April 24, 2015 by Lawrence Koplow
Filed under Aggavated DUI, Arizona DUI Laws, Arizona DUI News, Arizona Felony DUI, Arizona Vehicular Assault, Arizona Vehicular Manslaughter, Bernstein, Blood Alcohol Testing, cases, Chemical Testing, dismissed., DUI, DUI Defenses, DUI Trials, Extreme DUI, Forensic Science, Herman, In, Lab, Lawyer, Re, Scottsdale, state, Super Extreme DUI, v.
The highly anticipated Arizona Supreme Court opinion regarding the Scottsdale Crime Lab scandal was issued yesterday. In a very Solomon like decision, the Court granted both sides some relief.
The decision contains a lot of legal nuance requiring explanation. Here is a summary and a few thoughts:
Admissible Is Not The Same As Reliable
While the Court decided the blood alcohol measurements are admissible - they did not hold they are reliable. There is a big difference. As a matter of fact, the Court expressed its concerns with the Scottsdale Crime Lab's "shaky" evidence.
The Court merely held the prosecution may present the blood alcohol measurements to a jury and argue they are reliable. The jury will make the final decision.
This standard is similar to a finding there was probable cause for a person's case to proceed to trial. However, at trial, the same evidence will now need to exceed a much higher threshold - beyond reasonable doubt.
What Effect Did Yesterday's Decision Have On The Lower Courts' Rulings?
There were two lower court rulings: (1) the trial court's ruling suppressing the evidence; and (2) the Court of Appeals ruling reversing.
April 22, 2015 by Lawrence Koplow
Filed under Arizona DUI Laws, Arizona DUI News, Arizona Felony DUI, Arizona Vehicular Assault, Arizona Vehicular Manslaughter, Attorneys, Blood Alcohol Testing, Chemical Testing, Daubert, DUI, Extreme DUI, Forensic, Lab, Lawyer, Lawyers, Litigation, National DUI News, Science, Scottsdale, Super Extreme DUI
Tomorrow around 10:00 a.m. the Arizona Supreme Court will issue its decision regarding the Scottsdale Crime Lab. Here are some of the new stories about the case of STATE v HON. BERNSTEIN/HERMAN:
- Judge finds problems with Scottsdale Crime Lab, tosses evidence in DUI cases - Channel 3 news & Azfamily.com
I will provide a summary of the Supreme Court's opinion following its release.
November 11, 2014 by Lawrence Koplow
Filed under Aggavated DUI, Aggravated, Alcohol, Arizona DUI Laws, Blood, Chemical Testing, DUI, DUI Defenses, DUI Trials, Extreme DUI, Felony, Forensic, Manslaughter., My Thoughts, Phoenix, Science, Scottsdale, Super Extreme DUI, Testing., Vehicular
If you are making a decision based upon a measurement, then you have two choices.
One, you can simply accept any number a machine produces as true; or
Two, you can ask “how did you get that number?”
The choice you make should be based upon how important the decision is that you’re basing the measurement upon. If you just want to know how hot it is outside, a twenty-year-old thermometer, combined with stepping outside will probably do. However, if the measurement is critical to an important outcome, then you need to ask, and answer, the question how did you get the number?
A critical measurement is a measurement where, the result of an important analysis, is dependent upon the measurement. A measurement is critical if an incorrect measurement could place people in danger. If a scientist measured the wrong amount of a drug when making a pill, then it could harm someone – that is a critical measurement.
If a lab employee measures the wrong amount of alcohol in your system in a DUI case, then it could result in an unwarranted prison sentence – that is also a critical measurement.
May 13, 2014 by Lawrence Koplow
Filed under Aggavated DUI, Amendment, Arizona DUI Laws, Blood, Chemical Testing, Constitutional, Draws, DUI, DUI Arrests, Extreme DUI, Felony, for, Fourth, McNeely., Missouri, Phoenix, Protections, Requirement, Rights, Scottsdale, Super Extreme DUI, v., Vehicular Assault, Warrant, Warrantless
After the Supreme Court decided the case of Missouri v. McNeely, the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least. On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement.
The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant (i.e. probable cause presented to a judge who issues a warrant). The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases. Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound. As the U.S. Supreme Court stated in their rejection of such a per se rule in DUI cases:
But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed 153 (1948).
Missouri v. McNeely, 133 S.Ct. at 1555 (2013).
September 17, 2013 by Lawrence Koplow
Filed under Aggavated DUI, Alcohol, Arizona DUI Laws, Blood, Breath Testing, DUI, DUI Defenses, DUI Trials, Felony, Forensic, Phoenix, Science, Scottsdale, Super Extreme DUI, Testing.
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence. The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement.
A complete measurement includes more than just a reported result. As a matter of fact, simply providing a reported result is often misleading. A reported result is only complete when accompanied by a “statement of its uncertainty.” See NIST Technical Note 1297, 1994 Edition. No measurement is perfect. The result of any measurement is only an estimation of its value. A “statement of uncertainty” is the range of doubt that exists regarding a measurement.
A complete test result, must also include:
- a “Range of Uncertainty” and;
- a “Confidence Interval.”
To illustrate, let’s assume that a blood test result was .100. Let’s also assume, based on a review of the machine’s prior performance, a “range of uncertainty” was determined to be ± 5%, with a “confidence interval” of 100%. This means, the reported result could be as low as a .095 and as high as a .105. Moreover, this also means, if the same blood sample were repeatedly tested on this equipment, the result would only be outside of the ± 5% range 1 out of a million times. If this statistic were true, this would certainty be a reported result that you could trust.
On the other hand, what if for the same reported result of .100 the range was ± 30%, with a confidence interval of 50%? Here, this means the reported result could be as low as .070 or as high as .130. Furthermore, if you continued to test this sample on the same equipment, 300,000 times of out of a million, the reported result would be outside the range stated above.
When comparing the two complete test results, you can see that providing a mere reported result does not tell us the whole story. Merely telling us the reported result can actually tell us a very misleading story. Science will not accept incomplete measurements. Why should the law?
In July of 2012, I asked a member of the Scottsdale Crime Lab for an interview about some rumors. She refused and told me to get a court order. At that time I was surprised. Why would she refuse to do a routine interview? Today we know the answer.
Today we now know that: (1) the Scottsdale Crime Lab’s blood testing equipment is unreliable; and (2) the testimony of the crime lab personnel is not trustworthy. Don’t take my word for it – just read the court’s opinion by clicking here.
The truth of the matter is we don’t really know. Most labs in the Phoenix Arizona area claim to be accurate within 5%. That means if your blood result came back at .08, then the true result can be anywhere from 5% lower or 5% higher.
Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.
After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.
To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.
Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.
As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.
In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.
Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.
Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.
As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.
Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.
For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.
In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.
However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.
On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:
Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).
We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.
In sum, there is nothing “obvious” about Arizona DUI laws.
Arizona is one of a few states that has created something referred to as "Super Extreme DUI." A DUI is "Super Extreme" if a person's blood alcohol concentration is .200 or above. While this crime is still a misdemeanor, it carries a minimum jail term that is greater than most first time felonies. There are several characteristics of this crime that make it unique. Here are the five most important:
1. An extended period of an Ignition Interlock Device. All Arizona DUI convictions require a person to install and maintain an ignition interlock device. For a first time regular DUI, the minimum period is one year. A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)
2. Extended jail period. For a regular DUI conviction, there is a minimum jail term of 1 day. For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days. For an Arizona Super Extreme DUI, the minimum jail term is 45 days.
3. A better chance of getting your name in lights. The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders. While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")
4. Out of state offenders will probably go to trial. If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer. Many prosecuting offices offer long periods of jail for these cases. It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost. For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention. However, out of state offenders may not have these options. While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them. Finding a jail in someone's home state for a few days can usually be accomplished. When it comes to jail terms of 30 to 45 days, it is nearly impossible. Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation. If successful, on that count alone, the minimum jail can be significantly reduced. Thus, trial is often times the best option in these cases.
5. Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI." While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible. There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations? Moreover, there are many other factors that may affect the outcome of the case. The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.
In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies.