Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

This is not and will never be normal.  Trump’s continued lying and fabrications are the product of a deeply disturbed mind. Congress, we cannot continue like this for four years and you know it.

• Refugees coming from Mexico are not likely to be criminals and rapists.

• Refugees from Muslim countries who have been already subject to extreme vetting are not likely to be terrorists.

Sometimes courts must decide cases where a question is raised as to whether the exercise of governmental power violates the rights of a person or a class of persons.  Courts use different tests, different levels of scrutiny, to determine the legality of governmental actions and whether the government is denying due process, equal protection, and other rights.  The most deferential of these tests to the government is called the rational basis test.  Under the rational basis test, the challenged law must bear a rational relationship to a legitimate state purpose.

During the oral argument in the case of Washington, et. al. v. Trump, et. al., the judge questioned whether there was a rational basis for the Executive Order (EO) in light of the fact that the seven countries named have not produced a single terror attack since 2001.  The government seems to be arguing that they do not need a rational basis since the Constitution and laws vest in the President unreviewable authority over immigration.  Alternatively, the government in its appeal brief cites the Boston judge to suggest that a law cannot be questioned if it states “a facially legitimate and bona fide reason” to ensure “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.”

While under ordinary circumstances, it might be easy for the government to meet this standard, here it is not.  For one thing, there is no mention or explanation given that current screening efforts are insufficient to protect the US, and if they are, what additional screening is necessary.  The Seattle judge obviously thought the fact that there has not been any demonstrated danger to us coming from these countries was important.  Experts have written that the effect of Trump’s immigration EO on our safety and security is lessened by the EO.  The people who have been primarily affected by this are legitimate VISA holders, including women and children, educators, students and relatives of individuals already here.  These people are not a threat to us.  They are the victims of those who are.

So here we are, in Donald Trump’s unreality-fantasy.  Where the President is deranged, unhinged, and out of control.  Where accurate and truthful news is the enemy.  Where fake news and lies determine policy.  Where science is distorted and evidence ignored.  Where prejudice is disguised as reason to justify cruel policies that harm American interests.  Where the President and his aides have unleashed and continue to unleash a virtual torrent of falsehoods.  The crisis we face is unprecedented in our history, unlike anything we have seen before.

Each day brings new horrors, worse than the horrors of the day that preceded it, as Trump exercises power in an unconstitutional and chaotic manner in the delusional belief that his actions are good for our country.  The tragic news of today happens to be Trump’s illegal order banning refugees from seven countries.  None of the terror attacks in this country dating back to well before 9/11 have been committed by persons from the seven countries.  The countries where those terrorists that did come from overseas originated are not in the list.  Although Trump claims this is not a Muslim ban, it only applies in Muslim countries, and it is perceived in the world as a Muslim ban. It doesn’t make us more safe as the people being shut out are people that have already been subject to extreme vetting or green card holders who made the mistake of being abroad at this time. It is stupid and self-defeating. As Malcolm Nance notes, “this will damage us worldwide” and help our enemies. “This will create terrorists.” And this is not who we are. Embarrassingly, Canada by contrast states it is welcoming refugees, using our values to make us look like fools.

The US is now being tested as it never has before.  Today’s NY Times discussed the unprecedented volume of falsehoods in “‘Up Is Down’: Trump’s Unreality Show Echoes His Business Past.”  The story noted that:

Apparently yesterday two judges in Montgomery County were imposing interlocks as a condition of probation in DUI first offense cases.  So major traffic dockets in Rockville 413 and 414 were not good places to be yesterday.

The Washington Post recently reported that State’s Attorney for Montgomery County, John McCarthy, has instructed his prosecutors in Montgomery County to request an interlock in most first offense DUI cases.
This is apparently a reaction to the compromise reached by the Legislature this past session where, despite me being vastly outnumbered at the House and Senate judiciary committees, Noah’s law was amended to require interlocks on convictions under § 21-902(a), and under § 21-902(b) or (c) where the defendant has refused a test, and test readings of .15 or higher, but not on tests of .08 or more and under .15 or on PBJs.  So the legislative intent was to not require first offenders who appear to be social drinkers to get the interlock.

You can’t put lipstick on a pig.

Recently the Trump campaign has hired Kellyanne Conway and other spokespeople in attempt to put a positive spin on Trump.  They look nice and speak well.  But you can’t put lipstick on a pig.

I am a Jew.  I was born in New York in 1955.  I may not practice or believe much, but had I been born 15 years earlier in Germany I would have been put to death because I my mother was Jewish.  The death camps were the outcome of years of anti-Semitism, words that people acted upon, taken to its despicable, criminal, and murderous end.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

This is the endorsement of the New York Times.  I was going to write one but the Times did a great job with it.  So I am reprinting it here.  I will add that her Supreme Court and other judicial picks will be much better than any her opponent would choose.

In any normal election year, we’d compare the two presidential candidates side by side on the issues. But this is not a normal election year. A comparison like that would be an empty exercise in a race where one candidate — our choice, Hillary Clinton — has a record of service and a raft of pragmatic ideas, and the other, Donald Trump, discloses nothing concrete about himself or his plans while promising the moon and offering the stars on layaway. (We will explain in a subsequent editorial why we believe Mr. Trump to be the worst nominee put forward by a major party in modern American history.)

But this endorsement would also be an empty exercise if it merely affirmed the choice of Clinton supporters. We’re aiming instead to persuade those of you who are hesitating to vote for Mrs. Clinton — because you are reluctant to vote for a Democrat, or for another Clinton, or for a candidate who might appear, on the surface, not to offer change from an establishment that seems indifferent and a political system that seems broken.

The National College for DUI Defense (www.ncdd.com) just completed its annual summer session held in Cambridge Massachusetts.  The session featured large lectures, small lectures, breakouts, and small elective seminars.

Topics covered included Cross-Examination of the Arresting Officer by Marj Russell of the Gerry Spence Trial Lawyer’s College; Cross-Examination break out; Handling the High Profile case by Tony Coleman; immigration law by Brad Williams; postconviction, writs of error coram nobis by Professor Byron Warnken of the University of Baltimore Law School; plea negotiations and ethics by Assistant Professor Rishi Batra from the Texas Tech. School of Law.

We had small elective seminars (discussion groups) that were a new feature of the summer session and were very well received with the following topics: Win at the Initial Appearance, taught by Andrew Mishlove and Pat Maher; Suppression Motions: Winning it All Before Trial, taught by Jim Nesci and Steve Oberman, Leonard Stamm and Andy Alpert, Andrew Mishlove and Pat Maher, Don Ramsell and Michelle Behan, and, Mike Hawkins and George Flowers;  Getting What You Want-Creative Approaches to Obtaining Discovery, taught by Bell Island and Lauren Stuckert; How to Use Social Media Effectively and Ethically, taught by Bill Kirk and Brad Williams; Federal DUIs: Reinventing the Wheel? by Leonard Stamm and Andy Alpert; Don’t Let Your Military Client Go Down with the Ship by John Hunsucker and John Webb; Picking the Winning Jury by John Hunsucker and John Webb, Mimi Coffey and Ryan Russman, and Paul Burglin and Lynn Gorelick; Preparing for Plan B, Sentencing in Serious Cases, taught by Mike Hawkins and George Flowers; Follicles, IIDs, ETG and SCRAM: The Hairs, Airs and Other Snares of DUI, taught by Doug Murphy and Richard Middlebrook; Just Say NO to Losing Your Client’s Commercial or Professional License, taught by Virginia Landry and Steven Epstein; Turning the Tide with Treatment, taught by Paul Burglin and Lynn Gorelick; Using Technology to Win Your Case, taught by Joe St. Louis and Lawrence Koplow; Managing a Practice from the Stone Age to the Digital Age in 10 Easy Steps, taught by Bruce Edge and Matt Dodd; Writing Winning Appeals, taught by Don Ramsell and Michelle Behan.