I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.
If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.
To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.
Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.
Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.
Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.
With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?
The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
6 comments:
Actually the so called "medical evidence" you refer to that refutes the breath test has yet to be proved and published in a reputable scientific journal while there are a number of papers that have been published providing evidence that breath testing, performed using the machines available to law enforcement in Nassau and Suffolk, is reliable and accurate.
There is also no available medical evidence to suggest that there are any common conditions i.e. acid reflux disease that would result in a subject failing a breath test. Any such claim is a blatant lie on the part of a defense attorney and their client.
Sorry to disappoint a reader Science Guy but you are wrong. There is medical evidence one article for example is: "Physiological Errors Associated with Alcohol Breath Testing", 9(6) The Champion 18 (1985)Then there is:
"Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908.
And
"Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination", 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.
So Science Guy, what police department do you work for?
Oh Btw that is just a sampling of the medical literature that casts a doubt on the scientific reliablity of Breath testing for DWI. There is plenty out there if you know where to look.
Wow, 3 20+ year old papers is the best you have and only applicable in very select circumstance. Obviously I now accept that there are is a very slim possibility that if you place either a chronic alcoholic and/or a chronic smoker in front of a breathalyzer they might blow a reading slightly exaggerated from their actual level of intoxication. How does this relate to the "average" individual who is tested using that machine? In reality it changes nothing about the validity of the test for the majority of defendants.
What about a more potentially widespread aliment such as gastric reflux? How does this affect the test?
Reliability of breath-alcohol analysis in individuals with gastroesophageal reflux disease.J Forensic Sci. 1999 Jul;44(4):814-8. "We conclude that the risk of alcohol erupting from the stomach into the mouth owing to gastric reflux and falsely increasing the result of an evidential breath-alcohol test is highly improbable."
Again, this is an indicative article showing that this is not a likely cause of a high reading on a breath test yet is a defense used in DWI cases. Obviously such a defense, even if the client has the disease (and lets be honest about how many actually do when this is introduced) is based on urban myth, conjecture and falsehood and has no basis in science.
I can assure you that I know where to look and more modern work i.e.
Comparison of ethanol concentrations in venous blood and end-expired breath during a controlled drinking study. Forensic Sci Int. 2003 Mar 12;132(1):18-25. suggests that
"Breath-test results obtained with Intoxilyzer 5000S (mg/2l) were generally less than the coexisting concentrations of ethanol in venous blood (mg/g), which gives an advantage to the suspect who provides breath compared with blood in cases close to a threshold alcohol limit."
This is also a mere sampling of the literature, available on PubMed, suggesting that the breath test is a valid method.
I'm not and I have never been employed by any law enforcement agency in any capacity. I am merely a concerned scientist how hates it when people use bad science to support their bad theories. If these tests and this so called scientific evidence that you claim exists is so compelling why are people regularly convicted of DWI? Surely a prosecutor or jury when shown such damaging evidence would have no choice but to either drop the case or return a not guilty verdict.
ok I don't intend to argue this forever but here is a peer reviewed article from 2002.
Then there is this one from 1998.
Finally try this one from 1999.
Look Science guy, criminal trials aren't about getting it right 9 out of 10 times or even 99 out of 100. It is about getting it right 1 out of 1 times. The time and case on trial.
The accused has no and I mean NO burden to PROVE anything. That means the Prosecutor must not only prove his case but disprove every reasonable theory that may cast doubt on guilt.
The fact is, no matter how you hit it, the test is not proof of anything other than MAYBE the defendant blew a certain Breath alcohol level at the time he was given the test. The only way to be SURE of the level of alcohol at the time of driving is to test it by blood test. Everything else that is based on the average person is less than proof beyond a reasonable doubt unless the prosecution is able to prove the defendant is the same as the average person.
Science even DNA is not perfect. Some science is better than other science. DNA is better than blood tests, and Blood tests are better than urine tests and urine tests are just more accurate than breath tests. With that said, wouldn't you rather have the best evidence before you convict someone, brand them a criminal, curb their right to travel and negatively effect their career and income. I know I would rather be sure beyond a reasonable doubt. Breath testing falls short when the issues are put infront of most jurors. Even with a presumption that a bad breath test may be presumed to be proof of intoxication within 2 hours.
Pretty nice blog you've got here. Thanx for it. I like such themes and everything that is connected to them. BTW, try to add some pics :).
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