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In the last entry, we discussed a recent North Carolina DWI case that involved legal arguments and a trial before a jury, where the jury acquitted the defendant of DWI. The man says that a police officer sought to compel a blood draw without a warrant, claiming that an exigent circumstance existed to make the warrantless blood draw request sound under North Carolina law.

Prosecutors claimed that the rapid dissipation of evidence allowed the warrantless search. Ultimately, the case was resolved before a jury and not on the legal arguments before a judge.

Most states generally control their own DWI laws. But constitutional issues are matters for the courts and the U.S Supreme Court has binding authority on state courts on federal constitutional issues.

Several decades ago, the U.S. Supreme Court ruled in a DWI case involving a car accident that authorities did not need to obtain a warrant to obtain a blood sample. However, the high court is currently deciding whether a warrant is constitutionally required to obtain a blood sample in a routine DWI case. Currently 25 states allow law enforcement to compel a person to provide a blood sample if an officer requests one without a warrant and with probable cause to suspect the driver is under the influence.

A driver who refuses an implied consent test for impairment may face consequences, including a driver’s license suspension and an arrest on DWI allegations in North Carolina. Most (if not all) states use the legal concept of implied consent in DWI cases, and the recent U.S. Supreme Court decision could be instructive on whether or not the constitutional protections in DWI cases continue to differ under the warrant clause. The high court ruling is expected before the end of the term this summer.

Source: Winston-Salem Journal, “Winston-Salem man who alleged that police violated his rights acquitted of DWI,” Michael Hewlett, March 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

A man has fought his driving while impaired charges since his was pulled over in July 2010. The case has made its way to the North Carolina Court of Appeals, and back to court in front of a jury. The jury acquitted the man of DWI after trial.

The man says that an officer with the Winston-Salem Police sat on his chest to obtain a blood sample without a warrant during the DWI investigation. The man argued that the warrantless procedure was a violation of his constitutional rights.

In the recent North Carolina DWI battle, the man was originally convicted of DWI in Forsythe District Court, but appealed to Superior Court. There, the judge dismissed the charge. The case found its way to the North Carolina Court of Appeals, which reversed the Superior Court ruling and sent the case back down. The man took his DWI charge before a jury recently. The results of the blood sample were suppressed at trial.

The jury heard testimony about the alleged incident from July 2010. Police claim that a Winston-Salem Police officer visited a gas station to stop a car for an alleged taillight violation. That car was not associated with the DWI allegations. Instead, police claimed that after the officer let the driver with the broken taillight go, he noticed a truck parked at the gas station and ran its plates.

The officer says that the registered owner of the truck showed as having a suspended driver’s license and the cop looked to investigate that issue. Police say the owner was in the driver’s seat of the parked truck. However, the officer reportedly never found any keys to the parked truck.

Police claim that the driver was agitated, and that the officer suspected that the driver was under the influence of cocaine. The man ultimately was hauled down to the hospital for a blood test, leading to the legal arguments seeking suppression of the evidence.

When the case was remanded for trial, prosecutors argued that the man’s agitated state and alleged poor performance on field sobriety tests were sufficient to show that the man was under the influence that night.

The criminal defense argued before the jury that the man was agitated because his constitutional rights were being violated. Police never saw the man driving the truck, and never saw keys. The defendant says that he had not been driving at all. The man reportedly admitted to having a beer and a drink that night, but never drove. He says that he was retrieving change from the truck to pay for something at the gas station. A video of the incident reportedly shows that the officer never saw the man drive the truck.

Friday, a Forsythe County jury spent about an hour deliberating before returning a not guilty verdict on the DWI charge.

The issue of whether a police officer can compel a blood sample without a warrant in a routine DWI case raises an interesting constitutional issue, which the United States Supreme Court is currently considering. In the next entry, we will discuss that issue in more detail.

Source: Winston-Salem Journal, “Winston-Salem man who alleged that police violated his rights acquitted of DWI,” Michael Hewlett, March 15, 2013

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge.  Yet, as I've written repeatedly in the past, these machines are neither accurate nor reliable.  See, for example, How Breathalyzers Work — and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.   

And in today's news:

JudgeThrows out Breath Machine Evidence

County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range

Dauphin Co., PA.  Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number. 

"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled. 



In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to 00 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.



Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.



"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.



Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent. 



"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.

Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
 

DUI BLOG

According to a new research study led by Joanne Brady of Columbia University, more than half of drivers in the US involved in fatal car collisions had drugs or alcohol in their system at the time of their accidents. According to Brady and her researchers, men and those driving at night were the most likely to have controlled substances in their system.

The study, which appeared in the journal Addiction, was based on data from the National Highway Traffic Safety Administration. Researchers looking over the data found that between 2005 and 2008, 20 150 drivers were fatally injured in car accidents in fourteen states. Of these, 57 percent tested positive for alcohol of drugs. About 20 percent had multiple drugs or controlled substances in their system. The most common controlled substance found in these drivers was alcohol, but marijuana, amphetamines, and other stimulants were also found in some drivers.

According to researchers, men were more likely than women to be driving with drugs or alcohol in their system. Less than half of women fatally killed in car accidents had controlled substances in their system at the time of their traffic accident, compared to sixty percent of men. The records did not show how much of a drug drivers had in their system, so according to researchers it is impossible to tell how impaired by drugs the drivers were, and whether any prescription drugs found in drivers were being taken correctly.

In Florida, since the 1980s, groups such as MADD and law enforcement agencies have launched enforcement and education initiatives aimed at reducing the number of Miami drunk driving accidents on the roads. Drivers are well aware of the risks of drugs and alcohol in increasing the risk of a Miami car accident. Nevertheless, as the newest study suggests, many drivers are still making poor choices when it comes to controlled substances and driving.

More can be done to prevent Miami traffic accidents caused by substance abuse. While Brady and her research team did not make specific recommendations based on the findings, the study itself does suggest a number of possibilities. For example, since impaired driving collisions seem more likely at night, perhaps more can be done to provide low-cost and accessible transportation options for drivers in the evenings and at night. In addition, since men are more likely than women to drive impaired, perhaps education and prevention campaigns aimed at reducing Miami truck accidents and car accidents can be tailored at men.

Florida Car Accident Lawyer Blog

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  

 

DUI BLOG

The trial lasted eight days. At the conclusion the Wake County jury deliberated for roughly 12 hours before finding a former doctor guilty of involuntary manslaughter, felony death by motor vehicle and driving while impaired. Two jurors refused to convict the former doctor of murder in the North Carolina DWI car accident case.

Eighteen months ago, the former doctor allegedly drove his Mercedes through North Raleigh streets after drinking at the Raleigh Country Club. The former doctor reportedly was involved in an accident that claimed the life of a 20-year-old Carolina Ballet apprentice.

Law enforcement had claimed the former doctors alcohol content was .19 based upon a law enforcement alcohol test. One juror was troubled by a hospital test that showed a blood alcohol level of .24. The juror says he did not trust the accuracy of the hospital alcohol reading. Nonetheless, the juror was one of twelve that returned the guilty verdicts.

Two jurors that held out for acquitting the doctor of the more serious murder charge also reportedly questioned the accuracy of the blood tests, but also voted to find the man guilty of the DWI charge.

Prosecutors had argued to the jury that the man should be convicted of second degree murder. They had the burden to prove the former doctor acted with malice, or that he drove recklessly with the knowledge that injury or death would likely result. Two of the jurors held fast that the prosecutor did not meet the burden of proof.

Had the jury convicted the man of second degree murder, he would have faced up to nine and a half years in prison.

A defendant in North Carolina cannot be sentenced for both involuntary manslaughter and felony death by motor vehicle convictions arising out of the same incident. The judge sentenced the man on the more serious conviction for felony death by motor vehicle. The judge imposed at least three years in prison at the sentencing hearing. The man could spend up to four and a half years in prison.

Source: News Observer, “Raleigh doctor gets 3 years but no murder conviction,” 2 Mar 2011

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol.  In essence, either way you will be facing a "trial by machine".

So how good are these machines?  Good enough to constitute "proof beyond a reasonable doubt"?  Or are they just "close enough for government work"?

As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers).  See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable. 
 

D.C. Attorney General Drops Drunk Driving Cases

Wash. DC.  Feb. 8 — The District’s attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city’s breath analyzers were first revealed in February 2010, when it was discovered the machines’ results were inaccurate. Since then, the D.C. medical examiner’s office has refused to sign off on the accuracy tests of new analysis machines, officials said.

"The alcohol breath-analysis program? It doesn’t exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city’s breath-analysis program on Feb. 1, 2010. Paegle’s contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It’s a royal mess," Paegle said.

A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn’t be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.

City policy requires the medical examiner’s office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.

The medical examiner’s office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.

Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.

Meanwhile, the two police officers who account for a third of the city’s 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.

Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn’t signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general’s office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.

In December, the case was turned over to internal affairs.

"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.

The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".

The breathalyzers involved are the most commonly used across the country.  Do you really think only those in Washington D.C. are giving false results? 

DUI BLOG