The United States Supreme Court ruled on June 23, 2011 in Bullcoming v. New Mexico that a Defendant has the right to confront the lab technicians who perform blood analysis. In this case Mr. Bullcoming was arrested for DUI and gave a blood sample to the police. The police had the blood sample sent to their crime lab and determined that the Defendant was over the allowable blood alcohol limit for DUI. Mr. Bullcoming was about to have a trial on his case when the prosecution announced that they would not be calling the lab technician who performed the analysis at trial. The prosecution would be calling another lab technician who was familiar with the lab's testing procedures. The judge allowed the non testing lab technician to testify and Mr. Bullcoming was ultimately found guilty of DUI.
The United States Supreme Court reversed Mr. Bullcoming's conviction stating that the Defendant has the absolute Constitutional right to confront the person who performed the testing on the Defendant's blood. This right is guaranteed by the Sixth Amendment of the Constitution. The wording in the Sixth Amendment stating "in all criminal prosecutions...the right...to be confronted with the witnesses against him." is commonly referred to as the "Confrontation Clause".
Prior to the Supreme Court's ruling a certified document or lab result from a reliable laboratory could be admitted into evidence without the lab technician testifying as a "business report" which would not engage Sixth Amendment protections.
Wednesday, July 20, 2011
Friday, June 3, 2011
DUI - Double the legal limit. Can it be beat?
The Tennessee Legislature has created a presumptive level of intoxication when determining if a person is under the influence of alcohol while driving. The level is currently set at .08%, meaning eight-hundreths of one percent by weight of alcohol in the persons blood. The level of the BAC (Blood Alcohol Content) is determined by the accused submitting to a breath, blood, or urine test. The intricacies of each of these tests will be discussed in a separate post.
I often have potential clients come to me with blood or breath tests over the presumptive legal amount. Sometimes even twice the legal amount. The question - can these types of cases be beat?
Short answer - yes. But it takes a skilled attorney to even recognize the potential problems and errors that are accompanied by these tests.
First it is important that the law only creates a rebuttable presumption. This means that even though the prosecution can introduce proof of the level of your BAC, the defense is free to also put on proof (evidence) that the test is inaccurate. A jury is always free to disregard the presumption if they believe the test is not accurate.
In blood and breath tests there are a wide variety of factors that come into play as to the accuracy of the tests. A skilled DUI attorney has spent countless hours reading and studying medical journals, instruction manuals, hospital policies, and even microwave particle analysis.
For example, in my last trial the prosecution called the hospital nurse who extracted the blood sample from my client. The nurse testified that the blood kit used came with two tubes in which the blood was to be placed. The nurse testified under cross examination that the tubes were equipped with grey top stoppers. His testimony was that it was VERY important to use tubes that had grey tops for blood analysis. The grey top tubes come with certain preservatives and anticoagulants that are necessary for storage of the blood. Next the officer testified for the prosecution. The officer testified that the color of the tube tops was orange.
As you can see, it is very important to hire a skilled DUI attorney who would even know to ask witnesses about the color of the tube tops. There are many attorneys who practice DUI defense who do not wish to educate themselves on the various blood testing techniques. Many begin advising their clients to plea guilty when they receive a BAC result over .08 without even investigating the facts.
On May 26,2011 a jury heard proof of a .16% BAC and returned a verdict of not guilty as to the charge of Driving Under the Influence. While I will never know why the jury chose to find my client not guilty, I like to believe that I was able to expose the errors that can and do occur.
Remember, any test is only as accurate as the way it was administered and scored. If you do not properly administer the test - the results are not valid. If you improperly score or evaluate the test - the results are invalid. If you have been charged with DUI and your BAC is .08% or greater, don't just throw up your hands and give up. Hire an experienced attorney and evaluate the test.
I often have potential clients come to me with blood or breath tests over the presumptive legal amount. Sometimes even twice the legal amount. The question - can these types of cases be beat?
Short answer - yes. But it takes a skilled attorney to even recognize the potential problems and errors that are accompanied by these tests.
First it is important that the law only creates a rebuttable presumption. This means that even though the prosecution can introduce proof of the level of your BAC, the defense is free to also put on proof (evidence) that the test is inaccurate. A jury is always free to disregard the presumption if they believe the test is not accurate.
In blood and breath tests there are a wide variety of factors that come into play as to the accuracy of the tests. A skilled DUI attorney has spent countless hours reading and studying medical journals, instruction manuals, hospital policies, and even microwave particle analysis.
For example, in my last trial the prosecution called the hospital nurse who extracted the blood sample from my client. The nurse testified that the blood kit used came with two tubes in which the blood was to be placed. The nurse testified under cross examination that the tubes were equipped with grey top stoppers. His testimony was that it was VERY important to use tubes that had grey tops for blood analysis. The grey top tubes come with certain preservatives and anticoagulants that are necessary for storage of the blood. Next the officer testified for the prosecution. The officer testified that the color of the tube tops was orange.
As you can see, it is very important to hire a skilled DUI attorney who would even know to ask witnesses about the color of the tube tops. There are many attorneys who practice DUI defense who do not wish to educate themselves on the various blood testing techniques. Many begin advising their clients to plea guilty when they receive a BAC result over .08 without even investigating the facts.
On May 26,2011 a jury heard proof of a .16% BAC and returned a verdict of not guilty as to the charge of Driving Under the Influence. While I will never know why the jury chose to find my client not guilty, I like to believe that I was able to expose the errors that can and do occur.
Remember, any test is only as accurate as the way it was administered and scored. If you do not properly administer the test - the results are not valid. If you improperly score or evaluate the test - the results are invalid. If you have been charged with DUI and your BAC is .08% or greater, don't just throw up your hands and give up. Hire an experienced attorney and evaluate the test.
Monday, May 16, 2011
Fourth Amendment Rights against search and seizure limited by Supreme Court
On May 16, 2011 the United States Supreme Court delivered an opinion that drastically changes the rights afforded to citizenry under the Fourth Amendment. The case, Kentucky v. King, involves officers smelling marijuanna inside a home and entering the home (forcefully) without a warrant. The officers entered the home under the guise that they believed that they heard sounds indicative of evidence being destroyed. While there are several legal issues present in the case the crux of the case is - did the police have exigent circumstances to enter the home without a warrant?
The majority of the Supreme Court Justices said yes. Only one Justice, Justice Ginsberg, dissented saying that the actions of the officers violated our rights to be free from search and seizure under the Fourth Amendment.
One of the most distubing points of the opinion to me was that the Court acknowledged that many states hold that even with exigent circumstances, the officers cannot circumvent the Fourth Amendment if the officers acted in bad faith and actually created the exigent circumstances.
Let me give an example of an exigent circumstance. Say an officer runs upon a burning building and believes that someone is trapped inside. The officer can legally enter the home without a warrant to save the unlucky occupant. In addition, since the officer has legally entered the home to save the occupant, any evidence the officer sees or obtains while inside the burning building can be used against the occupant (or whomever) in Court. I doubt that any legal scholors would say that the officers entry into the buring building under these circumstances could be considered "unreasonable".
Lets take it a step further now. Say an officer has been observing a suspected criminal for some time and cannot seem to get enough evidence to obtain a search warrant for the suspects home. What if the officer sets the suspects house on fire then enters the residence under the 'exigent circumstances" rule, saying that he believed that someone was inside the buring building. This extreme example is clearly a case of "bad faith" on the part of the officer.
The Supreme Court's decision in Kentucky v. Harris does away with the "bad faith" precautions. Under the decision in Harris, the intent of the officers in the creation or explotation of the exigent circumstances are not relevant in determining the validity of the warrantless entry.
In 2009, the Supreme Court said that search incident to arrest were limited to 'searching for furtherance of the crime committed" (see Arizona v. Gant). Having been in law enforcement for over a decade, prior to the decision in Gant, you never heard of officers testifying that they searched 'for evidence in furtherace of the crime committed". Since the Gant decision it seems like I hear officers testify to that rational weekly.
So after todays decision I fully expect to see more cases of warrantless entry into private residences without a warrant under the guise of "belief that evidence was being destroyed". You can mark my words on this one....
The majority of the Supreme Court Justices said yes. Only one Justice, Justice Ginsberg, dissented saying that the actions of the officers violated our rights to be free from search and seizure under the Fourth Amendment.
One of the most distubing points of the opinion to me was that the Court acknowledged that many states hold that even with exigent circumstances, the officers cannot circumvent the Fourth Amendment if the officers acted in bad faith and actually created the exigent circumstances.
Let me give an example of an exigent circumstance. Say an officer runs upon a burning building and believes that someone is trapped inside. The officer can legally enter the home without a warrant to save the unlucky occupant. In addition, since the officer has legally entered the home to save the occupant, any evidence the officer sees or obtains while inside the burning building can be used against the occupant (or whomever) in Court. I doubt that any legal scholors would say that the officers entry into the buring building under these circumstances could be considered "unreasonable".
Lets take it a step further now. Say an officer has been observing a suspected criminal for some time and cannot seem to get enough evidence to obtain a search warrant for the suspects home. What if the officer sets the suspects house on fire then enters the residence under the 'exigent circumstances" rule, saying that he believed that someone was inside the buring building. This extreme example is clearly a case of "bad faith" on the part of the officer.
The Supreme Court's decision in Kentucky v. Harris does away with the "bad faith" precautions. Under the decision in Harris, the intent of the officers in the creation or explotation of the exigent circumstances are not relevant in determining the validity of the warrantless entry.
In 2009, the Supreme Court said that search incident to arrest were limited to 'searching for furtherance of the crime committed" (see Arizona v. Gant). Having been in law enforcement for over a decade, prior to the decision in Gant, you never heard of officers testifying that they searched 'for evidence in furtherace of the crime committed". Since the Gant decision it seems like I hear officers testify to that rational weekly.
So after todays decision I fully expect to see more cases of warrantless entry into private residences without a warrant under the guise of "belief that evidence was being destroyed". You can mark my words on this one....
Wednesday, April 27, 2011
Field Sobriety Tests reliable?
Anyone who has ever watched a police based reality type tv show has seen a person accused of driving under the influence be required to perform a battery of tests. But what do these tests mean? i.e. what are they measuring? In my years as a police officer and as a criminal defense attorney I have witnesses officers conduct various types of theses so called sobriety tests. Tests that I have witnessed and have myself administered have included:
Those tests are:
- The alphabet test - Requiring the accused to start on a particular letter and continue to another identified letter.
- The finger to nose - Requiring the accused to stand in one spot and touch the tip of the nose.
- Watching the pen - Correct terminology for this test is the 'Horizontal gaze nstagmus' Requires the accused to follow an object with the eyes.
- One leg stand - Requires the accused to stand on one leg for 30 seconds.
- 9 step test - Requires the accused to walk 9 steps on a straight line.
- Coin pickup - Requires the accused to pick up several coins dropped on the floor.
The list can go on and on.
In the 1970's the National Highway Traffic Safety Administration conducted controlled studies to determined what tests were actually true measures of a persons sobriety. The results shocked the law enforcement community. Only three tests were determined to correlate with a persons intoxication.
Those tests are:
- The Horizontal gaze nystagmus test
- The one leg stand test
- The nine step walk and turn test
What this means is that the other tests do not have a bearing on a persons sobriety. In other words, a completely sober person could fail the alphabet test, the finger to nose test, etc. Another shocking revelation of the NHSTA study that even with the three tests that correlate with intoxication, if the officer didn't instruct or administer the tests properly then all reliability of the test is gone.
Even these three tests are not 100% reliable. The one leg stand test and the nine step test are less than 70% reliable. (Meaning that 30% of the time a completely sober person would fail these two tests). The Horizontal gaze nystagmus test is the most reliable test of intoxication but in Tennessee that test is generally inadmissible against the accused.
In a study conducted by Clemson University in 1994 a group of 21 completely sober individuals were instructed to perform field sobriety tests. Fourteen trained officers watched videos of these field sobriety tests and gave their opinion as to intoxication based on the persons performance on the video. (the officers were not told that the subjects were completely sober). 46% of the officers responded that persons they viewed were under the influence of an intoxicant.
So, knowing that a completely sober person can ultimately fail these so called sobriety tests we must ask the question - can a citizen refuse to perform these tests when asked by law enforcement? The short answer in Tennessee is - yes. There is currently no law of failing to do the tests. HOWEVER, this does not mean that the officer cannot arrest you for DUI. In fact, your failure to conduct these tests can be used against you in court as "consciousness of guilt". I personally feel that the ability of the prosecution to use a refusal to take so called sobriety tests as "consciousness of guilt" is a terrible tragedy. I hope that the Tennessee Courts will soon overturn previous rulings allowing this practice.
Monday, April 25, 2011
BUI
This weekend I ran across the TWRA (Tennessee Wildlife Resource Agency) who was patrolling the Lake on boats. It always surprises me that many agents with TWRA do not understand the Boating Under The Influence Laws in Tennessee. While boating under the influence is unsafe and should never be condoned there must be awareness of what actions actually constitute a crime. Especially the serious crime of BUI.
Tennessee 69-9-217 States:
(a) It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.
While this language is very similar to the motor vehicle DUI law there is a very distinct difference which appears in the very last sentence of the statute and is often overlooked by law enforcement.
The last section of T.C.A. 69-9-217 states:
"(n) The provisions of this section do not apply to any vessel that is moored or anchored."
This means that any boat or "vessel" that is anchored down or is moored at a marina is not subject to BUI enforcement. Despite this being the law I often hear of horror stories of the man fishing off his boat while docked at a marina and being carted off to jail for BUI. I also hear numerous stories of party goers who tie several boats together in a secluded cove and become intoxicated as the day wears on. However, if these boats are anchored the BUI provisions should not be applied to the occupants.
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