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In the past year it has come to light that the Intoxilyzer 5000 ENs used in the District of Columbia provided false high readings, and that a number of defendants were convicted, and even sent to jail, as a result of these flawed tests. See 400 drunken-driving convictions in D.C. based on flawed test, official says, Washington Post, June 10, 2010. This experience simply illustrates the dire need for a check on governmental incompetence with respect to scientific evidence in general and breath testing in particular. According to letters written by Igmar Paegle, who assumed control of the Metropolitan Police Department (MPD) testing program, two fundamental mistakes created this problem. The first was the improper calibration of a number of Intoxilyzer 5000 ENs by the officer assigned to this task to read 20 to 40% higher than the correct value. The second problem was the failure of the MPD to perform accuracy checks. As a result, the problem went unnoticed for a significant period of time. Compounding this error, government officials reacted by attempting to withhold relevant information. To make matters even worse, complaints were filed against whistleblower officers. See D.C. to forgo breathalyzer testing for the time being, Washington Post, February 15, 2011.

MPD attempted to replace its Intoxilyzer 5000 ENs with a different make and model breath test unit, the EC/IR II. However, due to overwhelming problems the use of these units has been discontinued in D.C. The test strips for the EC/IR II in both DC and Greenbelt formerly provided:

I CERTIFY THAT THE SAMPLE(S) ANALYZED ABOVE WERE TAKEN ACCORDINGLY [sic] TO GUIDELINES SET BY THE DISTRICT OF COLUMBIA’S CHIEF TOXICOLOGIST (OR HIS/HER DESIGNEE); THAT THE SAMPLE(S) WAS (WERE) TESTED ON EQUIPMENT USED ACCORDING TO THE MANUFACTURER’S SPECIFICATIONS AND APPROVED FOR THE EVIDENTIAL MEASUREMENT OF BREATH ALCOHOL BY THE CHIEF TOXICOLOGIST (OR DESIGNEE); THAT I AM LICENSED BY THE CHIEF TOXICOLOGIST (OR DESIGNEE) TO CONDUCT SUCH TESTING; THAT THE INSTRUMENT WAS CERTIFIED AS ACCURATE WITH THE PAST 3 MONTHS; AND THAT THE TEST RESULTS ARE ACCURATE.

More recent test strips in both DC and Greenbelt omit this certification.
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This week is the National College for DUI Defense‘s summer session in Cambridge, Massachusetts. We stay at the Charles Hotel and have three days of lectures and break out sessions at Harvard Law School. (We are not affiliated with Harvard Law School but we rent some of their classrooms which are perfectly situated for our program).

This year we have some excellent speakers and break outs. Yesterday we had lectures titled First Person Opening by Francisco Duarte, opening statement demonstrations by Virginia L. Landry and Andrew Mishlove, Uncertainty & Science by Ted Vosk, Accident Reconstruction/Reaction Time by Steve Rickard, and Your Expert: How to Direct and Protect by Evan M. Levow & Thomas E. Workman, Jr. We also had Opening Statement break outs where students were able to practice opening statements in a small class setting at get critiqued by instructors while being videotaped. I am one of the instructors.

Today we will have Cross Examination Techniques by Roger Dodd. Roger Dodd wrote the book on cross-examination and he was a featured speaker in Maryland at the Maryland Criminal Defense Attorneys’ Association program titled the 8th Annual Advanced DUI Defense Seminar in 2010. Today we will also have demonstrations of direct questioning by William K. Kirk, cross-examination by Michael M. Hawkinsand Donald J. Ramsell, Jury Selection by Doug Murphy. We will also have cross-examination break outs.
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Every year the Maryland legislature is bombarded by MADD, the Maryland State Police, and the States Attorneys, and are asked to strengthen Maryland’s DUI laws. Every year the DUI laws get strengthened, they never get made more lenient.  This year they made a number of changes regarding ignition interlocks that raise some serious questions about how they will be implemented.

Prior to October 1, 2011, ignition interlock restrictions were primarily imposed where the driver submitted to a test with a result of .15 or higher, or refused, or had a second or subsequent test failure or refusal, or a second finding of guilt.  After October 1, 2011 the new laws requires ignition interlocks as follows:

Mandatory Participation: A driver must participate in the program as a condition of modification of a license suspension or revocation of a license or the issuance of a restrictive license if the driver:

  • is required to participate by a court order;
  • is convicted of driving while under the influence of alcohol or under the influence of alcohol per se and had a blood alcohol concentration (BAC) at the time of testing of 0.15 or greater;
  • is convicted of driving while under the influence of alcohol, under the influence of alcohol per se, or while impaired by alcohol and within the preceding five years was convicted of any specified alcohol and/or drug-related driving offense; or
  • was younger than age 21 and violated the alcohol restriction imposed on the driver’s license or committed the specified alcohol-related driving offense.

These ignition interlock restrictions run for six months for a first ignition interlock restriction, for one year for a second ignition interlock restriction, and three years for a third or subsequent ignition interlock restriction.  Failure to comply leads to a one year suspension of the license or privilege in Maryland, after which the driver must still comply with the program in order to get  a drivers license.  However after 45 days of the one year period the driver may be readmitted to the ignition interlock program.
 
Many drivers are unable to obtain an ignition interlock because they
live out of state or because they do not own a car. The new laws do not explain how the MVA is supposed to handle that situation.  Additionally, drivers of commercial motor vehicles who need a commercial drivers license (CDL) may also be out of luck under the 2011 laws.

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20 years ago it was not uncommon to for a person convicted of automobile manslaughter to avoid going to jail entirely. Sentences in cases we have handled have ranged from zero to 18 months.  This week the Washington Post reported that a woman was sentenced to serve 20 years for automobile manslaughter for a drunk driving accident that resulted in 2 deaths.

Serrette sentenced Mate to 20 years in prison — more than sentencing guidelines called for and a year less than the maximum allowed by law. The judge acknowledged that Mate had been sexually abused as a child and suffered from alcoholism.

But Serrette stressed that Mate had twice before been convicted of driving while intoxicated and shouldn’t have been behind the wheel that night because her license had been suspended.

“You had repeated wake-up calls that you ignored,” Serrette told Mate. Her actions had destroyed three families: those of the victims and her own, the judge said.

This sentence exemplifies a trend to punish drunk driving and bad driving more harshly across the board and illustrates the importance of getting the best legal representation one can afford. In a growing number of states including California, Alaska, New York and MIssouri, fatal drunk driving accidents are now prosecuted as murder.  A Phoenix man received a 20 year sentence for his 6th and 7th felony DUI offenses – no one was killed or hurt.  A Denver woman received 15 years for a fatal drunk driving accident last year. A Waco man received a life sentence for his 9th DUI since 1984.
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This week a jury found Casey Anthony not guilty of murder of her daughter Caylee. It was the right verdict. The prosecution failed to prove the cause of death, when Caylee died, how she died. The jury could not say whether Caylee died accidentally or was murdered. The jury could not find that an adult was responsible for Caylee’s death, or if an adult was responsible, who was responsible. At best, they could find that it was possible that Caylee was murdered by Casey. In our system of justice, the jury must find guilt unanimously and beyond a reasonable doubt. The evidence didn’t support a guilty verdict in the Casey Anthony case. The jury got it exactly right.

Alan Dershowitz wrote an excellent piece on this in the Wall Street Journal. He talks about the concept in our law that as a society we have made a value judgment that it is better to let 10 guilty persons go free than it is to convict one innocent person. This is one of my favorite legal quotes:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). See also T. Starkie, Evidence 756 (1824) (‘The maxim of the law is … that it is better that ninety-nine … offenders should escape, than that one innocent man should be condemned’).

It is from an opinion by Justice Stevens in Schlup v. Delo, 513 U.S. 298, 325 (1995), and can be traced back, as it was in Dershowitz’s article, to the biblical story of Abraham arguing with God that Sodom should not be destroyed if ten innocent people would be condemned.

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Last week I wrote about the decision of the Supreme Court in Bullcoming v. New Mexico. Everyone who participated (I helped to author the amicus brief filed by the National Association of Criminal Defense Lawyers – NACDL) was thrilled. The Supreme Court held that a surrogate chemist could not testify to a blood alcohol reading when he did not supervise or observe the chemist performing the analysis without violating the Sixth Amendment’s Confrontation Clause. This outcome was in doubt due to the replacement of two of the five justices in the majority in Melendez-Diaz v. Massachusetts, Justices Stevens and Souter. They were replaced by Justices Sotomayor and Kagan. Melendez-Diaz held that the chemist had to actually come to court and that a report would not suffice for confrontation purposes.

Melendez-Diaz was a 5-4 decision. The opinion, written by Justice Scalia, was joined by Justices Stevens, Souter, Thomas, and Ginsburg. The dissenters were Justices Kennedy, Breyer, Roberts and Alito. After Melendez-Diaz was decided, on June 25, 2009, the dissenters did not waste any time trying to get it overruled, perhaps to see if they could garner the vote of the justice who would replace Justice Souter, Justice Sotomayor. On the same day as the decision in Melendez-Diaz, the Supreme Court granted certiorari in Briscoe v. Virginia. Unfortunately for the dissenters, Briscoe, which challenged Virginia’s permutation of a notice and demand statute, and required the defense to call the opposing witness in its case, turned out to be a dud. On January 25, 2010, the Supreme Court followed Melendez-Diaz and issue a per curiam reversal in Briscoe. Justice Sotomayor had clearly sided with the Melendez-Diaz majority.

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Yesterday, the United States Supreme Court announced its decision in Bullcoming v. New Mexico, reversing the New Mexico Supreme Court’s decision allowing the state to introduce a blood alcohol result through the testimony of a chemist who did not conduct the test. The case was argued and won by Jeffrey Fisher of Stanford Law School. I was privileged to have participated, along with Justin McShane, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Smith in writing an amicus brief on the winning side for the National College for DUI Defense, the National Association of Criminal Defense Lawyers, and the New Mexico Criminal Defense Lawyers Association. Our brief can be characterized as a kind of “Gas Chromatography for Dummies,” so that non-scientists could understand the complexity of the process, and why it is necessary to be able to question the actual chemist in order to be able to discover potential mistakes in the process or false statements. Footnote 1 of the court’s opinion shows that the five member majority got the message.

Bullcoming should not have any effect on state court proceedings in Maryland. Maryland has what is called a “notice and demand” statute that allows the prosecution to file a notice of a chemist’s report and phlebotomist’s testimony and requires the defense to file a demand for the presence of the chemist or analyst and of the qualified medical person who withdrew the blood. In state court, most lawyers routinely file such demands in blood test cases and unless the chemist comes to court the State cannot use the test result. By requiring the actual chemist and phlebotomist to come to court for the State to use a blood test result, Bullcoming changes nothing in Maryland state court because in almost all cases the actual chemist and phlebotomist is already required to come to court. However, in federal court, there is no comparable notice and demand statute and the government usually tries to introduce the blood test through a lab supervisor.
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There are two kinds of federal DUIs depending upon where the arrest was made.

If the arrest was made on property under the jurisdiction of the National Park Service, such as the Baltimore-Washington Parkway, Suitland Parkway, Canal Road, or elsewhere, the charges are made under the Code of Federal Regulations. The maximum penalties are 6 months and/or a $5,000 fine. There is no right to refuse the breath or blood test, and people who refuse a breath test are normally taken to a hospital where blood is withdrawn. Refusal is also a crime, carrying the same potential penalty. Trials are usually before a United States Magistrate judge and there is no right to a jury trial. There is no PBJ or probation before judgment available, so if the judge finds the person guilty it results in a conviction. However, no points appear on the MVA driving record. There is also usually no suspension of driving privileges before or after court, at least on a first offense. Convictions may be appealed, but there is no new trial on appeal as there is in state court.

The second kind of federal DUI occurs on property not under the jurisdiction of the National Park Service such as Andrews Air Force Base, Ft. Meade, the National Institutes of Health, and other locations. Here a federal law called the Assimilative Crimes Act applies. Under the Assimilative Crimes Act, if there is no federal criminal law on conduct made criminal under the law of the state in which the federal property is located, the state’s criminal laws apply. Since there is no federal DUI law, Maryland DUI laws apply on federal property located in Maryland which is not under the jurisdiction of the National Park Service. Under this scheme, the state crimes and penalties of DUI and DWI apply, but federal procedures are used in federal court. Defendants do have a right to a jury trial. Breath test failures and refusals are referred to the MVA as in state cases, but whether the MVA can legally suspend the drivers license for a violation on these federal properties is debatable. Since the penalties are the same as in state court, a defendant can get a PBJ on a first offense. If there is a conviction (no PBJ), points do appear on the driving record and the MVA will seek a suspension or revocation of the drivers license.

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In Maryland, if the defendant pleads guilty or is found guilty after a trial, sentencing usually takes place immediately. The judge has already heard the facts of the case. At this point the judge wants to hear something about the defendant, including but not limited to: age; educational background; family situation; employment; and most importantly, whether the defendant has been assessed by a state certified alcohol counselor to determine whether the defendant has a drinking problem and has begun or completed the recommended program.

The assessment is made using standard screening tests, including the Michigan Alcohol Screening Test, also known as the “MAST” test, and others. On a first offense, offenders assessed as a “social drinker” are normally recommended to complete a 12-hour class. This is usually spread out over six weeks, with six two-hour evening sessions. Offenders assessed as a problem drinker are usually recommended to complete a 26 week program.

If the defendant thinks it is unlikely he or she will want to take an appeal from the guilty finding and is requesting probation before judgment, also known as “PBJ,” then the defendant should probably make a short statement of remorse, and indicate the steps being taken to ensure that something like this will never happen again.
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Defending drivers with a CDL (commercial driver’s license) who are charged with drunk driving is tricky. Each step of the process involves a risk that the CDL will either be disqualified pursuant to state and federal law, or suspended pursuant to regulations of the Maryland Motor Vehicle Administration (MVA). Under Code of Maryland Regulations (COMAR) 11.11.12.07 the MVA may not issue a CDL if the driver’s license is suspended. Unfortunately, the MVA interprets a case called Embrey v. MVA to hold that any kind of restricted license is the equivalent of a suspension. Under this interpretation, a driver with a work restriction or an ignition interlock restriction may not have a CDL.

The first hurdle through which the CDL driver must pass is the initial MVA hearing for a breath or blood test failure or refusal. If the driver took a test with a result of .08 or higher but less than .15, an effort must be made to persuade the Administrative Law Judge (ALJ) to either take no action or to issue a reprimand, as opposed to a 45 day work permit. If a work permit is issued it will be without the CDL. If the driver failed with a result of .15 or more, or refused a test, an effort must be made for no action. In either event, the ALJ would only have discretion to impose an ignition interlock restriction for one year. Again, this would be without CDL. Additionally, a refusal carries a separate one year disqualification of the CDL.
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