Posted on April 21, 2008 by Glen Neeley

Followup to Utah's DUI Single Breath Test

I saw this story about Cynthia Sommer and was overjoyed that an innocent woman was released from jail.  I was saddened that it took 2 years of jail, a jury conviction, and a "second test" to finally exonerate her.  Why did it take so long for a second test.  This was a murder case.  This was a case that the prosecutors convicted an innocent woman.  This was a case that could have been solved without ruining a life of a grieving woman with a simple duplicate test.  What does this story have to do with DUI's in Utah?  People in Utah accused of DUIs are requested to take a single test.  The breath sample is not preserved for later testing by an independent agency.  Compare the breath test machine that has the same computer chip of the 1970 version of the Atari computer game with the high tech blood testing machines used in most murder cases, and yet the first test was wrong.  How many innocent people have been convicted of DUIs because only one test was given?  In Utah the answer could be astonishing.

 The story follows:

Continue Reading...
Tags:
Posted on April 20, 2008 by Glen Neeley

Police in Utah DUI arrests only ask for One Test

    A couple of years ago I attended the Indiana University Borkenstein Course. This is a course that Utah Breath Test technicians are required to take to qualify for their job as technicians. The taxpayer spends a lot of money on these people to take this course. The course is taught by the top scientists in the country and the world. For example, AW Jones from Sweden is probably considered as the worldwide expert on breath testing. Dr. Kurt Dubowski is probably considered the leading expert on breath testing in the nation.

    All of the scientists and experts that taught at the program taught one common theme for forensic breath testing: Quality Assurance is the most important aspect of forensic breath testing. Each expert emphasized that any breath test program should employ duplicate breath testing to ensure an accurate result. The Utah Department of Public Safety chooses to ignore the quality assurance safeguards of duplicate breath testing. I have heard the excuses that it would cost too much to "we don't have to and we don't care." A fellow National College for DUI Defense member posted his research on states that require duplicate testing and those that don't. http://www.wvdui.com/StateBreathMachines.asp

  • The interesting thing is that 27 states reported duplicate breath test requirements. 18 states still employ single breath test requirements.
     If it is important to ensure that tests are accurate, that innocent people are not convicted, and to ensure that justice is served, why doesn't Utah step up to the plate. It is not expensive, it is just a software issue. The state has recently purchased brand new Intoxilyzer 8000 machines. Those machines are designed to do duplicate testing. Yet, duplicate testing is still not employed. It seems to me that if the state employed a system to ensure accurate results, they may have to employ the idea that maybe the officer made a mistake in making the arrest.

Continue Reading...
Tags: , ,
Posted on April 16, 2008 by Glen Neeley

Should I plead to a Metabolite DUI?

I was discussing a case with a prosecutor today.  He made the offer that my client plead to Driving with a Measurable Amount of a Controlled Substance in his system.  This is basically the same thing as a DUI, except the prosecution does not have to prove any impairment or level whatsoever.  The only thing they have to show is that the person had a small amount of the byproduct of a drug in their system.  The only defense to this charge is that the person has a valid prescription for the controlled substance.  Should the person plead to this charge?  My answer is if there is another way around it, don't plea to.  I suggested a Drug Related Reckless charge.  The prosecutor asked why?  Here are my four reasons?

  • A metabolite charge will suspend your license for 90 days, or 1 year if it is a second offense.
  • A Drug Related Reckless driving charge will save the license (if you kept it at the DMV hearing), or will reduce the license suspension to 60 days if it is a first offense.
  • Usually, the Courts will give a lessor fine for a DRR.
  • Usually, the DRR will not involve jail time or as much community service hours.
Be aware that both charges are similar in nature.  They both will stay on your record for 10 years before expungement can take place.  Both usually require a drug class.  Both will have the stigma of DUI along with insurance implications.

Tags: , ,