The whole is not always the same as its parts

You are going to buy a new home.  The house is 2000 square feet on a 3/4 acre lot.  You hire Rich (the termite inspector) to check it out before you buy. After all, no one wants to buy a house with termites. 

  • Good news!  The house passed.  No termites.  Thus, you buy the house.
  • Bad news!  A month after the sale closes you discover - termites.  

What?  How could this happen?

 
You go back and look a little deeper in the method of inspection Rich relied upon.  You find out his methodology was to only check "one square inch" of the floor in the house.  When he did not find anything wrong within the "one inch" he assumed everything else was also termite free.
 

How do you feel now?
 
A part of something does not always represent the whole. Determining how many termites are in "one square inch" of a house does not really answer the question whether you have a termite problem.
 
The termite inspector committed what logicians call the all things are equal fallacy.  This occurs when when it is assumed, without justification, that conditions have remained the same at different times and places.
 
The same danger is present when attempting a forensic measurement.  For example, in a typical DUI case where a blood sample is taken, the lab will test less than a M&M size sample of blood.  However, in Arizona the legal definition of an alcohol concentration is grams per 100 micro-liters. Translation, the legal definition of an alcohol concentration requires multiplying the results of the "one inch" by about 1000 (assuming the M&M is about 100 micro-liters).
 
The danger is assuming the rest of 1000 micro-liters (or 100 milliliters) has a proportional amount of ethanol in it.  Small errors multiplied by 1000 can easily mislead you to believe that a person's alcohol concentration is above a legal limit when it is not.
 
Like the termite inspection, it is up to the crime laboratory to prove their justification for assuming using such a tiny amount below the legal definition of an alcohol concentration answers the question - is the person above the legal limit?  After all, no one wants termites...or people being wrongfully convicted.
 
 

Measuring and Counting

 MEASURING

Measuring is the assignment of a number, and all the uncertainties of that of that number, to something.  The purpose of assigning a number is to give meaning to the object measured.

  • Uncertainty: A bag placed upon a scale shows its weight to be 41 pounds.  If the bag must be less than 50 pounds, then the number produced by the scale indicates it meets this requirement.  However, you must know how far from its true value might the 41 pound number be off by?  Uncertainty is the amount of doubt (e.g. the amount of possible variation) you should expect that number might be off.
  • Fit for Purpose: Assume there are two scales.  The same bag weighing 41 pounds is place on both scales.  However, it was determined that Scale A produces numbers that can be off by as much as 30 pounds.  It was also determined that the number produced by Scale B merely off by as much as 3 pounds.  Knowing the amount of uncertainty contained in the number helps distinguish counting from measuring.  Knowing the uncertainty allows you determine if the measurement is fit for the purpose of determine if the object exceeds 50 pounds.

Measuring relies upon estimation.  The choice of data, the methodologies employed, and level of quality measures used tells you how confident you can be in the estimation.  Once you have a reliable estimation of how close a number may be (or not be) to the true value, you can make informed decision as to what purposes the number can be used - and not used.  

 

COUNTING

Counting is not the same as measuring.  However, the two are often confused.  Counting is usually a technique within a measuring process (methodology).  Counting can result in an exact number.  However, measurement will never claim to represent a true value. Measurements are merely estimations.

Counting an exact amount of something is often not possible or practical.  The thing you are intending to measure (the measurand), the matrix it is found in, or the level of accuracy required may make counting impossible.   Thus a system is needed to provide a reliable estimation which you can rely upon.  

Some things to take into account when making an estimation:

  • Distinguishing: Some molecules are so similar to others that it is often impossible continuously distinguish them from each other.  Thus, they cannot be easily counted.
  • Location: Some substances are contained in places we cannot practically enter to count them.  The best way to know how much alcohol is affecting a person's brain at a particular time would be to take a sample of brain tissue.  However, society has not yet determined such a procedure falls outside the protections of a person's 4th Amendment rights.
  • Gas Chromatographs: The results of a gas chromatograph are often used to determine whether a person's alcohol concentration is above a legal limit in DUI cases.  However, the machine does not measure a person's blood alcohol concentration.  If properly used, the machine merely counts the number ethanol molecules in a gas portion of a headspace vial.  Thus, it indirectly counts a microscopic amount ethanol from a tiny sample.  

A measurement based upon a machine's indirect count of a substance results from combining it with algorithms, numerous assumptions, and historical data regarding the past performance of the machine (and software) used in the process.  This is known as an uncertainty calculation.

In this manner, measuring requires much more than counting.  Measuring requires more than merely assigning a number to an object.  More importantly, one can assign a number to an object but not create a measurement.  When this occurs it is not a measurement.  It is a misrepresentation.

 

Counting is what you do to get a number.  Measuring is what you do if you want to know the truth about the number.

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.

How did you get that number?

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.  

 

Related Posts

 

What warrants a warrant?

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).

Is it really so surprising that what warrants a warrant is what is reasonable under the circumstances?

The anatomy of a gas chromatograph

 

The results produced by a gas chromatograph are usually the difference between innocence and guilt in a DUI case.  The prosecution’s purported blood alcohol concentration (BAC) is typically the “end-all be-all” of their case. Let’s take a look at how this machine creates such a critical measurement.

Big Pictures Thoughts

  • If done properly, gas chromatography is a reliable way to measure the amount of blood in an alcohol sample.  However, automobiles are also reliable, but there are still thousands of car wrecks every day.  There is no presumption of reliability simply because a gas chromatograph was used.
  • The measurement process has both human components and machine components.  All steps in the process must be done correctly for the measurement to be trusted.
  • The goal of is to produce a measurement, which is both accurate and reliable.

General Principles

  • Gas chromatography is an indirect measurement.  The machine does not test liquid portion of a blood sample.  In headspace gas chromatography, the machine converts substances to a gas, and then it must separate the different types of molecules in the sample.  After separation, a microscopic amount of the gas is measured by software.
  • The machine must demonstrate it is able to separate different types of molecules before it can measure them.  If it cannot properly separate different categories of molecules, then its measurements may be artificially higher.
  • Gas chromatography is done in manner like a production line.  Multiple samples (usually over 100 vials) are being processed in a “batch.”  It is essential to safeguard against the wrong information being assigned to the wrong sample.

Vocabulary

  • Gas chromatograph - a machine that separates molecules, and then measures, the amount of the various components in a sample.
  • Gas Chromatography - the scientific process performed by a gas chromatograph.
  • Chromatogram – the graphical representation of the data produced by the gas chromatograph.  This is where you will find the final measurement.  A chromatogram is the machine’s conclusion.

The Human Part

The measurement process starts long before the gas chromatograph is actually turned on.  The blood must be collected, identified, stored and transferred properly before the sample is put into the gas chromatograph.  Even the best machines cannot account for, or identify, that a sample has been corrupted.  The principle of garbage in garbage out must be kept in mind.  That is, incorrect (or poor quality) input will always produce wrong output.  

Human are also responsible for teaching the machine a specific alcohol concentration.  The machine does not come out of the box knowing any specific alcohol concentration.  Typically a lab will purchase approximately four (4) different alcohol concentrations from a vendor.  For example, .01, .10, .20, .40 are often used to calibrate the machine. 

These samples are put into the machine and the analyst programs the machine’s software to use these values.  If the analyst tells the machine a sample is a .40 but it is really a .30, the machine cannot tell the difference.  Ensuring a calibrator is what it purports to be is known as traceability.

The Machine Part

The machine starts its analysis after a small portion (less than the size of the a single M&M) of each blood sample is put into a headspace vial. The headspace vials (usually over 100) containing the samples are loaded into a part of the machine called the autosampler.  

The samples are then heated (in a headspace tube) forcing molecules in the liquid portion of the sample to rise.  After the molecules are vaporized, a needle punctures the top of the headspace vial and extracts a microscopic portion of the gas above the liquid.

These vaporized molecules are pushed through long thin columns by a carrier gas (hydrogen or helium).  These thin columns have a chemical coating inside them designed to interact with the molecules passing through them.  The carrier gas moves at a constant pressure.  This results in different molecules in the gas to group together (e.g. ethanol with ethanol, methanol with methanol).  Each molecule group, such as ethanol, has a unique rate of speed.  This accounts for the separation of the each substance in the columns.

After each molecule group is pushed out of the column, they will be pushed to a detector.  The time when is substance exits the column is called the time it elutes.  The detector’s software has been programmed to identify different substances by the time they elute from the column.  The Flame Ionization Detector, as the name implies, then burns each molecule group and then measures how much is burned.

The software gathers the “raw data” and then processes it.  The “process data” is graphically represented in something called a chromatogram.    The measurement is found here.

The above summary just scratches the surface of the measurement process using a gas chromatograph.  If you are going to rely upon the measurement produced by this technique, then every step in process (both the human and machine) must be shown to have been done correctly.

The eyes have it

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;
  • vertigo;
  • measles;
  • syphilis;
  • arteriosclerosis;
  • Korchaff's syndrome;
  • brain hemorrhage;
  • epilepsy;
  • hypertension;
  • motion sickness;
  • sunstroke;
  • eye strain;
  • eye muscle fatigue;
  • glaucoma;
  • 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;
  • barbiturates;
  • disorders of the vestibular apparatus and brain stem;
  • cerebellum dysfunction;
  • heredity;
  • diet;
  • toxins;
  • exposure to solvents;
  • extreme chilling;
  • eye muscle imbalance;
  • lesions;
  • continuous movement of the visual field past the eyes; and
  • antihistamine use.

 

Read the "Warning Label" of your blood test

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.

A reported result versus a complete result

 

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;
  • “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?

 

Blood Testing Is About More Than A Machine

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.       

 

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

The DUI With No Driving - Part 1

 

 

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.

Lawrence Koplow

 

Best DUI Blog Posts: December 2009

I am starting a new list of the best DUI blog posts for the past month.  I am admittedly stealing the idea after reading Kevin O'Keefe's Best In Law Blogs.  However, as I am one of Kevin's clients, I don't think he will mind (as long as the check clears.)  Here are the posts that I found most interesting for the past month:

 If there are any DUI lawyers that think I should have put their post here, let me know. 

Thanks,

Lawrence

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.

 

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.

The Truth About Character Evidence

I found a great website for information on jury research.  Kathy Kellerman is a communications consultant who regularly posts answers to questions about how jurors make decisions.  She has an informative post about the effectiveness of evidence of a defendant's good character in a criminal trial.  I think most people (including attorneys) will be surprised by what the research concludes about this type of evidence.

Question:

Does character evidence help or hurt defendants in criminal trials?

Answer:

Recent research by Hunt and Budesheim (2004) studied the effects of positive character evidence when offered alone, and when followed by a prosecutor cross-examining about specific bad acts.

 

These researchers found that, on its own, general descriptions of a defendant's positive personality characteristics had little effect on juror decision-making; that is, positive character evidence did not reduce guilt perceptions or decisions to convict. Additionally, when a character witness was cross-examined with examples of a defendant's previous specific bad acts, jurors' impressions of the defendant were more negative, guilt perceptions higher, and conviction decisions more likely than when no information at all was provided about the defendant's character.

The researchers concluded that permissible positive character evidence does little to help a defendant, and negative character evidence in the form of specific bad acts cross-examination can hurt a defendant considerably.

Source: Hunt, J. S. & Budesheim, T. L. (2004). How jurors use and misuse character evidence. Journal of Applied Psychology, 2, pp. 347-361.

I recommend you check out her website here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Koplow & Patane. Legal advice usually varies from case to case.

3 Things I Wish People Knew Before Drinking & Driving

It's 5:00 p.m. on Friday afternoon in Phoenix, and Joe just walked through the door of his favorite restaurant to meet some friends for happy hour.  He drove himself to the restaurant.  When he is done, he is going to drive to his house in Scottsdale.

At the table, Joe sees everyone has one of the restaurant's signature margaritas in front of them.  The waiter comes to the table and asks Joe: "can I get you something to drink?"  Before Joe answers this question, I wish he would consider the following facts:

  1. There is no crime of Drunk Driving in Arizona.  Arizona law makes it illegal to drive while Joe is impaired to at least the slightest degree by alcohol.  This means that if Joe's ability to drive is impaired to any degree, Joe is technically in violation of the law;
  2. If Joe is stopped by the police, they will stick a needle in Joe's arm.  Regardless of the law on this subject, it has been my experience that if Joe is stopped by a police officer for a traffic violation, and the officer smells any alcohol, Joe is going to end up taking a chemical test.  Many police agencies are now using blood testing instead of breath testing.  If the officer smells alcohol on Joe's breath (or just imagines it), Joe is going to have a needle stuck in his arm and a blood sample will be taken.  The results of the blood test will probably take at least 30 days to come back.  While Joe is waiting to find out the results of the blood test, he will not sleep very much or very well;
  3. If Joe refuses the blood test, the officer will get a warrant and forcibly take his blood.  Once the officer meets the requirements of Arizona's implied consent law, he may require Joe to submit to a chemical test.  If Joe says "no," he will then lose his driver's license for 12 months.  Moreover, the officer will then make a phone call to the judge.  Within minutes, the judge can then issue a telephonic warrant.  If Joe still refuses, he will be held down by several police officers, and a needle will be shoved into his vein. 

Now if Joe knew these three things when the waiter asked him: "can I get you something to drink" - how might Joe answer?  I think the average Joe would say: "Yes...Diet Coke."

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.

Sens. Linda Gray of Glendale and Jim Waring of Phoenix said the move has the support of House Speaker Jim Weiers and added they anticipate no problems for the amendment. The amendment would:

*Require the State Treasurer to deposit 5 percent of modified restaurant license fees into the DUI Abatement Fund.

*Increase penalties for operating a watercraft while intoxicated, bringing some parity between driving a motor vehicle and operating a watercraft.

*Fix a discrepancy in statute that arose from the passage of the DUI bills last year.

*Require DUI offenders to submit to alcohol screening, education and treatment before a suspended license will be returned.

*Expand the circumstances in which a police officer may serve a license-suspension order.

Challenging DUI Breath Testing: The Timing of the Pretest Deprivation Period

Arizona law enforcement often uses breath-testing devices to determine the blood-alcohol concentration (BAC) of a person suspected of DUI.  The Intoxilyzer 8000 is commonly used in Maricopa County.  When a person is suspected of DUI, he is generally requested to blow twice into an Intoxilyzer; this is referred to as “duplicate breath testing.”

The Department of Public Safety (DPS) has issued regulations for duplicate breath testing, which it defines as “two consecutive breath tests that immediately follow a deprivation period, agree within 0.020…of each other...”

In addition, the Department of Public Safety defines a deprivation period as “at least a 15-minute period immediately prior to a duplicate breath test during which period the subject has not ingested any alcoholic beverage or other fluids, eaten, vomited, smoked or placed any foreign object in the mouth.”  Breath-testing experts have stated that the deprivation period is critical to the breath-testing process. (See Kurt Dubowski, “Quality Assurance in Breath-Alcohol Analysis,” Journal of Analytical Toxicology, Vol. 18, October 1994.)
Commonly referred to as “quality assurance” measures, the DPS regulations seek to prevent any factors from affecting the breath sample.  Putting something in the oral cavity prior to the test could certainly change the results. Thus, law enforcement officials must prevent anything being put into a DUI suspect’s mouth prior to the breath tests.

When examining the breath test record, the starting and ending times of the deprivation period must be noted.  A 15-minute time span wherein a person does not put anything in his mouth is not sufficient; the deprivation period must “immediately” precede the first breath test.

The record must not show any gap between the deprivation period and the first breath test. Moreover, the police officer who conducted the deprivation period should be questioned. If he cannot account for any gap in time, then the test fails to comply with DPS regulations and may be inadmissible.

About

Lawrence Koplow is a founding member of the Koplow Law Firm. His criminal practice is dedicated and focused on DUI law and vehicular crimes defense. His clients have included police officers, firefighters and lawyers charged with DUI. Attorneys often consult with him to assist with their own DUI clients.

He is a proud graduate of the University of Texas at Austin. He is also an active member of:

Lawrence is a former prosecutor with the Maricopa County Attorney’s Office. When he left the County Attorney’s Office, he was working in the Vehicular Crimes Unit. While in the vehicular Crimes Unit, Lawrence prosecuted:

After leaving the prosecutor’s office. Lawrence worked in the in-house counsel group for Farmer’s Insurance, where he primarily handled the defense of automobile accident cases. This included defending civil lawsuits arising from DUI crimes.


Mr. Koplow subsequently co-founded the law firm of Koplow & Patane which eventually evolved into the Koplow Law Firm.  His practice is focused on the defense of impaired drivers charged with DUI and vehicular crimes. Now he uses what he learned as a prosecutor to benefit his clients. Lawrence frequently writes regarding emerging DUI issues and defenses. He also presents lectures on DUI defense strategies, DUI prevention and effective DUI investigations. Some of the people has conducted DUI seminars for include:

  • The Chicago Cubs
  • The Oakland Athletics
  • The Milwaukee Brewers
  • The Arizona Association of Civil Defense Attorneys
  • The Northern Arizona Police Department

He has also been a guest lecturer on KTAR Radio in Phoenix regarding DUI and Vehicular Crimes cases. 

For Additional Information:

Contact Lawrence Koplow on-line or call him at his office at (602) 494-3444.  Mr. Koplow and his firm will be available to help you solve your legal problems.

Locations

Lawrence and his firm practice in the following Arizona locations:

  • Phoenix
  • Scottsdale
  • Tempe
  • Gilbert
  • Chandler
  • Surprise
  • Apache Junction
  • Flagstaff
  • Sedona
  • Bullhead City
  • Glendale
  • Peoria
  • Avondale
  • Buckeye
  • Carefree
  • Cavecreek
  • Casa Grand
  • Prescott
  • Lake Havasu
  • Tucson

What If I Didn't Know My License Was Suspended

The most common way that a person is charged with aggravated DUI (felony DUI), is at the time when they are allegedly driving under the influence, their drivers license was suspended.  As odd as this may sound, it is very common that a person did not know their license was suspended.  This is because the procedures of Department of Transportation's Motor Vehicle Division (MVD) are so complicated and confusing, that even most lawyers cannot figure them out.  Thus, the difference between a felony DUI requiring a prison term, and a misdemeanor DUI requiring a short term of jail, can be the simple fact the person did not pay an $85.00 fee.

Most people think, "no problem, I will just explain that I didn't know my license was suspended."  However, this explanation will not satisfy a prosecutor.   This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony.  Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.    

Here is the basic law regarding aggravated DUI due to a suspended license.  Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.

Pursuant to A.R.S. § 28-3318(A), the MVD must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee’s application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to “notify the department within ten days” of any change in address). § 28-3318(C). Moreover, pursuant to § 28-3318(D), “[s]ervice of the notice provided by this section is complete on mailing.” Furthermore, § 28-3318(E) provides:

Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]

Although the law establishes a presumption that the licensee has received notice, and therefore has actual knowledge of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a person may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). “[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice.” State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993).

Therefore, it is not enough for an attorney to merely argue the person did not know his license was suspended.  Rather this is just the first step in the defense.  The defense must also show the person did not deliberately ignore the status of his license.    

 

Lawrence Koplow, Drunk Driving (DUI) Attorney / Lawyer, Arizona

Arizona DUI attorney Lawrence Koplow is a former DUI and Vehicular Crimes prosecutor.   Lawrence uses what he learned as a prosecutor to help his clients charged with drunk driving crimes.  His practice, which is located in the Phoenix / Scottsdale area, is focused on DUI defense

Arizona law is unique when it comes to the crime of DUI.  Thus, it is important to understand exactly what conduct is illegal in our State.  Under the current law, it is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:

  1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree;
  2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle;
  3. While there is any drug defined in section 13-3401 or its metabolite in the person's body;
  4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.

Under subsection one of the statute, it plainly states that a person has committed DUI when they are merely "impaired to the slightest degree" by alcohol.  Thus, a person doe not have to be "drunk" to in violation of Arizona law. 

The penalties for a first time Arizona DUI conviction are numerous.  A conviction for a first offense DUI conviction is a class 1 misdemeanor.  Consequently, the maximum jail sentence is six months; and the maximum fine is $2500.  For most cases, the maximum penalties are very unlikely.  On the other hand, the statute contains several other penalties.  The following list outlines these potential penalties:

  • Mandatory minimum jail term of 24 hours (1 day)
  • Fine of not less than $250.00
  • Driver's License Suspension
  • Ignition Interlock Device
  • May be ordered by a court to perform community restitution
  • An assessment of 500.00 to the prison construction and operations fund
  • An assessment of 500.00 to the state treasurer in the state general fund
  • Court ordered alcohol screening, education or treatment program

A DUI conviction also results in 8 points on a person's driver license.  The accumulation of these points will result in the the Motor Vehicle Division of the Department Transportation requiring the motorist to attend Traffic Survival School.  As stated above, a person will also have their driver's license suspended.  The suspension is for a period of 90 days.  However, a restricted license may be available after the first 30 days of the suspension.  

These cases are complex and the penalties are harsh.  If you are facing a DUI charge then feel free to contact Lawrence Koplow online, or call him at his Phoenix / Scottsdale area office at (602) 494-3444 to discuss your legal options.

Services

Lawrence Koplow defends all types of DUI and vehicular crimes cases, including:

Mr. Koplow also defends traffic crimes and driver's license issues such as driver's license suspensions, speeding tickets and photo radar tickets.  Mr. Koplow and his firm have extensive experience resolving issues with the Motor Vehicle Division (MVD) of the Arizona Department of Transportation.  This area of his practice includes the following types of cases:

As a former a vehicular crimes prosecutor Mr. Koplow has unique experience defending felony vehicular crimes charges.  Vehicular cases, such as drunk-driving accidents, are the most challenging types of criminal case and require extensive training and experience.  Mr. handles the following types of vehicular crimes cases:

Mr. Koplow also represent defendants in appeals and / or post-conviction relief motions for all of the above charges.  Mr. Koplow may handle other types of cases for his clients, however, these cases are accepted on a case-by-case basis.

PUBLICATIONS AND PRESENTATIONS

  • Accreditation, Lies, and ISO Standards:  The Continuing Scottsdale Saga, 27th Annual Aggressive Defense of the Accused Impaired Driver conference, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 10, 2014.
  • Winning a Blood Case When They Say Everything Looks Perfect, June 26, 2014, APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
  • Daubert and the Scottsdale Crime Lab: Separating Science from Science, 2013 APDA Statewide Conference, Tempe, Arizona, June 27, 2013.
  • Trial Tactics that Work, 25th Annual Aggressive Defense of the Accused Impaired Driver Seminar, Arizona Attorneys for Criminal Justice, Tucson, Arizona, May 2012.
  • Prosecutor and Defense Professionalism, Maricopa County Attorney Office Training and Development
  • Civil Aspects of Impaired Driving Cases, The Arizona Association of Civil Defense Attorneys
  • Impaired Driving Investigations for Law Enforcement, The Northern Arizona Police Department 
  • Challenging Blood Alcohol Measurements, In Vehicular Homicide Cases (Chapter), Defending DUI Vehicular Homicide Cases, Aspatore Publishing, 2015 Edition.

AWARDS

Lawyer Of The Year For Outstanding Contribution To DUI Defense Award, May 1, 2015, by Arizona Attorneys For Criminal Justice.

For Additional Information or Case Review:

Contact Lawrence Koplow online or call him at his office at (602) 494-3444.  Mr. Koplow and his firm will be available to help you solve your legal problems.

 

Lawrence Koplow, Traffic Violation and Speeding Ticket Attorney / Lawyer, Arizona

Phoenix Traffic Attorney Lawrence Koplow has extensive experience defending both criminal and civil traffic violations.  In additional to DUI cases, Mr. Koplow's firm also assists motorists with the following types of traffic issues:

  • Criminal Speeding Tickets
  • Civil Speeding Tickets
  • Red Light Tickets
  • Photo Radar Tickets
  • Driver's License Suspensions
  • Driver's License Revocations
  • CDL & Trucker Violations
  • Traffic Warrants
  • Reckless Driving
  • Aggressive Driving
  • Out-of State Drivers

For Additional Information:

Lawrence Koplow is a former DUI and Vehicular crimes prosecutor.  He has extensive experience with the Arizona traffic laws. Lawrence and his firm use this experience to defend people charged with traffic violations.  This unique knowledge helps him obtain the best possible results for his clients.

Contact Lawrence Koplow online or call him at his office at (602) 494-3444.  Mr. Koplow and his firm will be available to help you solve your legal problems.