Apparently not all superstars are above the law. Pulled over and arrested for a DUI on December 31^st, 2008, retired NBA great and sportscaster Charles Barkley pled guilty to charges just this past week.

On the evening of his arrest Barkley ran a stop sign and was pulled over. Officers detected alcohol on his breath and proceeded to give him a field sobriety test and a breathalyzer. Barkley’s BAC was found to be .149%.

The legal limit it .08% in Arizona, so at .149 Barkley was nearly twice the legal limit. He was arrested and charged with DUI, a Class 1 Misdemeanor. [read more...]

The Intoxilyzer 8000, a DUI breath test machine used throughout Arizona has been shown to deliver false readings and has resulted in several DUI case dismissals. According to the Tucson Citizen, Judge Bernini from Pima County Superior Courts, initially ordered the Kentucky based manufacturer, CMI, to divulge the source code and the root of the software problems related to the faulty test readings. Her attempt to get to the source of the problem, however, has proven unsuccessful.

Unfortunately, Judge Bernini realized she did not have jurisdiction to place such an order on a business based in Kentucky who does not “do business” in Arizona and rescinded her order. Because the order was not legal, the court has no leverage to hold the manufacturer in contempt to failing to produce the requested source code.

If faulty DUI tests are being attributed to the Intoxilyzer why do agencies continue to use them? Simple, the answer is money. A department typically can’t afford to replace equipment like this at the drop of a hat. While some judges are throwing out breath test evidence retrieved from these machines, the police continue to use them because there is no other option.

It may be possible for prosecution to obtain the code from CMI, however, CMI has yet to willingly cooperate with any court. They require the signing of a confidentiality agreement and the company states this is the only thing standing in the way of the courts receiving the information they want. Judge Bernini, however, sees this contract as simply a waste of time and suggests that it is being used by CMI to skew the truth and appeal to the press and consumers.

Currently the Arizona Court of Appeals is considering whether the prosecution is barred from requesting the source code by the same jurisdiction laws that stopped Judge Bernini.

If police agencies and prosecutors build their cases entirely on breath test evidence, which they often do, they may want to reconsider their approach when the machinery begins showing signs of unreliability. While these defects may work in favor of those accused of DUI in Arizona, the state is wasting money bringing cases to court that it will potentially lose due to a fixable problem.

Because the company is so reluctant to share information, one faulty test can open the door to many more dismissals.

If you were out over the holidays you no doubt saw plenty of police cruisers looking for DUI offenders. According to the Phoenix Business Journal over 27,500 cars were pulled over during this past holiday season in Arizona and about 8% of those ended up as DUI arrests.

From Thanksgiving in November to New Year’s in January, DUI arrests climb all over the country. People happy about the holidays go out, celebrate, and drive home underestimating how much they have had to drink. While there is no denying that drunk drivers should be taken off the road, these checkpoints can be a major distraction for the rest of the drivers trying to get to their holiday locations.

With all of the regular people getting popped for DUI’s this holiday season was NBA commentator and former NBA star Charles Barkley. Stars are people too and there’s no doubt Mr. Barkley will have a highly skilled attorney on hand when he goes to court.

The number of DUI arrests in Arizona over the holidays this year took quite a decline from last year. There were about 700 less DUI arrests this holiday season. Whether it was due to effective public service announcements or the price of alcohol in this economy, we don’t know.

What we do know is even though the numbers are down from last year, the holidays bring out more DUI’s than any other time of year. This means crowded courtrooms and even further overworked public defenders.

Our State court system is stretched to its max and the slightest increase means further stresses on the system, which makes a good legal defense even more important.

Are you facing a DUI charge in Arizona that resulted from the holidays? Call our attorneys for a consultation on your case and to see how we can help.

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.

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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.

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

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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.

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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.

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More references for this story:

Yuma Sun