As you’re salsa dancing the night away, you may start to feel the effects of that third strawberry margarita. Watch out, because what starts out as a spirited celebration can turn into some serious legal problems if you aren’t careful. The DUI task force in Arizona is aware of and ready for all the festivities that will be going on this Saturday. The six new DUI task force vans that the AZ Department of Public Safety purchased last November will be posted in locations around the state this Saturday. So if you think you may have had too much tequila and may not be okay to drive, it’s much better to be safe than sorry.

These six vans will be fully equipped and posted with phlebotomists on hand to draw blood as evidence, as well as other equipment for testing the blood alcohol content of DUI suspects. This is a typical occurrence, as celebrations and other general mayhem are in abundance during any major holiday.

If something does happen either to you or somebody that you know, be sure to either use or give them the advice posted in our previous article regarding your rights and
liberties during a DUI investigation. Keep in mind that blood tests and other forensic analyses are not infallible, a fact that a good DUI lawyer should be familiar with. Guidelines exist for a reason, including following testing procedures, maintaining good functional testing equipment, testing within acceptable ranges, and other scientific standards for quality control. Laboratories should maintain stringent records of these procedures, but they often don’t. This would be the first place a good lawyer should investigate when there is any doubt about the accuracy or reliability of a forensic BAC test.

Remember our February 3rd article? It is not a good idea to rely on your smart phone to calculate your blood alcohol content (BAC). Since there are too many factors to consider, it isn’t always accurate. You don’t necessarily have to drink to have a great time, but if you’ve had too much, it’s much safer to call a cab than it is to attempt to drive home. You’re better off just sleeping in on your friends’ couch. After all, the next day isn’t a workday! Happy Cinco de Mayo!

Ryan Braun’s urine sample was collected, along with other players’ samples, for testing on October 1, 2011 by a licensed MLB tester, Dino Laurenzi Jr. Says Laurenzi, “Given the lateness of the hour that I completed my collections, there was no FedEx office… that would ship packages that day or Sunday.”(2) The samples were stored in Laurenzi’s basement refrigerator until they were shipped two days later on Monday. When the sample was analyzed later, it tested positive. The presence of synthetic testosterone was detected, typically indicating that a subject had taken some sort of illegal substance. This resulted in a proposed 50-game suspension penalty for the infraction. However, an arbitrator overturned the case on February 24th, 2012. As ESPN legal analyst Lester Munsen
describes, “MLB has the burden of proof. MLB must persuade the arbitrator that its specimen collector and its laboratory followed the required procedure step-by-step, with no exceptions.”(3) Since the sample was stored in Laurenzi’s basement and not shipped immediately, the procedure’s integrity was compromised.

What kind of issues does this raise for the field of major-league sports? What about the field of forensic testing? The issue of chain of custody is very serious part of testing accuracy and reliability. It essentially requires that a sample in evidence must be transferred and stored in compliance with strict guidelines. According to Arizona case law4, the side in a case that introduces forensic evidence is required to prove that it is valid and that appropriate chain of custody procedures were followed. Since the MLB introduced the case, they were required to show adherence to proper chain of custody procedures. The decision to store rather than ship the samples right away broke this chain of custody, and the consequences of this rests with the MLB.

This holds true for DUI cases and testing: the State has the burden of proof. The State is responsible for proving criminal charges beyond a reasonable doubt. This means that blood evidence testing needs to follow the proper chain of custody procedures accepted by the forensic science community. In the field of forensics, trusting that the sample was fine in any basement doesn’t meet these relevant criteria. It wouldn’t be acceptable to “skip” a step in an experiment and still expect valid results. The same holds true for the chain of custody procedure and all other aspects of producing reliable evidence. Solid proof that procedures were followed eliminates doubt that the results are unreliable.

When an individual’s career and livelihood are on the line, forensic testing procedures in the matter need to be held to a high standard. These allegations of drug use put Ryan Braun’s reputation and career on the line before both sides of the story had been heard. In a DUI case, the stakes can be similar but include jail time and loss of other liberties. This is precisely why our constitution demands that all defendants are “innocent until proven guilty.” The ends don’t justify the means, rather, these tests are driven by procedure. Holding test procedures to a high standard is the only way to make sure that the results produced are trustworthy. Without proof that proper chain of custody procedures were followed, the State may not be able to meet their burden of proof.

If the results are valued higher than the process, essentially it becomes acceptable to “cut corners” in procedure. This allows doors to open up for serious transgressions of justice, which are both morally and legally unacceptable outcomes. The State is required to prove their case with evidence beyond a reasonable doubt. However, it is up to the defense attorneys to ask questions, request proof that procedures were followed, and hold the State accountable for proving that procedures were followed and that results produced reliably.

(1) “Braun Wins Appeal on Positive Drug Test and Will Avoid Suspension” http://www.nytimes.com/2012/02/24/sports/baseball/braun-wins-appeal-on-positive-drug-test-and-will-avoid-suspension.html?_r=1
(2) “Collector in Ryan Braun Steriod Case Denies Wrongdoing, Says He Followed Protocol” http://www.nesn.com/2012/02/collector-in-ryan-braun-steroid-case-denies-wrongdoing-says-he-followed-protocol.html
(3) “Braun Q&A: Awkward Issues for MLB” http://espn.go.com/espn/commentary/story/_/page/munson-120224/ryan-braun-ruling-raises-embarrassing-questions-mlb-drug-testing
(4) State v. Brunson, 132 N.J. 377 (1993)

Picture this: After sipping on a few drinks you may start to notice that you have a slight buzz, and as the Open is coming to a close you can’t help but to wonder if you had a little too much to drink. So you think “what is my BAC?” You think you might be okay, but you aren’t really sure. Hold on…there are BAC calculator apps on your smartphone! There are apps for practically everything today, so this should be easy. So you pull one up, like Show me my Buzz¹ or iDrink Smarter² and try to determine what your BAC level is.

Most of these applications will give you a BAC estimation based on the amount of drinks that you’ve had. Some also take your height, weight, and sex into consideration. The problem is that it’s hard to determine an accurate BAC when other factors are present. Many of these sites are incomplete or don’t take things into consideration, like: Food consumption, medication, health and psychological conditions.³ While it’s always a good thing to keep track of how much alcohol you are consuming throughout the night, keep in mind that the calculations for BAC levels are not that simple. It can take between a half-hour to two hours for your body to fully absorb and then eliminate the drink, depending on whether or not you’ve eaten.⁵ A study by Kurt Dubowski, PhD of the University of Oklahoma found that blood alcohol time curves can fluctuate, and “alcohol absorption isn’t always complete in 60-90 minutes, as is often claimed.”

Further, apps that calculate how many “drinks” you’ve had are only as accurate as your memory of them will be. It’s also difficult to approximate what “one drink” is because a different sized glass or a heavy-handed bartender can make one drink actually become 3 or 4. Typically, 1.5 oz of hard liquor constitutes one drink, and can be poured in 6 seconds.⁴ But not all bartenders measure this exactly the same way.

One way to monitor your consumption is to drink easily measured drinks over a set time, like a 12-oz light beer(considered a “standard drink” in the study of alcohol consumption and BAC calculation) every hour or so. One standard drink an hour is typically what the average male can process, on a general scale. This does differ from person to person, and even between men and women. Again, there are other incalculable factors can potentially change your BAC. Remember, depending on the above mentioned factors, even the smallest amount of alcohol can impair your senses and judgment. If you feel in the slightest bit uncomfortable to drive, then you would be better off using your iPhone app to call a cab. Apps are great for many things, but estimating your ability to drive a car is not one of them!

(1) http://www.drugfree.org/join-together/alcohol/new-smartphone-app-estimates-blood-alcohol-concentration

(2) http://appadvice.com/appguides/show/best-blood-alcohol-content-gauging-apps-for-the-iPhone

(3) http://www.modot.org/safety/ImpairedDriving.htm

(4) http://www.examiner.com/bartender-in-national/bartending-101-free-pouring-vs-the-jigger

(5) http://www.forcon.ca/learning/alcohol.html

Most of us assume that crime labs hold these forensic tests to the utmost standards. After all, the results carry significant weight in the courtroom and can affect one’s liberty and reputation. But this is not always the case. Errors can and do occur periodically even with subsequent testing. If there is reason to believe an error has occurred, it is incumbent upon a skilled DUI practitioner to request relevant data and to review it with qualified forensic experts. If you are being charged with a DUI, it is paramount that you consult with counsel that is not only skilled in relevant DUI law but who also places significant emphasis on forensic DUI science and testing procedures. After all, due to the significance of DUI charges, scientifically produced evidence supporting or negating the charge should be subject to strict review. These standards should ideally apply to all evidence in a case.

Your forensic samples are tested on the general assumption that the results will be accurate and trustworthy. But there are many potential sources of error like faulty equipment, analyst error, etc. As such, not every test is performed perfectly so the lab is expected to review all of their results. This is why lab equipment is routinely tested for accuracy, much like you do routine maintenance on your car to keep it running correctly. Labs typically perform Quality Assurance procedures where all of the information produced by a machine is reviewed to determine its accuracy. But mistakes are not always easy to spot; the devil may lie in the details. There may be errors appearing on only some documents that are harder to spot at a glance, that only a trained eye would be able to spot, but can still compromise the integrity of the entire run. A further possibility is that errors may be ignored as well as missed. This is why your attorney should know how to further review these Quality Assurance procedures and not merely take a lab’s stamp of accuracy at face value. If your attorney is familiar with valley and statewide lab testing procedures, he or she will be much more adept at comparing irregularities and standards.

Labs measure accuracy by looking at all of the results from the tests done and making sure they are all acceptable to produce. If a lab mistake is made on a defendant’s sample, then naturally the attorney should be aware of it and able to investigate further. If a machine breaks or malfunctions, which does happen from time to time, then the results from that broken machine aren’t reliable. It would not be logical to use flawed results towards proving an individual’s guilt or innocence. Realistically these ‘bad results’ should not be used at all, but sometimes they are. That’s why it is crucial that you have an attorney with a knowledge of the basic science behind DUI testing procedures, who is able to further investigate any errors made, and is able to work with forensic experts to interpret and understand lab documents. Depending on the information given by the labs, certain conclusions can be drawn about the source of a machine’s error. It’s hard to immediately pinpoint the source of a lab error, especially if you are only looking at some of the documents. If there is a known test error that doesn’t show up on some of the paperwork, it doesn’t mean the error ceases to exist. What it means is that review should be done on all of the paperwork. Savvy legal representation can help to uncover these testing errors, which of course would be relevant to the evidence of a case and potentially relevant to the outcome of a case. Shaky evidence should not be used to convict as this is grossly unjust and violates multiple civil rights. (Refer to my January 12 article for details on recent changes made in Arizona to certain categories of DUI charges and punishments.)

To sum it all up, imagine that you know your bathroom scale is broken. Knowing this, would you still be using it to measure your weight and honestly expect an accurate result? Of course not. The same applies to forensic testing machines, with much more serious consequences.

image courtesy of jerseymike.org

Currently, there is a bill in Arizona that could compromise your constitutionally-protected civil liberties in regards to DUI procedures and punishments in favor of preserving the state budget. It has just recently gone into effect a few days ago on December 31, 2011, and takes away the right to a jury trial for first-time offenders charged with non-extreme DUIs. Let me explain the history behind your right to a jury trial, and why preserving these rights is so important.

The Bill of Rights was written to protect certain essential rights of citizens. The 5th Amendment states,” No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, nor be deprived of life, liberty, or property, without due process of law.” Simply put, due process of law is the requirement that all legal proceedings be fair and just. The 7th Amendment states that any person accused of a criminal offense is entitled to a speedy and public trial by jury, in addition to being confronted by witnesses against them, obtaining favorable witnesses, and having an attorney to assist in their defense. Furthermore, the 6th Amendment contains a clause requiring the right to trial by jury. This right to a jury trial is important way to check government power by allowing one’s peers to review the facts of the case as presented by both sides, and reasonably draw their own conclusions. Jurors have a special privilege that gives them the power to decide a case either in accordance with the law or against it, if they find the current law to be inappropriate or unjust. Removing or abridging this right is inappropriate and may not be in the best interest of justice. Further, DUI offenses are criminal offenses, and by the 7th Amendment, defendants accused of a criminal offense are entitled to a trial by jury. According to the Constitution, there should be no state-written discretion on when and where the right to jury trial should and should not be awarded; it is a guaranteed right to anyone charged with a criminal offense. Furthermore, and obviously, each case is different; dealing with a unique set of facts. Considering this, it would not be appropriate for the state or courts to give certain DUI cases different procedural treatment merely based on the alleged charges and before any facts or information are established. This actually seems to contradict the “innocent until proven guilty” mantra that the justice system is built upon.

Proponents of SB 1200, headed by the bill’s sponsor Linda Gray, have touted the bill as a way to cut certain legal costs from the state’s budget that she and others believe are unnecessary. In an interview after the bill was signed, she stated,”[T]he public defender is there interviewing each one of the jurors. Sometimes that takes all day,” Gray said. In the case of public defenders, “the taxpayers have to pay for that.”² There is no doubt that court proceedings cost money and do take time, but these are fundamental rights that we are entitled to, and these rights should demand protection at all costs. Jury selection does take up time, and public defenders are paid, but all of these things are in the best interest of the taxpayer. Removing them to save money has catastrophic implications, and is a completely unacceptable breach of Constitutional rights. Clearly illustrating Ms. Gray’s attitude towards the right is her statement from last April: “The only reason you need a jury trial is if you’re going to jail.”²

The removal of this right to jury trial in first-time, non-extreme DUI cases happened at the last minute before SB 1200 was signed. Unfortunately, this was done too quickly and late to be subject to public review or debate. This bill contains serious Constitutional issues that should have been given ample time for discussion. This last minute addition flew too low under the radar to get most people’s attention, but there is no doubt that the battle against it is just beginning. Phoenix defense attorney Cliff Girard led an opposing petition to place the bill on a ballot in June 2011, but not enough signatures were gathered. James Nesci, a Tucson defense lawyer has rightly declared, “You can’t legislate away constitutional rights.”² This is the standpoint of several opponents of the bill, who foresee definite litigation and future debate over this decision in the near future. Michael Bloom, a Tucson defense attorney, declared “It’s shocking to attempt to save money by crippling our legal system.”² The battle over these rights is expected to continue well into the New Year, with changes to come. For further information, here is a LINK to the full text of the bill.

1 http://azstarnet.com/news/local/crime/article_428ecd3f-cb81-58ee-86fc-5f48942bb157.html#ixzz1hmCR1n1X
2 http://azcapitoltimes.com/news/2011/04/22/bill-would-limit-right-to-jury-trial/

http://e-lobbyist.com/gaits/text/243328

http://www.azcentral.com/arizonarepublic/opinions/articles/2011/05/08/20110508sun1-08-new-duit-law.html

• If you or a friend are pulled over and asked if you have been drinking, remember that you have the constitutional right not to answer any questions that may incriminate you. The best thing to do would be to ask, politely, if you can speak to an attorney before answering any of these kinds of questions.
• It is critical to also remember that in Arizona, you are not legally required to take the HGN (eye) test, portable breath test, or any of the other Field Sobriety Tests. These tests are usually done outside of your car after the initial stop. These physical tests are very subjective, and results can be influenced by any number of things unrelated to evidence of drinking. If you’ve ever been stressed out before a test, you can see how. See my November 9 article for some of these influences.
• If possible, always consult with an attorney about your rights after your arrest and before being given a blood, breath, or urine test. The police may allow you to speak to a lawyer in most cases, usually through a phone call. If this is available, then use it, in a private setting. In addition to getting advice, speaking to a lawyer can also calm your nerves during the whole event, which can be very scary and stressful.
• In the state of Arizona, it is important to know that refusing to consent to a blood, breath, or urine test could result in a suspension of your driver’s license for one year. Further, if you refuse, the police could still obtain a warrant telephonically and obtain a sample of your blood, breath, or urine.

Remember these very important points. Being pulled over can be very scary, but don’t forget that you have rights. DUI punishments in Arizona are pretty strict, and each case can be different. Starting on January 1, there are going to be some changes made to how first-offense DUIs are prosecuted and punished, such as the required length of time interlock devices will need to be used in your car. Stay tuned for next week’s article, where I will explain how these important changes could affect you or somebody you know that has been charged with a DUI.

For those of you who have stood in line at the post office in mid- December, or tried to find parking at Fashion Square on Christmas Eve, you understand that stress and the holiday season go hand-in-hand. Add frequent visits from family and friends, the stress of shopping for everyone’s presents, planning parties, and after awhile you may get a little frazzled. Naturally, more alcohol is consumed during the holidays mainly to celebrate, but probably also to alleviate some of that stress. However, going overboard on the festivities can have serious consequences. Last year, about 19,000 DUI arrests were made, about 3,500 of them between Thanksgiving and New Years’. ¹ The number of yearly arrests in the state has multiplied over 15 times since 2003 due to an increase in crackdown programs.

MADD recently released a report rating the preventative counter-measures of each state and ranking them according to these measures. Arizona ranked among the highest in the nation for the implementation of DUI crackdown laws.² This year, the state of Arizona and NHTSA, along with support from MADD, have cracked down further on the detection and arrest of DUI suspects by kicking up Arizona’s detection and testing tools. Arizona just recently spent over $1 million to purchase six new DUI processing vans, which come equipped with Breathalyzers and blood tests. They are now being used all over the state to process DUI suspects more efficiently and quickly, in addition to the 70 law enforcement agencies that will be participating in the statewide holiday DUI enforcement task force.³

Being careful over the holidays is the best bet to avoiding a DUI charge. Remember to keep track of your number of drinks and control your intake, even at the family dinner table. Don’t rely on online calculators or apps to estimate your BAC, as I have previously warned. They aren’t 100% reliable and if you aren’t sure if you are safe to drive, don’t take the risk. Being safe and planning ahead is very important. But what if your designated driver has been drinking? What are your rights as a passenger if they get pulled over? These questions and others will be answered in the next few weeks’ upcoming articles. I will also continue to report on Arizona’s current DUI enforcement measures. In the meantime, be safe and Happy Holidays!

(1) http://cronkitenewsonline.com/2011/11/arizona-plans-holiday-crackdown-on-drunk-drivers/

(2) http://www.madd.org/media-center/press-releases/2011/madd-releases-national-and.html

(3) http://www.azcentral.com/news/articles/2011/11/29/20111129arizona-agencies-holiday-dui-task-force.html

We’ve all heard of that common myth that eating more while you drink will “soak up” the alcohol in your stomach and prevent you from getting too drunk, an ancient myth that may have its roots in college parties. However, that second (or third, or fourth) plate of turkey and stuffing won’t stop your body from processing that second (or third, or fourth) glass of wine. Your digestive system works much like an older computer. Everything you input into the system will just be added to already long queue, and just take longer to process.

The human body generally digests one drink per hour(2). While you are enjoying some pre-dinner conversation and a pre-dinner cocktail to facilitate said conversation, the alcohol in your drink will be absorbed into your bloodstream at a normal rate. This is because the rate of absorption is higher than the rate that the alcohol is eliminated from your system, especially on an empty stomach with nothing to slow down the process. Think of this as a cup with a small drip at the bottom being filled more rapidly than it empties.

Researchers Borkenstein, Jones, and Neri conducted a 2006 study on consistent alcohol consumption, which produced the following results. In the experiment, twelve men were asked to drink over a period of 5-10 hours. Blood samples from the men were collected periodically to measure rates of absorption over the time period. Results showed that consistent heavy drinking over an extended period did not speed up absorption but rather it steadily climbed; the time it took to reach maximum intoxication usually exceeded by the time spent drinking, although by only a small margin. The drop-off rate, or rate of elimination, took much longer. Essentially, what this means is that ingested alcohol is absorbed by the body at a constant rate, and generally, also eliminated at a constant rate.

Adding food to this equation, especially in Thanksgiving-level proportions, slows down the rate which alcohol is absorbed by giving another “task” to the digestive system. We begin digesting carbohydrates through saliva, but protein and fats aren’t processed until they reach the intestines. A fat and protein- heavy Thanksgiving meal generally takes many hours to digest, so ingested alcohol can also stay in the system for long periods of time because of an overloaded digestive system. So while you may not reach peak levels of intoxication as you would without food, drinks will still stay in your system longer, BAC will still climb, and the alcohol take longer to be eliminated. While we may refill our wine glasses in anticipation of a family discussion on politics or in an attempt to delay the inevitable clean up, the alcohol’s effects will be delayed by turkey and stuffing but stay in the system longer than usual.

So be careful tomorrow, and on Thanksgivings to come, of how much food (and drink) you take. A heavy meal will keep drinks in the body much longer than usual, so they may still be in your system when you leave the party to drive home. An unwelcome post-Thanksgiving hangover could make us stop drinking cold turkey, at least until the next family gathering at Christmastime.

(1) http://www.acefitness.org/
Jones, A.W., Wigmore, J.G., & House, C.J. (2006). The Course of the Blood-Alcohol Curve After Consumption of Large Amounts of Alcohol under Realistic Conditions. The Canadian Society of Forensic Sciences Journal, 39

(2) http://www.bio.davidson.edu/

(3) http://www.rochester.edu/

Seeing the red and blue police car lights in the review mirror can be a very frightening experience. You may experience extreme anxiety upon being pulled over by the police; this is perfectly normal. In fact, being pulled over is one of the highest-ranked fears for most people. You may not be sure how to answer the questions you may be asked. You may not be sure how to assert your rights if an investigation occurs. The truth is, not knowing what to do when you are pulled over by the police can trigger many psychological as well as physiological responses.

When a person is under stress, the body instinctively switches to a “fight or flight” response . Stress hormones adrenaline and cortisol flood the body, causing us to experience these common symptoms of stress. Our heart rates increase, palms begin to sweat, and senses heighten. Biologically, the body is preparing itself to avoid potential harms. The threat of being arrested or investigated can potentially harm our livelihoods.
Your brain functions differently under stress. While it can sometimes heighten awareness and thoughts, severely experienced stressors can negatively affect your thoughts and performances . Think of potential situations where stress can build, for example, after a long day at work or an argument with a significant other. Chronic stress is very prevalent in today’s society . The body will suffer in a prolonged state of the “fight or flight” response, as health professionals will attest to. Heart disease, trouble sleeping, digestion problems, and an impaired memory are examples of the serious effects stress can have. The effects of an acute stressful episode can be just as debilitating.

Portions of the brain responsible for memory, thought, and the ability to focus are seriously afflicted when periods of chronic or acute stress and anxiety are experienced. These symptoms are especially relevant if asked to perform Standard Field Sobriety Tests (SFST’s). The results of these tests can potentially affect your future: Depending on the magnitude and length of stress experienced, your performance on these tests can decrease with increased stress. Stress will take your mind off in many directions, and the SFST’s are specifically designed/administered to test your ability to perform “divided-attention” tasks.

The scientific reliability of these tests can also change depending on a person’s health and age. NHTSA, the agency responsible for creating the SFST’s, stated that these tests should require the person to be healthy, within a reasonable age range, and not injured . Often times, these distinctions are not made by officers who fail to read the fine print, and SFST’s are administered in violation of these guidelines. This can lead to invalid scientific conclusions about your performance on the SFST’s, which may result in an unlawful DUI arrest.
In summary, the acute stress of a DUI stop can trigger numerous psychological, as well as physiological, responses. These stress related responses, in addition to other non-alcohol related ones, can lead an officer to grade you poorly in the “divided-attention” tasks, which are relied upon heavily to provide grounds for a lawful arrest. If valid legal grounds do not exist for a DUI arrest, evidence seized thereon is subject to dismissal. This is just one of the many areas a trained DUI attorney should explore when fully
reviewing a DUI case.

If you have any questions about the blog, or would like more information on DUI law in general, I hope you won’t hesitate to contact me.

Thanks, and enjoy the blog!