Newspapers love to write about DUI cases, laws, and procedural issues. Apparently people enjoy these stories, and they seem to show up in batches, often with local law enforcement DUI stats input such as in Payson/Gila County and Tuscon/University of Arizona.

There may be some value in the warnings against the risks and hazards of drunk driving. If these articles encourage people to seek alternative transportation when drinking, then no one would argue that that is a good thing.

Unfortunately, these articles often have strange, misleading, and downright false facts and quotes. This may be because reporters don’t always have the subject matter expertise to parse through complicated legal facts. Or it may be that the editing process oversimplifies certain information to the point of making it illogical and incomprehensible.

One such example is where Assistant Payson Town Attorney Tim Wright is quoted as saying:

Wright said the field sobriety test is not a pass-fail.

“An officer has to look at the totality. Do they think they are impaired to the slightest degree?” he said.

It is true that an officer looks at the totality of evidence in determining impairment, and whether to arrest someone. Factors often cited by police officers in DUI arrests such as  “unsteady on his/her feet”, glassy/bloodshot eyes, and smelling of alcohol are entirely subjective assessments that make one wonder, compared to what?

However, standardized field sobriety tests as designed by the National Highway and Traffic Safety Administration (NHTSA) are absolutely as pass-fail. The very point of the studies done behind these tests is to establish objective statistical evidence that someone who fails these tests has a legitimate statistical likelihood of being impaired.

And that objective assessment critically depends on officers administering and scoring these tests exactly as designed. For example, on a 9 step walk and turn test (heel to toe), the officer is specifically looking for 8 clues as to possible impairment. If an individual misses 2 or more elements of the test, that person is said to have failed the tests, and is 68% likely to have a BAC of over .10.*

The details in these cases really do matter.

And it is not to suggest that the Attorney quoted was mistaken, I’m sure he knows the facts. It is much more likely that it was an error in reporting or quoting. It’s simply a fact that these news accounts frequently conflate fairly complicated legal issues.

But, yes, apparently, people like these stories, and they sell newspapers.

–

If you are facing a DUI / drunk driving charge in Arizona, please give us a call and get a free legal consultation on the charges you are facing. We can help you figure out your next move, and suggest the best alternatives: whether you should fight the case, or try to work out a deal.

* Ref: Divided Attention Testing

In an important case for DUI defense lawyers, a judge in Arizona ruled that the manufacturers of the Intoxilyzer 8000 breath test machine must turn over the systems source code to defense attorneys.  The results code have a significant impact on possibly hundreds pending cases where this evidence is used.

Source code, or computer code, is the software that provides instructions about how a system operates and makes calculations. Litigation over access to breath test machine source code has been active in many other states, including Florida, Massachusetts, Minnesota, New Jersey, and Tennessee.

The decision is based on the rights of a defendant to confront his accuser. Since these breath test machines are essentially a “black box” that spits out a magic number that can convict a person of a crime, it is reasonable for the defense to be able to understand exactly how these devices calculate this number.

The judge also determined that there were no trade secrecy issues, since the machine itself is not patented, and the source code was not copyrighted. CMI, Inc has until October 27th to turn over the source code, however in similar court battles in other states, the company has consistently refused to do so, even under the threat of fines and sanctions from the court.

The attorney arguing on behalf of the state seemed to imply that the fact that the machines are accurate is somehow self-evident, comparing it to “turning on a light switch”, and that it is easy to see if it works. This is a silly comparison;  with a light switch, you know exactly what and how you are measuring a positive reading.

Anyone who has ever worked on, developed, or tested hardware or software systems understands that thorough testing is absolutely necessary for any complex systems. Results under different user conditions can often be unpredictable and surprising. That’s why technology companies have huge testing departments, that run software and hardware through rigorous testing under a wide variety of conditions, and compares results to known benchmarks.

Attorney James Nesci, the lead counsel on the case added that the machine has “never been tested on humans in Arizona, only simulations”. In addition, CMI, Inc., the manufacturer of the Intoxilyzer, refuses to even sell the device to anyone but law enforcement agencies. It has been otherwise imposible for defense lawyers to do even cursory analysis and independent testing on these machines.

—

If you are facing a drunk driving charge in Arizona, please call our attorneys immediately for a free case evaluation and legal consultation.

—-

Further Reading on Breathalyzer Source Code issues and litigation

Arizona Daily Star

Tuscon Citizen (and here).

Slashdot

Ars Technica

Lawrence Taylor

Already considered to be among the toughest in the nation, Arizona’s drunk driving penalties get even tougher with new legislation aimed at reducing judicial discretion in sentencing. Under the new law which goes into effect on 9/26/2008, any first offense DUI offender who take a breathalyzer and registers about a .15% BAC faces a mandatory minimum of 30 days in jail. If that breath test machine result is above a .20%, the mandatory jail sentence jumps to 45 days.

These are extremely severe penalties for someone with no prior offenses, and no injuries or damage of any kind. The implications if this are several:

• More aggressive legal challenges to breath test machine accuracy are likely. After all, the difference between a .14 and a .15 is one month of your life. Can these machines be trusted to be accurate enough to pronounce judgment with these kinds of life altering consequences? There are many reasons to doubt their accuracy.
• Also because of these severe penalties, the business of Arizona DUI defense lawyers like us are likely to increase. After all, the downside to fighting the case becomes minimum if you are facing jail time for a plea. Even a drunk driving arrest with very bad facts for the defendant becomes worth fighting in front of a jury. Even a 10 or 20 percent chance of winning the case makes sense. So expect courts and jury rooms to get busier with these cases.

Clearly the Arizona legislature thinks the threat of these extreme DUI penalties will bring down the number of drunk driving incidents in the state. That is an open question. But there will be unintended consequences, too. And this law will certainly result in disaster for good, decent people who may have had a single episode of bad judgment. The consequences of one bad decision, where no one even gets hurt, can be a loss of a persons job and their livelihood.

And it can happen to anyone, as evidenced by the wide cross-section of perfectly decent people our attorneys have defended in these cases.

—

If you’ve been charged with a DUI offense in Arizona, whether it is a high BAC case or not, it’s obvious that the state is determined to punish you as severely as possible under the law. You need the best DUI defense you can find if you are to maintain your rights under the law, and your very freedom. Please contact our attorneys immediately to take advantage of our free consultation on any drunk driving charge in Arizona.

—

More references for this story:

Yuma Sun

The man behind the web site thedirty.com (formerly dirtyscottsdale.com), Hooman Karamian, a web site dedicated to posting pictures of drunk and rowdy locals has plead guilty to an Extreme DUI charge in Scottsdale, AZ city court. He was arrested in January and charged with extreme DUI and reckless driving. His BAC test result was .165%, more than twice the legal limit of .08%, and above the threshold of .15% which is categorized as an “extreme DUI” under Arizona drunk driving laws.

As a result of the guilty plea, Karamian will pay more than $2000 in fines and court fees, and will spend 4 days in the Tent City jail in Phoenix, AZ. He will also attend an alcohol screening and education program, as required by Arizona DUI laws for drunk driving convictions.

His sentence is considered typical and reasonable for a plea agreement for a first offense extreme DUI charge, but most DUI lawyers.

Naturally, there is considerable irony about this many being convicted of a DUI, when he makes his living publishing photos and accounts mocking those in his current situation. However, no doubt the publicity surrounding his arrest and conviction will ultimately be very good for his business.

As with anyone convicted of a criminal charge in Arizona, we wish him the best of luck in the future, and hope he avoids any future encounters with Arizona law enforcement.

—

If you are facing a drunk driving, DUI, and particularly an Extreme DUI charge in Arizona, please contact out attorneys for a free case evaluation and legal consultation. There is no charge or obligation for our advice. You will get the benefit of our experience in defending and fighting DUI charges in all Arizona criminal courts. Call or contact us today to take advantage.

Over a years worth of breathalyzer records from the Santan and Gold Canyon areas have apparently been lost by the Pinal Count Sherriff’s office, resulting in at least 4 DUI cases being dismissed.

It is a requirement that the police department is able to verify that the Intoxilyzer 8000 breath test machines have received the proper quality assurance to establish their validity in court.

With those records missing, DUI cases that rely heavily or entirely on a breath test result as evidence in court have to be dismissed. While it’s an obvious mistake by the police, it is a very minimal legal standard that the machines be certified.

Arizona DUI defense lawyers will tell you that you can’t cross examine a machine, and it can be very difficult to establish that these breath test machines have a number of flaws that can result in false positives, based on people’s stomach disorders (GERD), diet issues, and many other issues with their usage. Juries and judges tend to believe the magical number regardless of the questions raised by defense counsel.

Having minimal maintenance records available and establishes is an incredibly low standard to meet, so it is reasonable that these cases should be dismissed.

All citizens should be afraid of a magical machine that can send you to jail, but essentially can’t be challenged or questioned. Defense lawyers are not allowed to run any independent tests on breath test machines to establish their accuracy and biases, with true scientific detachment. And it most states, attorneys have been denied access to the source code and information about the inner workings of the machine to understand exactly how it works, and what problems could have been overlooked.

If you are charged with a DUI in Arizona, we can help. Please contact our attorneys for a free consultation and case evaluation on any Arizona DUI arrest. Find out what we can do for you, with no obligation.

A fascinating and scary article about how the police decide to arrest people for DUI in Arizona. The standards are so subjective and arbitrary that a police officer decided to arrest someone for DUI who was a designated driver, and literally blew a 0.0% BAC.

How can ths happen? Here’s the sequence of events:

1. She was pulled over for no headlights. As a designated driver, she was unfamiliar with another persons’ vehicle.
2. The officer smelled alcohol in the car. There were two other people in the car who clearly had been drinking. Hence, the whole “designated driver” thing.
3. She refused to perform field sobriety exercises.  As is her absolute right under the law, she chose not to dance around and balance on an invisible straight line, while wearing heeled sandals on a gravel embankment. Because, really, why should she? She had not consumed a single drink!

That’s it. Driver arrested, car impounded, based on no actual evidence that she was drunk. Because she hadn’t had a single drop of alcohol and had not displayed any signs of having done so.

This is the problem: Officers see what they want to see. If they stop a car at night, they simply assume the driver has been drinking, and can often imagine their own facts to justify this pre-conceived idea.

The test refusal was likely a big factor in the officer arresting her. Most officers assume a refusal is an admission of guilt, even though many perfectly sober people can’t do these tests. People who are older or overweight, have bad knees or feet, or are just uncoordinated. And even though drivers have no obligation to agree to them at all.

As you can see, a DUI charge is something that could happen to anyone. For that reason, an experience criminal defense DUI attorney is critically important if you’ve been accused of drunk driving. While it’s true that with police officers acting like this, the odds are unfairly stacked against you, an experienced Arizona DUI lawyer can help even the odds.

Governor Napolitano signed into law a bill that would increase penalties for drunk driving and drunk boating in Arizona. Under the new drunk driving laws, a person with a drunk driving conviction will have to undergo a mandatory alcohol or drug screening program as a condition of getting his or her driver’s license reinstated.

The law on operating a boat or watercraft while drunk is said to be one of the toughest in the nation. There is a mandatory 10 day jail sentence for a person convicted of drunk driving in a boat, or “drunken boating”.

An earlier version that the governor vetoed would have reduced the requirement for an ignition interlock device on a 1st offense drunk driving conviction to 6 months, from 1 year. That change was left out of this version, so the required period will remain at 1 year.

A previously vetoed DUI laws enhancement is being re-written to avoid the problems that caused Gov. Napolitano to reject it. The new version in the Senate maintains the 1 year requirement for an ignition interlock device for DUI convictions. The vetoed version would have rolled back that time to only 6 months.

The current law requiring the 1 year interlock (a Breathalyzer device that prevents your car from starting if you have consumed alcohol) has only been in effect for less than a year. The governor thought it was too soon to consider a reduction, since we haven’t seen the effects of the strict new law. A 1 year mandate for a ignition interlock device after any first offense convictions places Arizona’s DUI laws as among the strictest in the nation.

Other changes to this new revision include identical penalties for drunken boating as drunken driving, and some technical legal issues.

A vote by the full Arizona Senate is expected next week.