UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer - Drunk driving/DWI/DUI

The junk science of breath testing: All the more unfavorable to black people and women?

nospam@example.com (Jon Katz) — Wed, 26 Nov 2008 00:00:00 -0500

Image from National Institute of Standards & Technology.

Perhaps Connecticut DWI defense lawyer James O. Ruane overstates the matter by calling the Intoxilyzer 5000 KKK in a box.Certainly, breath testing for blood alcohol content is an oppressive junk science system that is perpetuated by court rulings that stand logic, truth, and the Constitution on their heads.

Ruane makes the case for why the Intoxilyzer 5000 is more likely to give a falsely high BAC reading for black people. Ruane’s expert witness Dr. Michael Hlastala says the same problem affects women who take the test. Thanks to Gideon for posting on this issue.

Jay Ruane graciously e-mailed me his memorandum of law in this case, giving the green light for me to upload the filing. His legal memorandum references an attachment containing testimony of expert witness Hlastala. I did not receive that attachment. The memorandum addresses Dr. Hlastala's previous testimony as follows:

"Dr. Hlastala has testified in Connecticut that the Intoxilyzer 5000 is biased against African Americans in that the lung capacity of the African American male is approximately 3% smaller than the Caucasian. This testimony is attached hereto as Exhibit A. Because of the physiologically smaller capacity an African American arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3%.

"Moreover, the issue of racial bias rises to the fore in the use of the Intoxilyzer 5000. Dr. Hlastala opined that the distorting effect based on race was 3%. (T2B, p37) While at first sight this might appear to be de minimis, State should not countenance racial discrimination in any degree whatsoever."

The foregoing use of the phrase "de minimis" raises all sorts of questions, which hopefully will be answered in favor of the defense. Jon Katz.

When cops speak Spanglish to a non-English speaker.

nospam@example.com (Jon Katz) — Thu, 13 Nov 2008 00:00:00 -0500

Photo from website of U.S. District Court (W.D. Mi.).

Too many monolingual people seem to think that if they speak louder or repetitively that ultimately they will be understood by a person who does not speak the speaker's language. Too many people think that if a person understands such phrases as "Do you speak English" or "Fire, fire" that this means the person speaks the tens of thousands of other words and phrases needed to have a sufficient command of the English language.

Nothing beats struggling with learning a second language to understand how hard it is for others to learn English, including figuring out how to conjugate verbs in the past, present and future tenses, struggling to understand native speakers who talk a mile a minute, and memorizing and pronouncing a jumble of strange-sounding words. It seems that the vast majority of Americans stop studying another language once such study is no longer required for obtaining a degree or for strengthening a college application; yet plenty of the same people want to surmise that it is easy for others to learn English as a second language.

When I have a non-English speaking client, I ordinarily arrange for a witness to come to court to testify about my client's limited English, in order to challenge any assertion by the prosecutor that my client understood the English being spoken to him or her. Recently, I won a license suspension hearing related to a drunk driving charge, on the basis that Maryland's convoluted and lengthy advice of rights form for taking the breathalyzer test was either not translated at all into Spanish, or that a Spanglish speaker struggled to tell my client the words on the advice of rights form. See below for further details on that hearing.

In my experience, cops use a hit-or-miss approach to try to communicate with people who speak little to no English. Some police forces have some fully fluent people available to help, but then I argue that the absence of such interpreters' court testimony makes the interpretation inadmissible hearsay evidence. Some judges let prosecutors get away with asking cops "Did he appear to understand you" and "Did he tell you he did not understand you or needed help interpreting your English?" Where I practice law, a huge percentage of native Spanish speakers come from countries where the cops constantly and often brutally trample on people's rights, and do not serve the interests of ordinary people. (Hmm, that also describes too many cops in the United States.) Silence from people coming from such countries does not necessarily mean the English is understood, but instead can be a self-preservation technique.

Being human, judges need to be educated about the nuances falling between the scale of a person who speaks fifty to five hundred English words in order to achieve basic survival on the one hand, and a person who arrives in the United States below the age of ten and soaks up English like a sponge. A huge percentage of people fall within the first half of that range of English-speaking ability. Moreover, most people are better able to speak a second language in an understandable fashion than to understand what is being said to them. People speak the words they understand, but the listener does not necessarily know all the words s/he hears in a second language.

With that backdrop, here is an outline of questions I asked my client on the road to victory in my recent license suspension hearing related to a drunk driving arrest:

- Where were you born?

- At work, what language does your boss speak?

(Here the answer was that the boss speaks English. Instead of saying "Oh, sh_t" to myself, I followed up with: "How are you able to understand your boss's English at work?" Answer: "A co-worker interprets for me.")

Continue reading "When cops speak Spanglish to a non-English speaker. "

Revisiting a denied objection.

nospam@example.com (Jon Katz) — Wed, 10 Sep 2008 00:00:00 -0400

Photo from website of U.S. District Court (W.D. Mi.).

Judges are generalists, at least where I practice law. They are expected to grasp and rule on a vast body of law. The law is too vast for even the most conscientious insomniac judge to be a walking encyclopeia on the law.

As a mentor told me not long out of law school: In your written advocacy, write as if you are talking to the judge with your hand casually sticking in your pocket. He also said that you need to shove your point down the judge's throat, because s/he does not have the time to try to divine any hidden meanings in your writing. (Perhaps that is a bit of hyperbole to say to get straight to the point with the judge, and to give the judge the relevant condensed law so that the judge is not left on a hunting trip.)

What to do when a judge denies a motion so as to have a ruling that flies in the face of established law. If you start arguing about the judge's ruling, the judge may say "I have ruled. It is time to move along. Raise the issue in the appellate court, if you wish."

On the other hand, the judge might listen further if you help the judge save face and eliminate concern about interference with "moving it along", and say something along the lines of: "Judge,, thank you for considering our motion. I hope you might consider page 246 of the Aardvark decision, which mandates the opposite of what your honor has just ruled." Now, the judge has been offered an invitation to revisit the issue without losing face, or to say "Thank you, counsel, for your tenacity. I stand by my ruling. I look forward to seeing you on our next court date."

A problem a judge faces when a lawyer hands up court opinion to read, on the spot in court, is that so many appellate opinions are lenghty, and take time to sift through the decision to figure out what the writers are really saying. If you are in a jurisdiction that does not require all legal authorities to be presentend to the court before the court date, you can help out the judge by handing him or her case opinions that have relevant pages highliged and tabbed. You might even wish to hand up two or three cases with a short written summary of the benefit of those cases to your cases. The key is to make it no less pleasant for the judge to leaf through the often turgid prose of appellate opinions and statutes, than to say "denied" without reading the provided authorities. One very talented criminal defense lawyer has a pencht -- at least at CLE presentations -- to project relevant portions of cases on the screen and to read aloud some of the most apt, and sometimes, humorous passages with a laser pointer to follow along, including this passage from the Ninth Circuit's 1985 ruling on Larry Flynt's contempt of court ruling, quoting Flynt's exchange with a federal trial judge (I think this may have been as part of a presentation of how to deal with out of control clients, or perhaps about how Flynt got his lengthy contempt sentence cut short by the appellate court):

"FLYNT: I move that you call the U.S. marshal to the stand that was present when I took the drugs, when I was flung on the floor by an inmate, and when I was kicked when I was smacked. I want the U.S. marshal called, I also want the guard called that tipped me off that this asshole was sending me to Springfield.

THE MARSHALL: Open up the door. / THE COURT: No, that is all right. He's got the responsibility. That is going to cost you 30 days, Mr. Flynt.

THE DEFENDANT: Hey, you know what punishment -- is. Well, you don't give a f*ck. / THE COURT: Mr. Flynt, you just keep that up.

THE DEFENDANT: F*ck you. Give me life without parole you foul mother-f*cker. / THE COURT: That is another 30.

THE DEFENDANT: I want you -- give me more. You chicken- shit son-of-a-bitch. / THE COURT: That is another 30 days.

THE DEFENDANT: Give me more. [So much for an ordinary day in an august courthouse.]

United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985).

Back to my mentor who certainly had a point about talking to judges as if your hand is informally sticking in your pocket. Doing so puts one more in the mood of sitting around with friends, in a relaxed setting. That helps remove the bullsh*t quotient. Judges and most other people have no tolerance for bullsh*t.

A case in point about convincing a judge to overrule an objection on the spot came at a recent administrative hearing to determine whether my client would lose his driving privileges for several weeks for having allegedly driven in contravention of the drinking and driving laws. If an adverse ruling is announced at such hearings, the alleged wrongdoing driver might face worse devastation from the driving suspension than the possibility of sitting in jail a short period for a drinking and driving conviction.

Inside, I am incredulous that the administrative law judge refuses to dismiss the case when the matter cries out for dismissal. Outwardly, I try my best to use non-confrontational words and tone of voice to share my concerns about the adverse ruling rather than to push against the judge. All of the sudden, there is silence. The judge is more studiously reading my appellate case decision that is directly on point with the need for dismissal. Then more silence and reflection comes, and the ALJ finally says that although he does not agree with all of my characterization of the applicable case, in this instance he finds no valid grounds in the record to justify the cop's request for a breahtlyzer test from my client.

Once we emerge from the hearing room, I congratulate my client, and say "Let's get the hell out of here. No need to give the ALJ a chance to change his mind." So we vamoose like bats out of hell. Jon Katz

Lobotomy of police-handled phlebotomies.

nospam@example.com (Jon Katz) — Fri, 05 Sep 2008 08:27:26 -0400

Bill of Rights (From public domain.)

Who wants police to be permitted to pin down a drunk driving suspect to draw blood? What medical professional in his or her right mind would agree to draw the pinned-down suspect's blood? Then again, will some police just take the lobotomized route of skipping the phlebotomist entirely, and draw the blood themselves? Not if such judges as Pima County Superior Court Judge Richard S. Fields are presiding. Judge Fields recently wrote that blood draws "carried out in roadside situations with poor lighting and in less than sanitary conditions" present "an unreasonable risk of infection and injury." Of course, the prosecution says it plans to appeal, which is another reason I am happy that I have never prosecuted. (Thanks, Lawrence Taylor, for posting on all topics contained in this blog entry).

Then again, will law enforcement agencies get their cops certified as phlebotomists? That is what the Utah Highway Patrol did with its troopers, to save the time and $50 per blood draw of calling in a medical technician. As blogger Lawrence Taylor aptly points out: "Ignoring the pain, injury and infection aspects for the moment, bear in mind that the blood must be taken from a vein, not an artery (which has a higher blood-alcohol concentration); the skin must be swabbed with an approved antiseptic (not isopropyl alcohol, which can raise the blood-alcohol concentration); the correct amount must be taken, with no contamination from the officer; it must be placed in a sterile and sealed vial; an approved preservative in the correct amount must be added and mixed in (to prevent fermentation, which increases BAC); an anti-coagulant (to prevent clotting, which increases BAC) must also be added, again in the correct amounts."

If a drunk driving suspect is going to be coerced or forced into submitting to a blood test, the least the powers that be can do is to provide the suspect at least some comfort, confidence and dignity by providing an experienced medical technician for the blood-drawing, rather than to have it done by a handgun-toting cop who claims to be certified in the procedure.

All of this Orwellian forced blood drawing comes to you thanks to the 5-4 decision in Schmerber v. California, 384 U.S. 757 (1966) (finding no Constitutional violation from a non-consensual blood draw), which, sadly, was penned by my otherwise hero Justice Brennan. Jon Katz

The plight of pro se defendants.

nospam@example.com (Jon Katz) — Mon, 18 Aug 2008 00:00:00 -0400

Bill of Rights. (From the public domain.)

One day I asked a prosecutor if she feels any discomfort going against unrepresented criminal defendants, most of whom are not poor enough to qualify for court-appointed counsel but for whom the financial struggle is too great or impossible to hire a lawyer, and some of whom are dilatory in obtaining a court-appointed or private lawyer.

She said she feels no discomfort, because she offers all defendants the same guilty plea offers, whether or not represented by a lawyer. Assuming the truth of her assertion, for argument's sake, what happens after she conveys the initial guilty plea offer? A capable criminal defense lawyer will advise the client whether to reject the plea offer, accept it, or return with a counteroffer, and how to time and express any reply. How will the pro se defendant respond? If the case goes to trial, will the pro se defendant represent himself or herself anywhere near as capably as an experienced trial lawyer? Also, the pro se defendant effectively loses the right to remain silent throughout trial.

How do prosecutors respond to a counteroffer from a skilled trial lawyer versus from a pro se defendant (and, for that matter, versus a lawyer who is green or about whom the prosecutor knows nothing)? Negotiations are about hedgebetting. Prosecutors have fewer bets to hedge with unrepresented defendants, whom, by definition, are on weaker ground than if they had a qualified lawyer.

A case in point came recently when I walked into misdemeanor court, and the prosecutor cheerfully offered for my client to plead guilty to a lesser but still jailable and collateral-risk laden offense. I asked which witnesses were present, and none were. During the break, the prosecutor said the arresting officer in the case was on his way, and urged that his guilty plea offer was the way to go. Probably having had much more time to know my one case versus the prosecutor's two dozen cases, I told the prosecutor that even if the cop arrived, he still had a weak case because of A, B and C, and I said I would not recommend that my client plead guilty to any jailable offenses. The prosecutor ended up dismissing my case later in the day.

How would a pro se defendant have handled the foregoing scenario, and how would the prosecutor have responded? Would the pro se defendant have known whether this was a courthouse and case where ordinarily the defendant can get away with waiting for prosecution witnesses to show up before deciding whether to accept a guilty plea offer? Would the prosecutor have told the pro se defendant that the plea offer would be off the table upon the cop's arrival? Would the prosecutor have emphasized the jail risks faced by the pro se defendant by going to trial when the plea offer involved no executed jail request from the prosecutor? Would the prosecutor have argued that the pro se defendant was entering dangerous, uncharted territory to take a case to trial without a lawyer?

How do we ameliorate the plight of pro se defendants? One way is to assure that quality court-appointed/ public defender counsel is made available to indigent defendants, and that truly needy defendants are not barred by guidelines or unfair or uneven application thereof that misses them. What do about defendants who are not poor enough to obtain indigent defense counsel but will struggle mightily to pay for a lawyer -- after paying for rent, transportation, children's needs, groceries, and other essentials -- or will not be able to obtain the funds at all? As to the former category of criminal defendant, at least in the past, the Maryland criminal defense bar used to have members who agreed to be part of a "gray panel" that offered reduced rates to such people; such a practice needs to continue. Have indigent defense lawyer application guidelines kept up with today's economic realities of expensive rates for qualified criminal defense lawyers and high prices for gas, food, and other essentials? Should public funds be made available to provide partial subsidies to people who are borderline eligible to obtain indigent defense counsel but do not qualify? Awhile ago, I wrote this piece about the struggles that most ordinary-income people face in paying for quality legal representation.

Of course, probably we always will also see a handful of pro se criminal defendants who would not obtain counsel even if they qualified for indigent defense counsel. All criminal defendants have the right to choose their own counsel, including to proceed with self-representation. Caveat emptor. Jon Katz.

More on defending drunk driving in Virginia.

nospam@example.com (Jon Katz) — Sun, 29 Jun 2008 00:00:00 -0400

Image from Virginia Forestry Dept's website.

In Virginia and Washington, D.C., the law says that drivers in those states impliedly consent to have their blood alcohol levels tested if the police have sufficient grounds for seeking such tests.

In that regard, here are important relevant Virginia statutory provisions and appellate opinions:

- In Virginia, "Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." Va. Code § 18.2-268.2 (A).

- The certificate of analysis for the blood alcohol test is inadmissible if the technician's certification was expired at the time of the analysis. However, that does not automatically prevent an erroneous certificate of analysis admission to rise to the level of harmless error. Brooks v. Newport News,. 224 Va. 311, 315, 295 S.E.2d 801(1982).

- The burden is on the prosecution to prove a defendant was intoxicated while he was operating his truck, not for the defendant to show that Defendant became intoxicated after leaving his or her parked vehicle. Overbee v. Commonwealth, 227 Va. 238, 244, 315 S.E.2d 242 (1984),

- In Virginia, the certificate for breath analysis is inadmissible at trial if the test was performed over three hours from the defendant's previous driving experience. Overbee v. Commonwealth, Va. Code § 18.2-268.2 (A), 227 Va. 238, 243. Jon Katz.

The risks of refusing a test that should be fully refusable.

nospam@example.com (Jon Katz) — Thu, 08 May 2008 00:00:00 -0400

Bill of Rights (From public domain.)

Field sobriety tests are junk science administered by cops who have no expertise to administer them, because junk science precludes having expertise. See how poorly is the performance when asking even a fully sober and awake person to follow unfamiliar instructions for standing on one leg for a count of thirty and walking heel to toe ("don't miss heel to toe") nine times and pivoting correctly on the way back. If a person has even had a glass of wine two hours ago and is somewhat tired, s/he will be between a rock and a hard place to take or not take the field sobriety tests in the following states that Virginia's intermediate appellate court has joined for considering the results of field sobriety tests for determining probable cause to arrest for violating drunk driving laws.

In Jones v. Com., _ Va. App. _ (May 7, 2008), Virginia's Court of Appeals upheld a thirty-day jail sentence for unreasonable refusal to take a breathalyzer test, where the defendant had previous drunk driving convictions, and allowed consideration of the defendant's refusal to take the field sobriety tests for the probable cause determination. Moreover, the court was silent about the cop's repeated requests for field sobriety tests, which sounds like such test requests were demands rather than the simple requests they should have been (just as cops are not permitted to demand that a person submit to a "consent" search; they may only request it). In reaching this conclusion, Jones detailed the situation in the following states that permit consideration of refusal to perform field sobriety tests, Jones at n.4:

See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446, 449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would not, standing alone, provide probable cause, it is a legitimate factor in the probable cause determination). Far more courts have decided the analogous issue of whether refusal to perform field sobriety tests may be used as substantive evidence to establish intoxication in criminal trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v. State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal [to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819 N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was” driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App. 2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374 N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation); Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass. App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based on state constitutional grounds).

Jones v. Com., _ Va. App. _ (May 7, 2008),

I hope Jones files and wins a petition for appeal to Virginia's Supreme Court in this case. Jon Katz

ADDENDUM: Thanks to a lawyers' listserv member for bringing this Jones case to my attention.