Miscalculated Blood Tests and DUIs in Somerset County – What Went Wrong?

Recently, a District Attorney in Somerset County, PA discovered that a hospital in charge of testing blood collected in possible DUI cases had been inaccurately reporting the results. The hospital had been testing serum to come up with a Blood Alcohol Content, or BAC, but was reporting the number as if the test had been performed on whole blood. As a result, people may have been wrongly convicted of DUI.

As I’ve explained before, serum blood tests and whole blood tests are very different. When the lab tests whole blood, they merely put the blood in the machine and report the number without any further calculation.

When the lab tests serum, the lab only tests a portion of the whole blood. The volume of serum is lower than whole blood, therefore the BAC will be higher. The law is only concerned with whole blood BAC, so a “conversion factor” is used to convert the serum BAC to whole blood BAC.

In Somerset County, neither the hospital lab nor the DA applied the conversion factor. So, those people’s BAC was reported as higher than it actually was, resulting in possible charges where the person was legally sober or more serious penalties because of the higher BAC. The question I have is, how did no one notice this sooner?

Whenever somebody is charged with DUI, the lab must provide a lab report which shows the BAC result. Every lab sheet I’ve seen says whether the test was performed on whole blood or serum. It also says what conversion factor was used. It’s right there in the evidence, so I have trouble understanding how no one picked up on this. There are only two ways I can see that nobody noticed the lack of conversion factor.

First, the hospital or the DA withheld the fact that the hospital was testing on serum and not whole blood. It appears as if the DA knew the hospital was testing on serum. The hospital should have put the serum test and conversion factor on the lab report sheet, but even if they didn’t, the DA had a responsibility to notify the defense that the blood was tested on serum.

The DA also should have refused to pursue any charges where the conversion factor wasn’t used. If the hospital and/or the DA didn’t bother to disclose what was being tested, or the DA continued to prosecute cases where the BAC was inaccurate knowing about the inaccuracy, there’s a bigger issue that needs to be dealt with here, including possible sanctions.

Second, if the hospital did report on the lab sheet that serum was tested and no conversion factor was used, the defense attorneys should be on the hook for failing to challenge the case. Whenever I look at a DUI case, I ALWAYS check the lab sheet. If the information was reported on it, and defense counsel actually looked at that vital piece of evidence, counsel should have immediately seen that there was a problem and attacked the BAC results.

Even if it wasn’t reported on the lab sheet, over the course of the several hundred cases involved, didn’t anybody subpoena the underlying data? I know when I have a DUI case, I always request the policies and procedures of the lab as part of my review of the accuracy of the BAC. I’d expect that the policy of testing on serum and the conversion factor used (or lack thereof) would be in that information.

I just don’t understand how nobody challenged this sooner. It’s disappointing as a DUI attorney that no defense attorney ever picked up on it and challenged cases. This has the potential to affect over 750 DUI cases. In all that time, SOMEONE should have noticed.

This just goes to show why DUIs shouldn’t be open and shut cases. It also shows why you need an experienced and knowledgeable DUI attorney representing you. If you’re charged with DUI, protect yourself. Contact The Fliszar Firm for a free consultation.

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How to Get a DUI at Home

I’ve been talking to a lot of people recently about the DUI law in Pennsylvania, and there’s one thing I’ve learned: it’s highly misunderstood. But what could someone possibly misunderstand? It’s pretty cut and dry, right?

Well, the most misunderstood part of DUI that I’ve seen is that DUI in PA is a time-of-driving offense. What do I mean by this? Most people have told me they think DUI means your Blood Alcohol Content is above a .08 while you’re driving. This is only partially true.

Yes, the state has to prove that you had alcohol in your system at a certain level, depending on what subsection you’re charged under. Obviously, the blood is drawn after you drive. Therefore, we only know what your BAC is at the time the blood is drawn. It used to be that to prove DUI, the state would need to bring in an expert to testify about retrograde extrapolation, or in other words, give scientific evidence as to what your BAC would have been had the blood been drawn at the time of driving. As you can imagine, that can get pricey and somewhat difficult to coordinate for every DUI in the state.

To solve this problem, the legislature rewrote the law to say that your BAC had to be above the legal limit within two hours of driving. This now means that unless your own actions take you outside that two hour window, as long as the blood was drawn within 2 hours of you driving, the prosecution doesn’t have to bring in any witnesses to testify as to what your BAC was when you were actually behind the wheel.

Consider this case: you’re out with your wife. You each have a few glasses of wine, then drive home and get there without a problem. Unfortunately, you get into an argument and for whatever reason, the cops are called to your home about an hour after you arrive. Your wife tells the police you drove, and you admit to driving home. After all, you’re already there, so it’s not like they can arrest you for DUI at this point, right?

Wrong. Even though you made it home, it’s still within 2 hours of driving. The police arrest you, take you in for a blood draw, and it comes back that your BAC is a .11. You can now be charged with DUI.

It doesn’t matter that we don’t know what your BAC was when you were driving. It doesn’t matter that you got home without a problem. It doesn’t matter that your BAC may have even still been rising and could very well have been below the legal limit while you were driving (heads up – you’ll probably need to pay for an expert to try to argue this defense). These are just arguments you can make to create reasonable doubt.

But what about the person who goes home and has a drink or two before the officer arrives? The one thing that person has going for them is that the prosecution has to prove that you didn’t drink between the time of driving and the time you arrived home. However, this is merely a defense. In my experience, the prosecution will still charge you and it’ll be up to you to argue that you were drinking after you drove. This is often an uphill battle.

It’s important to have an experienced attorney who understands your case and can present these defenses. Remember: you aren’t necessarily safe from a DUI just because you get home safely. If you’re in this kind of situation, let The Fliszar Firm tell you how it can help.

You Want to Search My Cell Phone? Get a Warrant!

Big news on the search and seizure front – the United States Supreme Court ruled today that cell phones may not be searched without a warrant.

The Supreme Court held that police generally may not search digital information on a cell phone of a person being arrested, unless they first obtain a search warrant. Here are just a few of my favorite quotes from the opinion:

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items…That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

In response to the Government’s suggestion that police departments can institute protocols to guard against reading protected information stored on the Cloud but visible on the phone: “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.”

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime…Privacy comes at a cost.”

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

The case stems from two trial level cases. In the first, the defendant was pulled over for traffic violations which led to the impounding of his car. An officer looked through a smart phone found during an inventory search of the car and noticed gang lingo. Once at the police station, a forensic expert looked more closely at the phone and found photographs and other damning evidence linking him to a shooting a few weeks earlier. He was charged based on that evidence, convicted, and sentenced to 15 years to life in prison – an enhanced sentence because of his gang relations that were also discovered on the phone.

In the second case, the defendant was arrested after police observed him participating in a suspected drug sale. The police searched his flip phone, traced a number that was repeatedly calling the phone, and got a search warrant to search the house the call was coming from.  There, they found drugs, guns, and cash, and the defendant was charged with drugs and firearms offenses.

Head on over to SCOTUS Blog for a full analysis of the decision and its implications. It’s clear that this decision could create suppression issues for many cases, allowing for dismissal of charges. Officers no longer have free reign to use the “search incident to arrest exception.” With all the private and protected information we keep on our phones, I’m just glad to see the Supreme Court is finally catching up to technology.

JUSTICE

This is the final post in a series examining DUI of lawfully prescribed medication. In Part Two, I told you about a woman who came into my office, frustrated because her attorney wanted her to enter into ARD for DUI charges despite the fact that it would ruin her career and she maintained she was innocent. Her driving was perfect, she had no alcohol in her system, and the only drugs found were lawfully prescribed antidepressants and migraine medication. Part Two ended with a denied continuance, a rejected plea deal and a new DA.

Immediately upon taking the case, the new DA began demanding that we provide her with my client’s medical records. We had already provided a note from her treating physician stating that all the meds were prescribed and he never saw any indication of side effects or abuse, so I refused to ask for the medical records. They weren’t necessary in light of this letter and the fact that everything was within therapeutic range, a clear sign that they weren’t being abused. Also, my client didn’t want a DA going through all her personal psychiatric and PCP treatment. When I refused to obtain the records, the DA started issuing subpoenas to the pharmacy. What blew my mind was that the pharmacies turned over the records without any consent from my client. How they thought this didn’t violate HIPAA privacy rights, I’ll never know.

At the time of the trial, the DA asked for a continuance so she could obtain an expert opinion on my client’s impairment. Despite previously denying my request for the same thing, the judge granted the DA’s continuance request. After that, the DA continued to issue subpoenas, and when the doctors wouldn’t turn over the records she wanted because they didn’t have consent from the client, she went over everybody’s head and got a search warrant under the guise that she wanted to see if the client was abusing her meds.

In the meantime, the DA tried to get me to provide her the name of my client’s doctors and pharmacy and also obtain all of her medical records and supply them to her expert. To me, this was a huge invasion of my client’s privacy and there was no way I was handing that information over. Plus, the DA had no right to force my client to go out and get evidence that could be used against her; it’s unconstitutional. When I again refused to request the information she wanted, she filed a Motion to Compel with the court and asked the judge to force me to get her the information. Thankfully, the judge saw how unconstitutional this was and denied the motion. However, he did grant yet another continuance for the DA so she could continue her crusade against my client and obtain more medical records and an expert report.

Because of the time all this took, we were able to secure an expert who wrote an opinion for us. When I had a conversation with him, he told me he thought it was absolutely criminal that they were coming after my client and that he just didn’t see any evidence of impairment. He couldn’t understand how the case even got this far. We submitted his report and supporting documents to the DA and she passed that on to her expert.

About a week later, the DA called me and said that her expert would not be able to opine that my client was impaired by her medications. Therefore, they were withdrawing the DUI charge. Instead of just letting the entire case go, though, she told me they’d be amending the charges to careless driving and a headlight infraction. I told her there was no way my client was pleading to careless driving, as the dash cam clearly showed her driving was perfect. The DA said she would have to review the tape again; she did, and agreed with me they couldn’t prove careless driving, but she was going to keep the headlight infraction. My client agreed to plead guilty to that charge.

A couple weeks ago, she entered her plea. After all that, she received a $25 fine. But the damage has already been done. My client no longer has any faith in our justice system. She had to spend thousands of dollars on attorney and expert fees. This has been on her record all this time while she’s been applying for jobs. She lost out on at least one because they saw the charge when they ran a criminal background check. Her medical privacy rights have been violated. And none of this even begins to account for the emotional toll this has taken on her and her family. And for what? All because she took legal medication as prescribed to her by her doctor. She eventually received justice, but how many out there don’t?

The Innocent Defendant

This is Part Two of a three-part series examining the rise in prosecutions for DUI of lawfully prescribed medication. In Part One, I explained the law and how it is that someone can take medication as prescribed and still face a possible DUI charge. Now, it’s time to look at a specific case I recently handled where I firmly believed my client was innocent.

Last year, a very scared and frustrated young woman came into my office, charged with a first offense DUI of a controlled substance after being pulled over for a faulty front headlight. She’d never been in trouble before and her attorney was pushing her to enter into ARD rather than fight the case. She maintained that she had done nothing wrong, as the only thing found in her system after a blood test was lawfully prescribed antidepressants and migraine medication. Plus, even ARD would cost my client her job and ruin her career. She wanted to fight and prove her innocence rather than admit she drove impaired and enter into ARD, as her attorney kept recommending. Because I’d recently taken on these types of cases as my pet project at my firm, I immediately told her I could help and became her attorney.

I looked at her blood results and saw that all the medications she was on were well within therapeutic range, meaning she was taking them as prescribed and obviously not abusing them. Then I looked at the synopsis from the officer and there was a clear disconnect between what he said he observed and what was in her system. I watched the dash cam video, and it showed my client driving perfectly. It also showed that she didn’t do great on the SFSTs, but it looked more like she just wasn’t taking them seriously and wasn’t really trying. She did tell me that she thought the whole thing was a joke, so the video jived with what she had said. However, according to the officer, she was swerving and weaving and performed extremely poorly on the SFSTs, showing numerous signs of impairment. I told my client she should hire an expert witness who specializes in pharmacology so that we could have testimony explaining that the meds she was on wouldn’t produce anything the officer observed. She agreed.

At her first hearing, I asked the judge for a continuance to give us time to hire an expert and provide an expert report. The judge shockingly denied my request, informing me that he didn’t care that this was a first listing and that time to obtain an expert report is not a valid reason to grant a continuance. He then forced us to trial a few weeks later.

When we showed up for trial, we had worked out a plea deal with the DA. We didn’t have time to get the expert and my client was afraid of what would happen if we went to trial. However, when she tried to enter her plea, the same judge that had denied the continuance rejected the plea deal, again forcing us to trial. After this, the trial was rescheduled and a new DA took on the case. That’s when things became disturbing.
The behavior of the DA defied all standards of logic and professionalism. It very quickly turned from a case of seeking justice to a crusade against an innocent young woman. In Part Three, I’ll tell you about the months of maltreatment my client was forced to endure at the hands of an over-zealous prosecutor. Stay tuned!

Take Medicine, Get a DUI in Pennsylvania

This is Part One in a series of blog posts dedicated to the rise in prosecution for DUI of lawfully prescribed medication.

You’re suffering from depression and anxiety. You go to the doctor and are prescribed medication to help treat your symptoms. You take the medication exactly as prescribed, taking only the dose your doctor told you to. You’re driving home from work one night and are pulled over. The officer tells you he saw you swerve and asks you to get out of the car and perform some field sobriety tests (SFSTs). You do, because you have nothing to worry about – you haven’t been drinking or taking any illegal drugs. The officer decides he saw signs of impairment and arrests you for suspicion of DUI. You cooperate and let him take a blood sample, but you don’t expect to ever be charged with anything. After all, you’ve done nothing wrong, right? Wrong. Much to your surprise, a few weeks later you receive a summons in the mail, charging you with DUI of a controlled substance. How is this possible? You had no alcohol, no drugs, just the medication your doctor prescribed you. How could you possibly be charged with DUI?

There’s a disturbing trend going on in Pennsylvania. Since the breath test challenges shed light on the deficiencies of Breathalyzers, the majority of police departments have moved to blood testing. What we as defense attorneys are now seeing as a result is a sharp rise in DUI charges when the person has nothing but lawfully prescribed medication in their system.

My theory for why this is is that before, the Breathalyzers could only test for alcohol; if it came back that the person was drinking or wasn’t above the legal limit, they let the person go. Now, the police can use the blood to test for more than just alcohol; they almost always will test it for drugs as well. Because of this, they’re able to see if a person has anything at all in their system, including prescription drugs. Where they wouldn’t have been able to charge a person because the Breathalyzer didn’t show alcohol, they can now charge the person because PA DUI law allows for charges against people who take prescription or over-the-counter medication.

Under section 3802(d) of the Motor Vehicle Code, a person can be charged with DUI of a controlled substance. Section 3802(d)(1) is the per se subsection. What this means is that if a person has any amount of a Schedule I controlled substance in their system, they are guilty of DUI; it makes no difference is the person is impaired by the substance. Just its presence is enough. Schedule I controlled substances include the following:
• Marijuana
• Heroin
• LSD
• Ecstasy
• Methaqualone
• Peyote

Schedule II and III drugs also fall under this subsection. They are treated a little differently, though. If a person has a Schedule II or III drug in their system and they do not have a valid prescription for that drug, then like Schedule I drugs it is enough that the drug is in their system; it is not necessary to show impairment. However, if the person does have a valid prescription, the state must prove that the drug was in the person’s system and they were impaired by it. Many of the drugs prescribed for chronic pain and ADD are Schedule II substances. Examples of Schedule II drugs are:
• Dilaudid
• Fentanyl
• Demerol
• Oxycodone (OxyContin)
• Dexedrine
• Adderall
• Ritalin
• Cocaine
• Methamphetamine

Schedule III drugs have a lower potential for abuse than Schedule I and II drugs. They include:
• Vicodin
• Tylenol with Codeine
• Ketamine
• Anabolic steroids
• Testosterone

Section 3802(d)(2) states that a person is guilty of DUI if they are under the influence of a drug or combination of drugs so that their ability to safely drive is impaired. In other words, if you have a Schedule IV or V controlled substance in your system, the DA has to prove that it’s present in your blood AND that you’re impaired by it. Examples of Schedule IV and V controlled substances are:
• Xanax
• Soma
• Darvon
• Darvocet
• Valium
• Ativan
• Talwin
• Ambien
• Cough medicines like Robitussin
• Lyrica

Essentially, what all this means is that even if you are properly taking lawfully prescribed medication, you may still be charged with a DUI. Even if you’ve only taken certain over-the-counter medications, you may still be charged with a DUI. The trend in Pennsylvania is to charge drivers with DUI of these drugs even when there is no or minimal alcohol in the person’s system. It makes counties a lot of money. The key word is “impairment” which is often completely subjective. Many local police departments do not have (working) dash cam systems, so convictions are often based on their subjective opinion.

In Part Two of the series, I’ll discuss a case I recently handled in which a young woman was charged under this section after being pulled over for a faulty headlight. The only thing in her system was antidepressants and migraine medication. Stay tuned!

Time to Get Your Standardized Field Sobriety Test Training

I’ve made no secret about how important I think it is for any criminal defense attorney who handles DUI cases to learn all they can about SFSTs. I’m a practitioner and instructor of SFSTs, and the knowledge I use everyday to question police officers is extremely valuable. I can use the information to not only develop issues for suppression, but I also use the training against officers at trial to disprove their opinion that my client is driving impaired. I always find it disheartening when attorneys are so quick to encourage their clients to plead guilty in a DUI case without even exploring the possibility that the SFSTs administered can be used to their benefit. My firm is known for taking cases to trial, and we always question officers about the administration and results of SFSTs at all stages of the case, from preliminary hearing to suppression to trial. If you’re an attorney practicing DUI, I highly suggest you receive the National Highway Traffic Safety Administration (NHTSA) training in SFSTs.

Lucky for you, Billy Reynolds over at Brighton Lewis and Anthony Palacios at IDS Consulting will be presenting the updated NHTSA DWI Detection/SFST Practitioner course May 16-18, 2014 in St. Louis, MO. This course is great not only for people who have no training in SFSTs, but also for those attorneys that have already been through the training, as the 2013 manual has enough updates to teach a 6-8 hour course.

There are many benefits of taking this course with Billy and Anthony. There will be not 1, but 2 national DWI consultants teaching the course. You’ll receive hands-on training, as the course involves a live alcohol workshop on both Friday and Saturday. You’ll also get the benefit of hearing guest speakers, networking, and receiving the 2013 NHTSA DWI/SFST manual along with other training materials. If that wasn’t enough, the course is being held in a fantastic location – the Ameristar Resort and Casino in St. Charles, MO.

The course fee is $750 and includes all the above training, continental breakfast all three days, lunch Friday and Saturday, and so much more. You’ll receive plenty of CLE credits to make it worth your while. For more information, click here. And remember, this training could make the difference between winning and losing a case!

You Have the Right to Remain Silent…

So why does everyone keep talking? The 5th Amendment right against self-incrimination is quite possibly the most well-known of all the Miranda warnings. In every crime drama on TV (and in real life, for the most part), the very first right that is read to people being arrested is “You have the right to remain silent. Anything you say can and will be used against you…” Despite knowing this, I’d be willing to venture a guess that 90% of the people who call me volunteered information to the police that ultimately affected their case negatively. What should you do if you come into contact with the police?

First, and most importantly, BE QUIET!!! There is absolutely no reason for you to give any more information than the basics. No matter how many questions the police ask you, you’re never required to answer them. The police may try to scare you into talking, but don’t take the bait. Now, I’m not saying you should act like a jerk or be completely uncooperative with the police; admittedly, cooperating with police can work in your favor when it comes to things like ARD applications, plea deals, and trying to get charges dropped altogether. But cooperation and admission are two very different things.

Consider the following example: We’ve all been pulled over when driving. And I do a lot of driving. On average, I drive about 3,000 miles every month. Statistically, I have a better chance of getting pulled over for a traffic infraction than the average person, and yes, I’ve been stopped on my way to court or some other location more times than I’d like to admit. The first thing a cop always asks is “do you know how fast you were driving?” I’ll tell you what, when I see that cop car with his radar gun, the first thing I do is look at my speedometer, so yes, yes I do know how fast I was going. Have I ever admitted that to the officer? Absolutely not! My response is a simple, no, sorry. I have all my information in a spot in my car where I can quickly find it and hand it over to the officer so that any communication time is limited. I’m polite and cooperative, but I never volunteer any information that could possibly be used against me in the future. Why hand the officer what he needs to give me a citation?

The scenario I see most often is people volunteering their drinking habits when pulled over for a possible DUI. This drives me crazy! At least once or twice a week I have a client call and tell me that when the officer asked if they’d been drinking, they actually admitted it. Their reasoning is that they wanted to be honest with the officer and thought their honesty would help in avoiding charges. I’m going to let you in on a little secret – this honesty will probably NEVER help you avoid charges. What it will do is give the officer probable cause to arrest you. A simple admission may not be enough by itself, but the standard observations we then see are the subjective ones that are hard to disprove, like odor of alcohol, slurred speech, and bloodshot, watery eyes. They will also use any (even minimal) bad driving to come up with probable cause. They will also make you do Standardized Field Sobriety Tests (SFSTs), which a lot of people can’t satisfactorily complete even sober.

Essentially, when you start making admissions, you start giving the officer what they need to prove their case against you. This is true in all kinds of cases, from summary disorderly conduct all the way up to assault and even more serious charges. DON’T DO IT!! Exercise your right to remain silent! Without your admissions, it makes it more likely for me, as your attorney, to be successful in winning your case. I can’t tell you how many cases could have been won at suppression or even trial had the client just stopped talking.

What’s the lesson here? To become a belligerent jerk with the officer? Absolutely not. The lesson is to provide minimal, basic, required information only. Limit any communication with the officer. You shouldn’t lie, either. If a police officer asks you questions that could help them prove a case against you or that would be an admission of something potentially illegal, don’t answer it. You’re not required to. Be polite, be cooperative, but be quiet. Make the officer prove his case, don’t prove it for him. When you don’t have criminal charges against you, or they can’t prove their case, you’ll thank me.

Challenging a DUI Serum Blood Test

You’ve been pulled over for a possible DUI. You’re taken in for a blood test and it comes back that your Blood Alcohol Content (BAC) is above a .08%. End of story, right? Wrong. What people don’t realize is that different laboratories are approved by the state for different kinds of testing. Specifically, some labs are approved for testing on whole blood. Other labs are certified for testing of serum. What does this mean for you when challenging your DUI case?

When looking at lab paperwork, it’s vital that you check to see what the lab is approved to test and then confirm that that is indeed what they tested. For instance, if the lab where your blood was tested is approved for whole blood testing, make sure that’s what they tested. If they performed a serum test, you automatically have a challenge to that bloodwork, as they can only perform the test they’re approved for. If they’re approved for serum testing and that’s what they tested, there are very specific things the Commonwealth must show in order to prove their case.

First, a little scientific background. What’s the difference between a whole blood test and a serum test? When a lab performs a whole blood test, the lab tech literally just takes your blood sample and puts it directly into the machine. A serum test is different. Some labs use machines that are not able to handle a whole blood sample; the sample is too dense and will clog the machine. Therefore, because of the machine they use, they are only approved to test on serum. To do this, the lab tech will take the sample, place it in a centrifuge, and essentially spin it until the blood components are separated. The serum from the blood ends up at the top of the test tube. Rather than put the entire blood sample through the machine, the lab tech takes a sample of just the serum and runs that through the machine. Because serum is less dense than whole blood, the BAC that’s calculated will be higher than what your actual whole blood BAC is, and that’s the number we’re concerned with. To get to a whole blood BAC, the machine then uses a conversion factor to convert the serum BAC to a whole blood BAC. That number is what’s used to charge you with DUI. But how do you challenge the number that comes from the serum test?

First and foremost, don’t stipulate to the lab work. Make them bring in the technologist to testify. Why? Because there are very specific things they must prove in order for the BAC generated to be sufficient to prove DUI. The Commonwealth has to show more than a generated number and a conversion factor used. Under Commonwealth v. Karns, they have to show that the conversion factor is scientifically reliable and that it’s generally accepted in the scientific community. Commonwealth v. Renninger also states that it isn’t enough that a machine is used and that the lab is approved for the testing; more testimony is needed regarding the conversion factor.

What I’ve done in several of my cases is argued that the witness the Commonwealth brings in (the lab technologist) must be qualified as an expert in order to testify about conversion factor. Usually, the lab tech has very little advanced education and minimal, if any, advanced knowledge about conversion factors. Because it’s a scientific concept that requires more knowledge than the average layperson, I argue that any testimony about conversion would be expert testimony. Because of the lab tech’s limited knowledge base, they usually can’t meet the requirements for expert qualification. Therefore, if they can’t testify about conversion, they can’t meet the requirements of Karns and Renninger.

Some judges will refuse to qualify the lab tech as an expert and won’t allow them to testify about conversion factor. If that happens, you’re golden. Without that testimony about scientific reliability and acceptance, the Commonwealth can’t meet their burden. If you do end up with a guilty verdict, you’ve set your case up perfectly for appeal. I have run into a judge or two, however, that will say that conversion testimony is not expert testimony and allow the lab tech to blindly testify about scientific reliability and acceptance. In that situation, create a record! You need to gear up for appeal. Make sure you get all your arguments on the record, cite to published case law, force the prosecutor to put on record what they’re using to support their argument that the testimony should be allowed, and make sure the judge clarifies on the record the reasons for his decisions. In at least one county, they’ve relied on unpublished, non-precedential case law to override the binding case law. This is an abuse of discretion and will absolutely help you in winning on appeal.

Of course, this isn’t the only way to challenge the bloodwork. You should always look at the chromatograms and look for things like contamination, machine malfunction, etc. But especially in cases where the chromatograms are acceptable or for people who may not know enough to analyze them, this is a much simpler way to challenge serum blood tests. It takes the argument in a different direction when you need a more unique or out-of-the-box idea for challenging a blood result. Even if you don’t prevail at trial, you can set your case up for a successful appeal. Just be prepared with your arguments, case law, and basis for your objection, and you’ll greatly increase your chances of obtaining a successful outcome.

How I Used Standardized Field Sobriety Tests to Defend a DUI – And Won

Standardized Field Sobriety Tests (SFSTs) are touted as the gold standard for detecting an impaired driver. When I do a jury selection, I always ask the question, “who here believes that if somebody can’t pass a field sobriety test, they must be drunk?” I almost always get a strong majority of people who raise their hands. Even defense attorneys fall for the propaganda. My friends over at Brighton Lewis offer courses on SFSTs and offer expert testimony that can be used to question or even completely negate the results of these tests. Even they admit that it can be difficult to convince attorneys to fight a case where the defendant “fails.” However, they, along with others in the know, understand that there are issues with SFSTs and many times they can be used to win a DUI case rather than as a conviction tool.

Before I give you some tips on how to successfully use the performance on SFSTs against the prosecution, let me first clarify what we’re talking about when we say SFSTs. They are a set of three tests that were developed by the National Highway Traffic Safety Administration (NHTSA) as a way to assisst officers at roadside in determining if a person may be impaired. There have been validation studies that test the accuracy of these tests, but they have only been validated for alcohol detection. They have not been validated to detect impairment as a result of drugs. SFSTs are not meant to be used to determine if a person is drunk; instead, they’re supposed to be used as an investigative tool to help decide if further investigation or testing would be warranted. This is not always how they’re used, though.

The three SFSTs validated by NHTSA are the Horizontal Gaze Nystagmus (HGN), Nine-Step Walk and Turn (WAT), and One-Leg Stand (OLS). The HGN is a test where the accused is required to follow some apparatus (pen, finger, etc.) with nothing but his eyes; the officer examines the eyes for nystagmus (involuntary jerking) at various points during the test. There are 6 possible clues; if an accused shows 4 or more, it is indicative of impairment. During the WAT, the accused walks nine heel-to-toe steps on an imaginary line, turns, and walks nine heel-to-toe steps back. There are 8 possible clues; 2 or more clues are indicative of impairment. The OLS requires the accused to stand on one leg while counting for thirty seconds; 2 or more clues indicate possible impairment. The information and clues gleaned from the tests are supposed to be used in conjunction with everything else the officer sees during his interaction with the accused to decide if the totality of the circumstances establish a belief that the driver may be impaired.The important thing to remember is that they’re an investigative tool and are not meant to be the only thing considered by the officer.

Although most people think the SFSTs can only be used to show that someone is drunk, I’m proof that they can be used to help exonerate a client as well. Last year, I had a case where the client was charged with DUI-General Impairment. This is the statute in PA that says that a person is guilty of DUI if he is substantially impaired by alcohol to the point that he cannot operate a motor vehicle safely. This is separate from the charge involving a person’s blood alcohol content (BAC is .08% or higher). The same techniques I employed can be used in cases involving BAC, as defendants are almost always charged under the General Impairment section as well. If there is a disconnect between the performance on the SFSTs and the BAC, the validity of the BAC number may be questionable. Also, as I discussed in a prior blog post, the results of the SFSTs can be used to challenge admissibility of evidence in a suppression hearing.

Tip number 1 – make sure there’s evidence of alcohol use. SFSTs are only validated for use when alcohol is suspected. If the police smell marijuana on your client and not alcohol, question the officer on why he would use an alcohol test on a suspected drug intoxication. If they only smell marijuana, or don’t smell anything at all and don’t have anything to suggest alcohol, that’s strike one  – there was nothing to indicate that alcohol was involved, and that is the only thing the SFSTs are validated to detect.

Also make sure that the tests are administered in the appropriate conditions and with the proper instruction. If there’s a dash cam video, WATCH IT! Make sure that what the officer says he saw is indeed what’s on that video. That’s your objective evidence. If anything on the video is different that the officer’s stated observations, you’ve got strike two – the objective video was very different from what the officers reported seeing.

Because I’m a Practitioner and Instructor of SFSTs, I know exactly how the tests were to be administered and what clues the officers should have seen. I first question the officer about what clues he saw. Once he is boxed into his answers, I showthe video to the jury/judge on the giant screen then go through the video second by second. I would ask questions such as “this is where you saw [insert clue here].” I would then say something like “we can agree that on this video, [the accused] isn’t [insert clue here].” If the clue clearly wasn’t seen on the video, the officer looks ridiculous and is forced to agree that it wasn’t on there. I do this over and over for each clue on each test. Going through the tests step-by-step while viewing the objective evidence is extremely effective. Strike 3- by the end, the officer loses all credibility.

Of course, you may be able to challenge other things. Maybe your client’s driving wasn’t bad. Maybe he was cooperative, coherent, and able to interact with the officers normally. Maybe he did almost everything we would expect from a sober driver. Maybe the officer was unreasonable or even combative with your client. But the ability to completely negate the performance on and testimony about the SFSTs is what really proves to the jury that this person was not substantially impaired to the point that he could not safely operate a car.

Of course, your job will be made easier if you have a dash cam video. However, if you don’t know how to correctly administer and score the test, the video is useless. The SFSTs come up in almost every DUI case; if you’re going to defend them, this knowledge is absolutely vital. If you don’t have a video, you can still challenge the tests. Some of the issues that regularly come up are: 1. The SFSTs are administered on someone who should be medically precluded from performing the test; 2. The accused is not properly instructed on how to perform the test; and 3. The officer doesn’t correctly score the test, either because he counts a clue that isn’t an enumerated clue by NHTSA, or because the officer scores clues more than once.

 Knowledge is power. Knowledge of the history of SFSTs, their purpose, and their administration can help you successfully challenge a DUI case.