DUI defense lawyers challenging widely used breath test machine

[DoYouEverWonder]

Mar 6, 2006

MIAMI (AP) -- Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine that determined he was drunk to see whether the test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A Seminole County judge tossed out Muldowny's alcohol breath test - a crucial piece of evidence in a DUI case - and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

http://hosted.ap.org/dynamic/stories/F/FL_DUI_BREATH_CHALLENGE_FLOL-?SITE=FLPET&SECTION=STATE&TEMPLATE=DEFAULT


Would it be possible to use this strategy with voting machines?

[no_hypocrisy]

1. And it depends how the machine is being administered.

About 10 years ago I had a case where the cops "fiddled" with knobs while taking three consecutive tests for my client. They didn't like the reading and kept trying until they could get 2 out of 3 tests to read over 1.0 (her last beer was 4 to 6 hours before the test). And yes, she was convicted.

[Tandalayo_Scheisskopf]

3. Have you seen the new study...

Out of NJ, from the governor's task force on the Motor vehicle mess there? Very, very interesting and scathing on the effects of licencese suspension and DUI. Looks like there are going to be some real changes in that.

<3/1/06 11:16 pm> The final report of the Motor Vehicles Affordability and Fairness Task Foce Report has been released and forwarded to the Governor and the Legislature. The task force was established by the Legislature under NJSA 39:2A-30 in response to numerous constituent complaints taken from among the many thousands of people on the revoked list in New Jersey.

The task force's 76 page report is available in the muni-mail archive at www.muni-mail.com as a PDF document.

Among the many findings and recommendations of the task force are:

1. The vast majority of license suspension in New Jersey are imposed for reasons that are completely unrelated to unsafe driving conduct. In fact, less than 6% of drivers are suspended for purely driving conduct.

2. Being the on the revoked list has a devastating impact on the affected drivers and their families. It also affects employment levels, tax revenues and family stability.

3. License suspensions have a disproportionately harsh impact on the poor of our State.

4. Only 5% of New Jersey's 6 million drivers are suspended at any given time.

5. The number of suspension orders per year remains constant at about 800,000 although many of these suspension orders are imposed upon individual drivers multiple times. In fact 84% of all suspended drivers have more than one suspension in effect.

6. Distribution of license suspension orders among the various income strata of New Jersey society shows that the vast majority of suspensions for all reasons are imposed upon the lower and middle income groups. The number of high imcome suspended drivers is insignificant, with most high income suspensions imposed for drunk driving.

7. There should be consideration of a restricted-use license for those drivers who have been suspended for financial reasons.

8. Re-name the insurance surcharge program to reflect its current purpose as a driver responsibility assessment.

9. Provide the courts with more authority to allow longer periods to pay back child support and use license loss as a last resort for enforcement.

10. Reconsider the fines associated with NJSA 39:3-40 (driving on the revoked list).

The report contains numerous other findings and recommendations. Some of the suggested changes can be implemented administratively by the MVC and the Administrative Office of the Courts. Others will require legislative action.


http://www.muni-mail.com/pdf/MVCTaskforceReport.pdf

A person from NJHHS told me that license suspension is the #1 cause of welfare enrollments in the state.

[no_hypocrisy]

4. Thanks for the heads up on that. I had another client who was

suspended by the DMV on the charge of providing a fraudulent insurance card. In fact, his insurance agent had submitted an irregular card. But that's not all. When the card was cleared up, it was discovered that the same agent caused a vehicle on my client's policy to lapse, thus allowing the DMV to suspend him for THAT reason. And there's more. Not only did the agent allow the vehicle's policy to lapse AND not tell my client, the same agent "SLAMMED" another vehicle that my client had insured with ANOTHER insurance company. Thus, my client was facing a two-year suspension (plus one more b/c he was picked up for unknowingly driving while suspended) because one vehicle was lapsed and he was paying TWICE to TWO DIFFERENT insurance companies to insure the SAME vehicle due to the actions of the insurance agent. It was a clusterfuck to fix it in seven weeks time.

My client barely found a way to get to work. I drove him myself a lot of times. He faced bankruptcy, losing his house, and pulling his daughter out of college. And he was suicidal. Because he was suspended for financial reasons.

The amazing byproduct of this situation is that people were going around, making rumors that he was suspended for drunk driving. Fortunately the rumors stopped once we got his license back as it is nearly impossible to restore your privileges that fast for DUI.

[DoYouEverWonder]

5. This whole DUI thing is a crime in itself

The police and the lawyers have realized there's big bucks to made in the DUI business. They are slapping DUI's on people every chance they get even if it means fudging the results a little. In the meantime, your life is ruined and you will go broke trying to defend yourself. It's beyond ridiculous at this point.

[no_hypocrisy]

7. The price of defending a DUI is pricy. At least a couple of grand.

[DoYouEverWonder]

9. More like $10,000

if you want to fight the charges. Not to mention potential loss of income if you can't get to work or do your job. Try being a realtor with a DUI suspension.

[theshadow]

23. Fudging results?

Slow down. How do you "fudge results" on an Intoximeter? There's nothing that can be done to it. And you don't account for all the results that are made from blood samples; those are also suspect? Sorry, a drunk behind the wheel is a threat to the rest of us. No sympathy.

[CAcyclist]

29. That pisses me off

I know people who have been killed by drunk drivers.

I am sick to death of people with DUIs acting as if they are the ones who are put upon.

I wish their life was ruined - I wish the laws were stronger but they are not. Driving a car is not a right, it's a privelege that can and should be taken away if you are a danger to others. Ride the bus or take a taxi - a lot more people should be losing their licenses than is currently occurring.

[tatertop]

18. And I thought we had it bad here. That's rough.

[theshadow]

22. What kind of testing device was it?

The only one that I know of that had knobs that could be "fiddled" was the old Breathalyzer. That thing was replaced many years ago, at least in Wisconsin.

In any event, the answer is simple: go the hospital for blood.

[Ken M]

26. The whole "anti-DUI" movement

Was taken over by wingnuts and money-happy local governments long ago. Even Candy Lightner quit MADD because it became more of an anti-drinking organization.

[MindPilot]

28. Welcome to DU!

:hi:

[lakeguy]

2. couldn't we use this defense to get * out of office?

[DoYouEverWonder]

6. That's the direction I was going with this thing

I think the same arguments that they are using to win these cases can also be applied to voting equipment.

[no_hypocrisy]

8. Sorry for getting off the track of the topic. Your theory about tampering

with vital equipment is important. Voting machines especially.

[DoYouEverWonder]

10. Yes, I plan to post about this later

down in the Election Forum. I'd like to know what some of the legal minds around here think.

[Mr.Green93]

11. Driving is a Privilege

No one has a right to Drink and Drive. ZERO tolerance for Drinking Drivers.

[ret5hd]

12. is it better for 1 innocent man to go to prison...

or for 10 guilty to go free?

[Mr.Green93]

13. It is better that NO ONE

Drink and Drive.

[ret5hd]

14. that very well may be, but the issue of the original post...

was the verifiability/reliability of the machines.

From that point of view, it seemed to me that your response indicated an attitude that reliability doesn't matter, if you are suspected, go to jail.

and so, i restate my question.

[Jersey Devil]

20. It might be better that no one drinks at all but that is not the law

The law is based on blood alcohol content in a system that allows drinking and driving up to a certain BAC, usually .08%. It is crucial that the machines be accurate in such a system.

[CAcyclist]

30. If you are driving dangerously enough to be pulled over

you're not innocent.

[DoYouEverWonder]

32. I assume you never drive over the speed limit?

That's just cause for being pulled over. Doesn't mean you were driving dangerously necessarily, since most people drive over the speed limit most of the time.

[ret5hd]

34. or never "driven while black" either.

[On the Road]

35. You Have Got to Be Kidding

You think people only get pulled over for driving dangerously? I was just pulled over and given a warning for failing to put a turn signal on. This on a street which has open air drug market, assaults, murders and all kinds of illegal activity.

I was almost charged with DUI a few months ago. My girlfriend and I had been out to eat after having a fight. We split two glasses of wine. We made up and had a very intense discussion -- I was so absorbed that I forgot to turn the headlights on on the way back. (The bright lights of downtown Baltimore made it difficult to tell the difference.)

I was pulled over for suspected DUI because of the headlights. That would have been a legitimate ticket, but the officer was pursing DUI arrests. I could have easily passed a breathalyzer or a blood test and calm and confident. That is, until the officer told me that regardless of my blood alcohol, he could have charged me with DUI anyway. And he would have, with the slightest annoyance or misstatement on my part.

What people get pulled over for, and often what people get charged with for traffic violations, often has very little relation to safety and obeying traffic laws.

[ronatchig]

16. "Driving is a Privilege"

bullshit is just about exactly how and when the fascists who rule this nation got their start bub. I can agree with you that driving while drunk is and should be illegal.
I buy a vehicle, I pay taxes into the highway funds , I pay insurance to compensate others for any damages I( or the vehicle) might incur. I have every right to operate my vehicle. The idea that the state has the right to tell me to stay off the roads is straight out of the oligarchs playbook-somewhat like the highwaymen of yore accosting people for tribute on public roads.

Can you say Ziech Hille?

[CAcyclist]

31. Absolutely it is a damn privelege

you may have a right to travel but that doesn't necessarily mean by car. If you endanger other people's lives on the road, you should lose your driving priveleges. I am sick of people in cars killing others and getting off scot-free or only spending a few months in prison. If you drink and drive and get pulled over, you should be thanking your lucky stars you just got a ticket instead of murdering someone. Cars are dangerous - over 40,000 people a year die in collisions - and people take driving far too cavalierly.

[f-bush]

15. In Washington State

A while back hundreds of DWI results had to be thrown out because the machines weren't tested for their calibration. This means that the cops couldn't get an accurate reading. Many pled on the basis of those readings and those convictions were also thrown out.

I am as much against drunk driving as the next person, however, the difference between a DWI conviction and not can be as little as .01 The result of such a conviction have long lasting legal and financial implications and even influence sentencing if the person is a recidivist.

Too often we let government push us around and accept for fact what has not been proven. Don't lety that happen in this case and definately don't let it happen in any other life circumstance or political decision. It is our joy and duty to challenge the government.

Sorry for piggy backing on this thread, but it just opened up those thoughts. Thanks for listening-Mike C

[spinbaby]

17. Playing with a Breathalyzer

My husband tells of visiting a friend years ago who had one of these gizmos. They spent the evening drinking and playing with the Breathalyzer to see what it would show. One thing they learned is that you always get a much lower reading if you take a really deep breath.

[Jersey Devil]

19. That's not true

A breathalyzer measures alveolar air taken from deep in the lungs. If you don't blow from deeply enough in your lungs you will get no reading at all. If you blow enough to produce a sample of alveolar air it will measure accurately no matter how large or small the sample.

For there to be a lower reading with a larger sample of alveolar air would require either a machine error or operator error.

[spinbaby]

21. I'm just reporting what I heard

I wasn't there but my husband claims that, yes, they could change the readings by taking deeper breaths.

[Jersey Devil]

25. I understand, but just wanted to point out that it must have been

an anomoly.

Maybe what they were playing with wasn't the real deal because they are expensive and have to be calibrated pretty regularly with test ampoules in order to make sure they are accurate. Plus there are about 15 steps an operator has to go through to make sure the test is accurate, performed by a cop who is certified as having been trained on the machine.

I know from experience as a defense attorney and as a prosecutor that there is no way you can beat a breathalyzer by blowing too hard. The only thing you can do is not blow enough, which will result in a zero reading.

In over 20 years of handling those cases on both sides I've only seen a breathalyzer screw up maybe twice. In one case it gave readings of .05, .15 and .05 in 3 successive tests and in another refused to give any reading at all even though the guy blew like hell and the cops were satisfied he was trying to give them a good sample.

[theshadow]

24. If they were really playing with a Breathalyzer....

.... they're lucky they didn't get burned by the acid in one of those $#@!%$ ampoules. What a nasty machine.

And you're right, the deep lung air gives the highest sample.

[MindPilot]

27. This is great!! Not only are the machines unreliable

but BAC especially at levels below 1.0 is not a reliable indicator of imparment. The .08 limits are there just so cops can get their rocks off hauling more and more people to jail.

[harpboy_ak]

36. Sorry, no, it's the point where many folks are impaired

The .08 limits are there just so cops can get their rocks off hauling more and more people to jail.

Bull pucky, the limits were lowered because it has been proven that a very large number of drivers are impaired at a BAC of .08.

I'm one of the majority of Americans who want impaired drivers off the road. I don't care whether it's alcohol, prescription drugs, alzheimers, or lack of sleep, impaired drivers do not belong behind the wheel. Period.

In my state, cops use a field sobriety test, usually videotaped, and then the breath or blood test.

[bpj1962]

33. DUI

First of all let me state that no one should drink and drive. I live in Fairfax Virginia and a circuit court judge was throwing out all of the DUI cases that were appearing before him. He did this because most people are unaware that you do not have to have to take either the motor skills test or the field sobriety test. It falls under the 5th amendment. Police officers do not tell the drivers that they do not have to take the test.

There is no medical proof that an individual is legally drunk at .08. This was lowered to increase the threshold at which the police could arrest someone for suspicion of drunk driving. As one person said there is a great deal of money that comes out of a DUI conviction. The attorney gets paid the court system gets paid, and if you are a first time offender and no one was injured you get to go into the A.S.A.P program which cost over $1500.00. Your insurance goes up and the conviction is on your record for 10 years. It is a costly mistake to make, however the system should be fair and it isn't.