How Good Are Cops at Really Detecting a Memphis DUI?
February 28, 2008 | Leave a Comment
The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests. It is his DUI report (and his opinion in that report) which will largely determine what, if any, criminal charges will be filed by the prosecutor. It is the officer’s decision which will or will not result in a suspension of the driver’s license, his testimony at trial which will largely decide the guilt or innocence of the person he arrests.
Just how expert is the average police officer at judging levels of intoxication in a DUI case?
To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication. The researchers’ conclusion: “The assumption that social drinkers would prove to be accurate judges…was not confirmed.”
In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.
The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests. Results?
When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.
The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).
Source: duiblog.com
Is There a Double Standard for Cops When They Receive a DUI?
February 28, 2008 | Leave a Comment
Just the most recent example of the double standard applied when cops, prosecutors or judges are busted by honest officers for drunk driving:
Officer Found Not Guilty of DUI Charge
Northborough, MA. Feb. 19 - A judge has cleared a town police officer of drunken driving after throwing out his blood alcohol reading because it was taken at the hospital without his consent.Earlier this month James Scesny, 38, of Clinton, was found not guilty of driving under the influence of alcohol and not responsible for a charge of marked lanes violation by Fitchburg District Court Judge Andrew Mandell.
The charges stemmed from a May 2007 accident in Clinton in which Scesny and his girlfriend were injured when the car he was driving struck a telephone pole.
The case was headed toward a jury trial, but at a Feb. 1 hearing Scesny’s attorney, Michael Erlich, requested a bench trial. Two weeks earlier, a Clinton District Court judge allowed Erlich’s motion to keep the blood alcohol test out of the trial.
Two blood samples taken by Clinton Hospital staff were tested by the Massachusetts State Police Crime Lab and both found a 0.168 blood alcohol level, according to a crime lab document in the court file.
Erlich argued that police took the samples without his client’s permission, and that authorities did not follow proper chain of custody protocol before sending them samples to the crime lab.
Erlich said his client refused to be tested when asked by three Clinton Police officers at the hospital.
So the drunk driving case was thrown out because…there was no breath test? Hmmm…so what do they do in roughly 25% of DUI arrests where the suspect refuses to take a breath test? Just let him go? Oh, right, they charge him with drunk driving anyway - and prosecute based on evidence such as witnesses, driving symptoms (weaving, accidents), personal symptoms (slurred speed, bloodshot eyes), field sobriety tests, incriminating statements and the arresting officer’s opinion….Unless the guy’s a cop.
source: duiblog.com
5 Myths About Defending Accused Drunk Drivers
February 28, 2008 | 3 Comments
Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving. Because accused drunk drivers are immediately charged with a crime, drunk-driving cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk-driving case.In the 1960s, driving under the influence of alcohol was considered a minor offense, leading to modest fines; in the 1990s, it is considered the most serious misdemeanor offense. In several states, repeat offenders are considered felons.
Nearly two million drunk-driving cases are filed by law enforcement officers around the country ever year. These cases take up a large portion of the criminal docket of most court systems. Because the penalties for drunk driving have increased, many of those charged with this crime now must seriously consider alternatives to pleading guilty or nolo contendere. For the rest of the 1990s, the absence of palatable alternatives for the accused driver will lead to a dramatic increase in these trials.
Most attorneys harbor many myths and misconceptions about this offense. These can lead to malpractice. In this article, I will address five myths about defending accused drunk drivers.
Myth Number 1: Most people accused of this crime are guilty.
This is perhaps the most troubling myth - one harbored by attorneys and the general public. In my opinion, an attorney who believes this should never represent a person accused of drunk driving. That mindset can eliminate objectivity.In the overwhelming majority of drunk-driving cases in which police obtain a chemical test, an infrared breath analysis machine is used, not a blood test. This primary evidence is vulnerable to attack by a skillful practitioner.
Most attorneys have no idea how woefully inadequate infrared breath machines are as evidence-gathering devices. These machines are so unsophisticated that virtually no scientist would ever trust the results as a basis for scholarly research or scientific investigation. Yet attorneys assume that since the state has approved the machine, its accuracy and reliability are not subject to change.
There are at least 30 ways to rebut the evidence from these machines if the attorney understands how the machine works, what causes them to malfunction, and that they are nonspecific for alcohol. Without doing exhaustive research, no attorney would understand their internal workings enough to cross-examine the state’s witnesses effectively on their alleged accuracy.
The “opinion” evidence gathered by police officers typically consists of field or roadside sobriety tests. These agility tests are supposed to indicate that the person suspected of drunk driving was actually impaired or in some way “a less safe driver.”
Recent scholarly studies have shown that field sobriety tests are not given uniformly, there is no scientific basis for assuming they are valid, and most officers either require the wrong tests or improperly instruct the suspect on how to perform the tests. A defense attorney can obtain a pretrial ruling that the tests and their alleged indication of impairment must be excluded from evidence due to lack of scientific foundation and faulty instructions.
Any other “observation” evidence from a police officer will generally be inconclusive and subject to many interpretations by experts. For example, bloodshot eyes can be caused by conditions other than drunkenness, including contact lenses, allergies, or lack of sleep. The defense attorney should analyze the evidence that will likely be presented and take the time to investigate the medical background of clients and the environmental contaminants they have been exposed to. Most alleged evidence of intoxication can be neutralized or eliminated from the state’s presentation with findings from this investigation.
The defense should leave no stone unturned. These cases require detailed investigations, as does a complex murder case that involves fiber evidence, ballistics tests, or other intricate issues. Attorneys who do not investigate thoroughly and defend the client aggressively do the client a disservice and expose themselves to possible liability. In addition, they harm the legal profession by failing to fully represent the client.
Myth Number 2: Drunk driving is a minor offense.
Many veteran attorneys remember when drunk-driving convictions led to fines of $50 to $150, with no suspension of driving privileges and no penalties beyond going to court, paying the fine, and being chastised by the judge. Those days are gone.One reason some attorneys still do not give proper consideration to these cases is that their only contact with the client occurs when they enter the plea. The attorney doesn’t experience the penalties that later befall the client.
A client accused of drunk driving deserves to be represented zealously because an unjustified conviction will have repercussions lasting for the rest of the client’s life. Not all the “penalties” for these convictions are legal in nature.
The stigma of a conviction can exact a severe psychological toll.
A substantial number of drivers whose licenses are suspended continue to drive. Typically, they do so to provide for themselves and their families, despite the possibility of being jailed for driving with a suspended license. A surprising number are never caught. Yet, they live in terror of being stopped at a license check or a roadside sobriety checkpoint Those unjustly convicted should not have to live with this hardship.
Most of those convicted also suffer serious financial and social consequences. In most states, a drunk-driving conviction can never be removed from a driving record, so convicted offenders must endure the consequences of their convictions for the rest of their lives.
Some blame themselves because they know they had something to drink before the police stopped them. However, it is not illegal for adults to drive after drinking alcoholic beverages in any state. The crime of drunk driving occurs only when the person’s blood alcohol level has exceeded the arbitrary numerical standard set by the state, or when the person has demonstrated bad driving that can be causally connected to impairment due to a high blood alcohol level.
Most attorneys would cringe at the thought that they might have poorly represented a client on a civil matter and that the substandard representation could come back to haunt them. Malpractice in drunk-driving cases carries the same potential for litigation, except that most convicted drivers don’t realize that their attorneys may not have properly represented them when advising them to plead guilty or nolo contenderewithout first checking into the facts of the case. The client doesn’t know whether the state’s case was validly made or based on an illegal stop. The client is not familiar with the many ways that breath machines may be inaccurate. That is why people need attorneys in the first place - to investigate the case thoroughly and recommend the best alternative.
Myth Number 3: Any attorney can defend an accused drunk driver.
If a friend or relative asked me for help on a matter involving antitrust litigation, my response would be to consult an expert in the field. I would probably inquire with the state bar association or phone colleagues to try to locate an expert in antitrust laws. I would try to send the client to the most skilled lawyer I could find who specializes in this area of practice.When a prospective client walks into the average law office and asks for help on a drunk-driving case, some attorneys will agree to represent the person even if they have never handled criminal matters. The attorney may advise the person to plead guilty or nolo contendere (depending on state law) and work out an arrangement with the court to keep his or her license with the least possible suspension time. The attorney may not adequately investigate the facts of the case or get copies of documents and other evidence that are readily available through discovery.
These naive attorneys don’t realize how much exposure to liability they have if they counsel clients to give up their Constitutional and statutory rights and plead guilty to this serious offense. Yet these same attorneys would probably not hesitate to refer these same clients to specialists if they were charged with securities fraud.
Some clients discover the folly of their plea before the statute of limitations on their potential malpractice against their former attorney expires. A suit for malpractice may be the only way they can hope to achieve some semblance of recovery for the devastating effects of a drunk-driving conviction.
After a conviction, these clients soon learn what most drunk-driving specialists already know: The penalties are not only serious, but like the Energizer bunny in the TV ads, they keep going and going and going. Consequences like license suspension, fines, community service, probation, mandatory counseling or alcohol treatment, and possible incarceration (even for first offenders) are well known. These cases also carry a plethora of other consequences that will confront the convicted driver days, months, or even years after.
For example, in most states insurance rates for a convicted drunk driver will increase 500 percent to 1,000 percent above the premiums paid before the conviction (if coverage isn’t canceled). In South Carolina, a person with a five-year-old car carrying only liability coverage can expect to pay $10,000 to $11,000 in additional premiums over the first three years after a first-offense drunk-driving conviction.
This increase in insurance costs is well known. But many attorneys are unaware that most credit bureaus now include drunk-driving convictions on credit reports. This not only will affect future credit, but it may also prevent convicted drivers from getting jobs where the prospective employer runs a credit check in processing job applications. A drunk-driving conviction may bar or restrict employment alternatives with a significant segment of the job market.
Other penalties have been imposed on defendants in different states. They include the following:
College students charged with or convicted of drunk driving have been suspended from school for at least one semester or quarter .
Recipients of unemployment benefits who have drunk-driving convictions have had their benefits eliminated.
Those in military service who are charged with or convicted of drunk-driving offenses can be summarily discharged or required to take extensive alcohol-education courses, restricted to military bases, deprived of normal base privileges, or saddled with other forms of punishment.
Professionals (like attorneys and judges) may be disciplined by their professional regulatory authorities.
Many people wrongly convicted of drunk driving need not passively suffer these consequences. Relief may be as close as the nearest attorney who handles legal malpractice cases. Any judge or jury will sympathize with former trusting clients who can show that they lost jobs or homes and suffered other serious penalties as a result of a conviction that should never have occurred.
Myth Number 4: These cases can’t be won.
This is the most prevalent myth about these cases. Not only do members of the general public believe this, so do many attorneys. In fact, experienced drunk-driving defense lawyers “win” most cases of first offenders when there is no evidence of a wreck or other manifest bad driving.The term “win” is in quotation marks here because winning may mean having the charge reduced to a different offense or otherwise obtaining a plea bargain that avoids a conviction. The availability of alternative plea arrangements for offenders varies from jurisdiction to jurisdiction.
Where jury trials are available, success rates for acquittal are surprisingly good. The national average for acquittals is about 50 percent for those accused of drunk driving if their cases are heard by juries. In some jurisdictions, only about 20 percent to 30 percent of all drunk-driving arrests lead to a conviction, while other states have an 80 percent to 90 percent conviction rate.
In the few states that have abandoned the right to jury trials for the misdemeanor drunk-driving cases, defense attorneys will have a more difficult task convincing a judge to acquit. However, this only applies to about 5 percent of all drunk-driving cases.
The formula for success is to investigate exhaustively; conduct pretrial discovery and motion practice aggressively; use evidentiary maneuvers and procedural devices skillfully; and present a well-conceived, thoroughly choreographed trial with expert witnesses, character witnesses, and other tried-and-true tactics for successful defense of criminal cases.
Many people know someone who has been charged with this offense and pleaded guilty or nolo contendere. Because most people believe that these cases are difficult or even impossible to win, the average client will not challenge the trusted attorney’s “sage advice.”
Attorneys who enter pleas of guilty or nolo contendere for these clients will never win those cases. Their files for these clients probably contain only three or four pieces of paper, clearly indicating that they have not performed “due diligence” investigations. Granted, the client may have told the attorney that he or she could not afford to contest the charges. But was the client fully informed of the penalties that will follow a conviction? If the client had known this, would the client have chosen to seek a trial to challenge the state’s case?
In explaining to clients why they should consider pleading not guilty and letting a jury decide their fate, I often compare receiving a conviction for drunk driving with receiving a diagnosis of cancer. Getting rid of the problem may be expensive and difficult and will involve some risks, but the alternative is much worse.
This may seem like a bad analogy, but consider the “cancer” that attacks the lives of convicted drunk drivers. Some have committed suicide after incarceration for drunk driving. Certainly, people who suffer from untreated cancer (or their survivors) will not be pleased if they later discover that the doctor should have recommended surgery, not vitamin therapy. Similarly, people who suffer the consequences of ill-advised guilty pleas to drunk-driving charges will not be pleased with their lawyers.
Myth Number 5: Drunk driving cases are just like any other criminal case.
Nothing could be further from the truth. In many areas, the courts handle these cases differently from other offenses. Here are two examples that make the point:First, consider the normal prosecution where the state proposes to use physical evidence as part of its case-in-chief. For example, suppose John Doe is charged with murder, having allegedly shot Tom Jones. The prosecution will normally order ballistic tests, take blood spatter patterns and fingerprints, and collect other physical evidence. That evidence is always subject to independent analysis by the defense attorney representing the accused.
This is not true in drunk-driving cases, where breath tests usually are not required to be preserved. Very few states require police officers taking a breath sample to capture some of the breath so it can be analyzed independently at a later date. Yet, all modern breath analysis machines can provide sealed samples at a minimal cost. The U.S. Supreme Court has said that it is perfectly acceptable that such critical evidence is destroyed, even where the state could have preserved it for less than $1 per sample.
Another consideration is the use of roadside sobriety checkpoints (roadblocks) at which drivers are briefly detained to determine if they are under the influence of alcohol or drugs. More than 40 states permit this, and the U.S. Supreme Court has given its stamp of approval to this encroachment on our Fourth Amendment rights. A few states like Louisiana and Texas have ruled that their state constitutions provide protection against such arbitrary searches and seizures.
Manifestly unfair judicial decisions have been rendered in many other areas in an effort to stamp out drunk driving. A book could be written about these unfair and unconstitutionally premised state court decisions. Suffice it to say that the judicial system has erected difficult hurdles for practitioners who defend drunk-driving cases.
No attorney likes to hear the word “malpractice.” However, I am convinced that faulty representation in these cases is blatant attorney malpractice. Often, the attorney’s negligent handling of a drunk-driving case is attributable to a defeatist attitude.
Lawyers must take these cases seriously. Either they must fully educate themselves on this subject so they can provide an effective defense, or they must refer these cases to lawyers with expertise in the field. This will protect these clients from great harm and provide the lawyers with many peaceful nights, free from the concern that they may have improperly advised a client.
Source: Article by William Head found at the site of Vic Carmody
Memphis DUI Lawyers Know Not to Rely on Breath Tests
February 26, 2008 | Leave a Comment
Here in Memphis the police and prosecutors want you to think that just because you might have blown over .08 on the intoxilizer you are guilty of a DUI. But this just isn’t true. There are several things that could cause an improper reading. Among these are; a damaged breathalyzer, a machine that is not properly calibrated or the officer could have just used it incorrectly. As Memphis DUI lawyers it’s our duty to our clients to make sure that all of these issues are looked into. We want to make sure that we give you the best possible defense in your Memphis DUI case.
The following article shows where eleven dui arrests were thrown out because of faulty machines.
EAST WENATCHEE — A prosecutor’s decision to throw out breath-test evidence in 11 DUI cases in Douglas County could affect several DUI cases in Chelan County as well.
Chelan County Deputy Prosecutor Allen Blackmon said breath-test evidence for between nine and 11 DUI cases, dating to as far back as last summer, could be thrown out. However, the cases can still be prosecuted without breath-test evidence.
This stems from a Feb. 20 Douglas County District Court hearing during which Douglas County Deputy Prosecutor Gordon Edgar agreed not to use the breath-test evidence for 11 Douglas County DUI cases because of a possible problem with the machine used to get the results.
The results were obtained using one of two machines at Chelan County Regional Justice Center. Steve Woods, one of the attorneys who presented the motion that the results not be used as evidence, said a solution used to certify one of the machines was not properly prepared.
The motion was the result of a ruling in a King County case last month in which three judges threw out breath-test results in eight DUI cases due to problems at the State Patrol’s toxicology lab.
Ted Vosk, one of the attorneys who argued the King County case, was one of several attorneys who argued the Douglas County case. He argued that because the solution was not properly prepared, the results were not admissible in court, said Woods.
On Friday, a hearing in Chelan County District Court during which a motion was going to be made to suppress breath-test evidence for the same reason was rescheduled to April 9.
Blackmon said he wants to get the facts straight from the source before deciding not to use the evidence in any Chelan County cases.
“It’s possible we could have the same results here because both Douglas and Chelan counties use the same machines, but I want to talk to the toxicologists myself and get the information about the machines and their certification firsthand before I make any decisions,” Blackmon said Monday morning.
Woods said he believes prosecutors in Douglas County will still pursue the charges against the 11 DUI suspects without the breath-test evidence.
He said the prosecution’s decision to not admit the evidence could affect the results of every breath test taken at that machine between December 2006 and December 2007, the period between certifications.
“It’s possible that more than these 11 cases were affected. Right now we’re looking at cases to see if there are others that might be impacted,” Woods said.
source: The Wenatche World
First Offense DUI in Memphis, Tennessee
February 19, 2008 | Leave a Comment
Memphis DUI attorneys understand that if you are charged with DUI for the first time, you are probably concerned and worried about your future. Our Memphis DUI lawyers realize that Driving Under the Influence is typically not a crime involving malice. Many individuals charged with DUI are not familiar with the criminal justice system. The DUI laws and regulations are confusing and seem to change frequently.U
nder Tennessee law, any person convicted for a first offense DUI shall be fined between $350 and $1,500. The court will prohibit a convicted person from driving a vehicle in the state of Tennessee for a period of one year. Tenn. Code Ann. § 55-10-403 (2007). A first offense DUI violation is a Class A misdemeanor. The jail time depends upon the circumstances surrounding the conviction.
If you are less than twenty-one years of age at the time of the offense, the court shall sentence you to confinement in the county jail or workhouse for a minimum of forty-eight hours to a maximum of eleven months and twenty-nine days incarceration. As a condition of probation, you must remove litter during daylight hours from state route highways or state-aid highways, for a period of twenty-four hours. The period of litter removal shall be served in three shifts of eight consecutive hours each.
If you are twenty-one years of age or older at the time of the offense, the court shall sentence you to confinement in the county jail or workhouse for not less than twenty-four hours nor more than eleven months and twenty-nine days. As a condition of probation, you must remove litter during daylight hours from state route highways or state-aid highways for a period of twenty-four hours. The period of litter removal shall be served in three shifts of eight consecutive hours each.
• If at the time of the offense the alcohol concentration in your blood or breath is twenty hundredths of one percent (.20%) or greater, the minimum period of confinement for you must be seven consecutive calendar days rather than forty-eight hours.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, you must be punished by a mandatory minimum incarceration of thirty days and a mandatory minimum fine of one thousand dollars $1,000.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, and the child suffers serious bodily injury as a result of the DUI, the violation is a Class D felony.
• If at the time of the offense, you were accompanied by a child under eighteen years of age, and the child is killed as a result of the DUI, the violation is a Class C felony.
Contact a Memphis DUI lawyer to talk about the facts and circumstances surrounding your case. A Memphis DUI attorney can discuss different legal avenues applicable to you. Our Memphis attorneys handle DUI cases in Germantown, Cordova, Collierville, Bartlett and all of Shelby County.
Contact a Memphis DUI Lawyer!
February 19, 2008 | Leave a Comment
Memphis DUI lawyers realize that a DUI charge can be intimidating, especially if you don’t know a lot about Tennessee DUI law. Memphis, Tennessee DUI lawyers can help you understand Tennessee law, and explain your rights and options. If you have questions about the automatic license suspension or the impact a DUI conviction might have on your insurance costs, you may want to talk with a Memphis DUI lawyer.
You should not wait until your initial court appearance to start asking questions about your particular case. Contact a Memphis DUI lawyer before you appear in court so that your Memphis DUI attorney can gather important information he or she needs to make informed decisions about your case. A Memphis DUI lawyer can assess your case from your point of view, and advise you on Tennessee DUI law as it applies to your situation.
If you have questions about the sentence you face including whether the mandatory jail time provisions apply to you, contact a Tennessee DUI lawyer. You may think that there’s no way to successfully challenge a DUI charge, but Memphis DUI lawyers know that many cases have weaknesses. These weaknesses often open doors to dismissals or acquittals. Any crack in the state’s case could create an opportunity for a Tennessee DUI lawyer to negotiate for reduced charges or a favorable plea bargain.
Take advantage of the opportunity to learn about your rights under Tennessee law before you take a step in any direction. Contact a Tennessee DUI attorney if you have been charged with DUI in Memphis, Tennessee. Our DUI attorneys handle DUI cases in Memphis, Germantown, Collierville, Bartlett, Cordova and all of Shelby County.
