New Jersey Forensic Lab Scandal Likely to Affect Thousands of DUI Cases

Wednesday, February 6th, 2019

People’s opinions and memories are subjective, which is why in the court of law, science and factual evidence is often the nail in the coffin, so to speak. If DNA evidence from a suspect matches the one said to have been found at the scene of the crime, even when the suspect “does not remember” being there, doubt gives way in favor of the DNA evidence. However, what if there was reason to believe that the lab mislabeled the samples, or that the machine that ran the tests were never cleaned or not properly calibrated? Now, what was once factual evidence is now less than reliable, perhaps even completely inaccurate.

Lab technicians are human. Therefore, no matter how careful one may be, it is undisputed that there is always the chance of human error. Unfortunately, however, there is difference between innocent human error and a concerted effort to undermine forensic testing in criminal cases, including DUI cases.  

If you have read our articles in the past, it should come as no surprise that another forensic lab, this time in New Jersey, has made a conscious effort to allow inaccurate evidence to pass through the lab doors and entered in court to convict drivers in drunk driving cases within that state.

Many of the breathalyzers used across the country are manufactured by Alcotest. This machine, although fairly accurate when used correctly, needs to be calibrated to ensure its accuracy. Sergeant Marc Dennis of the New Jersey State Police’s Drug and Alcohol Testing Unit was responsible for conducting tests twice a year on machines for five different counties to determine if recalibration was needed and to administer the recalibration where necessary. It was found that Dennis did not perform the required calibrations and, to make matters worse, he also falsely certified the accuracy of the machines in the paperwork filed with the state. Thousands of people in the state of New Jersey were convicted based on the results of these uncalibrated machines. Dennis was criminally charged with misconduct and tampering with public records in September of 2018 and the New Jersey State Administrative Office of the Courts was notified by the attorney general’s office that over 20,000 breath samples were in question.

The New Jersey Supreme Court ordered an extensive hearing regarding the failure to follow proper calibration procedures by Sergeant Dennis. The state Division of Criminal Justice brought the charge, but the division’s director stated that the omission of the calibration step does not undermine the credibility of any of the State Police test results. However, the New Jersey Supreme Court determined in their opinion issued in December 2018 that the some 20,000 breath tests done by the uncalibrated machines could not be trusted.

All of those cases will need to be reviewed, and there is a high probability that many of those cases will be dismissed.

Whether Dennis’s actions (or lack thereof) came from laziness or as a means to advance his career, such misconduct is sadly not uncommon. There have been other reported cases of forensic misconduct in the New Jersey State Police, as well as other states such as Massachusetts, Oregon and Texas. Although in Dennis’s case, his actions were noticed by a supervisor who is said to have “immediately reported to internal affairs,” the truth is his actions went unnoticed for years.

Back in 2009, the U.S. National Research Council gave a report regarding forensic practices across the country. What they found was a lack of accreditation for crime labs and lack of certification for forensic scientists. Instead of having the ability to rely on evidence being produced by forensic labs, whose precise job it is to produce accurate scientific evidence, we’re left wondering if further investigation needs to be done to determine if the lab is doing what it should be doing to ensure the reliability of the evidence it is processing.

Movement towards forensic reform slowly gained momentum after this report and in 2016, the U.S. President’s Council of Advisors on Science and Technology relayed similar concerns in a report and requested an independent oversight commission for labs across the country. Unfortunately for the reform movement, then-U.S. Attorney General Jeff Sessions, shut down the National Commission on Forensic Science in 2017, effectively also shutting down the idea for a national independent oversight committee.

Although we may have stalled, or possibly even have taken a few steps back, with regard to ensuring the reliability of forensic labs throughout the country, hopefully states will take these scandals as a wake-up call to adopt better measures of ensuring reliability of their forensic testing. In the meantime, the legal system runs the risk of wrongfully convicting drunk drivers, or any criminal suspect for that matter, and defense counsel should do everything in their power to make sure that faulty evidence be identified and thrown out.

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Massachusetts Judge Throws Out More than 400 Breathalyzer Results

Thursday, January 31st, 2019

The topic is nothing new to this blog; breathalyzer results used to try to convict people of a DUI are thrown out because of their lack of reliability.

The latest incident comes from Massachusetts where a judge ruled that breathalyzers in over 400 DUI cases must be thrown out until the machine that police in that state use to determine a driver’s blood alcohol content can be proven as accurate.

In the consolidated case, Judge Robert Brennan found that the Office of Alcohol Testing had failed to release evidence to DUI defense attorneys that breathalyzers used in their client’s cases were inaccurate. As a result, the head of the office was fired, the results of the breathalyzers were thrown out, and prosecutors are scrambling to find additional evidence to prove the intoxication of those drivers.

According to Massachusetts law, if someone refuses a breathalyzer, their refusal cannot be revealed in a DUI trial against that person as a means to avoid prejudicing a judge or jury. When that happens, prosecutors are forced to rely on law enforcement officers’ testimony that a person was intoxicated based on their observations.

“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” said Bellingham Police Chief Gerard Daigle. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”

 Additionally, Judge Brennan said that the Office of Alcohol Testing must undergo significant reform including providing additional training for staff and instituting internal regulations for complying with discovery requests in criminal cases, including DUI cases, similar to those that are followed by the state police’s crime management unit.

“Right now, there’s serious cause to doubt the scientific results,” said Massachusetts attorney, Daniel Cappetta. “Judge Brennan has rightly decided that these tests shouldn’t be used to take anyone’s liberty.”

The Office of Alcohol Testing is planning on applying for nation accreditation by August of this year and district attorney offices will be monitoring the office’s progress.

“We are reviewing yesterday’s ruling,” said District Attorney, Marian Ryan. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”

This is not the first time Massachusetts has dealt with issues of faulty breathalyzers. In fact, this is not the first time Judge Brennan has overseen DUI cases dealing with the reliability of the state’s use of breathalyzers.

In September of last year, I wrote Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts where the same Judge Brennan, who was presiding over proceedings challenging the reliability of breathalyzers since 2015, was provided with an agreement that prosecutors were not use breathalyzer results dating back to 2011. The reason was due to the lack of proper calibration of the breathalyzers since the state purchased them in 2011.

I’ve said it before and I’ll say it again, drivers should never submit to a pre-arrest breathalyzer and they should only submit to required chemical test breathalyzer (rather than a blood test) if they’re unsure whether their blood alcohol content was above or below the legal limit. The reason for this is precisely because they are inaccurate. Whether through inherent mechanical flaws or less-than-trustworthy toxicology labs, if a driver’s blood alcohol content is slightly above the legal limit, it is easier for defense attorneys to argue that there’s a chance that the driver’s blood alcohol content is actually below the legal limit.

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Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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Struggles of Finding a Legal Limit and Test for Marijuana

Thursday, January 10th, 2019

During this past New Year’s holiday, the Los Angeles Police Department utilized a new portable oral test that is able to check for the presence of marijuana, cocaine, methamphetamines, and other drugs in a person’s system. In their attempt to start aggressively enforcing impaired driving laws, they decided to use this test at New Years’ checkpoints even though the test had only been used about 50 times prior. Prosecutors hope that this eight-minute oral fluids test will eventually become an effective indicator of impairment of drugs, though they have yet to use any results from these tests as evidence in their cases.

Although this test does have the capability of checking for the presence of THC, which is the component most identified with the use of marijuana and which causes the psychoactive effects of marijuana, it does not test for impairment from THC. However, since the legalization of recreational marijuana in several states, experts have struggled to determine an appropriate level of use that would consistently label a person to be “impaired.”

It is undoubtedly important for law makers to be presented with research that helps to determine at what level of THC presence that will cause a person’s impairment. Without this, the current legal terminology of “under the influence” is extremely subjective. Unlike the research with alcohol that determined that there is a strong correlation between impairment and blood alcohol levels higher than 0.08, the research with THC levels are still inconclusive. Both neuroscientists and pharmacologists are having difficulties determining to what extent the drug can impair a person’s ability to drive as well as an appropriate way to measure it. Private companies are currently working on a breathalyzer to test for impairment similar to that used in alcohol related cases, however, the results are still not as definitive as the tests used to determine impairment of alcohol.

In the interim, the Legislature’s Special Commission on Operating Under the Influence and Impaired Driving is recommending mandatory drug testing for stoned drivers under the threat of license suspension. Law enforcement insists that this is the best way to keep stoned drivers off the road.

The threat of losing one’s license may be an effective way to keep stoned drivers off the streets, but at this point in time, it also comes with a multitude of issues, including those that make the tests unconstitutional. For one, it is still unconstitutional to force a blood draw or saliva test without a warrant.

An additional issue is that unlike alcohol that metabolizes fairly quickly and at a measurable rate, THC can last in one’s body for days, even weeks. The “recommended” tests may undoubtedly accurately measure the amount of THC in the body, but there is still no measurement for impairment. ACLU Field Director Matt Allen, who is a member of the special commission stated, “We want to ensure that if motorists are faced with penalties such as losing their license for not taking a drug test that that test is scientifically proven to measure impairment.” However, he was the lone “no” vote on the recommendation.

The scientific community is undoubtedly working on the answer. Hopefully sooner rather than later, the public will be presented with a fairly accurate level of what impairment under the influence of marijuana means. Without it, it is not only law enforcement who is at a loss for efficiently assessing impairment, but all responsible users who lack a point of reference of this newly legal drug to make sure that they are not inadvertently putting the public in danger. Until then, we cannot arbitrarily punish people who have THC in their system, but are not impaired by it.

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Utah Now has the Lowest BAC Limit in the Country

Wednesday, January 2nd, 2019

In 2016 Utah passed a law which would lower its blood alcohol content limit from 0.08 percent to 0.05 percent, making it the toughest DUI law in the country in terms of a BAC limit. Well, as of January 1st, 2019, Utah’s new law took effect.

Prior to Utah’s change, all states had the same blood alcohol content limit of 0.08 percent. However, states differed with what punishments a DUI carries.

Although the National Transportation Safety Board recommended that all states lower their blood alcohol content limits from 0.08 percent to 0.05 percent, only Utah has done so. The National Transportation Safety Board based its recommendation on studies suggesting that impairment begins when the blood alcohol content reaches 0.04 percent.

Utah will now have the task of transitioning into enforcing the new limit.

“We’ve put together a task force on how we are going to usher this in,” Utah Highway Patrol Captain Steve Winward told state lawmakers late last year.

According to Winward, Utah Highway Patrol officers will get four hours of training that will include a review of Utah policy on breathalyzers and other indicators of intoxication. Other police agencies as well as prosecutors from the state will also receive training.

“We really don’t want to change the way we do business,” Winward told members of the Law Enforcement and Criminal Justice Interim Committee last year. “We want to ensure that we are arresting those that are DUI. We want to educate troopers to focus on impairment and not the number 0.05.”

Leading up to the new year, Utah underwent a public relations campaign to inform the public of the new limit.

“People think that you can only have one drink and you are over the 0.05,” Winward said. “We want to dispel those myths.”

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

However, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

“I have no doubt that proponents of .05 laws are well-intentioned, but good intentions don’t necessarily yield good public policy,” Jackson Shedelbower, The American Beverage Institute spokesman, said in a statement.

Shedelbower added, and I agree, that the new law focuses on moderate and responsible drinkers, as opposed to drivers with far higher BAC levels who are responsible for the majority of alcohol-related traffic fatalities, according to The Washington Post.

 

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