes … is insufficient to create a scientifically reliable test.”

Refreshing to see a judge more concerned with justice than political repercussions from MADD.

The Definition of Insanity…

In an earlier post ("The Insanity of DUI Laws"), I quoted Albert Einstein's famous definition of insanity: "Doing the same thing over and over again and expecting different results."

Federal Officials Push States to Toughen Drunk Driving Penalties

Washington, Aug. 21 – Federal traffic safety officials kicked off their annual push against drunk drivers on Monday, calling on states to toughen penalities and warning offenders that one offense could cost them $10,000 on average in fines, court costs and lost wages.

The event, which the National Highway Traffic Safety Administration will bolster with $11 million in national advertising, comes as deaths from drunk drivers held steady in 2006, as they have for the past decade.

The agency and groups such as Mothers Against Drunk Driving have been pushing states for tougher laws, including requiring all convicted drunk drivers to have alcohol testing devices installed in their vehicles that prevent them from starting if an operator is drunk.

Maybe after more than a decade of unfair laws and unconstitional procedures with no discernable effect…it's time for a different approach?  (See my post, "Time for a Change".)

Public Defender Arrested: Not Ready for Trial

In the assembly-line justice and double standards departments:

Plough Has Public Defender Arrested

Attorney told judge he was not ready to try

case he had for less than a day

Ravenna, Ohio.  August 17  - Portage County Municipal Court Judge John Plough ordered a Portage County public defender placed under arrest for contempt of court Thursday.

The order was given after the attorney said he was unprepared and unable to begin a scheduled trial, having only been appointed to represent a defendant the day before the trial was scheduled to begin.

Brian Jones, an employee of Portage County Public Defender Dennis Lager since May, was held in contempt of court during an afternoon trial at Portage County Municipal Court in Kent after he told Plough he was unable to go forward with the trial.

Plough ordered a Portage County Sheriff's deputy to remove Jones from his courtroom in front of his client, spectators and courthouse employees… 

Scott had a pre-trial hearing July 25, but according to Plough failed for almost two months to obtain counsel. He was appointed a public defender on Wednesday. With the trial set to begin at 11 a.m. Thursday, Plough moved the trial back to 1:30 p.m., giving Jones two-and-a-half-hours to prepare his case…

It is not the first time a public defender has drawn Plough's ire in the courtroom. Public defender Robin Bostick also was threatened with contempt charges when appearing before Plough on a previous case with little time to prepare.

Imagine what would happen if a judge ordered a prosecutor arrested for not being ready to try a case he had been given only two-and-a-half hours earlier?

(Thanks to Terry Rudes.)