Arizona Court of Appeals denies appeal in Arizona v. Cindy Reed

The Court of Appeals of Arizona, Division 1, Department E in Phoenix has issued an unpublished opinion in a DUI case. The case is Arizona v. Cindy Reed, and the opinion is dated July 30, 2009.

The appeal stems from the filing of an Anders Brief by attorney Eric W. Kessler of Mesa, Arizona. An Andres brief is an appeal filed by an attorney on behalf of a client after a loss at trial stating that the attorney sees no reasonable grounds for appeal, but asks that the court review the case for fundamental error at the request of the defendant.

In this type of appeal, the Court of Appeals reviews the facts of the case in the light most favorable to sustaining the verdicts.

The Court of Appeals reviewed this case and found no fundamental errors. In issuing its opinion, it essentially absolved the Defense attorney of any further responsibility.

Attorney Kent Cattani handled the appeal for the state on behalf of the Arizona Attorney General's Office. The judge at the lower court was Roland Steinle of the Maricopa County Superior Court.


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Arizona DUI task force update

Police agencies throughout Arizona, including Phoenix, Scottsdale and Tucson are participating in the efforts, which include DUI checkpoints and saturation patrols.

Throughout the state they made 700 stops. Of the 120 DUI arrests, there were 12 felony DUIs and 115 misdemeanors. There were also 13 minors arrested.

"This time of year police agencies in Arizona pool their resources towards DUI enforcement," said Arizona DUI lawyer Stewart Bergman, whose practice in Scottsdale focuses on defending people accused of DUI throughout the greater Phoenix area. "It is not unusual to see a Gilbert Police Officer patrolling in Scottsdale, or a Scottsdale Officer working in Glendale or Phoenix."

While the pooling of police resources makes it easier for law enforcement to concentrate on any given area in the state, it can create logistical problems.

"After a large task force event, you might see a DUI case charged in Scottsdale Municipal Court because the arrest was made there. But then you have a Gilbert Police Officer who made the stop and took a blood sample. Gilbert sends their blood samples to the Chandler Crime Lab for analysis. So you end up with a prosecutor's office like Scottsdale using Chandler and Gilbert city witnesses in the prosecution."

The logistical difficulties of getting several law enforcement agencies to cooperate and coordinate during a DUI prosecution can provide an advantage to the defense, especially when the DUI defense attorney is on top of the situation and make appropriate and frequent requests for discovery. Because of the administrative slowdowns, there is often times more opportunity to get favorable deals.

"It is never worth it to drink and then drive in Arizona," says Bergman, "because we see cases getting charged where the person is well under the legal limit."

Under Arizona DUI Law, the police can charge a person with being impaired to the slightest degree even if the person is well under the legal limit of 0.08 percent body alcohol concentration. And prosecutors are capable of getting convictions for DUI when the persons alcohol level is as low as a 0.06, or 75 percent of the legal limit.

"Task force events are about more than pure public safety," explained Bergman. "They are about numbers, and between and within some police departments, they may even be about competition. Because of this, even if you know you are okay to drive but have had drinks, if you can find another way to get home it is a cheap insurance plan against getting a DUI."

A first offense Arizona DUI can carry up to a minimum of 45 days in jail, depending on the alcohol level, and comes with loss of driving privileges, ignition interlock devices and heavy fines.


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Flawed DUI lab procedure nearly ruins man's life

This is an egregious case, but one that should make everybody who trusts crime labs and forensic scientists with other peoples' lives and freedom.Unlike many DUI lawyers who only and always publicly emphasize victories, I am of the mindset that it is just as valuable for the public to learn about my defeats. Perhaps by hearing what went wrong in one of my cases, a person facing a DUI charge, or a DUI defense lawyer may be in a better position to avoid a similar fate.

The case I'm talking about went to a jury trial. Like all Mesa Arizona DUI cases, the deck was stacked against my client from the start. I also had a very good deal on the table which cut my client's jail time by 2/3, from 30 days down to 10 days in jail. My client rejected the deal, and I can't say I blame her for taking the chance.

The facts of the case were not bad, as far as DUI cases with blood tests go:

No bad driving - my client was stopped at a DUI checkpoint.
Marginal field sobriety tests on some of the tests, poor result on others.
A blood test result of 0.082, which is just above the legal limit of 0.080, and subject to a 5% margin of error that the state's crime lab will admit to under oath, bringing the possible true result down below the legal limit of 0.080.
Now for the bad facts:

A very experienced Mesa DUI officer, who is a nice guy and testifies very well. He also happens to be an instructor of other police officers in the standardized field sobriety tests.
An inability for me to put my client on the stand.
My client submitted to an interview and made it sound like she didn't have anything to drink in the last hour before the stop (which would have cast more doubt on the accuracy of the state crime lab's calculations).
 On the stand the criminalist for the state essentially testified that the 0.082 is subject to a 5% margin of error, and that he couldn't say beyond a reasonable doubt that the result he produced was in fact reflective of an actual alcohol level of 0.080 or greater.

Still, the Mesa jury was undaunted and found her guilty of having an alcohol level of 0.080 or greater.

The problem began during jury selection. The judge asked the jurors a simple question that goes something like this:

In Arizona it is not illegal to have a drink or drinks of alcohol and then drive. Knowing this, how many people think that it's illegal to drive after drinking?

Slightly fewer than 1/2 of the potential jurors raised their hands. Of those, I think three or four eventually ended up on the jury that decided my client's fate.

To tie my misadventure in my Mesa Arizona DUI case in with Mr. Taylor's entry, it seems to me that in the current climate crime labs have little to lose by proffering shaky results. For one, most defendant's don't have the blood reanalyzed. If they do, most still come back above the legal limit even if not exactly spot-on to what the crime lab reported. And even a result under the legal limit in most states still indicates a presence of alcohol, which in most states is still good enough to expose the person to a conviction for DUI while impaired to the slightest degree.

The defendant in Mr. Taylor's post had no alcohol in his system. In DUI cases, that is almost as rare as the unicorn. But when it does happen, it threatens to turn everything that most citizens ignorantly take for granted about their friendly local forensic crime lab.


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Drive-through DUI traps scrapped

he Pima County Sheriff's Department is backing away from a proposal to catch suspected drunken drivers through fast-food restaurant drive-through windows.

Lt. Karl Woolridge, special operations commander, said a sergeant who told the Arizona Daily Star the department was about to launch an anti-drunken-driving program named Operation Would U Like Fries, or Operation WULF, was wrong.

"Quite frankly, the program never had the support," Woolridge said. "We had never drafted any policies or procedures for it. It was really in the concept stage, and it never went any further than that."

Woolridge was contacted by the Star about Operation WULF, to comment for a story, which ran on Sunday. But he directed Sgt. Doug Hanna, DUI unit supervisor, to respond to the newspaper.

Hanna told the Star several local franchise owners and managers had agreed to let undercover deputies work their drive-through windows so they could spot impaired drivers placing orders. He said they were just waiting for corporate approval before going ahead.

If the deputies noticed someone with the classic symptoms of impairment — slurred speech, red or watery eyes, beer breath, he said, they would radio a uniformed deputy stationed just outside.

The second deputy would pull the driver over and, if field tests confirmed what the officer at the drive-through suspected, arrest him or her on suspicion of driving under the influence.

He also said he had plans to approach the owners of local restaurants that have drive-through windows within the next two weeks to see if they would be interested in participating.

The sergeant explained the program would be funded by a $128,000 grant from the Governor's Office of Highway Safety that also funds sobriety checkpoints and other anti-drunken-driving programs.

The Star learned about Operation WULF from an internal Sheriff's Department memo from Hanna to Woolridge that it obtained.

Hanna told the Star last week that the program had been approved by his chain of command and the Pima County Attorney's Office.

But on Monday, Woolridge said the program "was never more than an idea, and the sheriff (Clarence Dupnik) would never have approved it."

Woolridge said Hanna must have been "just speculating" that the plan would have been approved once the details were worked out. Hanna did not return phone calls from the Star Monday.

David Berkman, Pima County's chief criminal deputy county attorney, said no one from within Barbara LaWall's criminal division was approached about the idea. It was discussed within the civil division, but Berkman had no details on those discussions, and no representative of the civil division was available Monday.

Sunday's story, which was distributed across the country by The Associated Press, generated a heavy response from online Star readers, most of it critical.

Reader criticism echoed that of local defense attorneys and at least two local restaurateurs quoted in the story.

"I have no love for drunk drivers, and I want them off the road, but this is too much like Big Brother," said Tom O'Connor, owner of Tucson's 21 Eegee's restaurants.

Mike Herndon, who owns seven local Burger King outlets, also was opposed to the idea.

Defense attorneys Joseph St. Louis, Michael Bloom and Brick Storts all questioned the allocation of resources in these economic times and the legality of such a program.

Bloom said he wasn't sure undercover deputies would have enough time to develop the "probable cause" needed to pull over drivers.

The Royal Canadian Mounted Police were the first ones to come up with the drive-through concept, Hanna said. He learned about their program, Operation WULF, while attending a MADD conference in Dallas. 

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DUI checkpoint canceled, judges issue another blow

MANATEE — Authorities cancelled a DUI checkpoint for this weekend and local judges issued an order Tuesday stating a breath test machine used by the Manatee County Sheriff’s Office does not meet state law requirements.
Defense attorneys have challenged the use of the Intoxilyzer 8000 — a machine used by Manatee County Sheriff’s Office — saying the machine was never approved for use in Florida. Manatee County judges Doug Henderson and Robert Farrance issued the order after the state was unable to prove what micron band measurement is used for the machine to measure the level of alcohol.
The order stated there was “compelling evidence” that the Intoxilyzer, while approved by the Florida Department of Law Enforcement, was not the version approved by the U.S. Department of Transportation, as required by state law. Law enforcement can only offer a breath test that is approved by the state, according to the Florida law.

In the meantime, the sheriff’s office cancelled a DUI checkpoint scheduled for July 3, said Sheriff Brad Steube.
“We cancelled the checkpoint because of all the controversy surrounding the Intoxilyzer. The problem is now when you pull into a check point, you are not observing the driving. You pull into a checkpoint and you develop probable cause from there,” he said noting examples such as the smell of alcohol or people fumbling for their license.
Steube said there are plans to appeal the order, and in the meantime, there is a strategy in the works for how law enforcement will possibly continue to use the Intoxilyzer. He would not give further details.
Instead of a checkpoint, deputies are going to saturate patrol this holiday weekend where there are high incidents of drunk driving, he said. They will be able to observe drivers swerving on the road and use videos as a part of the DUI case along with field sobriety tests.
Tom Hudson, an attorney specializing in DUI, said marginal cases will be harder to prove.
“It’s going to be the .09, .10 and .11 that are harder to prove, but when you get up to .15, you don’t need a breath test to get a conviction,” he said.
Hudson said law enforcement doesn’t necessarily look for convictions. They look to arrest people they suspect are impaired to get them off the road until the driver regains control, he said.
As a result of the order, people do not have to take the breath test, he said.
“If they tell you, you have to take it or lose or license, they are lying to you. You only have to test on an approved machine,” he said.
The Intoxilyzer machines have been challenged throughout the state by attorneys in over how the machine works, according to attorneys.
The company that manufactures the Intoxilyzer has been in court battles for several years, and the company has declined to provide computer source codes due to competitive reasons, according to attorneys.
Sarasota judges issued a similar order June 19 finding there were discrepancies in the technical specifications for the machines used in the local DUI cases, as provided by the manufacturer, according to the order.


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California Supreme Court says defendants can challenge Breathalyzer results

Accused drunk drivers now have more ammunition for challenging Breathalyzer findings as a result of a unanimous ruling Thursday by the California Supreme Court.

The ruling is expected to make drunk-driving cases more complicated and possibly more difficult to prosecute, lawyers said. Courts in two other states, Arizona and Vermont, have reached similar conclusions.

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual's medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

"The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence" in certain cases, Justice Carol A. Corrigan wrote. The court's answer was yes.

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday's ruling permits defendants in some cases to challenge those results based on mathematical ratios.

"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing," Corrigan wrote.

San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was "going to make DUI trials a little more difficult to put on" because more technical evidence will be permitted.

"The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt," Vos said.

Jamie L. Popper, the appellate defense lawyer in the case, said the ruling will ensure that juries have the information they need to judge a case.

"The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure," Popper said.

The ruling came in an appeal brought by Timmie Lance McNeal, who will not benefit from the decision because the court concluded that the jury would still have convicted him even if he had been permitted to challenge the conversion formula.

McNeal, like most drunk-driving defendants, was charged under two separate laws. One of them says a person is presumed to be intoxicated if his or her blood-alcohol level is 0.08% or higher, regardless of how it was measured.

The jury failed to convict McNeal under that law after evidence was presented that the Breathalyzer may not have been working properly. Of five breaths, the device was able to produce only two samples suitable for testing. Both registered a blood-alcohol level of 0.10%.

But the jury still convicted him of driving under the influence under a law that does not depend on blood-alcohol levels. That law requires only proof that a defendant's ability to drive safely was impaired by alcohol consumption. The blood-alcohol measure is evidence, but not proof, of intoxication.


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Davis group against drunken driving considers DUI offender registry

Davis County residents who drink and drive might face more than just fines and jail time.
Those with two or more convictions could see their mug shots and blood-alcohol levels posted on an online "DUI offender registry."
At least that's what the coalition Davis Helps is considering.
With the rising trend in alcohol-related crashes and more than 1,700 arrests in the county last year, this database would create "a social stigma against Davis County residents who repeatedly drink and drive," according to a statement from the anti-drunken-driving organization.
The online database is still a preliminary concept. "We haven't decided where this is going to go," said Davis Helps prevention coordinator Brandon Hatch. The group's primary focus, he said, is a campaign to be unveiled Thursday to help people recognize drunken driving and encourage them to immediately report it to 911.
As far as a registry goes, he said, Davis Helps is still studying how effective such registries have been in three other states: Arizona, New Mexico and North Carolina.
According to University of Utah criminal law professor Daniel Medwed, "Registries and shaming punishments are becoming increasingly popular across the nation, but it's unclear whether or not they have the deterring effect."
Medwed also raised concerns that stigmatizing DUI offenders could only marginalize them more and feed into the drinking and driving problem.
Though the other states have reported success in using the registries to deter drunk driving -- Arizona even had a billboard campaign with mug shots -- Hatch said Davis Helps wants to study the data. There also are other questions to posting that information online, acknowledges Hatch. "Is someone who has multiple convictions of DUI ... something we want to expose or put on the same level as a sex offender?"
Salt Lake City civil-rights attorney Brian Barnard doesn't think registries of child molesters and drunken drivers accomplish the same goals.
There's an argument, albeit questionable, Barnard said, that a sex-offender list can alert a neighbor into knowing someone shouldn't be left alone with an individual -- "that makes sense, maybe. But is there a similar benefit in publicly telling everyone so-and-so has a DUI?"
As with other crimes, DUI charges and convictions are public records, but Barnard said there could be constitutional challenges to a DUI registry.
Legality aside, Barnard questions whether an online database is the best way of preventing drunken driving, something that already is considered socially unacceptable.
Publicly shaming people doesn't address the underlying problems they need to resolve to stop drinking and driving, he said.
And one recurring theme is the difference between what people know and do, said Susannah Burt, program manager for the state Division of Substance Abuse and Mental Health.
"People are aware that it's not OK to drink and drive, but they're still doing it anyway."
Burt's office disseminated the grants that helped create Davis Helps and 12 other organizations across the state. Those organizations, depending on their individual community needs, can either address alcohol-related crashes or prescription-drug deaths.


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