Monthly Archives: March 2012

Court to Cops: Stop Destroying the Blood Samples

I’ve written in the past about how cops have a disturbing tendency to destroy or "lose" critical evidence in drunk driving cases.  See, for example, Why Do Police Destroy DUI Evidence?, Why Do Police Erase DUI Videotapes? and Why Do police Always Destroy Breathalyzer Evidence?.  Destroying or losing evidence is, of course, a convenient way to make sure there is nothing to contradict the police version of the facts.

The issue of immediate destruction of breath samples — which can be easily and cheaply saved for later reanalysis by the defense — was raised a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.

So why isn’t the evidence saved in DUI cases today?  Because the Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.  California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would be so much later that it would probably not be relevant or admissible in court.

So what about blood samples?  Can cops just throw these away, too?  Well, here we go again…..In today’s news (note the plug for one of my law firm’s attorneys at the end of the article!):

Court Rules Police Cannot Destroy DUI Blood Sample

Minneapolis, MN.  March 29 – Minnesotans accused of driving under the influence of alcohol (DUI) have the right to independently test the blood sample evidence taken by police. Should law enforcement refuse to release that sample on request, the state court of appeals ruled Monday that such conduct violates due process and merits exclusion of the blood evidence at trial.

In March 2010, David Hawkinson was arrested for DUI in the city of Plymouth. He consented to have his blood drawn and tested. The Bureau of Criminal Apprehension estimated Hawkinson’s blood alcohol content (BAC) at 0.11, in excess of the legal maximum of 0.08. Three months later, Hawkinson’s attorney requested the blood, only to learn just before trial that it had been destroyed. A Hennepin County District Court judge ruled the evidence of the blood sample should be excluded because the city refused to turn over the evidence.

State prosecutors appealed, arguing it was up to Hawkinson to prove the destroyed evidence would somehow have exonerated him. The three-judge appellate panel disagreed with the state.

"The right to determine whether evidence is ‘favorable to an accused’ does not belong to the state: the state may not determine what evidence is definitely, probably, or possibly not favorable and then destroy it after the accused has specifically and in writing requested that it be preserved without violating due process," the appeals court ruled. "Here, because there was no evidence other than the blood sample that respondent had driven with an alcohol concentration exceeding .08, the destruction of the blood sample was not harmless error."

The ability to independently test blood samples is important given the problems with breathalyzer machine calibration nationwide. In Washington, DC the city’s attorney general admitted at least 300 drivers were prosecuted based on readings from faulty machines between 2008 and 2010. Another 82 drivers were falsely accused based on unreliable blood tests in Colorado Springs, Colorado’s crime lab.

In Los Angeles, California attorney Lane Scherer defended a client accused of having a BAC of 0.15. According to Lawrence Taylor, author of DUI Blog, restesting the blood sample showed the a BAC was actually 0.13. As the client maintained his innocence, Taylor’s law firm had a $1200 DNA test performed on the blood sample, which found the accused man was indeed innocent because the crime lab had mixed up the blood samples.

With the blood sample excluded, no case remains against Hawkinson…

We can only wait for the Supremes in Washington to reverse that decision as well — and give the go-ahead to cops nationwide to destroy the primary evidence of a defendant’s guilt or innocence.

Proving DUI Marijuana

 I've discussed in the past how difficult it is (1) to recognize and identify whether a person's driving ability is impaired by marijuana, and (2) to prove with observable and chemical evidence the existence of that impairment.  See, for example, DUI Marijuana: Does Marijuana Impair Driving? and Driving + Trace of Marijuana = DUI.

The following news story does an excellent job of highlighting some of the issues of a growing problem:

New Wrinkle in Pot Debate: Stoned Driving

Denver, CO.  March 18  – Angeline Chilton says she can't drive unless she smokes pot. The suburban Denver woman says she'd never get behind the wheel right after smoking, but she does use medical marijuana twice a day to ease tremors caused by multiple sclerosis that previously left her homebound.

"I don't drink and drive, and I don't smoke and drive," she said. "But my body is completely saturated with THC."

Her case underscores a problem that no one's sure how to solve: How do you tell if someone is too stoned to drive?

States that allow medical marijuana have grappled with determining impairment levels for years. And voters in Colorado and Washington state will decide this fall whether to legalize the drug for recreational use, bringing a new urgency to the issue.

A Denver marijuana advocate says officials are scrambling for limits in part because more drivers acknowledge using the drug.

"The explosion of medical marijuana patients has led to a lot of drivers sticking the (marijuana) card in law enforcement's face, saying, `You can't do anything to me, I'm legal,'" said Sean McAllister, a lawyer who defends people charged with driving under the influence of marijuana.

It's not that simple. Driving while impaired by any drug is illegal in all states.

But it highlights the challenges law enforcement officers face using old tools to try to fix a new problem. Most convictions for drugged driving now are based on police observations, followed later by a blood test.

Authorities envision a legal threshold for pot that would be comparable to the blood-alcohol standard used to determine drunken driving.

But unlike alcohol, marijuana stays in the blood long after the high wears off a few hours after use, and there is no quick test to determine someone's level of impairment — not that scientists haven't been working on it.

Dr. Marilyn Huestis of the National Institute on Drug Abuse, a government research lab, says that soon there will be a saliva test to detect recent marijuana use.

But government officials say that doesn't address the question of impairment.

"I'll be dead — and so will lots of other people — from old age, before we know the impairment levels" for marijuana and other drugs, said White House drug czar Gil Kerlikowske.

Authorities recognize the need for a solution. Marijuana causes dizziness, slowed reaction time and drivers are more likely to drift and swerve while they're high…

Physicians say that while many tests can show whether someone has recently used pot, it's more difficult to pinpoint impairment at any certain time.

Urine and blood tests are better at showing whether someone used the drug in the past — which is why employers and probation officers use them. But determining current impairment is far trickier.

"There's no sure answer to that question," said Dr. Guohua Li, a Columbia University researcher who reviewed marijuana use and motor vehicle crashes last year.

His survey linked pot use to crash risk, but pointed out wide research gaps. Scientists do not have conclusive data to link marijuana dosing to accident likelihood; whether it matters if the drug is smoked or eaten; or how pot interacts with other drugs.

The limited data has prompted a furious debate.

Proposed solutions include setting limits on the amount of the main psychoactive chemical in marijuana, THC, that drivers can have in their blood. But THC limits to determine impairment are not widely agreed upon.

Two states place the standard at 2 nanograms per milliliter of blood. Others have zero tolerance policies. And Colorado and Washington state are debating a threshold of 5 nanograms.

Such an attempt failed the Colorado Legislature last year, amid opposition from Republicans and Democrats. State officials then set up a task force to settle the question — and the panel couldn't agree.

This year, Colorado lawmakers are debating a similar measure, but its sponsors concede they don't know whether the "driving while high" bill will pass.

In Washington state, the ballot measure on marijuana legalization includes a 5 nanogram THC limit.

The measure's backers say polling indicates such a driving limit could be crucial to winning public support for legalization…

The White House, which has a goal of reducing drugged driving by 10 percent in the next three years, wants states to set a blood-level standard upon which to base convictions, but has not said what that limit should be.

Administration officials insist marijuana should remain illegal, and Kerlikowske called it a "bogus argument" to say any legal level of THC in a driver is safe.

But several factors can skew THC blood tests, including age, gender, weight and frequency of marijuana use. Also, THC can remain in the system weeks after a user sobers up, leading to the anxiety shared by many in the 16 medical marijuana states: They could be at risk for a positive test at any time, whether they had recently used the drug or not.

(Thanks to Andre Campos.) 

More on Widespread Breathalyzer Inaccuracies

In my last post (Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers), I featured a news story about widespread breathalyzer failures in San Francisco.  I also mentioned that this was not an isolated situation, pointing out massive failures of the devices in other cities across the country.

In a follow-up yesterday, the San Francisco Chronicle has confirmed this:

SF Not Alone in DUI Test Flaw, Dropped Convictions

San Francisco, CA.  Mar. 12
– In facing the possible loss of hundreds of drunken-driving convictions because of a testing controversy, San Francisco is not alone.

District Attorney George Gascón said last week that his office was reviewing cases going back to 2006 because of possible police mismanagement of the breath-test devices used to measure drivers’ blood-alcohol levels. Public Defender Jeff Adachi said as many as 1,000 convictions could eventually be overturned.

Other jurisdictions, including Santa Clara County and Ventura County, have had to drop some drunken-driving convictions because of problems with faulty or mishandled breath-test devices – although fears of mass dismissals have proved unfounded.

San Francisco’s troubles began when attorneys with the public defender’s office discovered suspicious bookkeeping in the Police Department’s accuracy testing of the devices. The entries suggested that officers weren’t conducting the checks at all.

A similar situation in Philadelphia last year resulted in the district attorney offering new trials to nearly 1,500 people who had been convicted of driving under the influence over the previous 15 months.

Police there revealed in March 2011 that four breath-test devices – different models from those used in San Francisco – had not been properly calibrated, said Tasha Jamerson, a spokeswoman for the district attorney’s office…

Officers in the field there ask suspected drunken drivers to exhale into portable testing devices to estimate whether a driver’s blood alcohol level is above the legal limit of 0.08 percent. In April 2010, Santa Clara County authorities learned that condensation was building up in the device, the Alco-Sensor V, that San Jose and Palo Alto police had been using for nearly all of 2010, resulting in erratic readings.

The device was a newer model of the Alco-Sensor IV that San Francisco police and many other Bay Area law enforcement agencies use…

Ventura County dismissed at least 64 cases in 2011 because of the same condensation glitch, said Senior Deputy District Attorney Stacy Ratner.

Intoximeters, the Missouri company that makes the Alco-Sensor devices, did not respond to requests for comments…

Although the news story only mentioned California counties, as well as Philadelphia, the widespread unreliability of these machines — upon which criminal convictions are based — goes far beyond that state.  See, for example, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines400 Wrongly Convicted in Washington: Faulty Breathalyzers and More Massive Breathalyzer Failures.  

For a confidential government document verifying the unreliability, see Report: Breathalyzers Outdated, Unstable, Unreliable.

(Thanks to Andre Campos.)

Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers

In most drunk driving cases, by far the most important evidence comes from a breath test.  Our DUI laws even provide that they are sufficient by themselves to warrant a conviction.  The accuracy of these devices is, therefore, critical.  And I’ve posted dozens of time on the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work — and Why They Don’t, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines and More Massive Breathalyzer Failures.

Besides the inherent inaccuracies of breath-testing devices, they are also entirely dependent upon proper maintenance and calibration by the police making the arrest. Failure to properly calibrate one of these devices on a regular basis is going to result in false readings — and wrongful convictions.

Unfortunately, cops and police agencies are notoriously lazy or incompetent when it comes to these irritating “technical” tasks….

SFPD Breathalyzer Error Puts Hundreds of DUI Convictions in Doubt

San Francisco, CA.  March 5 – Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment.

Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.

“We do expect that the cases will be in the hundreds. It’s possible that it could go into the thousands. The District Attorney’s Office is still investigating the scope of this,” Adachi said during a joint news conference with District Attorney George Gascon…

Amazing….no calibration tests in six years!  The cops just made up numbers to make the machines look accurate.

Even more amazing that a reading from one of these machines is legally considered proof beyond a reasonable doubt in a DUI case — and even triggers a legal presumption of guilt, forcing an accused citizen to prove his innocence.  See Whatever Happened to the Presumption of Innocence? and How to Overcome Scientific Facts: Pass a Law

(Thanks to Andre Campos and Murphy Mack.)

Another DUI Exception to the Constitution

I’ve mentioned in past posts that the right to jury trial does not exist in some states for citizens accused of drunk driving.  See, for example, The Disappearing Right to Jury Trial – in DUI Cases, Through a Glass Darkly: No Jury Trial in DUI Cases and New Law: No Right to Jury Trial in DUI Cases. This may come as a shock to many out there, but it’s pretty typical of what I’ve termed "The DUI Exception to the Constitution".  

Let me make it clear:  in some states today, you can be arrested for DUI, charged, prosecuted and sent to jail for up to six months — without any right to have a jury of fellow citizens decide your guilt or innocence.

One of those states, Arizona, is apparently having second thoughts about denying this basic constitutional right….

Arizona Considers Restoring Jury Trials for DUI

Phoenix, AZ.  Feb. 20 —  Since the beginning of the year, certain motorists charged with driving under the influence of alcohol (DUI) lost their right to a trial by jury in the state of Arizona. A bill signed into law by Governor Jan Brewer (R) on April 29, 2011 rewrote the DUI statute so that only hardcore offenders with previous convictions or "extreme" blood alcohol content readings had the benefit of having their case heard by a jury of their peers, even though the first-time accused faced the prospect of spending six months behind bars.

The law removing the jury trials took effect December 31, but the state House Judiciary Committee on Thursday voted 7-0 to retroactively nullify the provision. Many state lawmakers expressed surprise after learning that they had voted for this language, which local prosecutors have been pushing for several years.

"At the arraignment, the court shall inform the defendant that if the state alleges a prior conviction the defendant may request a trial by jury and that the request, if made, shall be granted," Arizona Code Section 28-1381 now states.

The addition of the phrase "if the state alleges a prior conviction" erased the right to a jury trial for those who stand accused of being first-time, minor offenders. Trial lawyers have been looking to challenge the language before an appellate court.

"It has caused a lot of problems because if you have an extreme DUI and a first-time DUI, the judge hears the DUI case, the jury hears the extreme case," state Representative David Burnell Smith (R-Scottsdale) explained at the hearing Thursday. "If you file a motion, you get the extreme dismissed, you’d still not get a jury trial. It’s confusing out there. There’s constitutional issues, back and forth motions."

Smith’s legislation, House Bill 2284, would delete the language about prior convictions and give every defendant the unilateral right to request a jury trial. The measure is retroactive to December 31 to head off any legal challenges.

"It eliminates a real problem with the courts," Smith said.

Imagine that:  citizens accused of DUI may get a jury trial in Arizona.  Now, about those other states….