Failed Field Sobriety or Nystagmus? Challenge the Arresting Officer’s Assumptions

Austin, Texas DWI lawyer Jamie Spencer has written several very interesting posts about a medical condition called nystagmus.  Nystagmus is a medical condition that describes involuntary eye movement, and police officers are trained to look for these involuntary twitches in field sobriety tests as an indication that a driver is impaired.

The problem, as attorney Spencer points out, is that there are many causes of nystagmus that have nothing to do with alcohol consumption.  As such, an officer who testifies that a defendant failed a field sobriety test because that defendant failed a horizontal gaze nystagmus test can and should be aggressively cross examined.

If you are a defendant in a DUI case here in Georgia and you have a medical condition that might cause nystagmus or similar symptoms, please let your DUI defense counsel know so that your performance in a field sobriety test can be challenged.

Manufacturer of Intoxilyzer Breath Test Machine Facing Tough Fight to Preserve Secrecy of Source Code

I have previously written about on-going court challenges against CMI, the manufacturer of the Intoxilyzer breath test machine.  DUI defense lawyers have long wanted to gain access to the Intoxilyzer source code in order to have it analyzed by independent programmers, biologists and phyicists.

My suspicion, which is shared by many DUI lawyers is that the Intoxilyzer’s internal calculations are based on calculations that assume a certain weight and size and sex of a defendant.  If the readings are based on a 200 lb. male, then the machine can’t possible evaluate the blood alcohol level of a 98 lb. female.

CMI has long argued against turning over the source code, contending that the source code is proprietary information and that releasing it could damage or destroy its business model.

It appears to me that CMI may not have much of a choice.  A judge in Sarasota County, Florida has levied a fine against CMI for stalling the prosecution of more than 100 cases.  The fine is now over $500,000.  CMI’s attorneys recently appeared before a 3 judge panel in Sarasota to argue that its source code is a trade secret.

CMI has already agreed to a "controlled viewing" of the source code that would bind all viewers to secrecy.

We will keep you posted as to developments in Florida.  If CMI loses, I expect to see immediate challenges to Intoxilyzer testing here in Georgia.

Light Reading for the New Year

As we begin 2008, I thought I would post something not so serious.  Obviously, DUI related topics are serious – I ran across this joke that gave me a chuckle:

A man is driving home, when is pulled over by a patrolman for a broken blinker. The cop looks into the guys’ car and sees a collection of knives in the backseat.

"Sir," the cop says. "Why do you have all those knives?"

"They’re for my juggling act," the man says.

"I don’t believe you," says the cop. "Prove it." So the man gets out of his car and begins juggling the knives. At the same time, a car with two guys in it drives by.

"Man," says the first guy. "I’m glad I quit drinking. These new sobriety tests are hard."

Let’s all make 2008 a year when you can avoid DUI or any criminal defense issues.

State’s Failure to Turn Over Intoxilyzer Source Code May Result in Dismissal of Charges

Joshua Topolsky of the Engaget blog reports that the Minnesota Supreme Court will hear arguments about whether the State of Minnesota and/or the manufacturer of the Intoxilyzer 5000 machine must turn over the soruce code that operates the Intoxilyzer equipment.  In discovery motions, the defense had demanded the source code but both the State of Minnesota and manufactgurer CMI corporation have refused to release the code.

Lower courts in Minnesota and elsewhere have dismissed charges in DUI cases because the source code was not released, although other courts have refused to dismiss cases on this basis.  Now, it appears that the Minnesota Supreme Court will be making law on this subject – a hearing is scheduled for September 19th.

Has anyone had any success with the "source code" argument here in Georgia?  If so, write us with the details.

[tags] source code, breathalyzer, intoxilyzer [/tags]

What Causes a Police Officer to Suspect You of DUI?

Have you ever wondered what signs of intoxication signal police officers to pursue a DUI investigation? Attorney Jamie Spencer from Austin, Texas writes in his Texas DWI Defense blog that signs of intoxication include

  • Odor of Alcohol: Strong, Moderate, Faint, None
  • Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
  • Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
  • Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
  • Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
  • Walking/Turning: Falling, Swaying, Staggering, Stumbling

Why are these signs important? While the State (i.e. police officer) has a certain amount of leeway to investigate drivers, that leeway is not unlimited. If the officer does not have reasonable cause to suspect that a defendant is under the influence, the arrest and subsequent evidence gathering can be attacked and possibly excluded.

Jamie writes that he will explore each of these factors in subsequent posts on his blog.

[tags] signs of DUI, right of officer to arrest me for DUI, challenge DUI arrest [/tags]

Eyewitness Testimony Not Always Reliable

I recently came across an interesting article in the Baltimore Sun that addressed the issue of eyewitness testimony. According to a lawyer who works for the Innocence Project – a group of lawyers who work to reopen cases to introduce DNA evidence – seventy percent of successful exonerations involved convictions based on eyewitness testimony.

This does not mean that eyewitness testimony is always bad – it does mean that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.

[tags] eyewitness identification, reasonable doubt, DNA evidence [/tags]

When is a Plea Bargain Most Likely?

One of the most frequent questions I hear from clients has to do with plea bargains vs. trials.  If there is a fundamental flaw with the evidence to be used against you, or if the State’s witnesses are weak, the State may not be able to prove its case beyond a reasonable doubt and you should consider taking your case to trial.

On the other hand, your case may be one where the State’s evidence is admissable and we may decide that a judge or jury trial may be risky.  In such instances, we may be able to negotiate a favorable plea bargain to keep you out of jail or to other minimize the negative consequences of a DUI conviction.

What factors come into play when we negotiate a DUI plea bargain.  There are no published statistics to answer this but DUI defense lawyers around the country generally find similarities in their experiences.

Ohio DUI lawyer Brad Koffel posted a list of the top ten risk factors that hurt his chances at negotiating a plea bargain.  Brad’s list is not exhaustive but I agree with him that the more of these factors that apply in your case, the more difficult it will be to negotiate the most favorable terms of a plea bargain.  Here are the factors that attorney Koffel identifies:

1. Car Accidents
2. Blood Tests
3. Breath Tests
4. Urine Tests
5. Video showing an impaired client
6. State patrol hotline calls about our client
7. Client or passenger statements tantamount to confessions of being DUI
8. Rudeness & belligerence towards police officers
9. The county the DUI arrest occurred
10. Prior Convictions for DUI

Rest assured that even if your case seems hopeless, my job as your DUI defense lawyer is to identify each and every weakness of the State’s case and to guide you regarding steps you can take to help your chances.

I have found that clients accused of the most serious DUI offenses need representation even more than first time offenders with limited alcohol impairment.  I have yet to see a case where even a repeat offender with several of these risk factors does not have some redeeming character attribute that can help his case.  I therefore urge you not to just give up if the case against you looks bleak.

[tags] repeat DUI charges Georgia, DUI plea bargain Georgia [/tags]

DUI Laws Unfair to Women? – Detailed Scientific Proof

Defense lawyers frequently argue that tests used by the police to measure blood alcohol levels in women are flawed because most of these tests are calibrated using a “average” sized male and because there is some scientifice evidence that women metabolize alcohol differently than men.

Scientific studies in both Italy and in Cananda suggest that there are additional differences between alcohol metabolism that raise even more questions about the validity of the tests and the testing equipment used by police.

One of the more interesting findings of the Canadian study suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content. You can read more about this study in an article entitled “Do DUI Laws Discriminate Against Women?”
If you use oral contraceptives, make sure to tell me so we can discuss whether this factor might be an element in your defense.

[tags] women and DUI, differences between men and women in DUI cases, birth control pills and DUI, georgia dui [/tags]

How Your Breathe Affects Blood Alcohol Breath Test Results

California DUI defense lawyer Lawrence Taylor cites several fascinating studies in his DUI blog suggesting that how you breathe can dramatically impact the blood alcohol reading generated by a breath test. For example, holding your breath for 30 seconds increased the blood alcohol content of your breath by over 15%. Hyperventilating for 20 seconds decreased the BAC by 10%.

In his post about breathing and breath tests, Attorney Taylor also cites a research study by a University of Washington Professor of Physiology who found that the last part of your exhalation has a higher alcoholic content than the first part, meaning that a police officer’s command to “blow harder” may very well result in a higher BAC reading on the breath test.

Georgia Courts have long rules that arrest scene breath tests are not admissable evidence. Mr. Taylor explains the science behind the reasons breath tests are flawed in another post on his blog. It would be interesting to know the psychological impact that a failed breath test has on a defendant’s subsequent decisions to admit to alcoholic consumption or to not assert his other available rights.

Intoxilyzer 5000 Pre-trial Discovery Motion Posted

In a gesture of appreciation to his fellow criminal defense lawyers, Guy Sharpe has published his Motion for Full Information on the Intoxilyzer 5000. Guy states that he frequently receives calls about this Motion and he has released it to the DUI defense community as a “thank you” to the many DUI and criminal defense lawyers throughout the State who have generously shared their expertise with him.

This Motion is for the use of criminal defense lawyers only and carries with it no warranties or guarantees of any kind. Attorneys who use or modify this Motion do so at their own risk.

[tags] DUI Motion, Intoxilyzer 5000 discovery motion, Guy Sharpe [/tags]