Exhibit A: Voo Doo
by Manwhore
Ahh, there is nothing so refreshing as being right. I’ve blogged about the unconstitutional abuses in DUI cases, and how the court is willing to hear almost anyone of them in a brazen disrespect for the legality of the cases. Well, it looks like the tables might have begun to turn. Arizona judge dismisses ‘magic wand’ prosecution.
TUCSON - A judge in Tucson has tossed out alcohol breath tests in 49 DUI cases and a defense attorney says the ruling could have widespread implications.
City Court Judge Thomas Berning’s ruling says the breath tests are inadmissible because the company that makes the machine hasn’t made its inner workings available to the defense.
James Nesci, one of the defense attorneys involved in the cases, says there are 50 to 70 pending cases before other judges that were waiting for Berning’s ruling.
The ruling doesn’t dismiss the cases entirely, just the breath tests.
The Tucson Citizen reports on its Web site that the ruling also could potentially affect every alcohol breath test conducted in the state since Dec. 1, 2006. That’s when Arizona adopted the Intoxilizer 8000 machine made by CMI.
You bet your sweet ass this has broad sweeping implications. The reason why this is huge you can thank MADD for. MADD has spent the better part of decades increasing the crime of DUI so that is has basically become a felony. Whether this is right or wrong, is an argument to be had until the cows come home. What is worth arguing is the way in which the state mounts their case. 90 percent of the states case resides on the BAC count you received from your case. Since the conviction rate and the determination of your punishment rest squarely on the BAC, it’s only a matter of time until the determination of the BAC is drawn into question.
Also, since the crimes are no laughing matter anymore, the way in which the case against you is gathered is worthy of debate. For the most part, judges ignore this plea, and side with the officer and the findings with no scrutiny. The reason for this is that Cops are bulletproof character witnesses, and the BAC coupled with the officer testimony is sufficient enough for the judge to render a ruling. Since DUI’s carry about a 98 percent conviction rate, you can see that the government is in no mood to hear a real case. One can appeal for a jury trial, but the DA has only to select a jury of grannies (the only ones who would sit through a jury trial) and their opinions are pretty easy to predict.
What this ruling says, is that there will be cases re-opened in droves, probably starting with the people convicted by this very machine. A DUI is a life long stigma, and to the average Joe worth taking to the mat for a repeat. I doubt if the convicted will be able to get thier money back, but compared to the punishment relieving the stigma would probably make it worth the trouble. This also is one of the many deathblows dealt to MADD and her draconian lobbying.
If I had to put mysel fin the judges position, he has a decision to make. This is a serious crime (remember folks, we asked for this crime to carry this much weight as a deterrent), and someone needs to start looking at hard evidence. In the state of California, there are mandatory minimums for the crime, and if we send people upriver for it, we had better know it was true. I think that’s all any defense attorney has ever asked for.
Think about it like this. If the crime were as serious as murder we would question the evidence in detail. Since this crime is now comparable to manslaughter, the state needs to have her ducks in a row before they proceed. Telling the court that you have a voo doo machine, magic eightball, or fortune teller’s testimony should be dismissed and that’s precisely what the state is usually doing.
Comments
been there done that, thanks Manwhore.
WVR, lie detectors are inadmissable as evidence in every jurisdiction in the US, as far as I know.
One of the changes of heart I’ve had since I joined in here is my views on MADD. I used to be a fan; debating with people here has convinced me that MADD was a good idea, with good contributions, 20+ years ago, but that they’ve outlived their usefulness to the point of radicalism. Kind of a shame.
I don’t agree with criminalizing DUI. DUI should have major civil consequences - losing your license can be a massive consequence in our commuter world.
However, if you injure or kill someone while DUI, it should be treated as assault with a deadly weapon or homicide, etc. One of the good things MADD did was to get people to stop trivializing DUI - you could be convicted on involuntary manslaughter for killing someone with a broken bat at a ball game, but get a slap on the wrist for killing someone driving drunk. THAT has changed, and that is good.
The tools need to work right, however.
The way I read this article, BTW - it’s not saying that breathalyzers are inherently bad or inadmissable. What this
the breath tests are inadmissible because the company that makes the machine hasn’t made its inner workings available to the defense
appears to be saying is that the defense has the right to challenge evidence (in this case, the report of the device), and if the defense cannot challenge the evidence, the evidence cannot be used. It would appear that if the workings of the device were made available, it would be admissable (and challengeable).
So it will be interesting to see how broad the ramifications of this ruling turn out to be.
One of the changes of heart I’ve had since I joined in here is my views on MADD.
Now, Dwex. Strike your father down and your journey to the dark side will be complete!
It was only a matter of time.
Breathalyzer calibrations are bunk - that much was revealed a year ago when one company released some of their software code. The assumptions made by the manufacturer about the composition of the air in a random environment are just stupid.
Don’t even get me started on “lie detectors"…
I don’t agree with criminalizing DUI
There is no moral difference between driving while drunk and standing next to a busy road and randomly shooting at cars that go by. Driving drunk is something people willfully do, and it kills thousands of innocent people each year.
Drunk drivers need to be executed each Saturday morning in a public square…
Now, Dwex. Strike your father down and your journey to the dark side will be complete!
It was only a matter of time.
See, the difference between me and many here (and in the world in general) is that I actually take and process new information, and sometimes that new information changes my opinions. Idealogy only goes so far.
This particular change of heart is somewhat surpising, given that I had a friend from down the street killed by a drunk when I was 15, and all the drunk drivers, and victims of drunk drivers, I dealt with in my time as an EMT.
But the evidence is pretty incontrovertible. When even the founder of the organization says they’ve gone whackjob, something’s pretty broken.
There is no moral difference between driving while drunk and standing next to a busy road and randomly shooting at cars that go by. Driving drunk is something people willfully do, and it kills thousands of innocent people each year.
Maybe. Speeding & running red lights kill & injure more. Should speeders go to jail, for speeding? Or when their speeding actually has an impact?
I have no sympathy for the drunks; a large percent of time when they cause an accident, they don’t even get hurt, the other guy does (there’s a kinematic explanation for why that is that I won’t go into here). But there’s a slippery slope that I’m sensetive to.
And no leniency whatsoever for minors who do it; they shouldn’t be drinking in the first place.
Where as I agree with you that MADD has gotten a bit more radical lately. The problem I have with you argument is that the THING that killed my brother had 7.... YES 7 priors and had his license taken away. This DID not stop him from driving 75 MPH down the WRONG side of the road and smashing into my brother. IMHO, if you are caught driving under the influence, you should spend TONS of time away from the public.... PMITA prison is too good for this version of scum.
Sorry if I sound bitter about this. But loosing a family member because somebody shouldn’t have been driving because it drank too much is a good way to make a person bitter.
appears to be saying is that the defense has the right to challenge evidence (in this case, the report of the device), and if the defense cannot challenge the evidence, the evidence cannot be used. It would appear that if the workings of the device were made available, it would be admissable (and challengeable).
dwex, the minute that this company has to turn over how this machine works is the day that the legal world is turned upside down.
Notice the defense attorney said the decision would be “far reaching” meaning turning over these cases because the company won’t explain how the machine works is the tip of the iceberg. The minute that this company has to prove the machine actually works with any degree of accuracy is when the real fun begins. These machines don’t really work/and or aren’t accurate but is the lionshare of the evidence the state uses to assess punishment.
If oyu remove even the degree of accuracy of this machine there will be a tidal wave of backlash.
dwex, the minute that this company has to turn over how this machine works is the day that the legal world is turned upside down...If you remove even the degree of accuracy of this machine there will be a tidal wave of backlash.
As well there should be. Random checkpoints, low threshold levels (sorry FPrefect, but it’s true) and outmoded field sobriety tests (seriously, can you say the alphabet backwards sober? I can’t) are all bad enough. Throw a machine of questionable accuracy into the mix and you’ve got the perfect cocktail (if you’ll pardon the pun) of too much circumstantial evidence and not enough hard proof.
Let’s not forget that even without the breathalyzer, a good majority of these cases will still be ruled in favor of the State due to the court case being the cops word vs. that of the Defendant…
Let’s not forget that even without the breathalyzer, a good majority of these cases will still be ruled in favor of the State due to the court case being the cops word vs. that of the Defendant…
that’s why although what happened to FPrefect is tragic, I don’t think that there is any real cause for alarm.
However, that said , the judge didn’t say he wouldn’t hear the cases, and I’m interested to see how much the rest of the cases hold due to regular police work. Cops are usually sloppy in general, even more so in a case when you literally walk in with one piece of evidence.
I thought we had had this debate in the past manwhore. For the life of me I don’t understand why you take the positions you do on this issue. I suspect that you have several DUI arrests in your past and you are bitter about the way this law is enforced. At the risk of incurring the wrath of “thrillwhore” (since I’m usually on your side, you guys will be gentle, I’m sure) allow me to try yet again to correct you in some gross factual errors you have made.
City Court Judge Thomas Berning’s ruling says the breath tests are inadmissible because the company that makes the machine hasn’t made its inner workings available to the defense.
My complaints on these stories you guys normally post is that they give incomplete information. I don’t know what “inner workings available” mean. Any bozo can get a manuel of this particular breath machine, it is not like a nuclear bomb, it is a patented device sold by the maufacturer and anybody defense attorney can get manuel so the inner working is no secret. Maybe they are talking about how the machine is calibrated. Each state has laws governing the methods and frequency of the brasth machine’s calibrated, if this is not adhered to, then all the times the machine was used between the two intervals, those cases are suspect. This is nothing new, I remember reading about this 20 years ago. And its only that machine that is suspect. In L.A. county I would bet there are probably 50 different machines in different areas.
You bet your sweet ass this has broad sweeping implications.
No implications here other than an incomplete story. If properly calibrated these machines are accurate beyond 3 decimel points, their use has been upheld in every court in the land. Nothing revilutionary is happening here.
90 percent of the states case resides on the BAC count you received from your case. Since the conviction rate and the determination of your punishment rest squarely on the BAC, it’s only a matter of time until the determination of the BAC is drawn into question.
We have had this discussion in the past as well. The case is based on several factors, bad driving (probable cause for the stop), physical symptoms of intoxication as exhibited by the officer, and performance of the field sobriety tests.
Since DUI’s carry about a 98 percent conviction rate,
I would like to see the link where you got this stat.
you can see that the government is in no mood to hear a real case.
The government hear’s real cases all the time. Sometimes the suspect does not take a chemical test, you still have to try those cases, sometimes they involve an accident involving injury or death and the suspect has a low (.08%) BAC level, you have to try those cases as well.
. For the most part, judges ignore this plea,
Please show me a case, any case, where a sitting judge ignored a plea from a suspect.
The reason for this is that Cops are bulletproof character witnesses, and the BAC coupled with the officer testimony is sufficient enough for the judge to render a ruling.
This sentence is just silly. The trier of fact (either the judge or a jury) is supposed to render a ruling depending on the evidence in the case. If the facts point to a acquital then so be it, besides, most DUI cases are tried by juries anyway.
but the DA has only to select a jury of grannies (the only ones who would sit through a jury trial) and their opinions are pretty easy to predict.
The jury is not picked by just the D.A., the defense attorney has equal say on who gets picked on his jury.
In the state of California, there are mandatory minimums for the crime, and if we send people upriver for it, we had better know it was true. I think that’s all any defense attorney has ever asked for.
There are manditory minimums for DUI in every state, as is the burden of proof and the requirments of guilt beyond a reasonable doubt, society demands a fair shake for everybody.
Telling the court that you have a voo doo machine, magic eightball, or fortune teller’s testimony should be dismissed and that’s precisely what the state is usually doing.
All ridiculous and unfair comparisons. When calibrated properly (and there are laws governing this with strict penalties if not adhered to) breath machines are very accurate. If you have any doubts then take one of the other chemical tests afforded to you.
You get the benefit of the doubt with me on this, still suffering from LDSD (Lebron Defeat Stress Disorder) :)
MADD has spent the better part of decades increasing the crime of DUI so that is has basically become a felony. Whether this is right or wrong, is an argument to be had until the cows come home. What is worth arguing is the way in which the state mounts their case.
Very well put, manwhore
dwex, the minute that this company has to turn over how this machine works is the day that the legal world is turned upside down.
Where do you get the idea that the breath machine is like a nuclear device? I addressed this above. I have been to trial where defense attorneys have thew actual manual of the breath machine with him. Most defense attoney’s worth their salt know more about those machines than the officers (these technical questions are usally reserved for the county technician, the guys whos job it is to calibrate the machine).
I thought we had had this debate in the past manwhore. For the life of me I don’t understand why you take the positions you do on this issue. I suspect that you have several DUI arrests in your past and you are bitter about the way this law is enforced
I don’t have any DUIs. i have had a few close calls, though. I bring this up as a discussion of what is fair. BTW, your inner cop shows up here and there, with some accusations there. :)
My complaints on these stories you guys normally post is that they give incomplete information. I don’t know what “inner workings available” mean. Any bozo can get a manuel of this particular breath machine, it is not like a nuclear bomb, it is a patented device sold by the maufacturer and anybody defense attorney can get manuel so the inner working is no secret. Maybe they are talking about how the machine is calibrated. Each state has laws governing the methods and frequency of the brasth machine’s calibrated, if this is not adhered to, then all the times the machine was used between the two intervals, those cases are suspect. This is nothing new, I remember reading about this 20 years ago. And its only that machine that is suspect. In L.A. county I would bet there are probably 50 different machines in different areas.
Well, okay, I can question the article or question why the defense attorney couldn’t ask and recieve discovery on a breathalyzer. Like oyu said, there isn’t much to it. It should be on hand for the defense attorney to review.
the fact that in 49 instances the state could not, is alarming to say the least. Again, if true.
No implications here other than an incomplete story. If properly calibrated these machines are accurate beyond 3 decimel points, their use has been upheld in every court in the land. Nothing revilutionary is happening here.
We’ll see about that, won’t we? I don’t have your black and white trust of this machine. I feel that the manufacturer refuses discovery because the machine isn’t accurate.
This sentence is just silly. The trier of fact (either the judge or a jury) is supposed to render a ruling depending on the evidence in the case. If the facts point to a acquital then so be it, besides, most DUI cases are tried by juries anyway.
Whay is it silly? If I show up in court, and tell the judge I wasn’t drunk and you, Officer Taylor shows up and says I was, who would the judge side with? Me, the unknown, or you the cop?
Besides, you of all people know that a cop’s testimony is worth more than any perps.
The jury is not picked by just the D.A., the defense attorney has equal say on who gets picked on his jury.
Many (like a buddy of mine who’s practicing this type of law-hence my interest on the topic-you saw his website) defense attorneys will advise against a jury trial for the reasons I mentioned in the article.
It would be kinda like having you show up for a jury trial.
There are manditory minimums for DUI in every state, as is the burden of proof and the requirments of guilt beyond a reasonable doubt, society demands a fair shake for everybody.
No it doesn’t. Society demands a fair shake for anyone who has the ability to pay for an attorney. Hence, Lindsay Lohan’s sentence of zilch for her 2nd DUI/with felony smuggling of illegal substance into police station/and felony DUI involving car accident, and a common California resident who probably got 3 years for the same crime.
Hardly, a “fair” shake.
All ridiculous and unfair comparisons. When calibrated properly (and there are laws governing this with strict penalties if not adhered to) breath machines are very accurate. If you have any doubts then take one of the other chemical tests afforded to you.
this will be a fun excersize. Point out to me anywhere in any state where these “stiff” penalties were prosecuted to the fullest. I’d love to see the golden egg case of foul play in the police department foiled by a narc on the force here.
You get the benefit of the doubt with me on this, still suffering from LDSD (Lebron Defeat Stress Disorder) :)
Your panties will be tightened around game three with SA in this series. :)
DUI laws are never enforced - you get caught driving drunk, you get a fine, a day or two in jail, and sent to AA meetings. In the meantime you can keep driving drunk all you want - license & insurance not needed.
A friend of mine is a judge - she commonly sees people coming in for their 15+ DUI charge. Most times they are drunk when they show up in court. She says that she can’t do a damned thing. The jails don’t want them as they are already filled up, and the massive revenue generating machine in place to “treat” drunk drivers is too strong to effectively fight. America’s courts are a revolving door for DUI.
A friend of mine is a judge - she commonly sees people coming in for their 15+ DUI charge. Most times they are drunk when they show up in court. She says that she can’t do a damned thing. The jails don’t want them as they are already filled up, and the massive revenue generating machine in place to “treat” drunk drivers is too strong to effectively fight. America’s courts are a revolving door for DUI.
I agree with you for the most part. My position on it, is it’s either a major crime or it is not. If it’s a real crime (like murder) put people in “real” jail for it. If the court is going to use it as a way to put it’s hand in the honey pot, then they need to own up to the crime for what it is. A big ticket, and leave it at that.
BTW, your inner cop shows up here and there, with some accusations there. :)
We have discussed this as well. There are many laws on the books that are either reaching or unnessecary in my mind so I am not that committed to them. DUI laws are different. I have seen the harm and carnage over the years that can result from this offense. I am by nature a fairly sympathetic and compassionate guy but DUI drivers get none from me.
the fact that in 49 instances the state could not, is alarming to say the least. Again, if true.
I would bet that the breath machine at the West Hollywood County Jail gets used more than 49 times a night, and thats just one machine. I’m betting this whole story you postes has something to do with calibration errors which by law mandidates that the cases involving that machine must be thrown out, I have no problem with that.
I feel that the manufacturer refuses discovery because the machine isn’t accurate.
Again, the manufacturer is not hiding anything. If you think about it, our whole system of jurisprudence is based on fair play, hence rules on discovery. The scales are shifted towards the defense, hense the burden of proof is with the people. Does it honestly make sense to you that the defense attorney would be deprived of anything that would inhibit his ability to defend his client? Thats why we don’t use “rock,paper,scissos” for trials, evidence is needed for convictions.
If I show up in court, and tell the judge I wasn’t drunk and you, Officer Taylor shows up and says I was, who would the judge side with? Me, the unknown, or you the cop?
Gee, wouldn’t it be nice if that was how it worked, why have trails at all? All the trials would take 2 minutes and save the taxpayers a boatload of cash. Nobody takes anybody’s word for it, thats why we have trails, thats why evidence and testimony and procedural rules, and jury intructions, and cross examinations under oath, and all that.
Many (like a buddy of mine who’s practicing this type of law-hence my interest on the topic-you saw his website) defense attorneys will advise against a jury trial for the reasons I mentioned in the article.
Can you refresh my memory and give me wome reasons why anybody would not want a jury trail. To be honest, in probably the over 1000 trials that I have been a part of, i can’t remember any of them being a DUI trial with a judge as trier of fact.
Society demands a fair shake for anyone who has the ability to pay for an attorney. Hence, Lindsay Lohan’s sentence of zilch for her 2nd DUI/with felony smuggling of illegal substance into police station/and felony DUI involving car accident, and a common California resident who probably got 3 years for the same crime.
Lets not confuse the trial with the sentencing, two different animals. I will agree that the ability to pay does garner more firepower for the defense team, but in your Lowhan exapmple, its not like she got off and walked. Going back to the Snipes thread, Lowhan should get the exact same sentence that Joe Blow the janitor should get, if all the facts of the case are the same.
this will be a fun excersize. Point out to me anywhere in any state where these “stiff” penalties were prosecuted to the fullest. I’d love to see the golden egg case of foul play in the police department foiled by a narc on the force here.
I’m sorry, I did not understand your question.
Your panties will be tightened around game three with SA in this series. :)
I expect tight panties for the entire series.
New laws on bicycle riding are just coming into effect here (riding while drunk, riding with your ipod on while texting etc). Fair enough on those points. However… my favorite one is the clampdown on ‘excessive bell ringing’.
It’s obviously a nasty, dangerous behavior that deserves to go the way of the dinosaur. Thank god I am now safe. Those old guys were really hittin’ those bells.
And no, I’m not making this up.
the clampdown on ‘excessive bell ringing’.
lol. When we went to Israel when I was a kid, for my cousin’s wedding, our tour guide told us the steering wheel was the 2nd-most used part of a car - the first being the horn.
I would bet that the breath machine at the West Hollywood County Jail gets used more than 49 times a night, and thats just one machine. I’m betting this whole story you postes has something to do with calibration errors which by law mandidates that the cases involving that machine must be thrown out, I have no problem with that.
Doubtful. I feel the article would’ve made such an accusation clear in the text. What the court is specifically asking for is the composition of the “inner workings” of the machine. This doesn’t appear to be a case of the PD withholding calibration information from the courts.
I highly doubt that cops leave the station for the night with tier breathalyzer without calibrating it. There was a culture of fighting speeding tickets along these lines for a little while too.
I hate to be a thorn in your side about it, but I do know a little bit because these kinds of frivilious shakedowns stick in my craw. As it pertains to speeding tickets, to the best of my knowledge runs along the same lines as a DUI in so much as the weight of the state’s evidence against you is the determination of your speed by a radar device.
Point it out to me where I get it wrong, but police set a speed trap by first surveying the stretch of road they will use thier speedgun on. they then set the radar device to capture what is called a “target envelope” where the radar is at it’s most accurate. This can be an expanse of land upwwards of 100 feet. In this envelope the machine registers an audible signal to denote the speeds at which you are travelling. It also registers an estimate of that speed. the audible part is to gain the officers attention based on an average audible note to create the median.
To prosecute the ticket the police officer will re-create this diagram in court and use the radar evidence to secure a conviction. Again, the radar is the key piece of evidence, and the tuning fork calibration of the machine should be done before the machine is used. There might have been a time when a cop could be lazy and not use it, but those times are gone now that it’s pretty much sporting for this crime to be enforced.
This is much the same in a DUI case. the calibration of the machine is probably the first thing the state will establish because it makes the rest of the case a cake walk. With a conviction rate of around 98 percent for this crime, I highly doubt that the judges will throw the cse out for this small error. Many defense attorneys also try to attack the procedure of gathering the median BAC. There should be three attempts, all withing the period of an hour. Cops usually do three tests, but disregard the rpocedure of when to administer the tests, and will enter the highest count regardless of the median gathered. For example if you blew .10, .12, and .15 in succetion, your BAC entered into the books will be .15 according to the police. this is not fair, by any stretch of the imagination, but again this really is the fault of the courts because they often allow it.
I really don’t believe that the calibration of the machine ruled out the use of the breathalyze 49 times in a row. to add to my counter argument (and to poke a hole in yours)
I would bet that the breath machine at the West Hollywood County Jail gets used more than 49 times a night, and thats just one machine. I’m betting this whole story you postes has something to do with calibration errors which by law mandidates that the cases involving that machine must be thrown out, I have no problem with that.
is rank BS. Yes, that machine probably gets more uses in one evening, and a broad range of BACs. More than enough of a sample to determine if the machine displays an average. What the judge wants the manufacturer to do is display how this machine actually works. I don’t really think that’s open for debate. The judge is asking for the manufacturer to validate the DA’s request for discovery of the machine’s inner workings. the fact that the manufacturer would withhold such information and allow 49 cases to basically be thrown out is alarming, and probably speaks to how relaxed the standards are for these machines or prosecuting this crime in and of itself.
you can keep trying to trivialize it, but if I sign a waiver to get my license saying if I refuse a breathalyzer on demand, I will have my license suspended I’d have to believe it’s a pretty big deal to the courts what this machine’s findings will mean in a case against me. I don’t see why you would make light of the development, given your history in law and order.
Lets not confuse the trial with the sentencing, two different animals. I will agree that the ability to pay does garner more firepower for the defense team, but in your Lowhan exapmple, its not like she got off and walked. Going back to the Snipes thread, Lowhan should get the exact same sentence that Joe Blow the janitor should get, if all the facts of the case are the same.
Actually she didn’t. she promised to go to rehab in favor of what the state applies to everyone else as a “mandatory minimum” for the same crime. She should be in jail for 90 days, especially since she was involved in an accident in her second DUI. The felony of smuggling cocaine into a police station is also deserving of some jail time. There are even mandatory minimums based on her BAC for the FIRST DUI, let alone the second and compounded second with two additional felony counts.
I’m sorry, I did not understand your question.
point out to me where a cop or police station has been penalized for using a faulty or poorly calibrated breathalyzer.
I expect tight panties for the entire series.
Wager time?
I personally have a zero tolerance for DUI (and this .08 stuff doesn’t qualify). Drunk driving is a choice, and it needlessly endangers everyone else on the road. A fine for engaging in behavior that kills thousands each year is not enough, and certainly has no deterrent effect.
Tell you what - if you are DUI and you kill my wife, I will hunt your ass down and skin you alive over an anthill for your “harmless” choice.
point out to me where a cop or police station has been penalized for using a faulty or poorly calibrated breathalyzer.
Some expanation is in order. Breath machines are calibrated both internally and externally. For the officer using it, he pushes a button for internal calibration, if this is not done, it does not work and he gets no reading, this is not the issue. The external calibration is done by the county lab, a technician uses a device that replicates several BAC levels and attaches it to the breath machine, each mixture used most show the exact reading on the machine (.107% must read .107%, if not then the machine gets sent back to the manufacturer for repairs) and this external is done on a regular basis.
If the external calibration schedule is not maintained, the county lab department gets fined by the state and all cases based on the use of that machine after the last documentated calibration date gets thrown out. This very rarely happnes as I said before the last time I personally heard about it happening was several years ago.
I’m not going to get into the use of radar, we can save that for another thread (besides, I was never a big user of radar and have seen some dupious use of it by city cops)but you are wrong about some correlations you made.
This is much the same in a DUI case. the calibration of the machine is probably the first thing the state will establish because it makes the rest of the case a cake walk.
In a DUI case other considerations are made (the bad driving, physical symptoms, FST’s) before he is even arrested. Once arrested he then gets taken to the station for a chemical test. If the results of the breath test are under the legal limit, then sufficcient apologies are made and he gets taken back to his car with no charges filed, yes this does happen, trust me.
Your 3 test theory is not correct, not sure where you got that. The breath machines are designed to gather 2 breath samples, both must be within .02% of each other. If for some reason (suspect stops blowing or gives irractic breaths) and the second samples does not come back within .02% of the first, then the machine automatically takes a third sample. All 3 samples are printed on the print out that must be attached to the arrest report (they don’t get to pick which result they like the best).
you can keep trying to trivialize it, but if I sign a waiver to get my license saying if I refuse a breathalyzer on demand, I will have my license suspended I’d have to believe it’s a pretty big deal to the courts what this machine’s findings will mean in a case against me. I don’t see why you would make light of the development, given your history in law and order
I’m not making light of or trivializing anything. I’m trying to show you what the law requires and how you are making allegations that are not factual. You do not lose your license for not taking a breathalyer, you lose it for not taking a chemical test (if you don’t trust the breath test, take a blood test instead, problem solved). Of course I think its a big deal to be convicted only on substantiated rock solid evidence, hence my post above about fair play. It is not a state secret how breath machines work, manuals are available, most defense attorney’s are experts on the working order of these machines, thats why the lab technician is always called to the stand on DUI trials to provide proof the the machine in question was working properly.
It is not a state secret how breath machines work, manuals are available
I don’t think they’re talking about manuals, but the actual code of the soft/firm ware of this particular device. A manual isn’t proof that it works as advertised, the code shows what actually is happening.
I don’t think they’re talking about manuals, but the actual code of the soft/firm ware of this particular device. A manual isn’t proof that it works as advertised, the code shows what actually is happening.
It was this exact thing a year ago that showed that the “calibration” for these devices was a complete fraud. The little hand held devices are a joke.
So I went and looked up the Virginia statutes. It appears to be the case the the breathalyzer is allowed to be used as probable cause to make an arrest for suspected DUI, but its results are not to be used as evidence at trial, only the chemical test. Additionally, the implied consent is to the chemical test, not the breathalyzer.
Virginia definition of the use of breathalyzer Specifically paragraph E:
E. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.
I’ve often wondered if there’s a possible defence if you’ve been caught speeding with a radar gun. If you were to pull the cop’s marksmanship record, and prove that he couldn’t hit a barn door, would you be off the hook?
A manual isn’t proof that it works as advertised, the code shows what actually is happening.
Thats way each county goes to great lengths to make sure that the machine is calibrated properly using different samples are mandated by law.
So I went and looked up the Virginia statutes. It appears to be the case the the breathalyzer is allowed to be used as probable cause to make an arrest for suspected DUI, but its results are not to be used as evidence at trial, only the chemical test. Additionally, the implied consent is to the chemical test, not the breathalyzer.
Allow me to clear up some confusion. The “breathalyzer you are referring to is not a breathaylzer but a PAS device (Prelimenary Alcohol Screen), this is a fairly new device (used for about 8 to 10 years now) that is NOT a chemcial test, but is used at the scene (hand held) as one of many indicators of intoxication. you can refuse the PAS device but once arrested you cannot refuse a chemical test, not done at the scene (which the breathaylzer is one of the three). The PAS devices are calibrated much like the breathalyzer but do not hold as much evidentiary weight and not all departments have them.
OT, but wanted to bring these to Manwhore’s attention. Two articles, on opposite sides of one of our most favorite discussion topics:
Report Details Complaints Over Interrogations (the report text - PDF file, ~30MB)
Military retools detainee releases
Haven’t read any of the report yet, just the article, but the 2nd article (which was on the front page of today’s print USA Today) is a very positive article.
This case is about source codes of the Intoxilyzer 8000, and if the defense has the right to see them, and the Intoxilyzer 8000 manual. I can’t even see the manual for the 8000, only one officer in our Department has the manual, and that is the custodian/calibrator of the 8000.
The makers of the 8000 don’t want to release their machine codes because they don’t want them to be stolen by other makers.
Now my personal opinion on releasing the source codes is that
the maker of the Intoxilyzer should have to use open source codes. It is the price of doing business when someone’s freedoms are on the line.
This ruling has nothing to do with BAC which has been proven by the voodoo of “science.” It is about if the defense has the right to challenge the source code to insure the Intoxilyzer is working properly and calibrated to properly read a persons BAC.
This ruling has nothing to do with BAC which has been proven by the voodoo of “science.” It is about if the defense has the right to challenge the source code to insure the Intoxilyzer is working properly and calibrated to properly read a persons BAC.
Interesting when the blood test is actually the accurate test. I like your theory, and it sounded the best except why would a judge throw out all of those cases and damage all of the hard work the police had done, in order t get a third party contrator to cough up some code? Surely there are easier places than 49 individual cases to make this statement.
For the record this is what makes up a good DUI arrest.
Phase One- Vehicle In Motion
Vehicle in motion is to observe the vehicle in operation to note any initial cues of a possible DUI violation. At this point you must decide whether there is sufficient cause to stop the vehicle. You are not committed to arresting the suspect for DUI based on this initial observation, but rather should concentrate on gathering all evidence that may suggest impairment.
Phase Two- Personal Contact
Is to observe and interview the driver while they are still in the vehicle to note any face-to-face evidence of impairment.
Sight
Hearing
Smell
Phase Three- Pre Arrest Screening
Phase Three is to administer three scientifically valid psychophysical (field) sobriety tests.
Based on these tests and on all other evidence from phase one, and two, you must decide whether there is sufficient probable cause to arrest the driver for DUI.
This is what makes a good DUI arrest. I don’t really care about the BAC. It’s really a waste of time. I am very conservative on DUI’s and really on all arrest. I feel an officer must show a person is a danger on the roadway. I have arrested a subject on a DUI who blew a .075. If you saw the tape of how crappy of a driver she was, the contact (didn’t know what planet she was on) and FST’s you would be amazed she only blew a .075, but she was found guilty because of the top three step. I was able to prove that she was a danger on the roadway, and that really is what it should be about not a persons BAC.
I’ve often wondered if there’s a possible defence if you’ve been caught speeding with a radar gun. If you were to pull the cop’s marksmanship record, and prove that he couldn’t hit a barn door, would you be off the hook?
I don’t think so, IMO. Any case you make the judge will probably disregard. Often times you will not even be heard by an actual judge (here in Los Angeles) your case will be heard by a DA.
I think the only real case you can win is if the cop doesn’t show up as a witness. In my speeding ticket case I contested, the cop didn’t show up so the clerck called the cop to remind him to show up and sat my case out until he got there.
You can argue that the cop’s target envelope might be too wide for a busy street, or even draw into question the certainty at which the cop knew that you were the one speeding in an expanse of so many lanes of traffic in both directions over such an expanse. However, all of these arguments are based on what the judge really feels like listening to, and they’ll more often than not disregard what yo’ve said unless you have an actual attorney present. The attorney usually will just play a game of cat and mouse with the cop until he/she doesn’t show up to court.
Cops get paid overtime to show to these events, so there isn’t much incentive for them not to show up.
This is what makes a good DUI arrest. I don’t really care about the BAC. It’s really a waste of time. I am very conservative on DUI’s and really on all arrest. I feel an officer must show a person is a danger on the roadway. I have arrested a subject on a DUI who blew a .075. If you saw the tape of how crappy of a driver she was, the contact (didn’t know what planet she was on) and FST’s you would be amazed she only blew a .075, but she was found guilty because of the top three step. I was able to prove that she was a danger on the roadway, and that really is what it should be about not a persons BAC.
You’re one of the better ones, but you probably should acknowledge that your punishment resides almost squarely on the BAC, and that’s probably all the judge is looking at to determine a conviction. I know that you as an officer have an opinion about the matter, but on the court level the amount of money paid, etc. has nothing to do with any of your testimony and everything to do with the BAC count.
Interesting when the blood test is actually the accurate test.
True, in my first law enforcement job the Chief didn’t trust the Intoxilyzer and we only drew blood. In using both I prefer blood. Their is no argument about a intoxilyzer, just the evidence control of the blood.
why would a judge throw out all of those cases and damage all of the hard work the police had done/quote]
The Judge didn’t throw out the cases he threw out the Intoxilyzer results in those cases. Is the DUI case can’t stand without the BAC then it is a crappy arrest and should be thrown out.
Surely there are easier places than 49 individual cases to make this statement.No, I don’t think so a case has to start somewhere. They use the same Intoxilyzer as the entire State of Kansas. so the ruling in appeals and so on will greatly effect us and others who use the 8000.
and that’s probably all the judge is looking at to determine a conviction
Don’t even get me started on Judges. I had on Judge find a person guilty on a DUI because he was an ass and cusses at me. I told the defense to appeal the case and the stupid ruling, because cussing me was not the crime the person was charged the DUI that was the crime.
Stupid Monkey.
but on the court level the amount of money paid, etc. has nothing to do with any of your testimony and everything to do with the BAC count.
I would like to think not, but I am sure it has an effect. I would prefer no BAC and just base the arrest on the safety of the driving; because I have seen some really unsafe driving from sleepy drivers. They can kill someone also. I tried to arrest one person on reckless to prove a point, but was told hell know, because no one has ever fallen asleep and crossed over and killed someone.
*you missed a bracket on the quote-MW :)
Preview, must use, damit.
*you missed a bracket on the quote-MW :)
and a couple of typo’s it’s “no” not “Know.”
Stupid Monkey
I really wish that there were more cops like you in Los Angeles. You have a very level headed approach to the matter. FWIW, I totally agree with you across the board. You interpret the statute to start with someone doing something dangerous as a start to an investigation.
I totally agree there even in the instances of speed. Granted, DUI can cause a rapid amount of impairment quickly, but the reason why i wouldn’t do it now, is because god forbid anything happened, you introduce alcohol into the equation you will be the one at fault regardless of the incident. It’s just bad practice to be behind the wheel with any traceable amount of alcohol.
Don’t even get me started on Judges. I had on Judge find a person guilty on a DUI because he was an ass and cusses at me. I told the defense to appeal the case and the stupid ruling, because cussing me was not the crime the person was charged the DUI that was the crime.
Trust me, there are some major abuses here in LA county. Many of the judges are tucked away in little jurisdictions that are obscure to vote in, and often times once thy’re elected you’d play hell getting them out. They are not to fond of obeying the law as it pertains to them either. Swinging a gavel can have an effect on someone.
I am a dying breed. I could vent on the new law enforcement crap all night, but I must feed my starving children.
All I “know” is I have four more year till I am vested for retirement then I run for the hills. I can’t wait to start my MJ grow center on money from them.
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Isn’t this part of the reason that lie detectors are not used as evidence in Canada and Europe the way they are here-because of how unreliable the results can sometimes be?