Wrongful Conviction?

The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program.  Prosecutors have big problems when this reliability is legitimately called into question.

This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.

According to the Huston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions.  Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.

Something similar happened not long ago in the state of Washington where the state police faced fraudulent breath testing on an even larger scale.  The breath test scandal in that state caused Barry Logan, director of the Washington State Patrol Forensic Laboratory Services Bureau, to resign.  According to the Seattle Times:

Logan’s resignation comes just two weeks after a panel of King County judges ruled that the state toxicology lab — one of the two labs overseen by Logan — engaged in “fraudulent and scientifically unacceptable” practices while preparing and analyzing breath tests used to prosecute suspected drunken drivers. The judges called for the suppression of the tests and laid much of the blame on Logan, finding he bore “a good deal of the responsibility for [the lab's] shortcomings.”

Michigan has not suffered from a similar debacle, but Michigan’s breath testing program is certainly not immune from such problems.

Michigan’s breath testing administrative rules in part read as follows:

Rule 3. (1) An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator pursuant to R 325.2658(4). The tests need not be performed within 7 days of each other, but shall be performed less than 14 days apart.  The test for accuracy shall be made in a prescribed manner using an alcohol standard that is approved by the department.  For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.

Typically Class II operators of the various police departments, jails and other law enforcement agencies prepare and run the weekly simulator tests.  These are simply police officers who have only a single 6 hour day of training with at least a 70% on the written test.  There is no proficiency testing and no oversight regarding this aspect of Michigan’s breath testing quality assurance program.

A Class IV operator will run the 120 day inspections.  In neither case is there a state agency charged with oversight.

If fraud is every to be uncovered it will be due to the efforts of the criminal defense bar. Without oversight thorough discovery and exhaustive cross-examination is the only hope a falsely accused driver has to vindicate his wrongful drunk driving charge.

If you’ve been arrested in Michigan for drugged driving, call the Barone Defense Firm today for your FREE case review.

The first thing you should do after being arrested for DUI is to write down everything you can remember about your case.  Sometimes the smallest or most insignificant detail can make a difference in the outcome of your case.  At the Barone Defense Firm we will provide you with a questionnaire to help you in this process.

You should also begin collecting receipts and contacting possible witnesses.  Anything that can be used to prove that you had less to drink than the breath or blood test would otherwise suggest.

It is also very helpful to take photographs of the scene of the arrest, and if applicable, of your automobile.  If you were hurt in an accident, by the police, or during any blood draw, photographs of the injuries you sustained will also be helpful.

In the meanwhile, you should also begin your search for a top DUI defense specialist.  To find the top DUI defense lawyer in your area, you should contact your family, friends, or other professionals that you know.  Ask your CPA, and if you are divorced, and thought your lawyer did a good job, call him or her up and ask for a referral.  You can even contact the court and ask the court clerks or bailiffs who they might recommend.

Now that you’ve compiled a list of possible lawyers to represent you, go to the internet and begin your further research.  Compare what you find on the internet to what you’ve been told by others. Soon top candidates will begin to emerge.  You can learn a great deal about a lawyer’s background and expertise, but looking at their qualifications.

Don’t limit yourself to just a review of the lawyer’s own web sites.   There are many places to obtain additional lawyer information on the internet, and today there are several independent rating services for lawyers.  These include sites like Avvo, Superlawyers and Martindale Hubble. Your final step should be interviewing the lawyer candidates.  Speak with them in person or on the phone.  Then decide.

If you follow this checklist then you are placing yourself in the best possible position for obtaining the best possible result for your drunk driving case.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

2016

Future shock, a term popularized in the 1970s, was coined by futurist Alvin Toffler, who used this term to refer to the way technological change impacts individuals and society.  In a nut-shell, future shock is “too much change in too short a period of time”.

As it relates to drunk driving, it’s fair to say that technological advances are likely to eliminate it within a relatively short period of time.  In fact, according to a recent article in the Washington Post: “Researchers funded by auto manufacturers and federal safety regulators are working on sensory devices – to be installed as standard equipment on all new vehicles – that would keep a vehicle from starting if the driver has had too much to drink. We’re five to seven years away from being able to integrate this into cars.”

A technological solution to drunk driving has been proposed for many years, but until recently, the technology available has proved insufficient for mandatory and ubiquitous use.  Consider for example ignition interlock devices.  This technology requires that the driver blow into to start the car, then several times while the car is being operated.  While this is acceptable for people already convicted of drunk driving, it is not acceptable for those who have not.

In recognition of this problem, a great deal of effort, and money, has been spent trying to find a seamless way to incorporate technology; one that the driver will not even be aware is present.  The technology must also be fast and it must be accurate.  Each of these presents its own challenge but perhaps greatest among them is the requirement of accuracy.  The first question in this regard is: accurate to do what?  Estimate a driver’s BAC (bodily alcohol content) or to definitively discern it?

Another related and equally daunting problem with this sort of anti-drunk driving technology is determining at what level it will be set to trigger, thereby rendering the vehicle inoperable.  Every state in the union now has a .08 legal limit, so is this where we set the technology?  In other words, the car will operate if you have less than .08 grams of alcohol per whatever (breath, blood, something else) is being tested but not above?  Or should it be set at something lower, say .05?  And how exactly will this level be determined?

Then or course, there is the issue of population averages as it relates to the legal limit.  When we say someone has a .08 breath test result, what we mean is that the person has .08 grams of alcohol per 210 liters of breath.  Why 210 liters?  This is based on the way alcohol “partitions” in the breath and blood of the average human being, but not everyone’s blood partitions in this way, so if breath was being tested, some drivers with a .08 blood alcohol level would still be able to start their cars.  This situation demonstrates how human variability presents yet another challenge to anti-drunk driving technology.

So long as it is legal to drink and drive anti-drunk driving technology will continue to present significant challenges.  Yet, with all the money being thrown at this effort it’s a fair bet that the Washington Post is correct, and that drunk driving will be eliminated through the embedding of technology in all vehicles.  Based on the rate of technological change, this is likely to happen sooner than anyone now thinks.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

In a rather astonishing opinion the Maine Appellate court has ruled that an expert witnesses’ inability to add or subtract, or know right from left, did not disqualify him as an expert competent to offer his opinion on a drunk driving causing serious injury case to the jury.

In this case the defendant lost control of his truck and crashed, injuring himself and the victim, leaving the victim paralyzed from the waist down. A blood-alcohol test administered at the hospital less than three hours after the accident registered defendant’s blood-alcohol level at 0.16%. The defendant was subsequently indicted for aggravated assault and aggravated OUI .

The primary issue at the defendant’s trial was the identity of the vehicle’s driver at the time of the accident.  The state expert identified the driver based on his “left sided” injuries, as opposed to the passenger who had “right sided” injuries.  The State’s expert further testified on the issue of defendant’s blood-alcohol level, extrapolating from the result of the blood-alcohol test taken at the hospital back to the time of the accident.

The defense attorney argued that the state expert was not qualified to offer his opinion because of a particular exchange during voir dire in which the State’s expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State’s expert was ultimately asked to calculate defendant’s blood-alcohol level and to explain the significance of left-sided and right-sided injuries, defendant contends that the State’s expert’s learning disability rendered him incompetent to testify.

After conducting a voir dire examination, outside the presence of the jury, the court denied defendant’s motion. The court found that the State’s expert was sufficiently qualified to testify and that the jury should decide the weight to be given to the expert’s conclusions. In the court’s words:

We find no clear error in the court’s competency determination. Notwithstanding the State’s expert’s self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of defendant’s blood-alcohol test.

What is most astonishing about this opinion is the disparity with which the courts generally treat state experts vs. defense experts.  Courts seem generally to bend over backwards to find ways to approve state experts, while looking for any reason to disqualify a defense expert.  One is left to wonder what would have happened had this been a defense expert.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Gas Chromatograph

Many Michigan DUI lawyers see blood tests as nearly impossible to defend.  This may be due to a lack of knowledge on their part, or it may be due to a belief that jurors see blood tests as irrefutable.  Regardless of the basis this belief is simply not true.  Armed with the right knowledge, blood tests are actually very often easier to defend than are breath test cases.

So, from where does this “right knowledge” come?  Well, it comes primarily from two places.  First, in order to properly defend a DUI case in Michigan involving blood test evidence, a lawyer must seek out specialized training in gas chromatography.  Very few Michigan DUI lawyers actually do this because such training requires a fairly substantial commitment in both time and money.

The Michigan DUI lawyer must also seek out the appropriate information from the laboratory responsible for testing the blood.  In a criminal case, getting information from the testing lab requires that the DUI lawyer utilize a process called discovery.  As will be shown, when properly pursued, this discovery process can yield some remarkable information - information that can be used to win a client’s DUI case. And, this is exactly what happened recently in both Washington and Colorado.

Problems with DUI Blood Tests in Colorado:

According to Colorado DUI lawyer Tim Bussey, (and as written about in the Colorado Springs Independent):

“The Colorado Springs Metro Forensic Laboratory has reported that it inaccurately reported approximately 200 blood results from 2007 through 2009.  Most were from 2009 and all were reported high. The Lab believes that the N-Propanol solution was incorrect which led to an inaccurate high BAC result.  They have run their own experiments to determine why the N-Propanol concentration was off.”

Mr. Bussey further stated that: “at this point I am not sure that they (the Colorado Forensic Lab) really know what the problem was and if it has been fixed.  I have not heard of such an issue at other labs but it certainly is an area that other DUI lawyers may want to explore.”

Here is an explanation from the Colorado Springs Independent of why this is important:

From a chemist’s point of view, blood alcohol tests are simple: You prepare a batch of maybe 20 samples in glass vials, each with a precise amount of blood, a couple other ingredients, and a solution containing n-propanol, a form of alcohol that is almost never ingested. Each sample gets run twice, along with more than a dozen other solutions used as calibrators and controls.

Once the vials are sealed and catalogued, a machine detects the amounts of ethanol (the stuff in booze) and n-propanol in each, which show up as peaks in a resulting graph. Since the n-propanol amount is supposed to be consistent in all vials, the blood alcohol level can be calculated from the ratio of ethanol to n-propanol.

“All of her ethanol peaks were accurate,” he says, as were the n-propanol peaks for the calibrators and controls. In bad batches, however, her n-propanol peaks were consistently — and inexplicably — lower.

Problems with DUI Blood Tests in Washington:

In Washington the problem was more akin to the outright fraud of the part of a laboratory employee rather than simple neglect or incompetence as was demonstrated in Colorado.  According to the Seattle Times:

A San Francisco coroner’s supervising toxicologist vouched for blood-test results in drunken-driving cases for two years before prosecutors told defense attorneys that a Washington state court had labeled her a “perpetrator of fraud” while running that state’s toxicology lab.

The failure to tell defense attorneys about Ann Marie Gordon’s past problems could prove costly to San Francisco District Attorney Kamala Harris’ office.

From 1999 to 2007, Gordon ran the Washington state toxicology lab, whose main job was to analyze tests in drunken-driving cases. The lab was shut down after state agencies discovered that Gordon had vouched in court for the reliability of alcohol-detection equipment when she had not performed the tests herself.

In San Francisco, Gordon has signed sworn statements verifying hundreds of blood-test results, mostly in drunken-driving cases, as a $105,000-a-year supervising forensic toxicologist in the San Francisco chief medical examiner’s office since being hired in 2008. She has also testified in trials.

Interestingly, Michigan pays its toxicologists about the same salary paid to Gordon, but so far, there has been no proof of fraud or obvious neglect in Michigan’s blood testing program.  While this is true “so far” this may not always be true.  As indicated in the Colorado Springs Independent: “The error (in Colorado) was very difficult to identify,” he says, with no apparent pattern or equipment failure to explain.”

If you are arrested of DUI in Michigan it pays to have a lawyer well trained in blood testing.  With proper discovery it just may turn out that your blood test was too high.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!