Going From 3? Years in Prison to Probation

I was working with a client who was facing a very serious felony charge that carried a mandatory five (5) year presumptive term in prison. When he first came into my office he asked the obvious question: What can you do for me?  This is the same question many prospective clients want answered.  Moreover, it is an appropriate question.

I always answer this question the same way: “I don’t know.” This is the only truthful answer that an attorney can give on the first day of a case. I use the following analogy to explain why I give this answer. You go to the doctor and ask him "can you cure me"? The doctor will tell you: “I need to do some tests first.” The same it true for a criminal case.  If an attorney tells you how your case will turn out on the first day, I advise that you run out of the office as fast as you can. Common sense tells you that such promises made on day one of a case are baseless.

I explained to the client how I would handle his case.  I also communicated to him my experience and my strategy to fighting criminal charges.  He retained me and I went to work on the case.

The prosecutor made it very obvious that she wanted my client to serve a long term of incarceration. She made us a three and a half (3½) year plea offer which I thought was unreasonable give the circumstances.  As the case went on, my client’s resolve started to weaken. He was considering taking the plea. I told him it was his decision, but I did not recommend taking the plea. While I advised him to seriously consider the plea before making a decision, I did not see the plea having a great benefit based on several weaknesses in the State’s case.

Soon after this conversation, we found the evidence we needed to really solidify our defense.  We found it during the interview of the primary law enforcement officer. The officer was not happy that our interview had lasted for such a long time. Nor did the prosecutor understand why we were asking so many questions. Clearly the prosecutor was agitated that this interview was taking longer than "normal."  However, towards the end of the interview my investigator noticed a one page written statement in the officer’s file. We inquired what it was. We were told it was not important. We demanded it and we got it. It changed the whole case. It was a statement by a witness regarding the description of the person who committed the crime. The description was not even close to my client.

The prosecutor now understood why we sometimes take so long at these interviews. We still, however, had problems with the case (i.e. while the witness description did not match my client, there was still the problem of the video tape showing a person who strongly resembled my client.)

At a settlement conference we negotiated a new plea agreement: probation.  The plea also required a term of jail to be determined by the judge (the plea stipulated that the amount of jail would to be limited from a minimum of one day to a maximum of one year.)

The prosecutor recommended a one year term of jail. After hearing our arguments, the judge sentenced my client to probation with two months of jail.  Moreover, my client was eventually allowed work furlough (released for a portion of his incarceration to work).

There was no way I could have predicted to my client, on the first day of the case, that he would be sentenced to probation and only serve two months of jail.  All I could tell him was how I would handle the case, not how it would turn out.  

Everyone’s Blood is Not the Same

Law enforcement’s primary method for determining if a person is driving under the influence of alcohol is a chemical test.  That is, a police officer will take a sample of a susect’s blood  or breath.  The chemical test assumes that the composition of everyone’s blood is the same.  Specifically, the test assumes that all people have the same hematocrit level.  However, this assumption is incorrect.

The hematocrit level, or packed cell volume, is a measure of the proportion of blood volume that is composed by solids.   Whole blood is composed of solid particles in liquid.  the solid portion of whole blood contains: (1) white blood cells; (2) red blood cells; and (3) platelets.  The liquid portion of the blood is known as plasma. 

In this manner, if a man has a hematocrit level of  .51, then his whole blood consists of 51% solids and 49% liquids (plasma).  This solid to liquid ratio will effect the outcome of a blood alcohol concentration test.  The reason is the liquid portion of the whole blood, the plasma, contains water.   Alcohol is more susceptible of being dissolved in water than is the solid portion.  Consequently, the liquid portion of the whole blood will have a higher concentration of alcohol than the solid portion.

Stated another way, the higher the hematocrit level (thus the less liquid) in the blood, the greater the concentration of alcohol in the liquid portion of the blood.  Ultimately this means several people with the same amount of alcohol in their body, but different hematocrit levels, will have different test results. 

Men and women have different average hematocrit levels.  A normal hematocrit for a man is 45 (plus or minus 7%). Women have a normal hematocrit level of 42 (plus or minus 5%).  There are numerous other factors that can effect a hematocrit level.  However, a person’s hematocrit is not proportional to body size. 

Hematocrit ranges primarily effect breath alcohol testing. This is because in blood testing the blood is mixed with an internal standard (such as N-Propranol which has similar structure to Ethanol, but has a different number of carbons).  In sum, varying hematocrit levels expand the range of accuracy in blood alcohol concentration testing.  This expanded range of accuracy can be a valuable defense for a person accused of driving under the influence alcohol (DUI).