If you are making a decision based upon a measurement, then you have two choices.
One, you can simply accept any number a machine produces as true; or
Two, you can ask “how did you get that number?”
The choice you make should be based upon how important the decision is that you’re basing the measurement upon. If you just want to know how hot it is outside, a twenty-year-old thermometer, combined with stepping outside will probably do. However, if the measurement is critical to an important outcome, then you need to ask, and answer, the question how did you get the number?
A critical measurement is a measurement where, the result of an important analysis, is dependent upon the measurement. A measurement is critical if an incorrect measurement could place people in danger. If a scientist measured the wrong amount of a drug when making a pill, then it could harm someone – that is a critical measurement.
If a lab employee measures the wrong amount of alcohol in your system in a DUI case, then it could result in an unwarranted prison sentence – that is also a critical measurement.
After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least. On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.
The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant). The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases. Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound. As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).
Missouri v. McNeely, 133 S.Ct. at 1555 (2013).
At the side of the road, law enforcement routinely makes DUI arrests based upon results of a Horizontal Gaze Nystagmus (HGN) test. The underlying premise of the test is: you drink enough alcohol, and then you eyes will show HGN.
Alcohol, however, is not the sole cause of HGN. In State v. Horn, the court recognized the following causes or possible causes of HGN:
- problems with the inner ear labyrinth;
- irrigating the ears with warm or cold water;
- influenza; streptococcus infection;
- Korchaff's syndrome;
- brain hemorrhage;
- motion sickness;
- eye strain;
- eye muscle fatigue;
- changes in atmospheric pressure;
- consumption of excessive amounts of caffeine;
- excessive exposure to nicotine; aspirin;
- circadian rhythms;
- acute head trauma;
- chronic head trauma;
- some prescription drugs; tranquilizers,
- pain medication,
- anti-convulsant medicine;
- disorders of the vestibular apparatus and brain stem;
- cerebellum dysfunction;
- exposure to solvents;
- extreme chilling;
- eye muscle imbalance;
- continuous movement of the visual field past the eyes; and
- antihistamine use.
When should you trust a blood test result that claims to measures an alcohol concentration? Start by reading the test's "Warning Label." Here is an explanation on my legalcoffee blog.
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence. The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement.
A complete measurement includes more than just a reported result. As a matter of fact, simply providing a reported result is often misleading. A reported result is only complete when accompanied by a “statement of its uncertainty.” See NIST Technical Note 1297, 1994 Edition. No measurement is perfect. The result of any measurement is only an estimation of its value. A “statement of uncertainty” is the range of doubt that exists regarding a measurement.
A complete test result, must also include:
- a “Range of Uncertainty” and;
- a “Confidence Interval.”
To illustrate, let’s assume that a blood test result was .100. Let’s also assume, based on a review of the machine’s prior performance, a “range of uncertainty” was determined to be ± 5%, with a “confidence interval” of 100%. This means, the reported result could be as low as a .095 and as high as a .105. Moreover, this also means, if the same blood sample were repeatedly tested on this equipment, the result would only be outside of the ± 5% range 1 out of a million times. If this statistic were true, this would certainty be a reported result that you could trust.
On the other hand, what if for the same reported result of .100 the range was ± 30%, with a confidence interval of 50%? Here, this means the reported result could be as low as .070 or as high as .130. Furthermore, if you continued to test this sample on the same equipment, 300,000 times of out of a million, the reported result would be outside the range stated above.
When comparing the two complete test results, you can see that providing a mere reported result does not tell us the whole story. Merely telling us the reported result can actually tell us a very misleading story. Science will not accept incomplete measurements. Why should the law?
In July of 2012, I asked a member of the Scottsdale Crime Lab for an interview about some rumors. She refused and told me to get a court order. At that time I was surprised. Why would she refuse to do a routine interview? Today we know the answer.
Today we now know that: (1) the Scottsdale Crime Lab’s blood testing equipment is unreliable; and (2) the testimony of the crime lab personnel is not trustworthy. Don’t take my word for it – just read the court’s opinion by clicking here.
It's true - Arizona has reduced the penalties for DUI convictions. Here are some of the highlights:
- The interlock requirement has been reduced from 12 months to 6 months (for first time non-extreme DUI.)
- The mandatory jail requirements have been modified / reduced. There is a lot of legalese with this particular change. I will do a detailed post on the specifics soon. However, you should know the judges now have more discretion to reduced jail time for both extreme and non-extreme DUI convictions.
- Home detention (an electronic ankle bracelet) will now be available in justice courts and the judges now have some more latitude to utilize these ankle bracelets instead of long jail sentences;
- Certain driver's license suspensions now allow for restricted driving permits that previously did not;
There are a lot more changes in the new law. The legislature, without a public debate, removed the statutory right to jury trial for non-extreme DUI cases. However, all extreme DUI charges and all second DUI charges still have an automatic right to a jury trial. There may still be a right to jury trial in regular DUI cases under Arizona's common law. In any event, the jury trial has not disappeared - there will be a big legal fight to come on this issue.
I will be posting additional details on the new laws in the coming days.
In DUI cases, an accurate blood test result requires more than just the blood tester to be working properly. A reliable test results requires more than than what the machine (the blood tester) provides. As shown below, see the machine is just a fraction of the process need to obtain an accurate and reliable result.
Usually the government only puts safeguard in place to prevent machine errors. Consequently the majority of the blood testing process will go unchecked and subject to human error.
This past Sunday I was interviewed by local radio station KTAR's Jay Lawrence on a number of Arizona DUI issues, including:
- current Arizona charges and penalties,
- changing enforcement standards for DUI charges based on jurisdiction (Scottsdale, for example),
- measurement and testing,
- drug-based DUI charges - both legal prescription and illegal,
- differing charges while a child is in a vehicle, and
- timelines for resolution of DUI charges.
The entire interview, along with my answers to various phone-in questions, is now available as a downloadable podcast, starting at the 11:00 minute mark.
Many thanks to Jay Lawrence and KTAR for having me.
Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM. It makes perfect sense, right. Who would risk more than a month in jail for a few drinks.
Apparently - lots of people. Maybe even more people now, than when the penalties were previously lower. Unfortunately the State's math is flawed. Let me give you some anecdotal evidence.
A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called. Before the judge started calling cases he told the packed court room about Arizona's DUI penalties. After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law. "Fair or not these are the laws I am required to follow."
Well it is not everyday a judge, in open court, makes such a candid admission. Moreover, the judge's speech was absolutely correct about the Arizona DUI laws. Those of who are involved in Arizona DUI cases, "all know" the math is wrong. We all know, law enforcement included, raising penalties does not reduce the number DUI cases. One reason is the real consequence of a DUI is not jail, but taking someone's life. If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.
However, I have an idea of what may work. In part two of this post I make my case for how I believe we should address the problem. That is, if we are serious about solving it - which I hope we are.
DUI stands for driving under the influence. However, years ago Arizona, like many other states, changed its DUI laws to cover situations where the person was not actually driving. Instead, to be guilty of DUI, a person just needed to be "controlling" a vehicle. The classic example is the vehicle stopped in the middle of the road and the driver is passed out drunk. That is an obvious case of someone controlling a car without driving.
However, there are many situations, where it is not so obvious that a person is "actually controlling" a car. There has been a growing debate regarding as to what it means to be "controlling" a car in a DUI case. For example, people can legally use their car as a shelter after they have been drinking alcohol. Someone who sleeps in their properly parked car after getting drunk is not "controlling" their car for purposes of Arizona DUI law. However, if they put the key in the ignition to turn on the air condition, does that action create a DUI? The Arizona Supreme Court Case recently attempted to end the debate in the case of State v. Zaragoza.
Zaragoza was convicted on an Aggravated DUI charge after he was found at an apartment complex:
• Sitting in his car
• The engine was off
• His hand on the wheel, and
• The keys in the ignition,
• Alcohol in his system
Zaragoza claimed that he had no intention to drive, but only to sleep in his car. He claims the reason the keys were in the ignition was to roll down the window, and turn on the radio. He appealed his conviction based on the argument that the jury was provided inappropriate instructions regarding the law of actual physical control of vehicle.
The Arizona DUI statute does not define what “actual physical control” of a vehicle is, and there have been varying types of jury instructions on the meaning of this phrase through-out the courts. The Arizona Supreme Court took this case, and attempted to clarify the law’s definition. They stated that actual physical control has nothing to do with the intent of the driver to move or use the vehicle, but the actual and imminent danger to the him/her self or others at the time alleged to have control. This means that all facts must be looked at together in order to appropriately determine if there was an actual or imminent danger.
The Court also held that in this case, the instructions did not mislead the jury, but that they may have misstated the law. Because of the variations in instruction, and the result of Zaragoza's case, the Arizona Supreme Court decided to provide a new jury instruction for future cases.
The new instruction will be published in Part II of the blog post.
If you need assistance or additional information about an Arizona DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.
I was in the Scottsdale City Court yesterday when I heard a Judge discussing the much anticipated Home Detention Program. It appears that they have finally implemented the program. Here are the minimum qualifications based on the information I was given at court.
- The date of your offense must be after May 27, 2010; and
- You must start your self-surrender date on or after October 1, 2010
There may be some exceptions to the time restrictions if your attorney can demonstrate a serious medical condition. Since the program is so new (as a matter of fact, several of the court clerks did not even know it had be approved yesterday) I am sure there will be some additional details and restrictions. In addition, keep in mind: (1) admittance into the program is not automatic. The judges have already hinted that not everyone will be receiving the benefit of this program; (2) there will still be an initial term of jail for anyone accepted into the program. Thus, this program is for lengthier terms of incarceration.
If you need assistance or additional information about a Scottsdale DUI case, please contact the Koplow Law Firm Online or by phone at (602) 494-3444.
While the City of Scottsdale has approved a home detention program, it has not released any of the program's details. The most anticipated detail is the start date. As of yesterday, the start date has not been released. There has been speculation that it may not start until the end of summer. However, no one really knows. As soon as the details become available I will post them here.
What is going on in Scottsdale? In the last 30 days two judges have been let go by the City Counsel. What is coming next?