Drunk driving/DWI/DUI

Where I usually practice law in Maryland, a drunk driving defendant with a good driving record and nothing unusual in his or her case is a good candidate for a probation before judgment after any guilty verdict. A PBJ prevents one from losing points and driving privileges so long as probation is not later found by the court to have been violated.

Many defendants feel particularly enticed to plead guilty to drunk driving in Maryland when the prosecutor offers a guilty plea with the dual enticement of no opposition to a PBJ and a dismissal of the driving under the influence charge (carrying up to a year in jail with twelve points off one's license) for a guilty plea to driving while impaired (carrying up to sixty days in jail with eight points off one's license).

My clients with no prior drunk driving convictions rarely are charged with violating drunk driving probation in Maryland. Therefore, when it looks like a judge will give a probation before judgment even if my client goes to trial, I advise a trial. This is in line with my advising a trial for any criminal charge whenever the risks of a worse outcome at trial seem not much higher than the risks of pleading guilty.

The defenses against a drunk driving charge are many, and I generally detail some of them here. Maryland has some particularly beneficial drunk driving defenses from court opinions and other legal authorities that are not all found in the other courts where I practice. One of them is the Rowe rule that a mere allegation of an unsafe lane change, by itself, is not sufficient to stop a car. Rowe v. Maryland, 363 Md. 424, 769 A.2d 879 (2001). Once the stop is suppressed, the defendant wins the drunk driving prosecution.

One police officer told me that he follows a car long enough for it to make multiple traffic violations, to minimize the chance of suppressing the stop. The corollary to that is that many cops seem to tailgate suspects in a foul effort to draw a traffic violation foul, including getting the suspect to speed to get away from the tailgating.

Recently, I went to court for a drunk driving case expecting that the grounds for the stop would be an "abrupt, unsafe" lane change without signaling, and speeding. I came armed with Rowe for the unsafe lane change charge. For the speeding claim, I expected more of an uphill battle, because judges routinely allow traffic stops for allegedly reasonable articulable suspicion of excessive speed without requiring a showing of properly calibrated and operated speedometers, lasers and radars.

In this particular trial, I obtained suppression of the stop -- and thus an acquittal -- after the following cross examination of the stopping police officer:

JK: When you saw my client's car, you were coming from part-time security work at a store?

Police: Yes.

JK: Have you ever written any reports or notes on this case?

Police: No.

JK: Officer W_____, who was not present before you stopped my client's car, is the one who wrote a report on the case?

Police: Yes.

Image from National Institute of Standards & Technology.

In all jurisdictions where I practice law, guidelines call for checking for an empty mouth for at least twenty minutes before administering breath tests for blood alcohol levels, because doing otherwise risks getting an inaccurate result from an already inaccurate procedure.

Enter Brenna Guy, who was arrested for suspicion of violating Indiana's drinking and driving laws and asked to take a breathalyzer test. She agreed to take the test, which was administered without the police asking her first to remove her easily removable tongue stud, even though Indiana law has the following rule requiring no mouth foreign substances for at least twenty minutes before taking the breathalyzer test:

^"The following is the approved method to conduct a B.A.C. Datamaster with keyboard test for alcohol intoxication: (1) The person to be tested must have had nothing to eat or drink, must not  [*838]  have put any foreign substance in his or her mouth or respiratory tract, and must not smoke within twenty (20) minutes prior to the time a breath sample is taken." Guy v. Indiana, 805 N.E.2d 835, 837-38 (Ind. Ct. App. 2004).

Praised be Indiana's Court of Appeals three-judge panel, which ruled 2-1 that the breath test results should have been barred from evidence. The court reasoned that the tongue stud was an easily removable foreign substance that remained in Guy's mouth right through the time of the breath test. The court left for another day what to do with such items as non-removable mercury tooth fillings, crowns, caps, and any other foreign substances that might interfere with the accuracy of the breath test. Guy v. Indiana, 805 N.E.2d 835.

The bottom line is that breathalyzers spew inaccurate information all the time. Blood tests are more accurate if properly administered and analyzed, but are more expensive in terms of administering them and in terms of having the people who drew the blood and examined the blood come to court as witnesses. Foreign substances can make breath tests even more inaccurate. It is important for criminal defense lawyers to know about every foreign substance that was in the defendant's mouth, right down to tongue rings, mercury fillings, and tooth caps. Jon Katz  

ADDENDUM: Thanks to a fellow listserv member for posting on the foregoing Guy case.

ADDENDUM II: Thanks to Diane for her comment below. Shepard's did not show the Indiana Supreme Court's reversal of the foregoing Court of Appeals decision, perhaps because the Supreme Court opinion says "[w]e affirm the trial court's denial of the motion to suppress," without saying that the intermediate appellate opinion is being reversed. Here is the Shepard's result, in pertinent part:

Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SHEPARD'S SUMMARY

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Unrestricted Shepard's Summary Subsequent appellate history contains possible negative analysis. Citing References: Cautionary Analyses: Distinguished (1) Other Sources: Statutes (1) LexisNexis Headnotes: HN3 (1), HN5 (3) Show full text of headnotes

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			(CITATION YOU ENTERED):
			Guy v. State, 805 N.E.2d 835, 2004 Ind. App. LEXIS 568 (Ind. Ct. App. 2004)

SUBSEQUENT APPELLATE HISTORY ( 2 citing references ) Hide Subsequent Appellate History

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	1.		Transfer granted by:
			Guy v. State, 822 N.E.2d 969, 2004 Ind. LEXIS 644 (Ind. 2004)

	2.		Subsequent appeal at:
			Guy v. State, 823 N.E.2d 274, 2005 Ind. LEXIS 169 (Ind. 2005)

Photo from website of U.S. District Court (W.D. Mi.).

Too many monolingual people seem to think that if they speak louder or repetitively that ultimately they will be understood by a person who does not speak the speaker's language. Too many people think that if a person understands such phrases as "Do you speak English" or "Fire, fire" that this means the person speaks the tens of thousands of other words and phrases needed to have a sufficient command of the English language.

Nothing beats struggling with learning a second language to understand how hard it is for others to learn English, including figuring out how to conjugate verbs in the past, present and future tenses, struggling to understand native speakers who talk a mile a minute, and memorizing and pronouncing a jumble of strange-sounding words. It seems that the vast majority of Americans stop studying another language once such study is no longer required for obtaining a degree or for strengthening a college application; yet plenty of the same people want to surmise that it is easy for others to learn English as a second language.

When I have a non-English speaking client, I ordinarily arrange for a witness to come to court to testify about my client's limited English, in order to challenge any assertion by the prosecutor that my client understood the English being spoken to him or her. Recently, I won a license suspension hearing related to a drunk driving charge, on the basis that Maryland's convoluted and lengthy advice of rights form for taking the breathalyzer test was either not translated at all into Spanish, or that a Spanglish speaker struggled to tell my client the words on the advice of rights form. See below for further details on that hearing.

In my experience, cops use a hit-or-miss approach to try to communicate with people who speak little to no English. Some police forces have some fully fluent people available to help, but then I argue that the absence of such interpreters' court testimony makes the interpretation inadmissible hearsay evidence. Some judges let prosecutors get away with asking cops "Did he appear to understand you" and "Did he tell you he did not understand you or needed help interpreting your English?" Where I practice law, a huge percentage of native Spanish speakers come from countries where the cops constantly and often brutally trample on people's rights, and do not serve the interests of ordinary people. (Hmm, that also describes too many cops in the United States.) Silence from people coming from such countries does not necessarily mean the English is understood, but instead can be a self-preservation technique.

Being human, judges need to be educated about the nuances falling between the scale of a person who speaks fifty to five hundred English words in order to achieve basic survival on the one hand, and a person who arrives in the United States below the age of ten and soaks up English like a sponge. A huge percentage of people fall within the first half of that range of English-speaking ability. Moreover, most people are better able to speak a second language in an understandable fashion than to understand what is being said to them. People speak the words they understand, but the listener does not necessarily know all the words s/he hears in a second language.

With that backdrop, here is an outline of questions I asked my client on the road to victory in my recent license suspension hearing related to a drunk driving arrest:

- Where were you born?

- At work, what language does your boss speak?

(Here the answer was that the boss speaks English. Instead of saying "Oh, sh_t" to myself, I followed up with: "How are you able to understand your boss's English at work?" Answer: "A co-worker interprets for me.")

Who wants police to be permitted to pin down a drunk driving suspect to draw blood? What medical professional in his or her right mind would agree to draw the pinned-down suspect's blood? Then again, will some police just take the lobotomized route of skipping the phlebotomist entirely, and draw the blood themselves? Not if such judges as Pima County Superior Court Judge Richard S. Fields are presiding. Judge Fields recently wrote that blood draws "carried out in roadside situations with poor lighting and in less than sanitary conditions" present "an unreasonable risk of infection and injury." Of course, the prosecution says it plans to appeal, which is another reason I am happy that I have never prosecuted. (Thanks, Lawrence Taylor, for posting on all topics contained in this blog entry).

Then again, will law enforcement agencies get their cops certified as phlebotomists? That is what the Utah Highway Patrol did with its troopers, to save the time and $50 per blood draw of calling in a medical technician. As blogger Lawrence Taylor aptly points out: "Ignoring the pain, injury and infection aspects for the moment, bear in mind that the blood must be taken from a vein, not an artery (which has a higher blood-alcohol concentration); the skin must be swabbed with an approved antiseptic (not isopropyl alcohol, which can raise the blood-alcohol concentration); the correct amount must be taken, with no contamination from the officer; it must be placed in a sterile and sealed vial; an approved preservative in the correct amount must be added and mixed in (to prevent fermentation, which increases BAC); an anti-coagulant (to prevent clotting, which increases BAC) must also be added, again in the correct amounts."

If a drunk driving suspect is going to be coerced or forced into submitting to a blood test, the least the powers that be can do is to provide the suspect at least some comfort, confidence and dignity by providing an experienced medical technician for the blood-drawing, rather than to have it done by a handgun-toting cop who claims to be certified in the procedure.

All of this Orwellian forced blood drawing comes to you thanks to the 5-4 decision in Schmerber v. California, 384 U.S. 757 (1966) (finding no Constitutional violation from a non-consensual blood draw), which, sadly, was penned by my otherwise hero Justice Brennan. Jon Katz

In Virginia and Washington, D.C., the law says that drivers in those states impliedly consent to have their blood alcohol levels tested if the police have sufficient grounds for seeking such tests.

In that regard, here are important relevant Virginia statutory provisions and appellate opinions:

- In Virginia, "Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." Va. Code § 18.2-268.2 (A).

- The certificate of analysis for the blood alcohol test is inadmissible if the technician's certification was expired at the time of the analysis. However, that does not automatically prevent an erroneous certificate of analysis admission to rise to the level of harmless error. Brooks v. Newport News,. 224 Va. 311, 315, 295 S.E.2d 801(1982).

- The burden is on the prosecution to prove a defendant was intoxicated while he was operating his truck, not for the defendant to show that Defendant became intoxicated after leaving his or her parked vehicle. Overbee v. Commonwealth, 227 Va. 238, 244, 315 S.E.2d 242 (1984),

- In Virginia, the certificate for breath analysis is inadmissible at trial if the test was performed over three hours from the defendant's previous driving experience.  Overbee v. Commonwealth, Va. Code § 18.2-268.2 (A), 227 Va. 238, 243. Jon Katz.

Bill of Rights (From public domain.)

Field sobriety tests are junk science administered by cops who have no expertise to administer them, because junk science precludes having expertise. See how poorly is the performance when asking even a fully sober and awake person to follow unfamiliar instructions for standing on one leg for a count of thirty and walking heel to toe ("don't miss heel to toe") nine times and pivoting correctly on the way back. If a person has even had a glass of wine two hours ago and is somewhat tired, s/he will be between a rock and a hard place to take or not take the field sobriety tests in the following states that Virginia's intermediate appellate court has joined for considering the results of field sobriety tests for determining probable cause to arrest for violating drunk driving laws.

In Jones v. Com., _ Va. App. _ (May 7, 2008), Virginia's Court of Appeals upheld a thirty-day jail sentence for unreasonable refusal to take a breathalyzer test, where the defendant had previous drunk driving convictions, and allowed consideration of the defendant's refusal to take the field sobriety tests for the probable cause determination. Moreover, the court was silent about the cop's repeated requests for field sobriety tests, which sounds like such test requests were demands rather than the simple requests they should have been (just as cops are not permitted to demand that a person submit to a "consent" search; they may only request it). In reaching this conclusion, Jones detailed the situation in the following states that permit consideration of refusal to perform field sobriety tests, Jones at n.4:

See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446, 449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would not, standing alone, provide probable cause, it is a legitimate factor in the probable cause determination). Far more courts have decided the analogous issue of whether refusal to perform field sobriety tests may be used as substantive evidence to establish intoxication in criminal trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v. State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal [to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819 N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was” driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App. 2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374 N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation); Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass. App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based on state constitutional grounds).

Jones v. Com., _ Va. App. _ (May 7, 2008), 

I hope Jones files and wins a petition for appeal to Virginia's Supreme Court in this case. Jon Katz

ADDENDUM: Thanks to a lawyers' listserv member for bringing this Jones case to my attention.

Image from National Institute of Standards & Technology.

Zippy the Pinhead is my favorite comic strip. Zippy spews non sequiturs, repeatedly proclaims "Yow!", and asks "Are we having fun yet?" in this overcommercialized society that tells people they won't be glad til they use Dial. Every four years, he runs for president.

Trials often are tribulations for criminal defendants. Earlier this week in criminal traffic court in Maryland, Zippy seemed to be with me and my client in spirit as we proceeded to beat a drunk driving trial. The prosecutor spent significant time preparing the arresting officer in the hallway outside the courtroom. Nevertheless, the prosecutor apparently had not prepared the arresting cop sufficiently to permit his field sobriety testing testimony, and it seems that the prosecutor did not know how to get around the repeated defense objections sustained by the judge.

Essentially, the prosecutor asked the cop under whose auspices he was trained, but the cop was unable to recall which organization was involved in his training. He only knows that Bob, another police officer, trained him for investigating violations of the drinking and driving laws. The judge agreed that the prosecutor had not elicited sufficient testimony or evidence to permit the cop to testify about any field sobriety tests and about any arrest and the events that followed it.

During the trial, as numerous key evidentiary rulings were decided in our favor, I leaned to my client and said: "I AM having fun." With so many criminal defendants having their rights violated by the powers that be, it is all the more a rush to obtain such victories. Jon Katz.

Image from National Institute of Standards & Technology.

When administered properly, blood tests are more accurate than breath tests in determining a person's blood alcohol content (BAC). Nevertheless, in the state courts where I practice, police ordinarily choose the breath test over the blood test. The breath test may save time and money over the blood test (and remove the need for the testimony at trial of the people who drew and analyzed the blood, and remove challenges by the defense about the chain of custody and handling of the blood sample between the time periods that the blood is drawn and analyzed). However, hanging in the balance is the defendant's liberty, which deserves giving the defendant a choice between a blood and breath test (the defendant should have the option, for instance, if s/he reacts adversely to needles or learns that the alcohol analysis will be quicker by blowing into a machine at the police station rather than being transported to a hospital to have a medical technician draw blood).             

In any event, few battlegrounds are level and fair. Until legislators and courts fix the unfair state of affairs over laws prohibiting driving with a 0.08 BAC or higher together with permitting breath tests that are insufficiently accurate, criminal defense lawyers, as always, are left with the available playing cards and rules. In that regard, as I blogged on January 8, I recently went into a Virginia court where I overcame the risk of a five-day mandatory jail sentence for an alleged BAC over 0.16 by arguing reasonable doubt whether the BAC at the time of the breath test was higher than at the time of driving; on November 8, 2007, I blogged about how the BAC can rise as the alcohol absorbs into one's bloodstream.

In another instance, the documentation about the Intoxylizer 5000 breathalyzer machine for another client (the key is to obtain such documentation by subpoena, written request or both, as needed) facing a mandatory minimum for a BAC over 0.15, showed that the Intoxylizer 5000 had been repaired prior to being used on my client, without having been recalibrated. Since my client was likely to be found guilty of drunk driving even without the breath test results and to get jail for having a DWI conviction on an arrest that took place only about two weeks later, we got a very good result in convincing the prosecutor to a DWI plea involving a suspended sentence only at a doubled length from what is ordinarily offered in that courthouse to people without other convictions and with lower BAC's. It also helped in that instance that we had a hired forensic toxicologist to show the prosecutor our firepower to convince the judge to keep out the breath testing results. 

As with all criminal defense, a key in defending drunk driving cases is to take every opportunity to use the governing rules and evidence to the defendant's advantage. Although Virginia law provides such escape routes for prosecutors as only requiring "substantial compliance" with the administrative rules governing BAC tests, no such escape hatch exists in Maryland. In any event, no matter where one defends a drunk driving case, two of the several technical defenses in such cases include determining whether the suspect's oral cavity was sufficiently monitored for at least twenty minutes to be free of foreign substances, and whether the breath or blood sample was taken within the statutorily or regulatorily mandated time period (in Maryland the time period is two hours for a breath test, and in Virginia the time period was extended a few years ago to three hours).

In Maryland, it is essential to go to court with a current copy of the state toxicologist's manual for administering BAC tests. I will provide a free copy to anybody who asks (until I arrange to have it scanned onto this website). Even better is to have a certified copy, which can be obtained by sending a $40 check made payable to DHMH-OCME, and sent to Barry Levine, Ph.D., Toxicologist, Office of the Chief Medical Examiner, 111 Penn Street, Baltimore, Maryland 21201. 

By now in Maryland, I have obtained full or partial victories a few times on the toxicologist's direction to assure that the oral cavity is free of foreign substances for at least twenty minutes before the test. In one instance, with the help of a forensic toxicologist, we convinced the judge that the twenty minute observation must be performed by the breath technician and not the arresting officer (who, in that instance, was not certified as a breath technician; also, in Maryland the arresting officer may not administer a breath test). As a result, our client was convicted of the less serious charge of driving while impaired rather than the more serious charge of driving under the influence, and the judge gave him a probation before judgment (which avoided points off his license).  In another instance, our client was stopped after allegedly driving over the dividing yellow line. The cop testified that he observed our client had not put anything in his mouth (how was the cop able to observe this while still keeping his eyes on the road while transporting our client to the station?) and the breath technician confirmed the same (a warm belch or regurgitation can also lead to an inaccurate Intoxylizer result), but the prosecutor's witnesses did not establish that my client was not at any time out of the site of both the cop and the breath technician before taking the test (e,g,, to go to the bathroom, or for the cop to do the same). The judge kept out the breath test results, and found my client not guilty.

In a more recent incident, the testimony of the arresting officer and breath technician showed no testimony by the arresting officer about an empty oral cavity and the breath technician's testimony of observing my client for nineteen minutes. I successfully argued to keep out the results by arguing close but no cigar. I drew the judge's attention to Md. Cts. & Jud. Proc. Code sect. 10-304, which requires breath technicians to have received training in the use of the Intoxylizer 5000 in a training program approved by the toxicologist under the Postmortem Examiners Commission. I then argued that, as a consequence, Intoxylizer 5000 results are only admissible when the state toxicologist's training manual is followed. Because the training manual mandates a twenty-minute observation, twenty minutes means twenty minutes, and anything less is unreliable. The prosecutor and I went back and forth with the judge on this, but ultimately the judge agreed not to admit the BAC results. Once again, instead of being found guilty of DUI, the judge found my client guilty of the lesser offence of DWI, and gave him a probation before judgment on the DWI.

Of course, none of these great results can happen without being fully prepared for trial and fully able to try a case. Particularly with bench trials, judges often want counsel to "move it along" so that the full docket can be handled. The more that the defense lawyer streamlines such trials -- without prejudice to the client -- the more the judge will listen to the lawyer, so that the lawyer has a chance to win.  Jon Katz.