Take a look at this interesting opinion piece from a blogger community who calls itself “The Discovering Alcoholic.” The writer contends that the public at large does not necessarily benefit when state legislatures pass tougher and tougher DUI laws. Specifically he contends that when laws become punitive rather than preventative, the big picture goal of taking those with a drinking problem off the street is not achieved.
For example, the Discovering Alcoholic argues that to both require a DUI offender to attend classes and therapy while at the same time taking away his driver’s license may very well result in an embittered, unemployed and depressed person who might be likely to find himself arrested again. Instead, why not use current technology like ignition interlocks and transdermal perspiration monitoring bracelets with GPS monitoring to allow limited driving privileges with appropriate safeguards against drunk driving.
Do you think that the Discovering Alcoholic has a point? Will judges be persuaded by his logic?
Filed under DUI laws, Punishment issues by on Apr 17th, 2008. Comment. 
California DUI lawyer and blogger Lawrence Taylor writes about a case in Kentucky where a DUI defendant is fighting DUI charges based on a claim that his chewing tobacco contained small amounts of Tennessee whiskey (for flavoring purposes) and that the breath test inaccurately showed an over-the-limit blood alcohol level.
Attorney Taylor explains that:
To obtain the percentage of alcohol in the blood, the breathalyzer machine is basically programmed to multiply the amount by 2100 times (called the partition ratio) to get the equivalent amount in the blood. This is because the alcohol in the lung air (called alveolar air) has been greatly attenuated in the process of being transferred from the blood into the lungs. In other words, the machine is programmed to assume that the sample is alveolar air. If the alcohol has not passed through the body and into the lungs, however, but is still in the mouth, the machine is multiplying alcohol 2100 times when it should not be multiplying it at all. And it doesn’t take much alcohol to get a high reading if it’s being multiplied 2100 times.
I am not aware that this defense has been tried in Georgia, but it is intriguing. How many common products include alcohol? Mouthwash, cough medicine, pastries (rum cake). If anyone has tried this defense, please let me know.
Filed under Trial issues by on Apr 28th, 2008. Comment.
Dallas criminal defense lawyer Robert Guest recently posted a very useful interview with field sobriety test expert Dr. Greg Kane. Robert contends that the field sobriety test guidelines that are a standard part of police officer training are based on flawed science. Dr. Kane’s observations suggest that attorney Guest may have some valid points.
Specifically, Dr. Kane contends that researchers who validate the accuracy of currently used field sobriety tests do not test a cross section of the population – instead, the population tested is heavily weighted to include heavy drinkers. The tests, therefore, are designed to suggest that almost everyone taking a field sobriety test is impaired. In one review of the validation studies, 93% of individual whose blood alcohol content was below the Texas limit of .05% s failed the field sobriety tests. At a .08 BAC, the field sobriety test was only 29% accurate, meaning that 71% of defendants convicted based on field sobriety tests would be wrongfully convicted.
Dr. Kane goes on to say that the legitimacy and accuracy of field sobriety tests has been accepted as a given for so long that most defendants and their counsel fail to challenge the premise behind the tests, i.e. that the tests themselves have some association with a blood alcohol levels contemplated by DUI statutes.
If you are facing a DUI charge that is based on your performance on field sobriety tests, Dr. Kane’s research may offer the foundation for an aggressive defense.
Filed under Field sobriety testing, Pre-trial actions by on Apr 29th, 2008. 1 Comment.
The University of Georgia police arrested a man and charged him with DUI when they found him fixing a flat tire while intoxicated. The story in the Athens Banner Herald is very brief and there may be additional facts, but I suspect that most first year law students can see the problems with a DUI charge.
There is no indication that the police officers saw the suspect engaged in driving his vehicle. If the flat tire happened four hours prior to the arrest, and the suspect decided to visit a bar while waiting for road service, there would be a reasonable argument that there is insufficient evidence that he was in actual physical control of the vehicle while intoxicated.
On the other hand, Georgia Courts (and the United States Supreme Court) have given somewhat wide latitude to the police when it comes to arrests arising from driving. The courts recognize that a driver possesses an means to escape (the vehicle) and that there is a public benefit arising from keeping impaired drivers off the road.
That being said, I think that in this case, a capable DUI defense lawyer should have a reasonable chance at bargaining down the DUI charge to some lesser offense. Now it does appear that this defendant has other problems than DUI, but, assuming that he kept his mouth shut, the DUI charge seems susceptible to a challenge.
Filed under Arrest issues, DUI laws by on Apr 29th, 2008. Comment.
