Pursuant to New Mexico law, a driver, merely by being licensed to drive in this state, implies his/her consent to submit to a breath test, a blood test, or both upon reasonable request from a law enforcement officer. I routinely get asked which is better (admittedly less often than I get asked how to get out of a DWI or DUI).
Pursuant to the rules of professional conduct, an attorney cannot inform someone how to break the law and get away with it --that succinctly addresses the latter. As far as the former...the short answer is that I trust blood tests more. What I will say is this: when a medical care professional is concerned about your health (which may be life or death-types of situations), he/she will draw and test your blood immediately. Hospitals do not have preliminary breath testing machines, much less the IR-8000 breath-alcohol testing machine that law enforcement officers use to test breath-alcohol content.
In addition, the results of a blood-alcohol test come back with one score whereas breath-alcohol tests require two tests, and thus come back with two results. I've seen breath-alcohol test results routinely vary by .02. To me, that's a big deal. Take for example, a breath-alcohol test card that comes back at a .09, and .07. Is that person at or above the legal (per se) limit of .08? Or, is that person below the legal limit?
The answer to that question depends not only on which score the fact-finder wants to believe, but which score, if either of them, is correct. Then, you throw in the fact that the machine has an acceptable margin of error of .02 in the first place, the possibility of false positives, radio frequency interference, breath-alcohol tube issues, calibration issues, source code issues, and other testing issues, and I don't know what to believe. A .12 breath-alcohol content may very well be a .08 in reality. The IR-8000 is not perfect. No machine is.
In DWI or DUI cases, it has been my finding that jurors prefer blood-alcohol tests. I'd estimate that for every 30 DWI or DUI cases I defend, one case will involve a police officer that tests my client's blood as opposed to breath.
Thursday, October 21, 2010
DWI: Breath or Blood
Pursuant to New Mexico law, a driver, merely by being licensed to drive in this state, implies his/her consent to submit to a breath test, a blood test, or both upon reasonable request from a law enforcement officer. I routinely get asked which is better (admittedly less often than I get asked how to get out of a DWI or DUI).
Pursuant to the rules of professional conduct, an attorney cannot inform someone how to break the law and get away with it --that succinctly addresses the latter. As far as the former...the short answer is that I trust blood tests more. What I will say is this: when a medical care professional is concerned about your health (which may be life or death-types of situations), he/she will draw and test your blood immediately. Hospitals do not have preliminary breath testing machines, much less the IR-8000 breath-alcohol testing machine that law enforcement officers use to test breath-alcohol content.
In addition, the results of a blood-alcohol test come back with one score whereas breath-alcohol tests require two tests, and thus come back with two results. I've seen breath-alcohol test results routinely vary by .02. To me, that's a big deal. Take for example, a breath-alcohol test card that comes back at a .09, and .07. Is that person at or above the legal (per se) limit of .08? Or, is that person below the legal limit?
The answer to that question depends not only on which score the fact-finder wants to believe, but which score, if either of them, is correct. Then, you throw in the fact that the machine has an acceptable margin of error of .02 in the first place, the possibility of false positives, radio frequency interference, breath-alcohol tube issues, calibration issues, source code issues, and other testing issues, and I don't know what to believe. A .12 breath-alcohol content may very well be a .08 in reality. The IR-8000 is not perfect. No machine is.
In DWI or DUI cases, it has been my finding that jurors prefer blood-alcohol tests. I'd estimate that for every 30 DWI or DUI cases I defend, one case will involve a police officer that tests my client's blood as opposed to breath. In addition, the State is currently held to a higher standard of probative evidence should it desire to use blood-alcohol in evidence. I've addressed those issues in a prior blog....
Pursuant to the rules of professional conduct, an attorney cannot inform someone how to break the law and get away with it --that succinctly addresses the latter. As far as the former...the short answer is that I trust blood tests more. What I will say is this: when a medical care professional is concerned about your health (which may be life or death-types of situations), he/she will draw and test your blood immediately. Hospitals do not have preliminary breath testing machines, much less the IR-8000 breath-alcohol testing machine that law enforcement officers use to test breath-alcohol content.
In addition, the results of a blood-alcohol test come back with one score whereas breath-alcohol tests require two tests, and thus come back with two results. I've seen breath-alcohol test results routinely vary by .02. To me, that's a big deal. Take for example, a breath-alcohol test card that comes back at a .09, and .07. Is that person at or above the legal (per se) limit of .08? Or, is that person below the legal limit?
The answer to that question depends not only on which score the fact-finder wants to believe, but which score, if either of them, is correct. Then, you throw in the fact that the machine has an acceptable margin of error of .02 in the first place, the possibility of false positives, radio frequency interference, breath-alcohol tube issues, calibration issues, source code issues, and other testing issues, and I don't know what to believe. A .12 breath-alcohol content may very well be a .08 in reality. The IR-8000 is not perfect. No machine is.
In DWI or DUI cases, it has been my finding that jurors prefer blood-alcohol tests. I'd estimate that for every 30 DWI or DUI cases I defend, one case will involve a police officer that tests my client's blood as opposed to breath. In addition, the State is currently held to a higher standard of probative evidence should it desire to use blood-alcohol in evidence. I've addressed those issues in a prior blog....
Tuesday, October 12, 2010
Judicial Performance Evaluations
The New Mexico Judicial Performance Evaluation Commission (JPEC)has completed its evaluations of New Mexico's judges recently. The commission compiles data and composes a grid that displays their findings concerning each judge. They also perform an individual evaluation of each judge. This year, three Metropolitan Court judges were recommended for non-retention (firing). Of the three, one of them was graded by the commission at a 26% on a traditional 100% scale. That's a grade mom would not approve of. Another judge was evaluated at 58%, but the commission recommended retention of her anyhow. Mom wouldn't agree with that score either!
For the first time that I've noticed, I have seen judges advertise asking for the community's support for retention. One of them even ran an ad in the Albuquerque Journal boasting of being supported by the former director of M.A.D.D. (Mother's Against Drunk Driving) A strange boast for a position that demands not only non-bias, but the appearance of being non-biased. How many people would want their DWI or DUI case decided by a M.A.D.D.-sponsored judge?
In my personal review of the JPEC's evaluation, I cannot say that I agree with all of their evaluations. However, I hope that the judges that were evaluated as having low approval ratings will take the commissions findings as a request for improved performance. The community deserves it and the profession should demand it. You can see all the JPEC's findings at: http://www.nmjpec.org/
For the first time that I've noticed, I have seen judges advertise asking for the community's support for retention. One of them even ran an ad in the Albuquerque Journal boasting of being supported by the former director of M.A.D.D. (Mother's Against Drunk Driving) A strange boast for a position that demands not only non-bias, but the appearance of being non-biased. How many people would want their DWI or DUI case decided by a M.A.D.D.-sponsored judge?
In my personal review of the JPEC's evaluation, I cannot say that I agree with all of their evaluations. However, I hope that the judges that were evaluated as having low approval ratings will take the commissions findings as a request for improved performance. The community deserves it and the profession should demand it. You can see all the JPEC's findings at: http://www.nmjpec.org/
Sunday, October 10, 2010
S.I.D.: Sorry, Impossible Demeanor
The S.I.D. (Special Investigations Division) Agents were working overtime at the tailgating scene in Las Cruces, New Mexico this weekend. I was tailgating with family and friends there prior to the New Mexico State University/University of New Mexico game when I witnessed and became part of some unfortunate encounters.
Tailgaters next to us were approached by a couple of agents who simply announced, "you look young, how old are you? If you don't tell me, I can have you arrested." The kids told them their ages and the agents made them pour out their beer --two 30-packs of Bud Light --and then they cited them. I walked over to see what was going on, and one of the agents turned his attention to me. I couldn't help but notice that he had a pierced tongue --how many times the metal detector goes off back at the station due to it, I don't know. But it did remind me of what Chris Rock said and it was a precursor to predictable poor behavior on his part. He raised his voice at me and put on an aggressive stance and "ordered" me to produce proof of my age. He marveled at the tremendous power he had for the duration of our two-minute conversation. After having a good time with him, I decided to show him my license and watched him walk away.
For those of you that I talked to at the tailgate party: There was no reason for the S.I.D. Agents to approach you in the first place. It is not illegal to look younger than 21 years old. In addition, one doesn't possess alcohol that is in their system, and does not necessarily possess alcohol that is ten feet from them in a cooler. The Fourth Amendment to the U.S. Constitution still exists --even at tailgate parties. Be sure to get a lawyer and fight those citations.
Tailgaters next to us were approached by a couple of agents who simply announced, "you look young, how old are you? If you don't tell me, I can have you arrested." The kids told them their ages and the agents made them pour out their beer --two 30-packs of Bud Light --and then they cited them. I walked over to see what was going on, and one of the agents turned his attention to me. I couldn't help but notice that he had a pierced tongue --how many times the metal detector goes off back at the station due to it, I don't know. But it did remind me of what Chris Rock said and it was a precursor to predictable poor behavior on his part. He raised his voice at me and put on an aggressive stance and "ordered" me to produce proof of my age. He marveled at the tremendous power he had for the duration of our two-minute conversation. After having a good time with him, I decided to show him my license and watched him walk away.
For those of you that I talked to at the tailgate party: There was no reason for the S.I.D. Agents to approach you in the first place. It is not illegal to look younger than 21 years old. In addition, one doesn't possess alcohol that is in their system, and does not necessarily possess alcohol that is ten feet from them in a cooler. The Fourth Amendment to the U.S. Constitution still exists --even at tailgate parties. Be sure to get a lawyer and fight those citations.
Wednesday, October 6, 2010
Nope. It's Against the Law
The U.S. Congress Judiciary Committee is holding hearings on over-criminalization. One of the focal cases involves a man named Abner Shoenwetter. He was a seafood broker that was convicted of buying lobster tails for the purpose of re-sale that violated Honduran harvest regulations. The businessman served six years in federal prison and was also issued a $10,000.00 fine for his violation of the Federal Lacey Act! Another case that came up concerns a snowmobiler that was lost in snow drifts and faced six months in jail and a $5,000.00 fine for operating his snowmobile in a wildlife reserve.
As it appears, Congress will be looking at whether there are more effective means of attaining compliance with its laws short of criminalizing what many would view as reasonable activity. As U.S. prisons and even state jails are faced with serious over-population issues, and federal and states are re-thinking how our tax dollars are spent, Congress is on the right track. Many offenses would be better dealt with by issuing a fine or ordering some sort of community service that goes along with restitution. Courts have also attempted to assist would-be litigants that are faced with charges that come with draconian sentences.
Our local District Court recently established a mediation program where criminal cases can be mediated in response to the legal community's call for a program that would better suit prompt and fair resolutions short of litigation. But, obviously, both sides of the aisle have to agree to enter the program, in turn, cases that may seem appropriate for mediation won't be accepted if the District Attorney's Office does not agree to participate. Therefore, court alternative programs won't always provide an acceptable fix.
Looking towards fixing the over-criminalization of acts (prohibited acts) is a step in the right direction and should be applauded. To find out more about Mr. Shoenwetter's case, visit the following link: http://www.miamiherald.com/2010/10/03/1855997/congress-looks-at-laws-that-criminalize.html
As it appears, Congress will be looking at whether there are more effective means of attaining compliance with its laws short of criminalizing what many would view as reasonable activity. As U.S. prisons and even state jails are faced with serious over-population issues, and federal and states are re-thinking how our tax dollars are spent, Congress is on the right track. Many offenses would be better dealt with by issuing a fine or ordering some sort of community service that goes along with restitution. Courts have also attempted to assist would-be litigants that are faced with charges that come with draconian sentences.
Our local District Court recently established a mediation program where criminal cases can be mediated in response to the legal community's call for a program that would better suit prompt and fair resolutions short of litigation. But, obviously, both sides of the aisle have to agree to enter the program, in turn, cases that may seem appropriate for mediation won't be accepted if the District Attorney's Office does not agree to participate. Therefore, court alternative programs won't always provide an acceptable fix.
Looking towards fixing the over-criminalization of acts (prohibited acts) is a step in the right direction and should be applauded. To find out more about Mr. Shoenwetter's case, visit the following link: http://www.miamiherald.com/2010/10/03/1855997/congress-looks-at-laws-that-criminalize.html
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