Never blindly trust expert witnesses
Here's a very good, real life, example of why we should not blindly trust expert witnesses in DUI cases (or any criminal case for that matter).
A Forensics Charlatan Gets Caught in the Act: Video from a defense attorney's sting exposes Mississippi bite-mark "expert" Michael West. - Reason Magazine: "Plourd’s video sting ought to move public officials in Mississippi and Louisiana to thoroughly, if belatedly, investigate just how much damage this dentist has inflicted on the judicial systems of those states. There are still dozens of people in prison due in some part to 'expert' tetimony that has been shown to be anything but."
When a person's freedom and life is at stake, it is appropriate to question the methodology, motive and conclusions of any expert witness.
Alcohol and impulsive behavior is genetic
Here's a study that supports the theory that drinking (and be a tangential extension drinking and driving) may not be a choice for some people. If this is the case, it supports what I have argued for years, that people accused of DUI need more support and treatment, and less punishment.
Putting somebody in jail and stripping them of their dignity and their livelihood does not make them less likely to act impulsively and drink and drive in the future. In fact, it likely does just the opposite.
Scientists find genetic link to impulsive behaviour | Latest News: "In humans a blood alcohol level of .08 is produced by the consumption of two drinks an hour by a 120-pound individual or 3 drinks an hour by a 180-pound individual. At that level human concentration and judgment are impaired and all 50 states prohibit operation of a motor vehicle.
‘It is well documented that humans with alcohol problems have impulsivity issues. High impulsivity, when defined as the tendency to choose small instantaneous rewards over larger delayed rewards – like getting drunk instead of going to work for that paycheck in 2 weeks— is more prevalent in alcoholics than in non-alcoholics. Because these mice had never had alcohol, we were able to show that it was the genes that increase drinking, rather than drinking itself, that yielded impulsive behavior,’ said Dr. Grahame.
‘Our data can clearly be extrapolated to humans and strongly suggests that impulsivity contributes to high alcohol drinking. Consequently, the diagnosis of any disorder associated with impulsivity, such as attention deficit disorder or bipolar disorder, is cause for concern about future problems with alcoholism,’ he added"
As a society, we need to respond to the problem of DUI with more love and less judgment. Support and incentive is what quells impulsiveness.
Riverside California Tox-Lab scandle
California lawyer Mary Frances Prevost has a blog entry about a scandal at Riverside's Bio-Tox lab. The post, quoting an article from DailyJournal.com, should be an example and a warning for all who think that forensic science in DUI cases is unassailable.
CALIFORNIA'S TOP LEGAL NEWSPAPER TRACKS BIOTOX SCANDAL :: California Criminal Lawyer Blog: "Defense attorneys are questioning the viability of evidence in thousands of criminal cases in Riverside, San Bernardino and San Diego counties because defendants' blood and urine tests were conducted by a forensic lab technician who admitted to fudging his analysis in a previous job.
Lawyers are frantically digging for information on every case Aaron Layton tested on behalf of Riverside-based Bio-Tox Laboratories over two years with the company until he was fired in February. Thousands of cases in the three counties that contract with Bio-Tox have been thrown into question, attorneys and some judges say, because Layton acknowledged lying hundreds of times about his testing while working at a Colorado lab eight years ago."
According to Fullerton DUI attorney Randall Longwith, who practices DUI and criminal defense in Los Angeles, Orange County and Riverside County, this is discouraging from the standpoint of justice and fair play, but some that good California DUI lawyers are always on the lookout for.
And this is not the only lab and the only time that this has happened. Our history is fraught with stories of people wrongfully convicted based on inaccurate and false scientific testimony. Sometimes that testimony is given intentionally, and sometimes out of accident or ignorance. The result is the same. Justice is not served.
Warning: TV tainting the criminal justice system
I have noticed during recent jury trials in DUI cases that jurors often come in with expectations of what they are going to see.
When the case is first announced as a drunk driving case, a lot of the potential jurors look bored. Then, when I introduce myself and my witnesses, including a forensic scientist, I can usually tell the CSI fans immediately. They sit a little closer to the edge of their chairs. Their posture improves. They are now listening.
During the presentation of the case, they tune most everything out. Then, when the forensic scientist takes that stand, they are all there, and they are all ears. They hear about partition ratio, alcohol metabolism, proper lab procedure, and many other mind-numbingly boring things. And they listen or so it appears.
Then they go to the jury room to deliberate and something happens. They judge the evidence, not on its own merits, but by a standard crafted by a team of television writers.
Then they make a decision about my client's life based on an impossible TV standard.
It has now become so prevalent that I have started explaining to jurors that this is not CSI. This is the real world. It often makes no difference. The jurors now consider themselves armchair forensic scientists.
This trend is not limited to scientific testimony in DUI trials. Attorney Scott Greenfield recently wrote about the same phenomena in clients and clients' relatives.
I Watch TV, So I Know: "I told her, 'No, I would not have known. Television has given you unrealistic expectations, and you want your lawyer to meet those television expectations. I could have told you what you wanted to hear, but it would have been a lie. I would not lie to you, even to make you happy. Your lawyer wouldn't lie to you either. This makes him an honest lawyer, not a bad lawyer.'"
(Via Simple Justice.)
Just because it is on a television crime or justice drama does not make it truth. It does not make it relevant to the real world.
I'm starting to think that shows about law and medicine should come with disclaimers before and after the show that the information presented is for entertainment purposes only. It is damaging to the application of justice to judge cases in the real world based on a fantasy television standard.
DUI Urine Testing
Urine Testing: The Basics: "Urine samples are usually tested for drugs by using a screening test followed by gas chromatography-mass spectroscopy (GCMS). The screening test is normally an enzymatic method of analysis that determines if the ‘signal strength’ is at or above a cut-off level. These tests employ reagents that interact with several different but related compounds (e.g., metabolites) and measure the total ‘signal strength’ of all those compounds. "
(Via Georgia DUI Blog.)
The psychology of being a DUI defendant
Washington State DUI Lawyer Aaron Wolff had an excellent post yesterday on the emotional impact of DUI.
Here is a quote from his post:
What I tell everyone I meet with is that they will make it through this incident. It is an aberration in an otherwise fulfilling and law-abiding life. I have represented everyone from friends to family members, "soccer moms" to professionals and executives, and everyone of them, irregardless of the ultimate outcome of their case, made it through their arrest for DUI. I am attorney to fight and protect my client to the best of my ability in the legal arena. I am also a "counselor" to be their to listen to their concerns and give them insight (and if necessary, referrals to mental health professionals) to assure that they will be able to emotionally sustain themselves throughout the process.
What Mr. Wolff says is true, and sometimes DUI Lawyers lose sight of the fact that they are there to emotionally as well as legally support their clients during this most difficult time.
There are some DUI attorneys who view their function as perfectly technical. And this probably is the best way to get the best legal result, since the lawyer's time is not spent (could be translated as wasted) on coddling and comforting a client. But this is the wrong approach in most cases, because as DUI lawyers, we have to be holistic in our approach. It doesn't matter if we get the client's case reduced if we do emotional damage along the way. Like physicians, lawyers should consider first doing no harm.
DUI defendants are in a vulnerable position when they come to DUI defense lawyers, and the lawyers would be doing themselves, their clients and society a great service by being mindful of the fact that behind the title "defendant" there is a human being going through a very tough time.
We also need to realize that sometimes our clients have alcohol problems. Sometimes their alcohol problems are caused by underlying mental or emotional issues. Sometimes they are self-medicating with alcohol or drugs.
I'm just saying that, as DUI lawyers, we are in a superior position to help our clients not just turn their cases around, but acquire tools to make the rest of their lives better.
Intoxilyzer source code update for January 2009
In his noted blog, California DUI Lawyer Lawrence Taylor wrote about the Intoxilyzer source code saga that is playing out in court across the nation. He points out that the manufacturer of the Intoxilyzer refuses to divulge the source code that powers the machine, and therefore renders the machine a "mysterious black box."
I couldn't agree more, and am appalled that Courts still allow the machine's results to be used against a DUI suspect. Meanwhile, the citizens of each state that uses the Intoxilyzer are footing the bill for the prosecutors to continually defend the use of the machines in court and protecting the manufacturer from having to divulge the code.
Mr. Taylor quotes an article from the Tucson Citizen which discusses why Arizona believes that it can't compel the company, which is based in Kentucky to appear in an Arizona court.
I think the real question is why do prosecutors continue to defend this machine, and why do law enforcement officers continue to use it? I think it must be because if/when the source code is shown to be biased, corrupted, inaccurate or worse, there will be a flood of appeals from convictions where these machines were used.
My supposition is that CMI will go gently into that good night. In Arizona, I have definitely noticed a decrease in its use over the past several years. More agencies are switching to a blood standard. Some are now taking both an Intoxilyzer and a blood test.
The era of rewarding brazen corporate greed appears to be coming to an end, and hopefully with it an end to business practices like those noted by Mr. Taylor and the Tucson Citizen article.
Until then the best weapon we have against injustice is to educate the public through blogs like Mr. Taylor's, through reporters who really want to get at the truth, and on a grass-roots level, one juror at a time.
That the manufacturer refuses to testify in court should be highly relevant to any DUI defense against the machine. If judges won't compel the company into court and won't suppress the results of the tests, the least they should do is admit into evidence the facts of this company's behavior, which should speak for themselves.
Field sobriety testing and NHTSA compliance
In Ohio v. KRUMPELMAN, decided on December 19, 2008, we have a really good example of a very weak attack on standardized field sobriety testing. It is the types of arguments made in this case that cause lawyers to lose credibility with judges, prosecutors and juries. The DUI defendant here is essentially arguing that unless the field sobriety tests are given verbatim from the guidelines that the officer has not complied with the regulations.
Excerpts from the opinion:
In her second assignment of error, Krumpelman argues that the trial court should have suppressed the results of the three field sobriety tests administered by Steele because they were not performed in substantial compliance with the NHTSA manual. We disagree.
In support of this, she quotes the transcript where Steele said, "I have them stand facing me with their hands down at their sides. Then I ask them if they wear any glasses or contacts, or anything that they have medical conditions for, or anything like that. Once I do that, I check to make sure the pupil sizes are dilated properly." In her quotation of the transcript, however, Krumpelman omits the second sentence--and does not indicate that the sentence has been omitted by ellipses; that sentence reads, "I explain to them what I'm going to do at this point." Under these circumstances, we reject Krumpelman's argument on this point.
Regarding the One Leg Stand test, the basis for the argument is that the instructions require 114 words to be spoken and that Steele "failed to give 43% of the required instructions." The same is true with the Walk and Turn test, except that the math changes--with Krumpelman arguing that Steele omitted "49% of the required instructions."
We summarily reject the argument that substantial compliance can be resolved at the end of a mathematical equation. In her brief, Krumpelman sets out the instructions as they existed in the 2006 NHTSA testing standards. She then strikes through those words that she claims Steele failed to intone during the stop. Other than the percentage discrepancies, Krumpelman does not argue how Steele did not substantially comply with the NHTSA requirements or how the words left out were essential to establishing substantial compliance.
Analysis: Any time you have to count words in a transcript and, without cross on the number of words used, hang and argument on the word count, the argument is weak.
State Ordered To Produce Intoxilyzer Source Code
Tucson, AZ - A Pima County Superior Court Judge has ordered the prosecution to get the Intoxilyzer source code in electronic format from CMI, the maker of the breath testing machine.
In litigation that has spread through most states that use CMI products, CMI has steadfastly refused to divulge the source code behind its machines, claiming that it is work product and proprietary. Defense attorneys have argued, mostly unsuccessfully, that the source code is necessary to analyze whether the machine accurately analyzes breath samples.
In Tucson, Judge Bernini ordered the State to produce it.
DUI attorneys familiar with the case predict that CMI will refuse to hand it over, perhaps because hidden within it is something that shows that the company betrayed its customers, potentially exposing it to lawsuits.
The Tucson Citizen's recent article on the source code ruling explains the lead attorney's theory.
Other attorneys familiar with the issue speculate that CMI will ultimately have to shut down operations, perhaps resuming under another business entity.
In Arizona, the trend is already towards blood draws, with many officers being trained in phlebotomy.
