The Supreme Court Splits the baby in the Scottsdale Crime Lab Cases.

The highly anticipated Arizona Supreme Court opinion regarding the Scottsdale Crime Lab scandal was issued yesterday.   In a very Solomon like decision, the Court granted both sides some relief.

 

The decision contains a lot of legal nuance requiring explanation. Here is a summary and a few thoughts:

 

Admissible Is Not The Same As Reliable

 

While the Court decided the blood alcohol measurements are admissible - they did not hold they are reliable. There is a big difference.  As a matter of fact, the Court expressed its concerns with the Scottsdale Crime Lab's "shaky" evidence. 

 

The Court merely held the prosecution may present the blood alcohol measurements to a jury and argue they are reliable.  The jury will make the final decision.

 

This standard is similar to a finding there was probable cause for a person's case to proceed to trial.  However, at trial, the same evidence will now need to exceed a much higher threshold - beyond reasonable doubt.

 

What Effect Did Yesterday's Decision Have On The Lower Courts' Rulings?

 

There were two lower court rulings: (1) the trial court's ruling suppressing the evidence; and (2) the Court of Appeals ruling reversing.

 
The Arizona Supreme Court vacated the relevant portions of the Court of Appeals decision and the trial court's ruling.  It then issued a new opinion which provided additional guidance on the admissibility of scientific evidence in a jury trial.
 
The Legal Boundaries Of The Supreme Court's Decision.
 
A few years ago, Arizona adopted something called the Daubert standard for the admission of scientific evidence. This was reflected by an amendment to Rule 702 of the Arizona Rules of Evidence.
 
The Court's holding here was limited to only one of the requirements of Rule 702.  Specifically the ruling is limited to subsection (d) of Rule 702, which focuses on the reliable application of a methodology to the facts.
 
What Did Each Side Get Out Of The Supreme Court's Decision?
 
The prosecution avoids mass dismissals of cases where they claim a driver was impaired, but now they have to persuade a jury in every case that the crime lab's forensic malpractice does not matter.
 
The defense is primarily benefited in two ways: (1) the right to present all the evidence of the crime lab's malpractice is firmly established; and presumably (2) the right to obtain evidence of software malfunctions and errors from the crime laboratory also appears to be affirmed. 
 
The Court's acknowledgement that the evidence presented at the 17 day pretrial hearing was both relevant and admissible at trial, implicitly holds that the defense has a right to this evidence in discovery.  This is a significant change.
 
The majority of the evidence presented to the trial court by the defense was not provided by the prosecution.  It was obtained through the collaboration of the defense community and through requests made pursuant to Arizona's public records laws.  
 
Moreover, before the pretrial hearing, there was a court order requiring the Scottsdale Crime Lab to provide the defense with all the data produced in 2011.  They were given a significant amount of time to comply, but did not even attempt to gather the information. Instead, the prosecution appealed the order, and the Arizona Court of Appeals reversed.  
 
The prosecution convinced the appellate court that the defense was merely on a "fishing expedition."  However, in hindsight, it turns out there were some pretty big fish in the pond. We can only imagine what we would have found if the yesterday's opinion had been in place at that time.
 
The holding also appears to clear the way for the defense to present a jury with evidence of the hundreds of catastrophic software malfunctions resulting in unreliable and misleading evidence.  The jury may now discover, that for years, the lab hid this damming evidence.  They may hear of internal crime lab emails from analysts admitting to deleting "incorrect results." 
 
And yes, prior to this decision, the prosecution vigorously argued the jury should not hear this evidence.
 
Does This Decision End The Debate Over The Scottsdale Crime Lab's Forensic Malpractice Issues?
 
Nope.
 
The issues will continue to be litigated - one case at a time. However, we now have some new rules of the road that empower the defense to present their case.  
 
In Sum
 
...the decision means we can't shop for justice at Costco. While there will not be a bulk dismissal of consolidated cases, we still get to present these issues one case at a time...jury by jury. 
 
This could take a while.
 
RELATED:
 
 

Arizona Supreme Court: Scottsdale Crime Lab Update

Tomorrow around 10:00 a.m. the Arizona Supreme Court will issue its decision regarding the Scottsdale Crime Lab.  Here are some of the new stories about the case of STATE v HON. BERNSTEIN/HERMAN:

I will provide a summary of the Supreme Court's opinion following its release.

Lawrence Koplow

Scottsdale Crime Lab: The Supreme Court's Statement of Issues

Today at 11:00 a.m. the Arizona Supreme Court will hear oral arguments regarding whether to reinstate a trial court's finding that - blood alcohol measurements created by the Scottsdale Crime Lab are unreliable.  You can read a history of this litigation by clicking here.

A case being selected by the Supreme Court for review is a rare event.  Simple math shows it is unlikely that any particular case will be reviewed by the Arizona Supreme Court.   The Court receives a substantial amount of “Petitions” to review lower court decisions, but it only selects a small percentage of them each year.  However, because the issues in this case (it is actually a consolidation of 11 cases) will have wide-ranging consequences, it was an ideal case for the Court to review.  The final ruling by the Court, regardless of who prevails, will likely affect how scientific evidence will be handled by Arizona courts for years to come.

While both parties have their own opinions as to what the key issues are, the Court will provide a summary and statement of the issues from their perspective prior to the oral argument.  Last week, as expected, the Court issued its written statement.  Below are the issues as stated in the Court’s summary:

 

1. Did the Court err by holding that Rule 702(d) challenges are excluded from judicial gatekeeping scrutiny under Arizona law?

 

2. Did the Court err in using the accuracy of the results as the criteria for a gatekeeping analysis instead of using the trustworthiness of the methodology used to generate the results?

 

3. Did the Court err in substituting its own judgment for the trial court’s without finding that the trial court’s decision constituted an abuse of discretion?

 

After reading this statement of the issues, one could jump to a conclusion from the way the issues are framed, that the Court is leaning in a particular the direction.  A word of caution – no one knows how the court is leaning.  The Court’s final opinion could easily list a different set of issues.

Today’s oral argument is being held at Arizona State University Law School.  The argument is open to the public and starts promptly at 11:00 am.  Everyone is welcome to attend – regardless of which side of the argument you are on.

The Scottsdale Crime Lab cases will be reviewed by the Arizona Supreme Court

The Arizona Supreme Court has decided to review the Court of Appeals' (COA) ruling regarding whether Scottsdale DUI results can be trusted.  

Our ongoing legal battle over the defective software used by the Scottsdale Crime Lab (SCL) to measure BAC levels begins its final stage.  The Supreme Court granted our request to review the COA's decision permitting prosecutors to rely upon the measurements generated by this software as a basis for a DUI conviction. 

 

WHAT HAPPENED?

Over three years ago a few chromatograms (a graphical representation of a blood alcohol measurement) escaped the Scottsdale crime lab (SCL).  It was something we had never seen before. The floodgates of evidence showing forensic malpractice soon opened.  

We learned, that for several years, the SCL had known of serious defects in the software used to measure BACs.  These malfunctions include assigning an incorrect result with the incorrect person (i.e. John gets Fred's result).  No one in the lab had the expertise to explain why this was occurring, or how to "fix" it.  According to an internal email we obtained from the SCL, they "buried" this from the rest of us.

Even after the defense brought this to light, the Prosecution continued to prosecute the public using this unreliable software.  The penalties for those convicted include mandatorily incarceration and significant monetary fines (a portion of which the crime lab receives).  They are currently still using these defective measurements to incarcerate people.

 

HOW DID WE GET HERE?

There were two primary venues for these debates: 

 

(1) Superior Court; and 

 

(2) Scottsdale City Court.  

 

The Superior Court (felony cases) is where these rulings originated.  The City of Scottsdale courts took a different approach.  That story will be addressed in a separate post.  In the Superior Court, the main case is State v. Herman (on appeal titled In Re Bernstein).  There were two challenges in "Herman" that ended up in the COA.  

 

Herman #1 (Re: Discovery) 

Because we only had access to the initial documents that appear to have been allowed out of the SCL by accident, we did not know the scope of the problem.  

We convinced two Superior Court Commissioners to hold a joint hearing.  They agreed with our arguments and issued an order to produce all chromatograms from 2011.  The Court also gave the Lab almost two months to provide them.  The deadline came and went.  The SCL admitted they did not even attempt to comply with the order.

We filed a Motion for Contempt.  The prosecution filed a Special Action asking the COA to reverse the order.  The morning before the contempt hearing, the COA stayed everything.   A few months later...

  • Result - COA reversed 

We did not get the data.  Today, the scope of the malfunctions still remains unknown. 

 

Herman #2 (Re: Reliability) 

After the COA's ruling, we requested a Daubert (reliability) hearing with the trial court.  This would be Arizona's first substantive Daubert hearing (fortunately, the evidence Rules changed in 2012 to permit such a hearing).   Combined, it lasted almost nine (9) months.  To our surprise, we ended up getting material information in the Daubert hearing (Herman #2) that we did not even think to request in Herman #1. 

At the same time, the Arizona Republic started to investigate our claims.  Through their public records requests (and later our own) a treasure trove of damming evidence was obtained.  

At the hearing, SCL personnel were testifying they understood the issues and put forth an “all was well” message.  However, in contrast to their testimony, the Arizona Republic obtained internal emails, that told a much different story than “all is well.”  Their "private" communications showed the court that the SCL personnel testifying, were less than forthcoming about the severity of the problems and their ability to comprehend them.

The combination of SLC personnel’s tainted testimony, and the testimony our forensic experts (including an independent forensic toxicologist, a certified quality assurance lab auditor, a and forensic software engineer), presented a powerful case that the SCL’s measurements and supporting testimony were not trustworthy. 

 

Arizona Court of Appeals 

As in Herman #1, the prosecution turned to the court of appeals for relief. 

Again, as in Herman #1, it was provided.  

  • Result - COA Reversed.

 

Arizona Supreme Court

Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they: 

 

(1) review the court of appeals decision; 

 

(2) and reinstate the trial court's ruling.

 

A few weeks ago, the Arizona Supreme Court decided to review the matter.

 

WHAT'S NEXT.

The Court's decision merely means they granted part one of our request: they will hear the case. They have set oral argument on February 17, 2015 at 11:00 am.  It will be a road game for the Court, as it will be held at ASU Law School.  The oral argument is open to the public, but it is expected to be a full house.  If you want to attend, get there early.

 

Lawrence Koplow

Scottsdale DUI Blood Tests Ruled Unreliable

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.

THE NEW ARIZONA DUI LAWS ARE 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.

Lawrence

Scottsdale DUI: Changes in the Scottsdale Courts

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? 

No Consent, No Warrant, No Blood

Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.

For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.

In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.

However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.

On September 1, 2009, the Arizona Court of Appeals stated the obvious.  They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:

Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).

We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.

In sum, there is nothing “obvious” about Arizona DUI laws.

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DUI Task Force This Weekend In Tempe, Arizona

Lisa Halverstadt of The Arizona Republic is reporting that the Tempe Police will have a DUI task force this weekend.  Her article states:

Tempe police will have its DUI task force at Dorsey Lane and University Drive this weekend. This is the last weekend before the fall semester begins Monday at Arizona State University.

The task force command post, which will operate from 8 p.m. to 3 a.m. on Friday and Saturday nights, will be located at the Tempe Fire Department/APS Joint Fire Training Center.  The Tempe Police Department is collaborating with the Governor's Office of Highway Safety to host the anti-DUI effort.

 Please be careful when driving this weekend.

 

Arizona DUI Bill May Have New Life

Luige del Puerto of the Arizona Capital Times is reporting that a proposed DUI Bill recently vetoed by Governor Janet Napolitano may have new life. The Arizona Capital times article states:

Lawmakers said they have found a way to revive a vetoed drinking-and-driving bill, minus the provision that prompted its rejection by the governor. The provisions of H2395 will be offered as a floor amendment to a House measure that deals with liquor licensing, lawmakers said. H2395 was vetoed by Gov. Janet Napolitano April 29.

This time, however, it doesn't include a provision that called for a six-month reduction of the interlock penalty for first-time offenders who met certain conditions. Napolitano has said the penalty reduction was the reason for her veto.

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Judge Suppresses Use of DUI Breath-Test Evidence

Kim Smith of the Arizona Daily Star has reported that a Tucson City Court judge has ruled prosecutors cannot use the results of breath tests administered to 49 people scheduled to be tried before him on DUI charges. Her article states:

If other judges agree with Judge Thomas Berning, prosecutors could find it hard to prosecute thousands of other DUI cases locally and statewide. "I'm optimistic the other judges will agree with Judge Berning. It's a well-written decision," said defense attorney Joe St. Louis.  "This could be really big."

Last year, law-enforcement officers across Arizona began administering breath tests to suspected drunken drivers using a new machine called the Intoxilyzer 8000, St. Louis said. Almost immediately, defense experts realized the machines were sometimes providing "weird" or inexplicable results, St. Louis said.

In order to figure out what was going on, the experts said they needed to see the machines' "source card" or software. The software would also enable the experts to determine whether the results were accurate and reliable, St. Louis said.

 

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If You Thought The New Arizona DUI Laws Were Tough, Wait Until You Hear What Other Drivers Are Doing To DUI Suspects In Scottsdale, Arizona

There has been a lot of publicity regarding the new Arizona DUI laws. These new laws have created some of the toughest penalties in the nation. However, it appears that drinking and driving in Arizona could result in something worse than jail.

Mark Flatten of the East Valley Tribune is reporting that a man shot a hit-and-run suspect in Scottsdale, Arizona.

An attempt to block a fleeing hit-and-run suspect ended with a gunshot in Scottsdale Saturday.

Martin Ezekiel, 23, of Phoenix was arrested on charges of aggravated assault after he fired a shot into a truck that had been involved in an accident a short time earlier, wounding the passenger, according to Scottsdale police.

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New DUI Laws Start on September 19, 2007

What are the new DUI laws that go into effect today?  Most people do not really know what our legislature has done to the DUI law.   Effective today, Arizona probably has the toughest DUI laws in United States.  There are significant penalties for first time offenders.  An article written by the Arizona Republic's Linsey Collon provides a summary of the new changes.

This week Arizona will enact one of the toughest DUI laws in the nation.  Hardest hit are first-time violators and a new class of "super extreme" DUI offenders whose blood-alcohol concentration registers 0.20 percent or above, which is more than double the legal limit of 0.08 percent.

Beginning Wednesday, new penalties include mandatory ignition-interlock devices for first-time offenders, increased fines and a minimum of 45 days in jail for super extreme DUI convictions.

The law was modeled after legislation passed in New Mexico in 2005 requiring interlock devices for all people convicted of driving under the influence. Officials there linked a 4 percent decrease in alcohol-related fatalities to interlock use in the year following the law's passage.

Although lawmakers hope for a similar result in Arizona, DUI attorneys say the higher stakes will lead to increased court caseloads and an extreme inconvenience in the lives of "super extreme" and first-time offenders.

The Arizona Motor Vehicle Division expects about 17,000 first-time drunken drivers in the coming year. They all will have to pass a breath test before getting behind the wheel. 

Rep. David Schapira, D-Tempe, realizes the bill he sponsored may not win him votes in popularity, but he hopes the law will make Arizona's roads safer.

One Arizona State University student said during a recent chat with legislators " 'Gosh, that DUI bill is just ridiculous. Whose idea was this?' " Schapira said.

The negative response is understandable, he said, given that the penalties are meant to be strong deterrents.

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