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The National College for DUI Defense (NCDD) just completed its 3 day summer session, held in Cambridge, Massachusetts in the facilities of Harvard Law School. The College’s mission is to educate lawyers to become more proficient in defense of persons accused of drunk driving. The College’s motto is “Justice Through Knowledge.” The session was attended by some of the most skilled lawyers in the country, and featured presentations and workshops of the highest quality. The session exemplified what is best about the legal profession.

The session featured presentations by Robert Hirschhorn on jury selection, Leonard Stamm and Peter Gerstenzang on the Top 20 Guidelines for Bench Trials, Mimi Coffey on trial strategy and breath testing, Gary Trichter on the Bill of Rights, Erin Gerstenzang on Ethics, Tyrone Moncrief on the Art of Persuasion and Closing Argument, John Webb and Felipe Plascencia on closing argument, Dr. Sunwolf on Innovations in Jury Selection: Harvesting Skewed Venires; Juiced Jurors; Mental Blind Spots and Perfecting a Challenge for Cause, Michael Hawkins on Cross-Examination – A Performance, Justin McShane on Basic Gas Chromatography for Blood Alcohol Content, and Stephen Jones on The Real Field Sobriety Tests. Workshops were conducted on jury selection and closing arguments. The keynote address was delivered by the Honorable Joseph Johnson.

The session was conducted under the auspices of Dean George Stein who turned the reins over to Troy McKinney, the incoming dean, at the culmination of the session. The current slate of officers includes Peter Gerstenzang, Assistant Dean, Stephen Jones, Secretary, and Leonard R. Stamm, Treasurer.

Over 160 lawyers were in attendance including Regents not mentioned above James Nesci, Bill Kirk, Don Ramsell, Virginia Landry, Andrew Mishlove, Paul Burglin and Doug Murphy and Fellows James Campbell, F.K. Whited, Les Hulnick, Tommy Kirk, Phil Price, George Bianchi, Doug Cowan and Steven Oberman.

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Yesterday the Supreme Court announced its opinion in Williams v. Illinois. The decision was anxiously awaited by those of us who have followed the Supreme Court’s recent Confrontation Clause cases, namely Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Melendez-Diaz had held that the chemist in a drug case must be brought to court by the government for cross-examination, and Bullcoming held that another chemist in a lab who had nothing to do with a test cannot take the place of the actual analyst who reported a blood alcohol reading in a DUI case.

In Williams v. Illinois, Williams was convicted of rape based on a DNA match. DNA was collected from semen found during the victim’s rape exam and the profile identified at Cellmark Laboratories in Germantown, Maryland. A different lab analyzed William’s DNA and identified a genetic profile. Illinois did not call anyone from Cellmark to testify, but rather called an expert who testified that the two samples were a DNA match.

The Supreme Court decided in an unusual plurality – 4-1-4 – that the expert could give the opinion of a match, even though no one from Cellmark testified to the underlying profile that was the basis for the opinion. What is unusual about the opinions issued in the case is that the five justices who voted to affirm the Illinois Supreme Court (and the rape conviction) did not agree why and that a majority of five agreed the plurality’s reasoning was wrong.
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The Star Tribune newspaper in Minneapolis has published allegations that as part of a program training police officers to become Drug Recognition Experts, officers gave Occupy Wall Street protesters marijuana. “Trooper put on leave as probe of drug-training tactics widens.” This has resulted in the suspension of the DRE program and investigation of a number of police officers. “Minnesota police giving Peavey Plaza Occupy-ers drugs as part of impairment study, report says [VIDEO].”
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On March 5, 2012, the Circuit Court for Carroll County, Maryland released its opinion in the case of State v. Brightful, et al., granting the defendants’ pre-trial motions to exclude the opinion of a drug recognition expert (DRE) in each of the consolidated cases. The case was litigated by defense attorneys Brian DeLeonardo and Alex Cruikshank. The court heard 10 days of expert testimony from both sides between September, 2010 and February, 2011. The State presented six expert witnesses: Dr. Karl Citek, Ms. Michelle Spirk, Mr. William Tower III, Officer William Morrison, Lt. Thomas Woodward and Dr. Zenon Zuk. The defendants called three experts: Dr. Francis Gengo, Dr. Neal Adams, and Dr. Jeffrey Janofsky. The court concluded that the DRE program is not generally accepted within the relevant scientific communities and that therefore would be excluded under the cases of Frye v. United States and the Maryland case of Reed v. State, as well as under Maryland Rule 702.

Specifically, the court said:

Findings of Fact

The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and. by what specific drug he is impaired. The DRE training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.

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I recently read a disturbing opinion piece in the New York Times – My Guantánamo Nightmare. The author, Lakhdar Boumediene, wrote the following:

On Wednesday, America’s detention camp at Guantánamo Bay will have been open for 10 years. For seven of them, I was held there without explanation or charge. During that time my daughters grew up without me. They were toddlers when I was imprisoned, and were never allowed to visit or speak to me by phone. Most of their letters were returned as “undeliverable,” and the few that I received were so thoroughly and thoughtlessly censored that their messages of love and support were lost.

Some American politicians say that people at Guantánamo are terrorists, but I have never been a terrorist. Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.

We are brought up to believe that such things cannot happen in our country. They can. And they are happening right now. Our criminal justice system is designed to place a premium on due process – notice of charges, the presumption of innocence, requiring the government to prove its case beyond a reasonable doubt, the right to a jury of one’s peers. A delicate balance exists that prevents persons accused of committing crimes from being held incommunicado without charges filed, supported by probable cause.
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A recent news story disclosed that Howard County police officers were required to write a predetermined number of tickets each shift. Judge throws out DUI case, saying police had quotas – Howard County police chief calls ruling a bad decision. According to the story the Howard County Police Chief was quoted saying that a federal grant to aide enforcement of traffic laws required officers average 2-4 citations per hour on the street.

McMahon said the grant “mandated that an average of 2-4 citations must be written per hour on each of these details by each officer or future funding may be withheld.”

As a result the District Court for Howard County granted a defense motion to dismiss the charges.

In future cases, defense lawyers must find out if their clients’ stops were made by officers operating under a quota, as reported by a follow up story. Drunk-driving quota case may lead to similar efforts elsewhere – Prosecutors look at possible appeal as defense lawyers suspect issue may affect other cases.

Leonard Stamm, a Prince George’s County lawyer who wrote a legal handbook called “Maryland DUI Law,” said the case puts lawyers who defend people charged with drunken driving on notice for a potential avenue for defense.

Though as a District Court ruling it has no bearing on other cases, defendants coming before other judges can bring it up. “Now that it’s out there, it’s something you have to look for,” Stamm said.

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A recent internet news story described a DUI roadblock or sobriety checkpoint in Dunkirk, Calvert County, where 1054 cars were stopped and one person was arrested for drunk driving. Four Arrests Made at Dunkirk Sobriety Checkpoint (other arrests were made but not for drunk driving). This would appear to have violated the Fourth Amendment under the rule announced in Michigan Dept. of State Police v. Sitz.

In Sitz, the US Supreme Court applied a three-part balancing derived from earlier cases addressing random identification checks, random license checks, roving patrols, and checkpoints near the border. The three factors considered were: the state’s interest in enforcing the drunk driving laws; the extent to which the state’s interest was advanced by the checkpoint; and the level of intrusion to individuals stopped by police.

In Sitz, the Supreme Court found that Michigan had a high interest in enforcing the drunk driving laws. The roadblock was found to be sufficiently selective in advancing that interest. The roadblock netted two arrests for 126 vehicles stopped. Expressed as a percentage, about 1.6% of the drivers passing through the checkpoint were arrested. The Court noted that in the border checkpoint case, a ratio of 0.5% illegal aliens detected to the number of vehicles stopped had been held to pass constitutional muster. As to the level of intrusion, the Court noted that the checkpoints were administered according to guidelines that reduced the discretion of officers in the field. The average delay of individual vehicles was 25 seconds. Thus the roadblock did not violate the Fourth Amendment.

In the Dunkirk checkpoint, to the contrary, only one person was arrested of 1054 drivers, or an arrest to vehicle rate of under .1%. This is lower than the previously approved ratio, and would seem to establish that the Dunkirk checkpoint was ineffective, and therefore, in violation of the Fourth Amendment when the low effectiveness is balanced against the State’s interest and the level of intrusion.
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Criminal defense lawyers are fond of making analogies to explain themselves to non-lawyers. Analogies can be very useful in closing argument and I intend to discuss some of those analogies in a future blog. Today I want to discuss the DUI defense lawyer as a DUI mechanic or technician.

Every DUI case has component parts. The prosecutor must know how these parts fit together in order to build a successful case. The defense lawyer must also know how these parts are supposed to fit together in order to dismantle the State’s case. This is an integral part of our criminal justice system, and the defense lawyer acts as a check on the government to make sure the prosecution follows all of the rules and regulations, statutory and constitutional provisions before the fact-finder – a judge or jury – concludes the defendant is guilty.

It’s as if you brought your car into the shop for the mechanic to repair or rebuild your car. The defense lawyer is like a competing mechanic watching the actual mechanic. The judge is a supervisor. When the actual mechanic tries to take a short-cut, and skip a part he has in short supply, the defense lawyer/opposing mechanic objects, and the judge/supervising mechanic can rule that the prosecutor/mechanic cannot complete the repair without doing it 100% correctly.
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Maryland jurisdictions have slowly been replacing their 10 year old breathalyzers – affectionately called “breathaliars” by some – Intox EC/IR with the new breathalyzers – the Intox EC/IR II. This machine, manufactured by Intoximeters, Inc. in St. Louis, Mo. has a few improvements over its predecessor, according to the manufacturer.

In a letter dated July 6, 2006, M.R. Forrester, Chairman of Intoximeters, Inc., wrote the following about the newer EC/IR II:

One of the main reasons the EC/IR II was developed was certain parts of the EC/IR I were becoming obsolete, which made them harder to find and more expensive to replace. The primary difference concerns the Microprocessor on the motherboard and the case set. The analytical module in the EC/IR II is very similar to the one used in the EC/IR I in that we are using the same Fuel Cell sensor and sampling system. The microprocessor change is necessary because the EC/IR I microprocessor has been made obsolete since it is a state of the art device, which works at a far higher processor speed.

As often occurs with technological advances, the shortcomings of old technology are highlighted by the developments of new technology. For example, the higher flow of the new purge fan “is capable of opening [a] stuck mouthpiece.” The implication here is that the mouthpiece on occasion can get stuck, resulting in the machine recording insuficient breath. Additionally, the case set notes that there is higher “R[adio][]F[requency] immunity.” Although there is a claim that “RF immunity is adequate” in the EC/IR I, the need for higher RF immunity in the EC/IR II suggests otherwise. Other improvements made in the EC/IR II with serial numbers over 10,000 include modifications incorporating “additional test memory capacity, additional hardware to allow recirculation of a wet bath simulator, and enhanced EMC and RFI immunity.”
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