Persons accused of driving under the influence garner little sympathy, especially those with multiple offenses.   How can any lawyer want to get a repeat offender off on a technicality?

Here is how I respond:

First, the goal of any reputable criminal defense lawyer is to investigate to determine whether the state (in the form of the police officers and the prosecutors) have done their job according to the law.  In the American system, criminal prosecutions are adversarial in nature, meaning that the state’s attorneys (the prosecutor) and the defense attorney are on opposite sides.

Our founding fathers recognized that representatives of the state have significant resources and built in authority when appearing before juries.  Such power can be abused if not held in check.   Unfettered police power can turn a free society into an authoritarian one.   History has shown that when agents of the state can enter people’s homes at will, detain them indefinitely, and incarcerate without critically analyzed evidence, personal freedom disappears.  We can both support the hard work and bravery of policemen and women while at the same time demanding that these officers take care to collect and store evidence properly, advise the accused of certain constitutional rights and engage in a certain baseline of appropriate conduct.

How does all this apply to a DUI case?  Take a look at this informative article about blood alcohol testing kits in Georgia from respected Newnan, Georgia DUI defense attorney Alan Trapp.   Alan discusses the blood collection kits used by state and county police forces in Georgia and the potential for false results because of stale preservative or a defective seal.  Now imagine that you consumed one beer at dinner and were randomly stopped at a DUI checkpoint.  Further assume that the DUI kit used by the local police officer was contaminated with a yeast called Candida albicans that began to ferment when blood was added.  Further assume that there was insufficient preservative in the test kit.  A properly calibrated kit might have shown your blood alcohol content at .03, well below the legal limit, but the contaminated kit yielded a result of .09.

In this scenario, a DUI conviction would wrongfully land you in jail for two or more days, a fine of up to $1,000, a possible loss of your full driving privileges for up to a year, 40 hours of community service, probable loss of insurance coverage, and dramatically increased insurance renewal rates.

In truth, because of the contamination neither you, the arresting officer or the prosecutor would really know exactly what your blood alcohol level was at the time of arrest.   That uncertainty is called “reasonable doubt.”

Now imagine that you retained a smart lawyer like Alan who was able to obtain physical evidence and testimony from the arresting officer that convinced a judge or jury that the blood alcohol test kit was contaminated, thereby resulting in an acquittal.

Now this does not mean that every DUI arrest can be successfully challenged, and conversely there may be some guilty drivers who get off because of bad evidence.  If the stakes are your personal liberty and a huge financial burden, don’t you want the state to have to prove its case beyond a reasonable doubt.  Don’t you want a procedure in place where you can argue against your guilt to an impartial finder of fact?

So, the next time a friend or relative opines that criminal defense attorneys are no better than the defendants they represent, think about how you would feel if you found yourself in the wrong place at the wrong time and your lifestyle was at risk.

When a defendant is convicted of a state law crime such as murder, he will generally file an appeal to a state appeals court.   Appeals generally involve supposed errors of law – the defendant may contend that certain evidence was improperly admitted or that the jury instructions were wrong.   Except in rare instances the appeals court will not reverse a conviction based on the judge or jury’s evaluation of the evidence.  In other words, an appeal of a criminal conviction is not a new trial – the defendant must convince the appeals court that the trial court made significant errors that could have changed the outcome.

If a defendant loses his state court appeals and does nothing further, the state will enforce its penalty by leaving the defendant in prison, or in capital cases, by executing the defendant.

Because “death penalty” cases involve the ultimate penalty, capital defendants have a second layer of appeal available to them under a concept called “habeas corpus,” which allows a federal court (and federal appeals courts, up to and including the United States Supreme Court) to consider issues involved in the state court trial or subsequent appeal as Constitutional matters.  The “due process” clause of the 14th Amendment to the Constitution guarantees all citizens fundamental fairness and justice in all criminal prosecutions, and the federal court can review the decisions of the state trial and appeal courts even in cases not involving federal criminal law.

Successful habeas corpus appeals are rare.   Federal judges have the power to decide which cases they will consider – thus there is no guarantee that the federal courts will accept a case for review.  The further along the appeal process a case travels, the less likely that it will be heard, much less be decided in the defendant’s favor.   Very, very few cases end up before the United States Supreme Court – only cases involving important legal issues with far reaching consequences will be accepted by the Supreme Court for review.

One such case that has made it through both state appeals procedures and federal appeals procedures all the way to the United States Supreme Court is the case of Wellons v. Hall, the case involving the chocolate penis.

Defendant Wellons was convicted by a Cobb County jury of the rape and murder of a 15 year old girl named India Roberts.  Because of the vile and horrible nature of the crime, the jury sentenced defendant Wellons to death for the murder and life in prison for the rape.

After the trial was over, however, several of the jurors made the bizarre decision to give the trial judge a gag gift consisting of a chocolate penis.  None of the parties involved dispute this fact.  The defense attorneys also claim that the jurors gave the court baliff two chocolate breasts, although several of the parties involve dispute this part of the story.

In any case, the trial judge did not report this activity to the defense or the prosecution – the judge asserts that the “gift” was received after the trial and thus was not relevant.

Following the conviction, defendant Wellons and his defense team filed appeals in both state court and in federal court.  At every stage, his appeal was denied, mostly on procedural grounds.  In 2009, the Supreme Court took the very unusual step of accepting Wellons’ appeal for review and in a written opinion, vacated the conviction and sent the case back to the 11th Circuit Court of Appeals with direction to consider whether Wellons received a fair trial given the bizarre activities undertaken by the jury.

The Supreme Court’s actions do not mean Wellons will be released from prison or that he will likely be found innocent.  His defense, by the way, was that he was mentally ill and insane and therefore unable to form the specific intent required for a capital murder conviction.  Insanity defenses are notoriously difficult to prove and my reading of the Georgia Supreme Court’s opinion suggests that Wellons would likely be convicted by any reasonable jury considering the facts.

However, if the 11th Circuit Court of Appeals does find that the jurors actions mean that Wellons did not receive a fair trial, then Cobb County will have to go to the time and expense of retrying a 20 year old murder case, and India Roberts’ family will have to go through the stress of reliving the nightmare of the murder.

In its opinion, the Supreme Court notes that “from beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”   Even in the case of a murderer who is likely guilty inappropriate activities by the  jury will undermine the public’s confidence in our judicial system.

What do you think?  Is the Supreme Court creating a lot of work for Cobb County because of a technicality or is the principle here important enough to warrant a new trial for the defendant?   The Atlanta newspapers wrote about this case in February 2010 – you can read the article by clicking on the link.

Davis’ current (and possibly final) appeal rests in the United States Supreme Court.  On June 29, 2009, however, the Supreme Court concluded its 2008-2009 session without making any decision on Mr. Davis’ petition for habeas corpus.   A petition for habeas corpus is a demand for extraordinary relief and is used in a criminal matter when a defendant contends that he has been denied due process by lower courts.

At this point, Mr. Davis is asking the Supreme Court to set into motion a process whereby he would end up with a new trial on the evidence.  He contends, among other issues, that since the original trial the eyewitnesses to testified against him in the original trial have recanted, and that other witnesses, previously unknown, were now available to testify.

In addition the Georgia Resource Center, which provided legal help for Mr. Davis (as well as for other indigent defendants) found its budget and staff cut, thereby reducing its effectiveness in presenting Mr. Davis’ case.

Davis’ plight has also garnered the attention of activists and celebrities throughout the world who are voicing support for a new trial.

It appears to me that at this point, Mr. Davis’ biggest  hurdle may be procedural.  One one hand, there seems to be a visceral reaction in the minds of even casual observers that when a man’s life is at stake, a court system should not put form over substance by denying a defendant his day in court on the basis of procedure.

On the other hand, prosecutors and many others argue that there must be rules regarding the finality of trials and appeals.  Civil and criminal courts are all subject to rules of evidence.  At some point both prosecutors and defense lawyers must present their best cases, recognizing that there is always new evidence or arguments not made.

My guess here is that the Supreme Court will decide that Mr. Davis should be given another opportunity to present evidence to disprove the State’s allegations of guilt.   This case has become something more than a murder trial – instead it has become a symbol of American criminal jurisprudence, and I think that the Supreme Court justices will incorporate this factor into their ruling this coming fall.

If a new trial does happen it will be interesting to see how a new jury evaluates the witnesses and their changing stories.   Given the political dimension of how this case has evolved, we will probably never know exactly what happened that early morning in Savannah, Georgia in 1989.

The 11th Circuit Court of Appeals did, in fact, stay Mr. Davis’ execution, and on Tuesday, December 9, 2008, a three judge panel of the 11th Circuit heard arguments as to whether Mr. Davis and his attorneys have presented enough evidence to continue the stay of execution and to permit defense attorneys to pursue different theories of appeal.

Note that the 11th Circuit panel was not deciding guilt or innocence or even whether a new trial was warranted.  They were considering a very narrow procedural matter – was there enough evidence to continue to the stay of execution so that Mr. Davis would have time to present an argument for a new trial.

A decision has not yet been issued by the 3 judge panel and there is no indication as to when it may be released.  In the meantime, Mr. Davis, his family and supporters will continue to hope for redress, and Officer MacPhail’s relatives will continue their vigil for closure.

Recently, Mr. Davis’ attorneys filed an appeal to both the Georgia Supreme Court as well as the United States Supreme Court arguing that the conviction should be overturned because several of the eyewitnesses have “recanted” their testimony.  The attorneys argue that to execute a defendant with a “strong claim of innocence” would be a violation of the Bill of Rights prohibition against “cruel and unusual” punishment.

My colleague, blogger Paul Kennedy of Houston, weighs in on this controversy with a blog post entitled “Its not Cruel and Unusual to Execute an Innocent Man.”  Paul argues:

that just because a citizen was given a fair trial doesn’t mean that the verdict is correct?  When it comes to deciding whether or not a fellow citizen’s life is to be taken away by the state, the very least we can do is make certain that the state is killing the right person.

On the other hand, Atlanta Journal-Constitution editorial writer Jim Wooten says this:

Before you buy-in to the Troy Anthony Davis PR campaign, go to the source. Read for yourself the Georgia Supreme Court decision handed down March 17 that dealt with quality of the alleged recantations in the murder of Savannah police officer Mark Allen MacPhail. Cut out the spin. Read Justice Harold Melton’s majority opinion.

There have been many studies which demonstrate that eyewitness testimony can sometimes be seriously flawed.  Often our memories of what we genuinely believed that we saw are simply incorrect.  On the other hand, eyewitness testimony has long been accepted by our courts as an acceptable basis for finding criminal liability.

Like many of my fellow bloggers, I am concerned with the prospect of putting an innocent man to death.  On the other hand, I think that the family of the slain Savannah police officer does deserve justice.

I encourage you to take a look at the Georgia Supreme Court opinion.  Here are some of the facts that are not in dispute:

In the early morning hours of August 19, 1989, Troy Davis was at a pool hall with his friends Sylvester Coles and Darrell Collins.  Nearby a homeless man named Larry Young was exiting a convenience store with a six pack of beer.  Coles approached Young to ask for a beer but Young refused the request.  Coles then followed Young, cursing and screaming at him.  Davis and Coles circled around a nearby building and together with Coles, surrounded Young.  Davis then pistol whipped Young, severely injuring him.  An off duty police officer, Mark MacPhail observed the altercation and approached Davis and Coles.  Officer MacPhail was subseqently shot and died on the scene.  Davis says that Cole was the triggerm, and Coles points the finger at Davis.

Earlier that night a man named Michael Cooper was shot at a party.  Several eyewitnesses named Troy Davis as the shooter.  Bullets removed from Cooper’s body during treatment matched bullets removed from Officer MacPhail’s body.

During the investigation, several witnesses were interviewed by the police and stated that Davis had confessed the murder of Officer MacPhail.   Larry Young identified Davis as the person who struck him on the head with a pistol.  Darrell Collins, who had run from the immediate area of the Young-Davis/Coles altercation, testified that the person who struck MacPhail also shot him.

Subsequent to the trial that resulted in Davis’ conviction, several of the witnesses noted above changed their stories.

Davis was convicted of murder, not for being a really bad person.  A jury heard the evidence presented, including the witness testimony and concluded that Davis was the murderer.

I encourage you to read the heartfelt opinions of fellow bloggers who sincerely oppose the death penalty and who stand for the principle that the state needs a great deal of certainty before taking a convicted criminal’s life.   You will note that few, if any, of these bloggers report the undisputed factual background of this case.  Does it matter?  Should the Georgia courts ordered a new trial?  Does the recitation of facts shapre your opinion?  What do you think?

Nevertheless, the law does not treat every DUI defendant the same way because some DUI offenders are more culpable than others.  Further, the law requires that the prosecutor prove his case.  It is not enough that the police officer “thought” that an individual was under the influence – there needs to be proof, which can include blood test, breath tests and other types of evidence.

Recently, the Supreme Court agreed to hear the case of Begay v. United States, a decision which was released in April, 2008.  In the Begay case, the defendant (Begay) was arrested in New Mexico for unlawfully possessing a firearm, a violation of federal law.  Mr. Begay was a convicted felon and thus was not permitted to possess a gun.

Following a trial, the federal judge hearing the case sentenced Mr. Begay to 15 years under the Armed Career Criminal Act, which mandates a 15 year sentence to a felon who is convicted of possessing a firearm and who has three or more convictions for “violent felonies.”  The violent felonies relied up on by the judge were Mr. Begay’s 12 DUI convictions.

Clearly, Mr. Begay is not a sympathetic defendant.  However, the law requires three or more convictions for violent felonies.  The Supreme Court held that DUIs are not violent felonies because a DUI is usually not an intentioal act to hurt another person, and because the examples of violent felonies set out in the Armed Career Criminal Act were of a substantially different nature than a DUI.

Does this mean that Mr. Begay is not a dangerous person or that he should not be incarcerated?  No.  It does mean that he should not be convicted of a crime when his conduct does not equal the conduct procsribed in the statute.

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.

These devices cost $150 to install and $75 per month to monitor.

I have no issue with any tactic that can take drunk drivers off the road, although I can certainly envision scenarios whereby a driver will be inconvenienced if the device malfunctions.   My question – will accident victims and/or drunk drivers themselves – have any recourse against the breath test manufacturer if the device fails to stop an intoxicated driver from starting his car?

Hawaii leads the nation in the percentage of traffic deaths involving drunk driving (52% of total highway deaths).

This does not mean that eyewitness testimony is always bad – it does mean that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.

One of the more interesting findings of the Canadian study suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content. You can read more about this study in an article entitled "Do DUI Laws Discriminate Against Women?" If you use oral contraceptives, make sure to tell me so we can discuss whether this factor might be an element in your defense.