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Lawyer Finds New Twist To DUI Defense

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Lawyer Finds New Twist To DUI Defense

Old 03-11-06, 03:14 PM
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Lawyer Finds New Twist To DUI Defense

By CURT ANDERSON, Associated Press Writer
1 hour, 12 minutes ago




MIAMI - Timothy Muldowny's lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine to see whether his test was accurate.

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Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A county judge tossed out Muldowny's alcohol breath test a crucial piece of evidence in a DUI case and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say.

"Any piece of equipment that is used to test something in the criminal justice system, the defense attorney has the ability to know how the thing works and subject its fundamental capabilities to review," said Flem Whited III, a Daytona Beach attorney with expertise on DUI defense.

The Intoxilyzer, manufactured by CMI Inc. of Owensboro, Ky., is the most widely used alcohol breath testing machine in the United States and is involved in the vast majority of these legal challenges. It is used exclusively by law enforcement agencies in 20 states, including Florida, and by at least some police agencies in 20 other states, according to the company.

Most states have "implied consent" laws for motorists requiring DUI suspects to blow into a breath analysis machine if asked to do so by a police officer.

"The breath test is an integral part of any prosecution," said Earl Varn, an assistant state attorney in Sarasota.

In Florida, state law currently considers a breath test valid if the machine is approved by the Florida Department of Law Enforcement and the person administering the test is qualified. The law also says that a defendant is entitled to "full information concerning the test taken" if such a request is made.

The meaning of that phrase is the key to the DUI challenges in Florida and other states with similar laws.

DUI defense lawyers insist that "full information" means every minute detail about the Intoxilyzer, including the source code used by its computer processor to analyze breath samples, should be subjected to review by expert defense witnesses. Some judges have agreed.

"It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery," Florida's 5th District Court of Appeal ruled in Muldowny's case, which resulted in his charges being reduced to reckless driving.

Judges in the Florida counties of Manatee, Sarasota, Seminole and Volusia counties are among those who have ruled in recent months that the defense was entitled to the Intoxilyzer's source code to see if the test results are reliable.

There also have been successful legal challenges involving the source code of other machines, including a 2005 case in Bellevue, Wash., in which a defense lawyer obtained the code of the BAC Datamaster testing machine, sold by National Patent Analytical Systems Inc.

But many judges in Florida have ruled the opposite way on the Intoxilyzer, including a panel in Palm Beach County that recently denied challenges by 1,500 DUI defendants who sought the source code under state public records laws.

The tactic has led lawmakers to introduce a measure in the Florida Legislature to clarify that such source codes don't have to be produced for DUI defendants.

Last November, a similar challenge in Omaha, Neb., was rejected on grounds that Nebraska did not have the source code. In Rochester, N.Y., a DUI suspect whose lawyer was seeking the source code was convicted of a lesser charge when the technician who maintained the machine was unavailable to testify.

Because CMI has refused to divulge its source code, Florida officials have argued in court that they cannot produce it for DUI defendants. Although most state judges have upheld that view, others have not.

"The state may not wash its hands of its duty to produce this information by claiming that it does not have it," Volusia County Court Judge Mary Jane Henderson ruled in December.

FDLE officials say that even if the state had access to the source code it would not necessary to test the validity of the breath results. Laura Barfield, alcohol testing program manager at FDLE, said each of the 408 Intoxilyzer 5000s used in Florida soon to be replaced by the 8000 model are regularly run through painstaking tests at the state and local levels.

"You don't need the source code to know the machine is providing accurate results," Barfield said.

For its part, CMI said there is no evidence that its Intoxilyzer is inaccurate, noting that a review of 80,000 tests in a 2002 Arizona case produced no evidence of mistakes.

In a statement to The Associated Press, the company said also said the source code is not a crucial element in proving the Intoxilyzer's accuracy and is a proprietary trade secret that could create havoc if computer hackers obtained it.

"Exposure of the source code could not only be detrimental to CMI from a commercial standpoint, but it could also be detrimental to customers of CMI," the company said. "Disclosure of this information could compromise the integrity of test data that is stored in the instrument."

The conflicting decisions around Florida could land the issue before the state Supreme Court. Florida lawmakers may act before that, however.

A bill making several changes to DUI law includes a section clarifying that the "full information" about breath tests does not include the "manual, schematics or software" of the breath machine or any information "in the possession of the manufacturer." The bill is moving through state House committees and could pass later this year.

Prosecutors such as Varn say if the defense challenges prevail it would mean each DUI breath test could be subjected to exhaustive analysis.

"We would have to hire an expert to come in and testify in every case to explain the function of the instrument and what the test results mean," Varn said.

But defense lawyers say DUI defendants have the constitutional right to confront their accuser, even if it is a machine.

"If everything is OK and there's nothing to hide, why do they want to change the law?" said Stuart Hyman of Orlando, a leading DUI defense lawyer who represented Muldowny. "It's ludicrous."


I'm looking for the link; I saw this posted on another forum.

-p

Last edited by NotThatGuy; 03-11-06 at 03:17 PM.
Old 03-11-06, 03:19 PM
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I would think only that the measurements could be shown to be repeatable under similar conditions would matter.
Old 03-11-06, 03:28 PM
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looks like the legislators need to change the wording of the law. i don't have a problem with a defendant wanting to make sure the machine is properly calibrated and works properly but this is going to far. Not like this guy can afford an expert who can scrutinize the source code.

good lawyer though
Old 03-11-06, 03:32 PM
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Interesting. While I don't like DUI's getting off lightly, I think this is a pretty ingenius strategy.
Old 03-11-06, 04:02 PM
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Originally Posted by X
I would think only that the measurements could be shown to be repeatable under similar conditions would matter.
Exactly, source code seems unnecessary. I'd take 3,4,5 different types of breathalizers and do side by side tests for various levels of alcohol consumption to show the comparability. I think the other "side" is just becing lazy.

I know that I wouldn't roll over as a government entity, which has deep pockets and a signioficant stake in making sure people cannot get off, or get reduced sentences.
Old 03-11-06, 04:06 PM
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which appellate court upheld the ruling? if it was the Florida Supreme Court I'm not surprised.
Old 03-11-06, 04:28 PM
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Everyone always picks on FL....

First it is our teachers who sleep with students.....then it is our less than accurate voting machines....and NOW it is our legal system.

-p
Old 03-11-06, 05:18 PM
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Just one more way for people not to take responsibility for their actions. I read this and it'll be handled soon enough with new legislation (or wording).
Old 03-11-06, 05:33 PM
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As a lawyer, he worked the system; I guess I'd do the same in his situation....of course they'll change the laws so it will be a moot point.

-p
Old 03-11-06, 06:09 PM
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Originally Posted by FiveO
Just one more way for people not to take responsibility for their actions. I read this and it'll be handled soon enough with new legislation (or wording).
Well, they don't want the "whole truth" justr the truth that can't be thrown out.
Old 03-11-06, 06:29 PM
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What does source code have to do with an officer observing a man who can't walk a straight line, touch his finger to his nose, and coincidentally just crashed into another vehicle.

If the defendant never exhibited signs of alcohol use OTHER THAN THE TEST, then yes, the test should be taken into question. However, I would think the defendant would have exhibited many more indications of being a loser drunkass. That's why officers STILL need to use proven techniques of determining a drunken individual.
Old 03-12-06, 11:39 AM
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Originally Posted by DVD Polizei
That's why officers STILL need to use proven techniques of determining a drunken individual.
It's debatable whether the standard techniques have ever really been proven. It's pretty amazing that what has become standard practice was developed in such an unscientific manner. The only sure way to avoid a DUI is to not drink and drive. If you have had anything to drink, don't even agree to a field sobriety test if you have the choice, make them take you in and give you a breath/blood test. At least that is based on science rather than a test that even sober people will often fail.

This entire article is pretty interesting, but here's a condensed version of how the field sobriety test was developed.


Burns, 77, is a research psychologist who calls herself the "grandma guru" of the standardized field sobriety tests. She's had a long career developing them, testifying in courts nationwide as an expert witness and training police officers to use them correctly.

Her group recruited 238 subjects from the local unemployment office anyone over 21 with a driver's license and who admitted to imbibing a few and paid them $3 a day. Subjects came to the lab, starting at 8 a.m., and were "dosed" with either a placebo of orange juice or a screwdriver. They were then led to small rooms where 10 California police officers waited. The officers administered six different sobriety tests, then made a determination on the subject's blood alcohol content and whether they would make an arrest.

Burns' final report, "Psychophysical Tests for DWI Arrest," was published in 1977. She wrote that while all six tests were sensitive to alcohol meaning that drunk subjects tended to perform worse than sober ones the "best" tests were the three now in use today.

Burns did not test the drunken subjects when sober to see how well they could balance on one leg naturally.

"The evidence that it's an easy task comes from the placebo people," she said. "They could do it fine."


Here's a bar chart from her study: Most of them were men, ages 22 to 29.

One could argue the placebo people didn't look much like America.

So hundreds of thousands of drivers have been arrested no doubt many deservedly so on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol. Burns admits upfront that the tests are designed only to gauge blood alcohol content, not whether you're a menace on the road.

Burns insists that the average person should be able to balance on one leg for 30 seconds. She can. She practices the one-leg stand every few weeks.

Consider how imbalanced we are. Forty percent of Americans will at some point in their lifetime experience a balance disorder, and dizziness and vertigo are the third leading cause of doctor visits, behind lower back pain and headaches, according to the National Institutes of Health.

Research indicates that the older you get, starting at about age 50, the less likely you will be able to stand on one leg for very long, and the more likely you will be to fall. It's anybody's guess as to the "normal" ability to balance.
http://www.signonsandiego.com/uniont...s_1c11dui.html
Old 03-12-06, 11:55 AM
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The one thing you are leaving out of the equations though, is that the field sobriety test is not used soley. It is used as a tool to try to determine impairment. If the officer suspects impairment then it moves onto the breathalyzer. So, the fact that many people believe that these tests soley for DUI convictions is a fallacy.
Old 03-12-06, 11:56 AM
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Horizontal gaze nystagmus, which is one of the three standard field sobriety tests, is very accurate when performed by a properly-trained LEO. When properly used, it can not only be used to determine if the subject is legally intoxicated, but also fairly accurately gauge their BAC.

People often attack field sobriety tests, but none of them are used to actually charge someone with DUI. They are just used to determine if the subject should then be given a breathalyzer test. The vast majority of any practical problems with field sobriety testing has far more to do with LEOs who are not properly trained in the tests (or for some reason choose to not administer the tests properly) than the tests themselves.
Old 03-12-06, 11:59 AM
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Originally Posted by Deftones
The one thing you are leaving out of the equations though, is that the field sobriety test is not used soley. It is used as a tool to try to determine impairment. If the officer suspects impairment then it moves onto the breathalyzer. So, the fact that many people believe that these tests soley for DUI convictions is a fallacy.
Yup, beat me to it. Furthermore, these tests are almost always administered with cause, be it driving in such a manner as to indicate possible impairment (weaving, failure to dim, etc.) usually accompanied with the smell of alcohol on the driver's breath.

Sometimes an open bottle of Jim Beam between the driver's legs can also be a good indicator.
Old 03-12-06, 12:43 PM
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Originally Posted by Deftones
The one thing you are leaving out of the equations though, is that the field sobriety test is not used soley. It is used as a tool to try to determine impairment. If the officer suspects impairment then it moves onto the breathalyzer. So, the fact that many people believe that these tests soley for DUI convictions is a fallacy.
If we are to believe the article linked by slappypete ...

Then the standardized field sobriety tests (SFST) should not be used AT ALL. According to the National Highway Traffic Safety Administration, the one leg stand has a 65% accuracy. When all 3 tests (jerking eyeball, OLS, walk &turn) are used and people fail all three, that has a 91% accuracy. I don't know with what frequency the cops administer all 3 tests, but why even bother using such an archaic system conjured up by some psychologist that has no scientific basis at all? From the article (slappypete only quoted a portion of the article):
Cole administered the tests to 21 of his students at Clemson University in South Carolina none of whom had had a drop of alcohol and showed the videotape of their performance to a group of officers, who reported they'd arrest nearly half the students.
And don't knock this paragraph because it's just one test of 21 students. That's pretty much how they came up with the SFST.

Hopefully the police had reasons to pull you over in the first place (with the emphasis on the hopefully). And if they suspect alcohol, then either use a more scientific method of testing or don't test at all.
Old 03-12-06, 12:57 PM
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Originally Posted by namja
If we are to believe the article linked by slappypete ...

Then the standardized field sobriety tests (SFST) should not be used AT ALL. According to the National Highway Traffic Safety Administration, the one leg stand has a 65% accuracy. When all 3 tests (jerking eyeball, OLS, walk &turn) are used and people fail all three, that has a 91% accuracy. I don't know with what frequency the cops administer all 3 tests, but why even bother using such an archaic system conjured up by some psychologist that has no scientific basis at all? From the article (slappypete only quoted a portion of the article):

And don't knock this paragraph because it's just one test of 21 students. That's pretty much how they came up with the SFST.

Hopefully the police had reasons to pull you over in the first place (with the emphasis on the hopefully). And if they suspect alcohol, then either use a more scientific method of testing or don't test at all.
But what you are leaving out, and as JustinS stated, are the HGN and VGN. Those are nearly perfect in gauging intoxication. There are a few medical conditions and medications that can muddy the test, but again, they don't rely soley on field sobriety tests. There are many other factors that an officer can draw upon to determine impairment. They are simply a tool to assist officers overall.
Old 03-12-06, 02:50 PM
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Why not get rid of the field test all together, and use the PBT? As I understand it, it's basically a mini-breathalyzer used to determine if someone needs to go to the station and use the main one? When I was a minor and busted at a party, that's what I used.
Old 03-12-06, 03:03 PM
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Originally Posted by mndtrp
Why not get rid of the field test all together, and use the PBT? As I understand it, it's basically a mini-breathalyzer used to determine if someone needs to go to the station and use the main one? When I was a minor and busted at a party, that's what I used.
$$ is why.

I think you will see more and more of this, but only as various departments get the funding to purchase them and equip every squad car.

This ties nicely back in with the original topic, however, and does raise a concern. Florida is being victimized by a poorly-written law, but the lawyer is raising an objection that is well within the spirit of the law. He is just taking it beyond what is a logical conclusion.

People charged under evidence procured with a supposedly objective scientific instrument must have documented assurances that the data returned by the instrument is accurate. A speed gun or a breathalyzer machine or even something as simple as a paraffin test kit need to be formally accredited for theoretical accuracy, the LEOs who will be using these instruments will be properly trained and receive periodic refresher training, and (where applicable) the instruments will be re-calibrated periodically in a likewise accredited fashion. All of this periodic training and maintenance/re-calibration results in costs that exceed the original purchase price of the instruments (such as PBTs) by a factor of...well several.

It seems to be that if Florida had laws on the books that offered these assurances and documentation to show that the specific BAC measuring instrument in question had been maintained in accordance with these codes, the ol' "source code" strategy would have failed. After all, there are already reams of case law that source code can be proprietary and kept secret by commercial interests that wish to do so.
Old 03-12-06, 05:21 PM
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Originally Posted by slappypete
Subjects came to the lab, starting at 8 a.m., and were "dosed" with either a placebo of orange juice or a screwdriver.

http://www.signonsandiego.com/uniont...s_1c11dui.html
What the hell kind of placebo is plain orange juice when compared with a screwdriver? I'm pretty sure I can tell the difference.
Old 03-12-06, 05:31 PM
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Originally Posted by Deftones
The one thing you are leaving out of the equations though, is that the field sobriety test is not used soley. It is used as a tool to try to determine impairment. If the officer suspects impairment then it moves onto the breathalyzer. So, the fact that many people believe that these tests soley for DUI convictions is a fallacy.
It may not be used solely, but it can be used as evidence even though it is just somebodies opinion. Why give more evidence if you don't have to? By the time you are asked to take a FST, you are going to be taken in no matter what. If you "fail" a FST and blow a .06, you can still get a DUI, if you refuse a FST and blow a .06, you might still get a ticket, but you have a much better defense.

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