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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— and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.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

A judge in Brunswick County, North Carolina has thrown out a number of DWI cases after prosecutors ran into scheduling conflicts and asked the judge to delay the cases. In legalese, attorneys ask for a “continuance” when they need more time to investigate the case, or other issues arise. Late last month, prosecutors say that a Brunswick County Sheriff’s deputy had a scheduling conflict and would be unable to appear in a slate of North Carolina DWI cases.

At that time, the judge denied the request to delay the cases, and threw out charges against 16 people, primarily in DWI cases. Last week, prosecutors told the judge that a second deputy had a scheduling conflict and prosecutors asked the judge for a continuance in a number of cases where that deputy would need to testify.

The prosecutors say that the deputy had a training conflict. Last Wednesday, the judge dismissed 20 cases, again the charges primarily revolved around North Carolina DWI allegations.

Authorities in Brunswick County say that they intend to pursue the cases, even though the judge had thrown them out. Authorities are going through the motions to recharge each defendant, according to WECT-TV.

Anyone who has been accused of a crime knows that waiting for a case to move through the process can be frustrating. The judge reportedly has not indicated the basis for dismissing the charges in either event.

Generally, a criminal defendant has the right to confront witnesses at trial. Officers who allege that a driver was drunk on a specific date, for example, have to testify if a case goes to trial. The Constitution guarantees the right to a speedy trial, but the legal standards surrounding speedy trial rights are complex.

Source: WECT, “Judge dismisses dozens of DWI cases,” Ann McAdams, Dec. 19, 2012

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

Any criminal defendant has the right to defend against the charges in a court of law. Our system of criminal justice places burdens upon the government that are intended to protect the rights of the innocent against unreasonable government intrusion, and also to protect against making out court system seem like a sort of kangaroo court.

Monday, a judge in Mecklenburg County threw out charges of driving while impaired that had been filed against the former chief of the Charlotte Regional Visitors Authority. The man had been arrested on suspicion of DWI in May.

The process following the man’s arrest was flawed, the judge essentially ruled Monday. The man was put in jail, and a magistrate had given the accused an unsecured bond at 1:15 in the morning May 23. The judge ruled that following the magistrate’s decision at 1:15 a.m., the accused should have been released from custody within an hour, according to WCNC News.

The man sat in jail until 4:34 in the morning before authorities allowed his release. The judge ruled that the three hour delay was too long and dismissed the DWI charges.

Generally, a person accused of DWI faces allegations generated by the state. For instance, in a North Carolina DWI case, the arresting officer would be expected to testify as to the officer’s observations of the defendant. But a person who is detained for an unreasonable amount of time after being given unsecured bond is denied the chance to meet with people who are not associated with police. The loss of that opportunity can deny the person accused of drunk driving to have others testify to refute the officer’s opinion.

In North Carolina, DWI charges can come with two prongs. Most people know that the legal limit to drive is set at 0.08 percent BAC. But flaws with the testing can produce inaccurate results. Similarly, a person who is unreasonably denied access to gathering evidence in defense of the charges may certainly be denied a fair opportunity to present a defense.

In the recent Mecklenburg County case, law enforcement claims that the man accused of DWI refused to submit to a breath test. The state apparently was relying solely upon the arresting officer’s opinion that the man had been drinking before driving.

The charges arose after an alleged hit-and-run crash in stop-and-go traffic in Interstate 77. Authorities say that another person called 911 after the alleged fender bender, claiming that the defendant had said everything was okay and drove away from the scene. The hit-and-run charge remains pending, as the judge’s dismissal only pertained to the DWI charge.

Source: WCNC, “Judge dismisses DWI charge against CRVA’s former chief executive,” Gary L. Wright, Nov. 5, 2012

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

Last week, a Superior Court judge in Forsythe County threw out charges of driving while impaired that had been lodged against a 43-year-old North Carolina man. Police claimed the accused had been driving drunk on July 12, 2010. To support the charges, prosecutors were relying upon evidence that had been seized in a blood draw that was taken more than an hour after the DWI arrest.

A Winston-Salem police officer says a truck pulled into a gas station around 11 p.m. on the night of the arrest. Law enforcement claims the man accused of driving the truck was impaired that evening. The man says he was never driving the truck, but law enforcement claims he was found in the driver’s seat.

The owner of the truck was reportedly also in the vehicle and was charged with aiding and abetting DWI. Prosecutors dropped the aiding and abetting charge against the truck owner last year.

Court documents allege that law enforcement made the man accused of driving the truck perform a series of field sobriety tests and then requested that the man submit a breath sample for testing. The man reportedly refused the Breathalyzer test and police brought him to a hospital. Court papers show the police requested the man provide a blood sample, which he refused.

The man accused of DWI says police officers used excessive force to obtain a blood sample after the DWI test refusal. The North Carolina man says law enforcement sat on him in the hospital bed, shoved his head into a pillow, while a nurse drew blood from him. The judge heard the evidence and agreed that the blood sample was obtained in violation of the defendant’s rights. The judge threw the case out of court. The prosecutor is reportedly appealing the trial court decision.

Source: My Fox 8, “DWI Charge Dropped After Man Says Winston-Salem Officer Sat on Him,” Michael Hewlett of the Winston-Salem Journal, Jan. 13, 2012

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

The North Carolina Court of Appeals has ruled that law enforcement violated a driver’s constitutional rights when the driver was pulled over for a traffic stop in 2009. Police had claimed they received a report of an alleged break-in or robbery a Dollar General store on Nov. 6, 2009. Police had received descriptions of the two alleged robbers, who reportedly fled from the store on foot.

Roughly four hours later, police say they observed a car in the same area. A police sergeant says he heard a car door slam and observed the vehicle drive off. The officer stopped the car and noticed that the occupants of the vehicle were not the same race as the descriptions of the two alleged robbers. Nonetheless, the officer continued to pursue the traffic stop and the driver was later arrested on suspicion of drunk driving.

The Court of Appeals says the officer claimed he smelled alcohol coming from the vehicle during the traffic stop. The driver reportedly failed a Breathalyzer test and was later convicted of driving while impaired under North Carolina Law.

The officer reportedly testified during a hearing in the trial court of the defendant’s motion to dismiss the DWI charges that, “my thought process at that point was that the vehicle was possibly picking up robbery suspects, and I wanted to investigate the vehicle for that reason.”

However, the officer did not have any information about which way the alleged robbers had fled four hours earlier. The Court of appeals ruled that law enforcement does not have such unfettered discretion to conduct a traffic stop.

The court says the officer’s basis for the traffic stop was unconstitutional. In the opinion, the court writes, “Defendant argues this did not amount to reasonable suspicion because armed robbers would not be hiding in the woods near the scene four hours after the crime then proceed to yell and slam car doors while attempting to remain unnoticed.” The Appeals Court agreed and threw out the evidence of impairment as the fruit of an unlawful traffic stop.

The Court of Appeals ruled, however, that law enforcement cannot “pull over any citizen driving without exhibiting any traffic violations in the vicinity of a break-in or robbery with the most minimal suspicion of involvement in the crime.” The Constitution provides people with guarantees against unreasonable interference from government intrusion.

Greenville DWI defense attorneys know that constitutional guarantees are more than mere technicalities. Constitutional freedoms are among the most important rights that found the basis of our country.

Source: Ashville Citizen-Times, “Appeals court cites illegal stop in dismissing Henderson County DWI conviction,” Clarke Morrison, Jan. 2, 2012

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

Hmmm….Maybe the citizens of this country are beginning to wake up to the fact that those infallible breath machines aren’t so infallible.  And prosecutors don’t like it.

Controversy in BAT Van Investigation

Houston, TX.  Oct. 21 – There are new questions about just what a grand jury is investigating after prosecutors were thrown out of the grand jury room.

In an incredibly rare move this week, the foreperson of a Harris County Grand Jury asked a bailiff to remove prosecutors so jurors could hear from a witness on their own about potentially faulty DWI tests.

13 Undercover first raised questions about the accuracy of the Houston Police Department’s so-called BAT [Breath Alcohol Test] vans, but now it’s the investigation into how those problems were handled that’s causing controversy.

For months, some of the people closest to HPD’s breath testing vans have told you and us that the vans are unreliable — meaning the roadside tests they do on alleged drunk drivers may not be accurate.

Now the controversy has spilled over into a grand jury investigation, and it’s become so heated that a prosecutor working for Harris Co. District Attorney Pat Lykos was thrown out of the grand jury room earlier this week under the threat of arrest.

Amanda Culbertson worked for HPD for four and a half years as one of the supervisors overseeing mobile breathalyzer machines known as the BAT vans. She quit when she says HPD’s poor maintenance was leading to unreliable test results.

But her real trouble started when she spoke out about it. After Culbertson told a judge about her concerns, the DA questioned her credibility and pushed the county to cancel a contract with her new employer, in essence firing her.

Culbertson told her lawyer Chip Lewis that the DA is targeting her.

"She has not only thought it herself, but been told by people very close to the fire that the District Attorney’s Office is after you," said Lewis.

This week a Harris County Grand Jury wanted to hear from Culbertson as well as Brent Mayr, a former prosecutor who previously alleged the DA is bullying Culbertson to force her silence.

"Clearly retaliation for these individuals expressing opinions that the DA’s office didn’t like," Mayr said on October 4.

When Mayr walked in to testify before the grand jury on Tuesday, the foreperson told prosecutors to get out. They wanted to hear from Mayr and Culbertson without a DA in the room.

"They obviously believe that the DA’s Office played a role in this case and that they can’t be independent," said KTRK Legal Analyst Joel Androphy.

While it is rare — and legal — the DA’s Office threw a fit. Court records show top assistants to the elected DA refused to leave the room until a bailiff threatened to arrest them. The DA tried to force a judge to let them back in, but it was denied. An appeals court said the same thing.

"The grand jury is a function of independent people from the community. It’s not supposed to be the vote of the DA’s office," said . "This is rare and it would happen one out of a hundred times that a grand jury would have the courage enough to basically say to the DA’s Office get out of here or you’re going to get arrested."

We tried to ask the DA about it Friday, but they refused repeated interview requests. We’d love to ask what they knew about the BAT van problems, when, and what they did about it. It may be the same thing the grand jury is looking at on its own; and it may be the reason the DA was so angry about being thrown out of a supposed independent investigation.

"It’s clear to me that the grand jury has questions about how this was handled from a law enforcement standpoint. Now, I don’t know if that’s specifically confined to how HPD treated her or if they have some beef with what the District Attorney’s Office did as well," said Lewis.

Androphy told us in cases like this it would be best for the DA to ask for an independent prosecutor, but the DA’s Office said they haven’t. It would’ve been one of the questions we asked if anyone at the DA’s Office would’ve been willing to join us for an interview, but no one was.

13 Undercover and Wayne Dolcefino exposed the potential maintenance problems with the BAT vans back in March. We found documents detailing electrical problems that kept some of the very expensive mobile breath vans from ever being used. We showed you emails showing some cops were worried it might affect criminal cases. HPD didn’t tell the DA’s Office.

Funny, when I was a Los Angeles Deputy D.A., we understood our duties as they are set forth in the Canons of Ethics:  the prosecutor’s job is not to win, but to seek truth and justice.  I guess times change….

(Thanks to Art Weiner.)

 

DUI BLOG

The North Carolina Court of Appeals overturned several convictions last week in the 2009 DWI trial of a Charlotte, North Carolina, woman. The appellate court found that evidence presented in the 2009 trial was unreliable and prejudicial. Law enforcement never obtained a test to determine the defendant’s blood alcohol content to support charges arising out of alleged DWI.

The matter arose out of an alleged incident occurring in 2008. A man stopped on a bridge in Belmont to assist two stranded motorists. He got out of his vehicle. Police claim the defendant crashed into the group on the bridge, killing the man standing outside on the bridge. Law enforcement claims the defendant then fled the scene.

Belmont police say they found the woman 10 hours after the accident. Law enforcement did not conduct any test of the woman to determine her blood alcohol content. Law enforcement claims the woman smelled of alcohol.

At trial, prosecutors introduced evidence that the woman had four beers and two mixed drinks the night of the accident, but no testimony that the woman appeared impaired. The prosecutor called an expert to testify that the woman was drunk when the accident allegedly occurred. The expert used a formula that uses the average elimination rate for alcohol in an adult.

The expert multiplied the average elimination rate multiplied by the number of hours between the accident and initial contact with the defendant in the case to determine her blood alcohol level was twice the legal limit in North Carolina.

The expert based the conclusion of the odor of alcohol reported by the police officer. The expert admitted it was the first time he made blood alcohol conclusions based upon the odor of alcohol.

The Court of appeals reversed several convictions based upon the evidence. The appellate court also ruled that certain prior convictions for DWI dating back to 1989 were too old to be used as evidence against the defendant. Use of the stale prior convictions also denied the woman her constitutional right to a fair trial.

Source: WSOC Charlotte, “Family Angry After Convictions Overturned in Fatal Crash,” 19 Nov 2010

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