Monthly Archives: May 2018
I am currently in the midst of a California DUI case where my client was under the age of 21 at the time of their arrest. At the beginning of their case, my client asked me what could happen to him. Unfortunately, it’s a common question as many people who are not legally allowed to drink are caught driving with alcohol in their systems.
As most of us know, the age at which someone is legally allowed to have alcohol is 21-years-old. Although the age of majority is 18, for purposes of this article, I’ll refer to a person under the age of 21 as a “minor.”
Under California Vehicle Code section 23136, otherwise known as California’s “Zero Tolerance” law, it is illegal for a minor to drive with a blood alcohol content of 0.01 percent or more in their system. It does not matter whether the alcohol in the minor’s system came from an alcoholic beverage or some other source like medicine. Nor does it matter whether the minor was “under the influence.” The minor cannot have any alcohol in their system while driving. Fortunately, however, a violation of Vehicle Code 23136 is non-criminal and only results in a one-year suspension of driving privileges through the California Department of Motor Vehicles.
Although not a criminal matter, a minor facing a suspension under California Vehicle Code section 23136 may still want to hire an attorney to fight the DMV suspension. In the event that a suspension cannot be avoided, the attorney can assist the minor obtain a “restricted license” to allow them to go to and from essential locations such as work, school, and the doctor’s office.
If, however, a minor is caught driving with a blood alcohol content of 0.05 percent or higher, they can be charged with an infraction under Vehicle Code section 23140. The penalty if someone is convicted of a violation of section 23140 is a one-year suspension of driving privileges, a fine of $100, and, if the person is over the age of 18, a mandatory alcohol education program of three months of more.
In addition to fighting the license suspension, as was the case with a violation of California’s Zero Tolerance law, a lawyer can help the minor fight the infraction under section 23140 using the same arguments commonly used in an adult DUI case.
If the minor is either under the influence of alcohol or caught driving with a 0.08 percent blood alcohol content or more in their system, a prosecutor can charge the minor with the standard DUI charges under California Vehicle Code sections 23152(a) and 23152(b) – misdemeanor driving under the influence and misdemeanor driving with a BAC of 0.08 percent, respectively.
A person, including a minor, is under the influence of alcohol if their physical or mental abilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristics of a sober person of ordinary prudence under the same or similar circumstances.
In addition to being charged with driving while under the influence, a minor can also be charged with driving with a blood alcohol content of 0.08 percent or more.
The penalties for either standard DUI offenses under sections 23152(a) or 23152(b) include a criminal misdemeanor conviction (which remains on a person’s criminal record), suspension of driving privileges, three to five years of summary (informal) probation, a fine between $390 and $1,000, an alcohol education program of three, six, or nine months, up to six months in jail. The penalties can also include non-mandatory conditions such as a Mothers Against Drunk Driving Victim Impact Panel, a hospital and morgue program, or AA meetings.
It shouldn’t take me to tell you that if anyone, including a minor, is charged with the standard DUI offenses under Vehicle Codes 23152(a) and 23152(b), they should seek the assistance of a skilled California DUI attorney. There is too much as stake not to.
Houston police yesterday arrested Natalia Ortiz at El Muelle Seafood restaurant where she works as a bartender. Almost exactly two years ago, one of Ortiz’s customers left the restaurant under the influence of alcohol and crashed into another vehicle killing one of the occupants.
You might be asking why Ortiz is being arrested and charged for something her customer did. Well, it was later determined that Ortiz served the patron, Edin Palacios, a whopping eleven beers that night before he got behind the wheel.
After Palacios left the restaurant, a Houston police officer attempted to pull him over. Palacios attempted to flee from the officer, ran a red light, and collided with a Dodge Charger. 18-year-old Jocelynn Valero, an occupant of the Dodge Charger was killed on the scene. The other occupant survived, but suffered a broken pelvis, a lacerated liver, and other significant injuries. Valero and the other occupant, her date, we’re driving home from their high school prom.
Prosecutors later determined that Palacios’s blood alcohol content was 0.18 percent.
According to Ortiz’s charging documents, a review of the restaurant’s surveillance video showed Palacios was “obviously intoxicated,” and who “was observed having difficulty in balance and coordination, dropping items from his hand…[and] nearly stumbles while walking.”
The documents went on to say, “This behavior was exhibited in front of [Ortiz] as she knowingly and intentionally continued to serve and deliver beer to the intoxicated subject.”
In 2016, Houston saw 89 fatal DUI crashes, the most in the state of Texas according to the Texas Department of Public Safety. Valero’s death was one of 3,776 DUI-related fatalities in the state of Texas as a whole that year.
As a result of these unfortunate statistics, local prosecutors stepped up efforts to enforce laws prohibiting the over-serving of alcohol to obviously intoxicated bar and restaurant patrons.
“We’re not going after servers or bars that are conducting business legally, we’re going after people whose actions are criminal and negligent,” said Sean Teare, the prosecutor in charge of the Harris County District Attorney’s Vehicular Crimes Division. “When those actions result in the tragedies every day that we deal with on these roads, we’re going to come after them.”
Palacios was charged and convicted of felony murder. He was sentenced to 32 years in prison. Ortiz, on the other hand, has been charged with serving a drunk, a misdemeanor. We’ll be keeping our eyes on how her case plays out.
California has a law similar that which allowed the prosecutors in Ortiz’s case to charge her for over-serving Palacios.
According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”
Defense attorneys have been saying for years; breathalyzers are flawed. A new report that was never meant to be seen was and it confirms the defense attorneys’ suspicions.
Unsurprisingly, our story begins with a DUI case which arose out of Washington state. The DUI defense attorney in the case sought the assistance of two experts to analyze the breathalyzer’s source code accuracy in producing blood alcohol content results.
The experts determined that the source code used by the breathalyzer in the case, which happens to be the same breathalyzer used in other states including California, was fundamentally flawed by producing elevated blood alcohol content readings for reasons I’m not smart enough to understand. The experts put their findings into a preliminary report.
In 2017 at a DUI defense attorney conference, the experts shared their findings and the report with the attendees. This prompted the manufacturer of the breathalyzer to initiate legal action for violation of a protective order regarding the breathalyzer’s source code. The manufacturer and the experts settled out of court.
The experts are now tightlipped about the settlement and have walked back the contents of their report later claiming that it was incomplete, unfinished, and should not be relied upon by those few people who were in possession of it.
ZDNet, however, obtained at copy of the report and published an article detailing its contents and the implications it could have for thousands of DUI cases in a number of states, including California.
Researchers say a breathalyzer has flaws, casting doubt on countless convictions
May 10, 2018, ZDNet – The source code behind a police breathalyzer widely used in multiple states — and millions of drunk driving arrests — is under fire.
It’s the latest case of technology and the real world colliding — one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer’s manufacturer.
This most recent skirmish began a decade ago when Washington state police sought to replace its aging fleet of breathalyzers. When the Washington police opened solicitations, the only bidder, Draeger, a German medical technology maker, won the contract to sell its flagship device, the Alcotest 9510, across the state.
But defense attorneys have long believed the breathalyzer is faulty.
Jason Lantz, a Washington-based defense lawyer, enlisted a software engineer and a security researcher to examine its source code. The two experts wrote in a preliminary report that they found flaws capable of producing incorrect breath test results. The defense hailed the results as a breakthrough, believing the findings could cast doubt on countless drunk-driving prosecutions.
The two distributed their early findings to attendees at a conference for defense lawyers, which Draeger said was in violation of a court-signed protective order the experts had agreed to, and the company threatened to sue.
Their research was left unfinished, and a final report was never completed.
Draeger said in a statement the company was protecting its source code and intellectual property, not muzzling research.
“Pursuant to a protective order, Draeger provided the source code to both of the defense experts in Snohomish County,” said Marion Varec, a spokesperson for Draeger. “That source code is highly proprietary and it was important to Draeger that the protective order limit its use to the purposes of the litigation at issue.” Draeger says it believes that one of the experts entrusted to examine the source code was using it in violation of the protective order, so Draeger sent the expert a cease and desist letter. Draeger says it “worked with the expert to resolve the issue.”
Of the law firms we spoke to that were at the conference and received the report, none knew of Draeger’s threat to launch legal action. A person with a copy of the report allowed ZDNet to read it.
The breathalyzer has become a staple in law enforcement, with more than a million Americans arrested each year for driving under the influence of alcohol — an offense known as a DUI. Drunk driving has its own economy: A multi-billion dollar business for lawyers, state governments, and the breathalyzer manufacturers — all of which have a commercial stake at play.
Yet, the case in Washington is only the latest in several legal battles where the breathalyzer has faced scrutiny about the technology used to secure convictions.
TRIAL BY MACHINE
When one Washington state driver accused of drunk-driving in 2015 disputed the reading, his defense counsel petitioned the court to obtain the device’s source code from Draeger.
Lantz, who was leading the legal effort to review the Alcotest 9510 in the state, hired two software engineers, Falcon Momot, a security consultant, and Robert Walker, a software engineer and decade-long Microsoft veteran, who were tasked with examining the code. The code was obtained under a court-signed protective order, putting strict controls on Momot and Walker to protect the source code, though the order permitted the researchers to report their findings, with some limitations. Although the researchers were not given a device, the researchers were given a binary file containing the state’s configuration set by Washington State Patrol.
Although their findings had yet to be verified against one of the breathalyzers, their preliminary report outlined several issues in the code that they said could impact the outcome of an alcohol breath test.
In order to produce a result, the Alcotest 9510 uses two sensors to measure alcohol content in a breath sample: An infrared beam that measures how much light goes through the breath, and a fuel cell that measures the electrical current of the sample. The results should be about the same and within a small margin of error — usually within a thousandth of a decimal point. If the results are too far apart, the test will be rejected.
But the report said that under some conditions the breathalyzer can return an inflated reading — a result that could also push a person over the legal limit.
One attorney, who read the report, said they believed the report showed the breathalyzer “tipped the scales” in favor of prosecutors, and against drivers.
One section in the report raised issue with a lack of adjustment of a person’s breath temperature.
Breath temperature can fluctuate throughout the day, but, according to the report, can also wildly change the results of an alcohol breath test. Without correction, a single digit over a normal breath temperature of 34 degrees centigrade can inflate the results by six percent — enough to push a person over the limit.
The quadratic formula set by the Washington State Patrol should correct the breath temperature to prevent false results. The quadratic formula corrects warmer breath downward, said the report, but the code doesn’t explain how the corrections are made. The corrections “may be insufficient” if the formula is faulty, the report added.
Issues with the code notwithstanding, Washington chose not to install a component to measure breath temperature, according to testimony in a 2015 hearing, and later confirmed by Draeger.
Kyle Moore, a spokesperson for Washington State Patrol said the police department “tested and approved the instrument that best fit our business needs,” and believes the device can produce accurate results without the breath temperature sensor.
The code is also meant to check to ensure the device is operating within a certain temperature range set by Draeger, because the device can produce incorrect results if it’s too hot or too cold.
But the report said a check meant to measure the ambient temperature was disabled in the state configuration.
“The unit could record a result even when outside of its operational requirements,” said the report. If the breathalyzer was too warm, the printed-out results would give no indication the test might be invalid, the report said.
Draeger disputed this finding. A spokesperson said the Washington devices check their temperature, the check is enabled, and that the devices will not produce a reading while the device is outside its operational temperature range.
When asked, a Washington State Patrol spokesperson would not say if the breathalyzer was configured to allow breath tests outside its operational temperature range, saying only that the device “has been tested and validated in various ambient temperatures.”
The report also scrutinized the other sensor — the fuel cell — used to measure a person’s alcohol levels. Any fuel cell will degrade over time — more so when the breathalyzer is used often. This decay can alter the accuracy of test results. The code is meant to adjust the results to balance out the fuel cell’s decline, but the report said the correction is flawed. Breathalyzers should be re-calibrated every year, but the state’s configuration limits those adjustments only to the first six months, the report added.
“We also note that the calibration age does not account for the use frequency of conditions; a unit that has been used hundreds of times per day would have the same correction as one used only once or twice in several months,” the report said.
Concluding the nine-page report, the researchers say they are “skeptical” that the Alcotest 9510 can produce a reliable measurement of breath alcohol.
“Although the apparatus states its output in very absolute terms, we recommend interpreting the results with extreme caution,” the report said.
Although Momot and Walker’s code review was limited to devices in Washington, similar concerns dragged other states into protracted legal battles, forcing prosecutors to defend not only the breathalyzer but also how it’s configured.
But the line between Draeger’s source code and each state’s configuration is blurry, making it difficult to know who is responsible for incorrect results.
Draeger said in an email that the “calibration and adjustment procedures depend on the instrument, additional equipment and materials, and the persons performing these procedures.” When asked about the guardrails put in place to prevent calibration errors, the company said, “only trained and certified personnel perform special instrument certification procedures.”
Washington State Patrol said the device produces accurate results, even without certain sensors installed.
If source code gets into the wrong hands, the damage would be incalculable.
Draeger’s breathalyzer is widely used across the US, including in California, Connecticut, Massachusetts, New Jersey, and New York. It’s often the only breathalyzer used in the states where they were bought.
In both New Jersey and Massachusetts, defense lawyers raised concerns. By acquiring the devices used by the states, lawyers commissioned engineers to analyze the code who say they found flaws that they say could produce incorrect results.
But defense teams in both states largely failed to stop their state governments from using the devices, public records show.
New Jersey’s top court found in 2008 that a similar Alcotest breathalyzer — said to use the same underlying algorithms as the Alcotest 9510 — was “generally scientifically reliable” and can be used with some configuration changes. One such change was to adjust the breathalyzer’s results for women over age 60 — who often aren’t able to produce the minimum breath volume of 1.5 liters required for a test. But defense lawyers argued that these changes were never put into place.
The same court ruled five years later that the breathalyzer “remains scientifically reliable, and generates results that are admissible” in court.
In nearby Massachusetts, a scandal that blew up in 2017 involving alleged failings in the breathalyzer threw thousands of prosecutions into disarray, because “all but two of the 392 machines” examined in the state had not been properly calibrated.
A district judge ruled that breath test results from miscalibrated devices for two years prior to September 2014 were “presumptively unreliable,” said Joe Bernard, a defense attorney who led the case against the Alcotest 9510 in Massachusetts.
Bernard, and his colleague Tom Workman, a computer forensic expert who later trained as a lawyer and consulted on the case, obtained the state’s source code and produced a report.
In a phone call, Workman criticized the Draeger breathalyzer, arguing that it can produce widely inflated results. One section of his report claimed the device had a litany of programming errors, including code that — like in Washington — apparently fails to correct for fuel cell fatigue.
But the court rejected the findings and found the source code still produced sound scientific results.
“THROW CAUTION TO THE WIND”
While legal battles were ongoing, Washington waited to push ahead with its deployment, but the ruling in New Jersey case in 2008 was seen as a vote of confidence.
Almost a year later, Washington State Patrol’s toxicologist said in an email seen by ZDNet that the police department should “throw caution to the wind” to deploy the device to police officers across the state without commissioning an independent source code evaluation — though she recommended confirming with the chief of police.
When asked whether an independent evaluation was ever commissioned, a Washington State Patrol spokesperson would not comment further and referred back to the legal filings in the case.
A later email in 2015 confirmed that the Washington State Patrol “never commissioned” an independent evaluation.
Moses Garcia, a former Washington state prosecutor who now works for a non-profit providing local governments in the state with legal advice, said in an email that the earlier breathalyzer in the New Jersey case had already been deemed admissible, and that the newer Alcotest 9510 uses the “same basic algorithms and formulas” as its predecessor.
The former prosecutor criticized the defense’s discovery effort as “speculation.”
“In adopting and approving the [Alcotest 9510], the Washington breath alcohol program exceeds, by far, the scientific standards accepted in the scientific community for breath test instrument validation,” he said.
Five years after the contract was signed, Washington State Patrol began deploying hundreds of Draeger breathalyzers in 2014 — sparking interest from defense attorneys in the state.
Not long after, defense attorneys in the state sought access to the devices.
Lantz was granted access to the source code used for Momot and Walker’s code review by a local county court. In one of several recent phone calls with ZDNet, he recounted how he set out to see if there were problems with the state’s device.
“We thought we would find something but nothing like this,” he said.
SETTLEMENTS AND SETBACKS
Hundreds of DUI lawyers descended on Las Vegas in mid-2017 for their annual gathering.
At the event, the two researchers shared their findings, which claimed the Alcotest 9510 having a “defective design.”
Word spread quickly. Draeger sent the researchers a cease and desist letter claiming defamation and alleging the two violated a protective order, designed to protect the source code from leaking.
Draeger and the researchers settled before a case was filed in court, avoiding any protracted legal battle. A legal case disputing the fine print of the order could have taken years to resolve.
Draeger said it “remains willing to provide the source code for use in other litigation in Washington, so long as a proper protective order is in place.”
The statement said that the two experts “never intended to violate the protective order” and denied any wrongdoing. But the two sides “agree” the draft report was based on incomplete data and not finished — and that “no one in possession of the report should rely on it for any purpose.”
We reached out to Walker with questions, but he referred only to the settlement statement on his company’s website, and he declined to comment further.
Draeger would not say why the settlement did not include a retraction on the report’s findings.
“There has not been an evidentiary hearing in Washington. If and when there is one, Draeger will cooperate fully,” a spokesperson said.
But Lantz paints a different picture. The defense attorney said he believes there “really was no technical violation of the protective order,” because the report didn’t disclose any source code.
“I do believe that [Draeger] is trying to interpret the protective order to be something that it’s not,” he said. “If we could go back in time, I would’ve asked that the report was not handed out — just because of the optics of it.”
Lantz said the protective order is vague, but contends it was framed to prevent the researchers from using the source code or their findings for commercial gain — effectively preventing Momot and Walker from using their knowledge to build their own competing devices. He believes the order gives Draeger near complete control over the code and anything the company deems “protected” information.
That’s when Draeger “began developing a strategy on how to block” the researchers’ report, said Lantz, because the company didn’t want the “pervasive exposure of these flaws.”
“I believe that interest of Draeger’s to protect their bottom line overlaps with the state’s interest to keep juries from hearing this information about the problems,” he said.
Draeger maintained that it is protecting its intellectual property. The company said in response that it “takes very seriously the proprietary nature of its source code,” and “protects proprietary information as a sound business practice,” which can include various types of communications or agreements for a particular matter.
Momot and Walker are no longer involved with the case, but Sam Felton, a Washington-based software engineer, is set to conduct another review of the Alcotest 9510 code. When contacted, Felton would not speak in specifics about his findings to date, citing his own protective order, except that he found things in the code that caused him “to have concerns.”
And Lantz, now at a new law firm, is working on starting discovery proceedings in neighboring King County, home of Seattle, the largest city in the state.
The day that a person is arrested on suspicion of driving under the influence is very often the worst day of their life. The legal process to come, for many, is not much better than the arrest itself. This is precisely why it would be difficult to understate the importance of choosing the right DUI attorney to fight your California DUI charges.
Many of my prior posts talk about the complexities and intricacies of the criminal law process. Other posts I’ve written about talk about the potential consequences of driving under the influence which can include probation, thousands of dollars in fines and fees, a license suspension, drug and alcohol programs, an ignition interlock device, a permanent criminal record, and even jail. With so much at stake in the middle of one of the most complex processes in society, why wouldn’t a person seek the help and advice of a trained DUI attorney? You certainly wouldn’t want an unqualified doctor performing a surgery on you, or worse, attempt the surgery yourself.
So how does someone who has been arrested on suspicion of a California DUI choose the right attorney for them?
Like many things, the first step is research. Reach out to several attorneys. Many offer free consultations. Check user-based rating websites like Avvo.com or Yelp.com to see what others have said about a lawyer’s services. Check the California Bar Association’s website at Calbar.org to check if a lawyer has had any disciplinary action taken against them for misconduct. Ask family and friends for referrals. If someone you know has used an attorney in the past and were happy with the services the attorney provided, that attorney might be a good option.
However, just because an attorney came recommended from a family member or a friend on one matter might not necessarily mean that they’re a good fit for someone else’s DUI case. After a lawyer becomes licensed to practice law, they are legally allowed to practice any and all areas of law. This, however, does not necessarily mean that they are qualified to practice any area of law. Many lawyers are known as “general practitioners.” General practitioners practice everything from personal injury law to real estate law to estate planning and possibly even criminal defense, which may include DUI law. While the law, in general, is complicated, DUI law is complicated in its own right. Understanding the nuances of DUI law and the science involved is crucial in defending a DUI case. If I’m hiring an attorney to represent me for a DUI, I want a lawyer who defends DUI cases day in and day out, not a lawyer who may defend one DUI case every couple of months.
Attorneys, like other service providers, rely on people hiring them to survive as a business. As such, many attorneys are salespeople. Unfortunately, the reputation of salespeople runs true with many attorneys as well. Some lawyers will tell you what you want to hear to make the sale. They might claim that they can help because the case is a “slam dunk.” I have been practicing DUI defense for some time now and I can tell you firsthand that no case is a slam dunk. In fact, very few things in law are black and white. DUI defense lawyers don’t know the facts of the case, other than what the potential client tells them, until the first court date. In fact, many times what the potential client tells the lawyer is very different than what is in the police report. Therefore, when a person contacts a lawyer for the purpose of hiring them for representation in a California DUI case, the lawyer lacks the information necessary to predict the outcome of a case. Furthermore, it is actually illegal for a lawyer to guarantee an outcome.
Lastly, it shouldn’t come as a shock to anyone that lawyers can cost a lot of money. However, having said that, you’re paying for someone with the experience to help you make it through one of the most difficult times of your life. Make your decision to hire a lawyer based on experience, not cost. Fees for California DUI lawyers can range from $1,000 to $10,000. DUI defense lawyers almost always charge flat fees, not hourly fees. Often, the price of a DUI lawyer corresponds with their experience and what is included in the service. Sometimes, however, it isn’t. Make sure that you’re getting what you’re paying for.
Suffice it to say, it’s not an easy process to find the right California DUI attorney, but one that incredibly important nonetheless. Do your homework, make sure that the attorney is qualified, and make sure that you are comfortable with them.