Beating the Box or Breath Test Issues in a Nutshell

Winter in Ithaca, NY has finally arrived. Today it is 6 degrees with the windchill, yow! What's funny about that is by Ithaca Winter standards that is still fairly warm. I had a friend of mine visit one winter from Greece, and of course the day he came it was well below zero with the wind. He thought we were crazy to live here. He made it about 15 minutes outside before his breathing became labored and he started to look a bit pee kid.

Anyway, "THE" box, the definite article for sure. The box refers of course to the breathalyzer, aka the breath test, aka the Datamaster (the machine preference of City, Village, and Town Police), aka The Chemical test, aka The Alcotest (the machine preferred by NYS Troopers).

The Box provides a fast, easy, and cheap means to test the breath to indirectly compute a BAC (blood alcohol concentration). We can argue all day about: fast, cheap, easy, and indirect testing. The box is Not to be confused with the field breath test, called the alcosensor, done at roadside, and not admissible in NYS for a BAC result but merely to prove the consumption of alcohol.

There are Three main problem areas in Breath Testing:

1. problem with the person: medications, diseases of the lungs, ie. asthma, COPDs, allergies, diabetes, GERD (Gastro-Esophageal Reflux Disease), is it stomach contents, etc.

2. problem with the machine: out of calibration, simulator/reference solution has bad chemicals (out of date), broken parts, maintenance issues, temperature issues, etc.

3. problem with the operator: did not follow protocols, did not do proper observation prior to testing, used radio, phone, or beeper in room (Radio frequency Interference), did not check mouth for foreign substances, dentures, etc.

Is the BAC machine result reliable? Can the jury rely upon it?

Is the BAC machine result accurate? Is it a real number of the person's BAC?

Another potential issue:

TIMING: Is the machine BAC result (Post driving) a true measure of the BAC at the time of driving?

The idea of arguing that breath testing "in general" is bad, is inaccurate, and is unreliable is usually not the best approach. Juries want to have a "specific" reason or reasons why something like a breath test result in a specific case/situation is not to be trusted.

Beating the BOX then becomes a reality. Because in the end, the jurors should only follow and apply ONE presumption at trial, the POI (presumption of innocence). The government must prove their case, including the BAC result to the BRD standard (Beyond a Reasonable Doubt).

DWI "Just the facts, ma'am"

I listen to stories about drinking and driving almost every day. I need to know all the details. In my day we had a TV show called Dragnet. The show had a cop named, Joe Friday who loved to say, "All we want are the facts ma'am." I too want the facts but more importantly I want my client's version of the night. I want to understand his perceptions and viewpoint.

This allows me to piece together the timelines, the potential witnesses, behavior patterns, and the amount of alcohol consumed. Ultimately I want to have a more clear picture of the prosecution's case against my client. I also have a software program that allows me to input my client's age, sex, height, weight, and drinking information to arrive at a pretty accurate BAC (Blood Alcohol Concentration) at the time of driving. Of course it is only a BAC range, and highly dependent upon my client giving me reliable information.

One of the first things that is difficult to estimate is the potency of the drinks. What type of beer or wine was drank? What was it's alcohol concentration? How big were the cocktails or the glasses they came in? Sometimes "one" drink has really 3 or 4 shots of 80 proof liquor. Beer can be 3-5 % and wine can go up to 14 %. Bacardi 151 is 75 % alcohol!

I recently had a client who swore he only had 3. Yeah, as in 3 Long Island Iced Teas! Do you know how much alcohol is in one LI Iced tea? In a good one, there is probably at least 4 shots.

So my client had 12 drinks before he began drinking Lite beer later in the evening. I would imagine smoking a few hits off his buddy's joint didn't help matters.

Remember that proof is twice the percent of alcohol.

5 ounces of wine 24 proof 24 ÷ 2 = 12 (% alcohol) 12 ÷ 100 = 0.12 0.12 x 5 oz = 0.6 ounces ethanol

12 ounces of beer 10 proof 10 ÷ 2 = 5 (% alcohol) 5 ÷ 100 = 0.05 0.05 x 12 oz = 0.6 ounces ethanol

1 1/2 shot 80 proof 80 ÷ 2 = 40 (% alcohol) 40 ÷ 100 = 0.4 0.4 x 1.5 oz = 0.6 ounces ethanol

One drink = .6 ounces of ethanol and usually one drink will cause someone (the average person) to go up .02 to .03 BAC per drink. If you had 4 drinks in a one hour period then your BAC would be .08 to .12. Alcohol dissipates (is expelled, eliminated) at around .015 to .02 per hour. In theory you can drink one drink per hour and clear the alcohol from your body at that rate (in other words remain alcohol free), after the alcohol clears.

So you are at a bar and have two drinks over two hours, you leave the bar, your BAC should be less than .04?

But we do not know the size of the drinks, or your metabolism, how much you weigh, or what you ate? All these factors affect your elimination rate.

Breath tests are not always reliable, accurate, or valid. Often they are not administered properly. People come in all different shapes and sizes. Getting a real BAC is a beginning, and getting the facts of the case from my client takes us one step closer to defeating a DWI.

The New York DWI is a Two Headed Monster

In New York State if someone does (as in takes) the breath test, more accurately known as the "chemical" test back at the station then they will be charged with two counts of DWI.

1. DWI Common Law VTL 1192 (3): The government must prove (beyond a reasonable doubt) that you (the operator) were incapable (to a substantial extent) of operating the automobile both mentally and physically as a reasonably prudent driver. This usually is through the stop officer's (the arresting officer) testimony concerning your driving, behavior, appearance, testing, odor, etc. In other words, his "subjective" opinion.

2. DWI Per Se VTL 1192 (2) A BAC (Blood Alcohol Concentration) of .08 or higher or Aggravated DWI Per Se VTL 1192 (2) (a) A BAC of .18 or higher. The government needs to prove (beyond a reasonable doubt) that the breath test was given within 2 hours of your arrest, was properly administered, by a currently licensed BTO (Breath Test Operator), using properly mixed chemicals, with a calibrated and maintained breath machine. This of course is an indirect measurement of blood alcohol via a breath measurement.

The two most common machines are the Datamaster DMT (used by town, village, and city police depts.) and the Draeger Alcotest (used primarily by the N.Y. State Police). These machines are accepted by the Courts as approved for BAC testing.

There are various ways to attack both the DWI counts but remember that if you took the test it will need to be dealt with and can not be overlooked by your attorney. The per se count becomes the primary target because it is a number that the prosecution will mention again and again.

I believe that a shotgun approach to arguing that all breath testing is inaccurate and unreliable (fraught with error) will usually fall on deaf ears. A focused and detailed strategy is the most effective way to defeat each count.

Depending upon the specific facts of each DWI case arguments can be waged against:

1. Whether the procedures and protocol of breath testing were adhered to?

2. Whether the machines were calibrated in a timely manner?

3. Whether the machine in question had any recent repairs or issues?

4. Whether the chemicals were properly mixed and/or expired (out of date)?

So records need to be examined carefully and potentially subpoenas must be issued against the police to get ALL the machine records. To get police records your attorney is going to need to get Judicial Subpoenas (issued and approved through a Judge). With a lot of work often the ugly truth comes out, and the breath test's validity becomes an issue of doubt.

In recent cases, I found that the State Police had written in the wrong chemical expiration date. The chemicals were expired days before my client's breath test. After I filed my motions the Judge was compelled to throw out the test, and the prosecution's case along with it. In another case the machine had frequent break downs, and parts replaced concerning the same issue, the machine would not accept a breath sample. My client was charged with a refusal because the police said she wasn't trying (blowing) hard enough. That case was also thrown out after I subpoenaed all the machine records, and brought to light the machine's problems.

Nothing of any value is easy, cheap, or speedy. That first case went to multiple hearings and motions. My client was relieved when the nightmare was over but during the process had many uneasy days and nights. To me the DWI is a two headed monster with one head uglier than the other.

Defeating A DWI

I love to surf, the internet that is. Just yesterday I punched in the above terms "defeating a dwi" and what pops up number one but an article by me. At first I was excited, a google number one, then my expression changed as I saw that my name was left off, and admin was put on as the author.

This was a website for a chemical that eliminates odor from your breath. It was being marketed to drinkers who wish to avoid detection as in if you are ever stopped for a traffic infraction just a quick spray and the cops will go away. As I delved further I found more articles sans name. My anger at this internet piracy grew. The articles mentioned the death of my father the day after my 17th birthday, the name of one of my friends, and other personal information. Everything was there except credit to moi! I'm just a little Upstate New York DWI defense lawyer but I do have feelings. Ithaca inspires me to write and share so it is with joy that I create but give a guy credit.

Their site and my articles sans my name and info.

www.sobriety-checkpoint.net

http://www.sobriety-checkpoint.net/category/dwi-sobriety-checkpoints/

http://www.sobriety-checkpoint.net/tag/case/

My original articles:

http://www.articlesbase.com/criminal-articles/defeating-the-new-york-dwi-refusal-case-1330173.html

http://www.articlesbase.com/criminal-articles/the-power-of-words-in-dwi-case-1335602.html

http://www.articlesbase.com/criminal-articles/what-do-sex-and-intoxication-have-in-common-1330200.html

http://www.articlesbase.com/criminal-articles/defeating-a-new-york-dwi-by-beginning-with-the-end-in-mind-1335399.html

So on that note I wish to highlight the power of "honesty" in defeating a DWI. Some may think me mad in advocating for truthfulness and openness with a criminal case but I have found that not trying to cover up your fears is a better philosophy and strategy for long term success.

Jurors are not stupid. They have the same doubts and concerns as the lawyer looking at the case. If you do not allay their questions openly they will most assuredly be discussing them back in the Jury room.

We as DWI defense lawyers can not look to sweep dirt under rugs and pray that it is never discovered. Everything can be seen from different perspectives. The key with good advocacy is to put yourself in everyone's shoes. Put yourself in the shoes of the juror, put yourself in the shoes of the cop, put yourself in the shoes of the prosecutor, and put your self in the shoes of the judge. Now the case can be seen as a total whole and not a bunch of random pieces or events.

The facts of any DWI case are nothing without context. Someone has to have a viewpoint of that fact.

This is from an actual case. Fact, a driver was pulled over for having headlights that were too bright. The officer in his report made no mention of investigating or asking about the headlights. The motorist only traffic violation was the headlights but no detail or documentation of this fact, just a single ticket plus of course the DWI investigation and subsequent criminal charges.

I demanded a suppression hearing on the stop (was there reasonable suspicion), and the arrest (was there probable cause). My plan of attack was a whole line of questioning, first on the importance of the report and it's detail, then on the fact that my client showed him the dashboard, demonstrated the lights on and lights off controls. The "stop officer" had one goal for this stop (investigate the bright lights) and this sole purpose was never addressed by his investigation/inquiry.

All the DWI criminal charges were dropped. This was with a .15BAC. The outcome was a DWAI (traffic violation) pre-trial. My thoughts for this case were always that jurors would want to know, the judge would want to know THE BIG WHY? If you say the stop was for x why are you not checking x, asking about x, and investigating x?

I was able to listen to my client and get "the story" of this DWI case. His story included the lights where the officer's did not.

btw that Company in California that "borrowed" my content without giving me credit:

Pure One International

3400 West Warner Ave., Unit A

Santa Ana, CA 92704

714-641-1430

fax 714-641-1432

Bytes for All (Website creation/hosting) from someplace overseas.

I really do believe what comes around goes around so God bless them and may they reap the fruits of the seeds they sow.

Lawrence Newman, Esquire

607-229-5184

Ithaca, NY

Don't Worry Bout It!

Oh the problem of these four little words. When I hear them I cringe. I have heard these words all too often in Court. They are usually spoken by some lawyer to their client. As in, "don't worry about ... your legal status (non-citizen), your out of state license privileges, your future ability to find employment, your ability to get a professional license, your ability to travel to Canada, etc. etc.

You have to anticipate Collateral Consequences of anything. Everything (every decision) has far reaching and typically long lasting affects. Much like the game of dominoes, once we set a course of events into action, many fall one against the other, and often we cannot even predict when this chain of action will end.

So that said,

1. You have to talk to more than one lawyer about your problem. Get some different perspectives.

2. It is best to talk to a lawyer who specializes in the specific type of problem you are facing.

3. Just because someone has 20, 30, or 40 years of experience does not make him better.

4. Lawyers that use the phrase, "Don't Worry Bout It" should be avoided like the plague.

5. A DWI conviction can affect multiple life areas including your out of state driver's license, your professional licensure, your employability, your permanent record, your ability to travel freely, and your insurance rates and insurability.

As an example of this, I recently had a college student come to me with a first time DWI charge. He held a driver's license from another state. He was attending college in New York State. Since he was planning on staying here for a number of years (establishing residency) for college he should have switched over his license to New York State.

Now he faced a crossroads. Should he switch his license before his initial appearance? Should he get a New York State license? Some lawyers told him, "Don't worry bout it," I told him if I represented him I would investigate the potential DWI conviction ramifications back in his home state. I am a member of the National College of DUI Defense, and have DWI defense friends (on my list serve) as an invaluable resource of information.

The range of consequences in these situations is immense. From fines of $3,000 (ie. New Jersey) to license revocations of 210 days (ie. New Jersey) without conditional (any) driving privileges. So these decisions (much like choosing a lawyer) should not be made or taken lightly. What happens in Colorado, Mass., PA, and the other 43 states varies. But making educated and informed decisions by knowing what happens and saying "don't worry bout it" are two totally different things.

What does Your DWI Lawyer Believe?

I have just turned the magic age of 48. Getting a bit more grey, having a few more excuse me "sirs" thrown my way pauses me to think, to reflect, and to question.

I feel extremely fortunate for my time here, my practice, and my opportunities. I have had 23 years of practicing both as a Chiropractic Physician, and as an Attorney at Law. Along the way I have had the pleasure and pain of helping thousands of people get through some of the worst times in their lives. I am at heart a caretaker. I am good at helping people heal. Whether with a word or a touch, it is my gift and ability.

I love to learn. What I have returned to again and again is that a person's beliefs will truly control and direct their destiny. At it's core, belief systems can be a series of convictions. Things that people are convinced about. They will fight to maintain them, and to honor their truth.

How many things do we believe in that are "true"? Only later to discover are false. They are propaganda, they are the ideas of others that we have bought into.

I caution those that pick counselors, choose leaders, and hire advisors to first find out what those people BELIEVE.

What does your doctor believe? Does he believe in the miracle of life and love? Does he believe that everything he was taught was fatal, actually is? Does he believe that the mind can affect the body? Does he believe that natural cures and remedies could work? Does he believe that everyone fits in the same box and should receive the same medicine? Does he buy into the value of rest, fresh air, and exercise? My father's doctors all smoked, and were overweight. They cautioned me about doing too much exercise. My father died of a third heart attack at the young age of 51. All his "trusted" doctors, his health advisors died early just like he did.

Now think about this for a moment, this is your doctor, and he is going to advise you, he is going to recommend treatment, he may even render a surgical opinion, how important is his belief system to the ultimate outcome of your care? It is everything! How he feels about drugs, food, surgery, and all else will color his advice to you.

Now take that understanding and perspective to the attorney that is going to represent you.

What does your DWI Defense attorney believe? Does he believe that the breath test is a very accurate, reliable, scientific, and valid measure of blood alcohol concentration? Does he believe that field sobriety tests are fair? Does he believe that the police officer's opinion, and his report are the truth?

I have met many attorneys whose belief systems are defeatist. They are sunk before they even begin. Where can you possibly go if you BUY into the prosecutor's machine result? What can you possibly argue with any heart or passion if you believe that your client is guilty as charged?

The reason why the best (I use that term with caution) DWI defense attorneys go to seminars (on the breath machines and field sobriety tests) is not only to gather knowledge BUT more importantly to topple belief systems. To challenge the reliability, accuracy, and validity of "objective" evidence. To change their minds about possible versus probable. To discover and uncover the natural and persistent doubt that goes with a great defense of the government's proof.

In my opinion the best DWI defense lawyers are SKEPTICS. They want to be shown, they are doubters, they are devil's advocates, they are in a word "difficult" and hard to convince.

What your lawyer and your doctor believe is very important to you and your future.

This is what I believe:

1. Machines are not perfect. They make mistakes. Even when they work perfectly they are subject to error. Often the people that use them use them incorrectly. Breath testing is convenient and cheap, it is not scientific, accurate, or reliable in it's current form.

2. All DWI cases must be looked at in detail, and the evidence must be gathered so that the situation can be looked at in the TOTALITY. How I feel about a case or advise a client will turn upon a full, fair, and realistic evaluation of everything.

3. Opinions are just that. A viewpoint, and a perspective, that have a bias, and that are highly subjective.

4. Lawyers need to understand what is important to their clients. My job is to guide, advise, and represent "their" interests being mindful of "their" values.

5. What people want, and what they can have may be world's apart. While lawyers can predict outcomes, we certainly cannot guarantee them. Many things are outside of our control. Judges, juries, and facts beyond change (accidents, prior convictions, chronologies, etc.) can impact final outcomes. When it comes to legal matters, You may want the cheerfulness of an optimist and hate the opinion of the pessimist, but what you really want is the advice of a realist.

Always ask your doctors, and your lawyers what they "believe" before you hire them to help you.