Articles Posted in Laboratory testing

Many people will remember the nurse in Utah who refused to draw blood in a DUI case under directions from a police officer and was arrested.  She subsequently settled a lawsuit for $500,000 and the officer was fired.  As a result the Utah legislature tried to fix the problem.

In Anne Arundel County doctors and nurses have also refused to follow illegal directions from police officers.  In response, bills were introduced in the Maryland Senate and Maryland House of Delegates to try to fix the problem. The bill would require qualified medical persons to withdraw blood where the driver did not consent to a test after an officer developed reasonable grounds (defined as reasonable articulable suspicion) to believe a person was driving while impaired by alcohol or drugs and there was an accident resulting in a fatality or life threatening injury.

The problem is that the Supreme Court has held in two cases, Missouri v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), that before police may direct a qualified medical person to withdraw blood the officer must have probable cause and a warrant, unless an exception to the warrant requirement such as exigent circumstances or consent exists.  However, not every case involving a fatal or life threatening injury will involve exigent circumstances.

The National College for DUI Defense held its Winter Session in Atlanta this past week.  The program was titled “Prescription for Disaster” on the topic of defending DUI cases involving prescription drugs.  The speakers included Tony Palacios and Ron Lloyd on “Learn What the Cops are Taught: Drugs That Impair Driving & ARIDE Overview for Lawyers;” Jay Tiftickjian on “What if it Becomes Legal in My State? Navigating Through the Haze of Prescription and Legalized Marijuana;” Dr. Fran Gengo on “An Expert’s Opinion: The 3 Most Important Things Lawyers Need to Know About Prescription Drug DUI Cases;” MIchael Nichols spoke on “Not Your Father’s DUI: Unusual Aspects of Defending DUI Drug Cases;” Erin Gerstenzang spoke about “Ethically Avoiding the Personal & Professional Disaster: Client Management Before, During and After Court;” Dr. James O’Donnell spoke about “How to Investigate and Prepare to Challenge the State’s Expert in a DUI Drug Case:”  Dr. Randall Tackett spoke about “The Opioid Crisis in America;” William C. “Bubba” Head spoke about “Waking Up to Disaster: Defending the Ambien Case and other Sleep Driving Issues;” Doug Murphy covered “Challenging Drug Recognition Experts;” and Flem Whited spoke about “Dr. Whited’s Rx to Win a DUI Drug Case.”

On January 3, 2018, Leonard Stamm gave presentation to the Prince George’s County Public Defenders in Hyattsville on “Drug Recognition ‘Experts.'”

If you are charged with a state or federal traffic or criminal case, call 301-345-0122 for a free consultation.

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%.

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.

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.

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches.  The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Starting with the Supreme Court’s decision in Terry v. Ohio, in 1968, police have been allowed to stop a person without probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law.  Under the exclusionary rule, the government is not allowed to use in court evidence obtained in violation of the Fourth Amendment.  The exclusionary rule exists to deter officers from breaking the law.

The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado.  Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D.Janine Arvizu, NCDD Regent Joe St. LouisPatricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.

The science portion was followed by three days of lectures and breakouts on trial techniques  taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte.   The TLC website says:

Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.