You have a bandwidth problem

An analyst from a crime lab testifies that a defendant, who is charged with DUI, has a blood alcohol concentration of .120.  Despite the legal requirements that the state must prove the test is trustworthy, most jurors have made a blink judgement the that test is correct.  As is often the case, the appearance of science is a powerful tool of persuasion.  This is true  even when the opinion is based upon junk science.
 
Here, despite the claims of the analyst and unbeknownst to the jury, the test result was done using unreliable equipment relying on defective software.  Your challenge: undo the jury's initial judgments, demonstrate the analyst is too biased and lacking the qualifications to understand the severity of the equipment's defects, and show the result can't be trusted.  This is no small task.
 
This task will take time.  It requires a thorough understanding of the many underlying scientific disciplines involved.  Adequately educating the jury will require information from several different sources.  Each piece of evidence will present a different evidentiary challenge.  In short, beyond the inherent difficulties of such cases, you also have a bandwidth problem.
 
Bandwidth is the amount of data that can be transmitted in a fixed amount of time.  DUI trials have time and evidentiary limitations.  There are not intended to be semester long science classes.  There are practical realities inhibiting you from properly educating a jury with the knowledge they need to debunk these unsound claims.  If left unaddressed, a court may not even recognize this bandwidth dilemma.
 
Consider the problem in the following terms.  A presentation that does not reach the audience persuades no one.  If Netflix creates next years best new drama, but there is not enough bandwidth to stream it, then what was the point of creating it.  No one pays a subscription fee to see a "buffering" message.  Quality is meaningless without bandwidth.
 
Being right is does not convince a jury without an adequate opportunity to present it to a jury.   In these cases, you don't have a right or wrong problem - you have a bandwidth problem.  Accordingly, neglecting the bandwidth argument can be fatal.  If you don't sufficiently address this issue, then no one may hear how right you are.

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.

Interview with KTAR's Jay Lawrence

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.

The Dirty Little Secret (of Arizona DUI First Offense)

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.


Lawrence Koplow

When Lawyers Attack

Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:

So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.

The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…

Towards the end of the post, Gideon concludes:

The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).

Another site that comes up? New lawyer darling Avvo.

So yeah. Douchebag.

Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.