New articles dealing with breath testing and overcriminalization.

Just posted several new blog articles dealing with a couple different issues.
 Recently, the Unites States Supreme Court (SCOTUS) recognized the term overciminalization in their opinion Yates v. United States.  Basically, SCOTUS looked at the issue of prosecutors over reaching and attempting to stretch legal definitions to increase the potential punishment.  Here is link to the blog article: http://oklahoma-criminal-defense-lawyer.com/u-s-supreme-court-ready-recognize-idea-overcriminalization/

The other article was posted on a national DUI blog that I also am a contributor.  It was posted there as it is applicable to breath tests all over the nation.  The article explains the issues with breathalyzers and Intoxilyzers.  The article is posted here: http://duinewsblog.org/2015/03/24/factors-affecting-oklahoma-intoxilyzer-breathalyzer-tests/

Oklahoma Expired Blood Test Kits: Is It Really Acceptable To Keep Using Them?

One of the tools that Oklahoma law enforcement use to gather evidence of driving under the influence (DUI) is a blood collection sample kit. This kit contains vacuum-sealed tubes, which are designed to draw in a pre-determined amount of blood which then mixes with an inorganic salt compound consisting of sodium fluoride and potassium oxalate.

 

Oklahoma blood test kits carry expiration dates on the vacuum-sealed tubes. There may be some confusion as to the effect these expiration dates may have if a police officer uses a tube that is beyond its expiration.

 

The first question is whether the expiration relates to the salt compound contained in the tube. The answer here is, “no.” The compound itself is stable. This leads to the second, and more significant inquiry: if the expiration date on the blood collection vacuum tube does not refer to the salt compound, then what does it refer to?

 

The expiration refers to the tube manufacturer’s warranty that the vacuum seal of the tube will maintain its integrity to a degree sufficient to draw a pre-determined amount of blood. It is the vacuum that draws the blood into the tube; but unlike the salt compound, the tube seal eventually does degrade and as it does, the amount of blood that it will draw into the tube becomes increasingly subject to uncontrolled variation.

 

So what does this mean to you, if you are subject to a blood draw using an expired vacuum tube?

 

The most significant impact of a loss of vacuum is that the amount of blood drawn into the tube may affect the ratio between the blood and the salt compound, which in turn may compromise the value of the test result when it comes to establishing whether a driver was under the influence when the blood sample was drawn. This potential volume-based skewing of the test sample is referred to as, “salting out”.

 

A second possible problem with a loss of vacuum integrity in the collection tube is that a compromised seal means that more than the blood sample may possibly be able to enter it. Certain commonly-found yeast bacteria, for example, may be able to enter via the degraded seal. That bacteria consumes the blood sugar, or glucose, and as a waste product produces… alcohol. That is correct: a contaminated sample due to a faulty vacuum seal can result in the production of alcohol inside the tube.

 

What is more, there is no way for the devices used to analyze the blood sample for alcohol content to distinguish between the alcohol that was in your blood when the sample was drawn and any bacterially-produced alcohol that was created after the draw. This can lead to a challenge of the evidentiary value of the sample itself.

 

Are expired blood test kits being used in Oklahoma? The answer appears to be, “Yes.” Documentation available from the state’s Board of Tests for Alcohol and Blood Influence indicates that not only are some expired test kits still in the field, but that the State Director of the Board of Tests has given the green light to keep using them.

 

Not every blood draw sample in Oklahoma will be subject to vacuum-seal compromise. And the state is encouraging law enforcement in the state to turn in expired test kits. But if you have been accused of DUI based in part on the result of a blood sample, the fact that some of these expired kits are apparently still in use is an avenue that your attorney will definitely need to investigate as part of your defense.

 

The Oklahoma DUI attorneys at the Hunsucker Legal Group have received advanced training in the science and laws relating to blood and breath testing.  Call them today for your free consultation at 405-231-5600

How Oklahoma Police Officers Detect and Detain Suspected Drunk Drivers: Part One

When it comes to making DUI stops, it is well-established in Oklahoma and other states that police officers cannot arbitrarily stop vehicles and then “work backwards” to try to find something illegal. The stop itself must have some basis in reasonable suspicion that the driver is driving while under the influence. But how do police make such a determination? Is there any uniform standard that they adhere to, and if so what is that standard?

 

Police in many jurisdictions do in fact have guidelines to help them decide whether to pull over a vehicle the driver of which they suspect is intoxicated. One such set of guidelines is issued by the US Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), and is entitled “DWI Detection and Standardized Field Sobriety Testing.”  It is important to realize that this manual is more than just how to perform the roadside field sobriety tests but also trains an officer when he should stop a vehicle suspected of DUI or DWI. 

The NHTSA standards visualize a police DUI stop as a three-phase process that begins with observing the vehicle in motion, then progresses through making personal contact with the driver and finally to pre-arrest screening. This post will address the first of these three phases, “vehicle in motion.” 

This first phase is intended to answer the question, “Should I stop the vehicle?” Depending on the circumstances, the officer will answer the question in one of three ways:

●       Stop the vehicle right away

●       Wait and look for additional evidence

●       Do not stop the vehicle

Driving a car involves a process known as “divided attention.” A sober driver must be able to handle multiple tasks simultaneously, or near-simultaneously, such as steering, signaling, controlling the accelerator and brakes, and observing other cars and traffic signals. 

Impaired drivers have trouble dividing their attention; they tend to concentrate on only a few critical tasks at any given time, letting the other tasks slip. These drivers frequently demonstrate symptoms that police are trained to look for, such as slowed reactions, poor coordination, impaired vision or impaired judgment.  

There are, in fact, more than 100 driving cues that may indicate DUI behaviors, which fall into broader categories:

●       Problems maintaining proper lane position

●       Speed and braking problems

●       Vigilance problems

●       Judgment problems 

Thus, police officers in phase one will be observing the vehicle to see if the driver exhibits behaviors like committing a moving traffic violation, swerving or weaving in a lane or across lanes, turning with an unusually wide radius, or driving at an unusually slow speed or with varying speeds.  

The NHTSA standards even suggest the possible level of alcohol intoxication that these behaviors may indicate:

●       Slowed reactions: blood alcohol concentration (BAC) of 0.03

●       Impaired judgment: BAC of 0.05

●       Impaired vision: BAC of 0.08

●       Poor coordination: BAC of 0.10

Other things that police will look for include expired registration tags or movement in the car indicating that the driver is drinking something or otherwise taking drugs. 

The officer’s decision whether to move to the second phase -- stopping the vehicle and interacting with the driver -- can depend on the severity of the impairment symptoms that he or she sees. Dangerous behaviors, such as nearly striking other vehicles or objects or driving with one’s headlights off at night will likely result in an immediate stop; less severe behaviors, like driving slowly or drifting within a lane may lead the officer to wait and see if the driver displays other symptoms. 

In a following post, we will consider phase two of the three-phase process: the vehicle stop and the officer’s communication with the driver. 

Every one of our Oklahoma DUI Lawyers as well as most of our support staff at the Hunsucker Legal Group are trained and certified in NHTSA DWI Detection and Field Sobriety Testing.  It is our goal that we will be better trained and have more knowledge that the prosecutor and the police officer when we step into a courtroom to protect our clients.  For a frre consultation, please call 405-231-5600.

Field Sobriety Tests: How Reliable Are They?

Aside from Intoxilyzer or blood tests, one of the commonly-used means of Oklahoma police to assess whether an Oklahoma driver is under the influence of drugs or alcohol are field sobriety tests. Officers typically have a suspected drunk driver perform a battery of sobriety tests; failing one or more of them can not only lead to an arrest for DUI, it can possibly also be used by the prosecution as evidence at trial.

 

Field sobriety tests are not, however, foolproof as indicators of intoxication. To begin with, they are limited in their evidentiary value. None of these tests can be used as a correlation to a specific blood alcohol content level, because they may only indicate intoxication (and not necessarily alcohol intoxication). Moreover, even a test that may seem to suggest intoxication might not hold up in court if reasonable doubt can be cast on the way that police officer conducted it.

 

Precision is key. Just as an Intoxilyzer must be properly calibrated for its results to hold up in court, field sobriety tests must be administered correctly to be valid. Even seemingly minor mistakes by the officer during the testing can open the door to challenging the test results, and a successful challenge can make the difference between a conviction for DUI or an acquittal.

 

The National Highway Transportation Safety Administration (NHTSA) establishes the requirements to properly administer field sobriety tests. These guidelines are quite precise; the inadvertent failure of a police officer to follow them properly is a definite possibility.

 

As one example, consider the “horizontal gaze nystagmus” test. This test involves instructing the test subject and then having the test subject follow the track of a stimulus object, such as a flashlight, with his or her eyes while holding still. In theory the test sounds simple to administer, but there are several ways that the police officer can commit errors that invalidate it.

 

The test itself consists of four phases and 14 passes of the stimulus object. The NHTSA requirements are specific on how the test subject is to be positioned, how far from his or her nose the stimulus object should be held, how quickly it should be moved, the maximum angle of deviation that should be used, and the minimum time that should be spent conducting the test; if it takes less than 86 seconds then it is suspect because the officer has performed it too quickly, which in turn shows that one or more of the steps was administered correctly.

 

For anyone accused of DUI in Oklahoma based at least in part on the results of field sobriety tests, what is important to know is that not only is it imperative that the police officer who administered the test followed the correct procedure with exactitude, it is also essential that the Oklahoma DUI defense attorney also be intimately familiar with the details of the test protocols. Only an experienced DUI attorney who has carefully studied the NHTSA requirements for how a valid test should be given will know what to look for when it comes to identifying ways in which the officer may have made a mistake.  The DUI Attorneys at the Hunsucker Legal Group have received the same field sobriety testing training as the police officer on the street and are versed in defending Oklahoma drivers accused of DUI or APC.  Most often, they know the Field Sobriety Manual better than the arresting officer. 

 John Hunsucker

Oklahoma DUI and APC Attorney

 

Good Article About Cost of Reinstating Oklahoma Driver's License

Nice quote from me in today's Daily Oklahoman.  Oklahoma Watch is doing a series about the high cost offenders face when getting out of prison and the author called me to discuss the cost of license reinstatement.  You can't access it online through the Daily Oklahoman's website but the same story is on Oklahoma Watch's website.  http://oklahomawatch.org/2015/02/23/for-released-offenders-a-steep-price-to-drive-again/

John Hunsucker
Oklahoma DUI Lawyer

Can the DUI Flyer Prevent Arrest?

Can a piece of paper get you past an Oklahoma DUI sobriety checkpoint?

 

Anyone familiar with the game “Monopoly” – and many people who are not – recognize the term, "get out of jail free card." The idea of a quick and easy way out of a potentially complicated situation always has an allure, in real life as well as in a game. In that vein, an attorney in another state has devised a card that will supposedly allow drivers to get past sobriety checkpoints without having to say a word, or in many cases even rolling down their windows.

 

DUI Sobriety checkpoints are legal in the state of Oklahoma. These checkpoints constitute an exception to the general rule that a police officer must have probable cause to stop a driver for suspicion of drunk driving, and are permissible as long as long as they meet the requirements of a legal balancing test that weighs the individual’s rights against unreasonable searches and seizures against the public interest in keeping the roads safe from drunk drivers.

 

Most of the time this balancing of the individual’s rights against the broader public interest will not result in unjust arrests at a sobriety checkpoint, and according to the web site for the attorney offering the “Fair DUI Flyer” it is intended not so much for drunk drivers as for “liberty activists” and people who are at risk of being arrested for DUI (that is, people who have had one or more alcoholic beverages or who have taken certain medicines or drugs before getting behind the wheel, but who are still sober).

 

Basically, the idea is to hold up to the driver’s side window a flyer specific to the state that the driver is in, along with documentation such as a driver’s license, vehicle registration and proof of current insurance. The flyer’s reverse side has instructions for the driver, the most important of which (and which applies to any state, including Oklahoma) is to exercise his or her right to remain silent. Used correctly, the flyer’s issuer claims that it will help to avoid needless arrests at sobriety checkpoints.

 

At present, there appears to be no “Fair DUI Flyer” for use in Oklahoma. And whether it is prudent to rely solely on a piece of paper to get through a sobriety checkpoint can be subject to debate: police officers may take the tactic as a challenge, or worse as antagonistic behavior, and neither of those approaches is ordinarily advisable as they can lead to more aggressive conduct on the part of the police.

 

Still, aside from not talking unnecessarily, some of the advice found on the flyers can be helpful no matter where you are, such as obeying lawful orders that a police officer gives you, and to never physically resist the police.  In Oklahoma, the police have the right to ask you to step out of the vehicle.

 

If you want to learn more about DUI stops in general, our Oklahoma DUI Defense Website contains a wealth of free information for you, including ways to contact us if you have specific questions or need to schedule an appointment for an initial consultation.

 

 

http://fairdui.org/flyer/

 

http://law.justia.com/cases/oklahoma/court-of-appeals-civil/1994/20275.html

 

http://www.okdui.com/dui.faq/index_html

 

John Hunsucker
Oklahoma DUI Attorney

Oklahoma Criminal Defense Lawyers

Fine line between presenting evidence and being inflammatory

Interesting article today in the American Bar Association Journal about the prosecutor's use of 250 powerpoint slides in his closing.  The Washington Supreme Court overturned the conviction stating the presentation amounted to “egregious misconduct” during the trial of Odies Walker.

The powerpoint presentation included over one hundred slides with the caption “defendant Walker guilty of premeditated murder.”

“Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered versions of admitted evidence to support the state’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt,” the opinion said.

What is interesting is the quote from the prosecutor stating that the evidence was overwhelming and that he plans on asking the US Supreme Court to review.  If the evidence was overwhelming...why was it necessary to resort to this type of prosecutorial misconduct?  The evidence should speak for itself.  The other issue is that this prosecutor just doesn't get it.  It doesn't matter if the guilt is overwhelming...he still has to do his job correctly and ethically.  The ends DO NOT justify the means if the result is an erosion of our judicial system to the point that we do not need evidence...just the prosecutor's opinion.

Here is link to the article:

http://www.abajournal.com/news/article/prosecutors_powerpoint_closing_leads_to_overturned_conviction/?utm_campaign=weekly_email&utm_source=maestro&utm_medium=email&job_id=150128BZ