Kentucky DUI Case Put Breathalyzer Burps Under the Microscope

By Mike

In a DUI case in Kentucky, a judge in the case acquitted a man suspected of DUI because of a burp.

According to the Courier-Journal, a judge found Bertrand Howlett not guilty of DUI because the judge had a personal recollection from his experience as a prosecutor of DUI cases years ago that a burp at the wrong time could skew the results of a Breathalyzer test.

Based on that recollection, Howlett was acquitted of the charge that stemmed from when police pulled him over after, according to officials, he was seen speeding and almost driving off the road. Police said he smelled like booze and that he failed a field sobriety test, and they charged him with DUI.

However, Howlett claimed that he had burped just before his blood alcohol content was tested back at the jail—a test in which he blew a 0.15. That burp, he contended, was enough to skew the results of the test. The judge in the case agreed. Police had not, in the judge’s mind, waited long enough after Howlett’s burp for the test to be accurate.

In testimony, Howlett said that the burp wasn’t a loud one, and that in fact no one may have been able to hear it. The machine used to measure his blood alcohol content stated in the manual that police should observe a suspect for 20 minutes before a test is given, in order to make sure that the only substance tested is air from the lungs.

If the test subject regurgitates, for example, police should wait 20 minutes before proceeding.

The DUI case in Kentucky was without a jury, so the judge was left to decide on the matter. He sided with the idea that the burp had skewed the test results, based on his time as a DUI prosecutor for six years while he was an assistant county attorney.

That decision has since moved to the Supreme Court of the state, not to appeal the DUI case decision, but to question whether a judge can admit as evidence a piece of his or her own knowledge. The county attorney’s office called the judge’s use of his own personal knowledge a “manifest injustice.”

Clearly Howlett wasn’t the only one left with a bad taste in his mouth.



Virginia DUI Arrest Turns into Funny Money Bust

By Topher

In Prince William County, Virginia, a DUI arrest turned into a counterfeit currency bust when police discovered that the two men being arrested had three odd-looking $100 bills in their possession.

According to the Washington Post, police nabbed the two men on what they thought was a routine suspicion of drunk driving stop. When the police officer searched the men, though, he found several $100 bills that didn’t look quite right.

What tipped him off was a message written next to Benjamin Franklin’s head that read “BILLETE DE LA SUERTE ALASITAS.” According to the Washington Post, it denotes the bill as a good luck ticket for the festival of Alasitas, which is a festival held every year in Peru and Bolivia. At the festivals, bills of this kind are handed out widely in casinos and elsewhere.

Apparently these bills are available on eBay, from a seller operating out of England.

The officer determined that the bills were counterfeit, and police investigated the strange bills further. They found that the driver’s friend had even more of the bills, and when they searched his house they found 59 more.

According to the U.S. Secret Service, these bills have appeared in the Federal Reserve Bank 125 times. In other words, someone has accepted this type of bill as real currency at least 125 times over the years.

Federal prosecutors were not interested in pursuing the case of the drunk drivers who were caught with counterfeit cash, so instead the county will handle the case. County police were not aware of the bills actually being passed as real anywhere.

One man, Jose Portillio, got charged with drunk driving, refusal to take a Breathalyzer test, possession of fictitious bank notes and possession of a false work card. The other man, Ronald Virto, was charged with possessing more than ten fictitious bank notes, passing fictitious bank notes, and drunk driving charges.

Many times DUI arrests lead to additional charges. This appears to be one of those cases, when one offense clues police onto another and a DUI suspect must answer additional charges, too.



New Hampshire Liquor Commissioner Arrested for DWI

By Topher

Richard Simard, one of New Hampshire’s state liquor commissioners, was arrested for driving while intoxicated recently after being pulled over and refusing to take a Breathalyzer test.

As a result, Gov. John Lynch removed Simard from the liquor commissioner’s office, according to an article in the Concord Monitor.

While Lynch agreed that Simard was innocent until proven guilty, his refusal to submit to testing was not appropriate. “It is simply unacceptable for a liquor commissioner, stopped by the police on suspicion of driving under the influence, to refuse a Breathalyzer test,” he said in an email statement. “Under the circumstances, Richard Simard’s continued presence on the Liquor Commission would compromise the integrity of the Commission.”

When Simard was stopped by officers at 11:30 on a Saturday night, they smelled alcohol coming from his BMW. Officers had received a tip that a drunk driver might be headed their way, and they pulled the car over when it matched the description provided. Officers followed the car and noticed that it was being driven erratically, so they pulled it over.

They asked Simard to perform a field sobriety test, and after he refused to take the Breathalyzer they arrested him on charges of DWItitle. He was charged with speeding and released on $1,000 personal recognizance bail.

Police also noted that Simard did not answer any of their questions during the arrest.
Simard had been on the Liquor Commission since July of 2008 to fill the term of a commissioner before him who had retired. That initial term expired in 2009, but Simard remained in holdover status. This status allowed the governor to remove him from office at any time.

The New Hampshire Liquor Commission, according to the article, “regulates the manufacture, sale and consumption of alcohol in the state and operates the state stores that sell wine and spirits. It also enforces the state’s liquor laws.”

Sales of alcohol through the commission reached almost $500 million, and provided more than $100 million in profit to the state of New Hampshire.

Simard has owned several businesses in New Hampshire, and said at the time of taking office that he hoped to streamline distribution networks, improve stores and raise profits on alcohol sales.



DUI Fines Pay for New Cruisers, Breathalyzers

By admin

If you’re drinking and driving in the state of Illinois this holiday season, keep this in mind: When pulled over for DUI, the money you pay in fines will go in part to funding new cop cars and updated breathalyzer machines.

According to a report from the Illinois News Tribune, as much as 20 percent of a DUI fine goes to the arresting county’s police department, while the rest of the fine is distributed to other funds – some of which include new police cruisers and new breath test equipment.

It’s just one more reason to be extra careful on the roads this holiday season – if you don’t get a ticket, you won’t be contributing to state police funding!



Push for Ignition Interlock Laws in the US this Fall

By admin

Since 2005, when New Mexico became the first state to pass a law requiring an ignition interlock device for all people with DUI convictions, 10 other states have enacted DUI laws mandating DUI offenders install ignition interlock devices.

The ignition interlock law campaign is gaining momentum. The federal transportation funding bill that will be discussed by Congress this fall requires every state to mandate DUI offenders install ignition interlock devices. It states don’t pass such a law, the state governments may lose federal highway funding.

An ignition interlock device requires a driver blow into a breathalyzer before the car will start. It will stop the engine from starting if alcohol is detected on the driver’s breath.

Currently, 47 states and Washington D.C. require ignition interlock systems for some offenders. Alabama, South Dakota and Vermont are the only states to not have any such law.

Supporters of the law point out that New Mexico was one perennial national leader in alcohol-related crashes, but when the state launched a campaign and passed an ignition interlock law, there was a 35% drop in DUI deaths.

Today, there are 150,000 vehicles that have ignition interlock systems installed. If every driver with a DUI conviction were required to install the divorce, there would be close to 1 million.

Source: USA Today



Skip Being Carded

By admin

Pennsylvania is working to perfect face scanning technology to use in place of carding people when buying alcohol.

The face scanning kiosk machines will be at local grocery stores and be used by customers looking to buy a bottle of wine. Using your driver’s license, the wine kiosk will use face recognition software to check if the picture matches your face.

It may be possible that a breathalyzer will be added to make sure the customer isn’t too drunk to “match your wine with your meal.”

Originally, the wine kiosks were suppose to be put in stores over the next couple months, but Gov. Ed Rendell has put a hold on the project to make sure the technology will work correctly. The Governor wants to prevent minors from being able to fool the system.

Currently the machines are being used successfully in Japan to monitor beer and cigarette sales.

Source: Digital City



Cell Phone to Call a DUI Lawyer is a Right

By admin

On Monday, July 7, a judge acquitted a man on DUI charges because police denied the suspect the right to call a DUI lawyer on his cell phone.

According to Ontario Court Justice Randall Lalande, Harvey Whidden’s constitutional rights were violated when he was pulled over on June 13, 2008.

Whidden had been waved into a vehicle safety inspection lane operated by the police because his windshield had a crack in it.

When Whidden pulled over, police noticed empty beer bottles in the bed of his pickup truck. Police also noticed he smelled like alcohol, and his speech was slowed.

The police asked Whidden to take a breath test, but the officer didn’t have a breathalyzer with him. While they waited for a breathalyzer to be brought from the station, the police officer didn’t allow Whidden to use his cell phone to call a DUI attorney.

The judge ruled that since the officer knew Whidden had a cell phone, he should have allowed him to use it to call an attorney.

According to the judge, the police waited about three hours when Whidden was at the police station and formally issued a demand for a breathalyzer before allowing him to call a lawyer.

Source: The Sadbury Star



Tougher DWI Laws Proposed on Breathalyzer Refusal

By admin

According to Louisiana DUI laws, refusing a breathalyzer test can help drunk drivers avoid DUI penalties, so state Rep. Tim Burns, R-Mandeville, is looking to pass stricter DUI laws to combat this problem.

If a person refuses a breathalyzer today, he or she may face a 180 day driver’s license suspension. The new DUI laws Burns is purposing would suspend a driver’s license for one year for refusing a breathalyzer test the first time.

The bill has been passed by Louisiana lawmakers and is waiting Governor Bobby Jindal’s signature. The law would become effective Sept. 1.

“The tide has really shifted in this issue,” Burns told the press. “It wasn’t that long ago that you could have open containers in the cars, and that’s slowly been gotten rid of, and I think as we move to a society and a state that’s more conscious of this issue, it’s just trying to provide for the public safety of it’s citizens.”

The bill has been criticized by some for infringing on people’s civil liberties, but it is receiving support in most communities.

A response was sent by Mothers Against Drunk Driving, MADD, supporting the bill. MADD expressed that eventually, the group would like to see breathalyzer refusal a criminal offense.



Should You Refuse a Breathalyzer Test?

By Mary Ann

A fascinating read from  the Austin American-Statesman looked at state DUI records for recent years and found that 100% of elected officials – from state senators to judges to commissioners – refused to submit a breathalyzer test when pulled over for drunk driving.

From the story:

“Among the general public, the refusal rate is about 50 percent, but at the Capitol, the refusal rate is about 100 percent,” said Shannon Edmonds, governmental relations director for the Texas District and County Attorneys Association.

Police and prosecutors say politicians fall into a larger category of savvy citizens — such as Longhorn baseball coach Augie Garrido, who declined to give a breath sample when he was arrested Jan. 17 on suspicion of DWI — who know that while there technically are consequences to saying no, they are often mitigated with skilled legal advice.

In Texas, just like in most states, there are penalties for refusing to submit to a breathalyzer test. Typically, refusal results in an automatic driver’s license suspension. But simply refusing doesn’t mean a driver is off the hook for DWI.

Police can obtain a search warrant to force DWI suspects to give blood, considered the gold standard for proving intoxication. In recent years, some jurisdictions have begun hauling detained drivers to hospitals or jails for blood draws.

Since 2005, Dalworthington Gardens, outside of Fort Worth, has trained its police officers to draw blood from DWI suspects. Last week, Williamson County announced it had hired full-time phlebotomists for that purpose. This evening, Austin police are enforcing their third “no refusal” initiative, for which a magistrate and nurse will be on standby for DWI arrests.

Keep in mind: The statues in every state are different. If you’ve been charged with a DWI or DUI, or you lost your license because of a breathalyzer refusal, you may want to speak with a DUI lawyer. A lawyer can help explain the specifics of your case, answer your questions and tell you about the DUI laws in your state.



Breathalyzer Rulings Updates and Analysis

By Mary Ann

We’ve been closely following how courts handle DUI cases involving the Intoxilyzer 5000 and Intoxilyzer 8000, two breathalyzers manufactured in Kentucky and used nationwide.

Early, we told you about a judge in Florida that threw out hundreds of DUI cases because the manufacturer of the breathalyzers wouldn’t release the source code.

If you’re interested in reading more about this story, check out Houston DUI attorney Paul Kennedy’s blog. He does a good job of bringing together some analysis from attorneys across the country.

For more info on how breathalyzers work, Georgia DUI blog points us to a helpful explanation.

All these posts bring up a few points:

1. DUI law is complex. Just because you’ve been charged with a DUI doesn’t mean you will automatically be convicted.

2. DUI lawyers follow not only the law, but the technology and the trends behind DUI arrests.

So if you’ve been arrested for a DUI, with so many factors at play and so much at stake, you may want to speak with a DUI lawyer. To find an attorney near you, simply fill out this free case evaluation.



Disputes Over Breathalyzer Use Continue

By Mary Ann

As police departments continue to use Intoxilyzer 5000 and Intoxilyzer 8000 to analyze drivers’ blood alcohol level the courts continue to struggle with the admissibility of the results.

The Intoxilyzer machines are made by Kentucky-based CMI, and the company is very protective of their source code, which details how the machines operate.

Many DUI lawyers are arguing that if their clients are to receive a fair trial then they should be allowed to examine the source code to ensure the breathalyzer machines are operating accurately and properly.

The result? In Florida, a judge dismissed more than 100 DUI cases because the source code couldn’t be reviewed. In Arizona, a judge tried but was unable to order CMI to release the code.

For a good summary on the debate, check out Lawrence Taylor’s DUI Blog, which mentions that issues have arisen in Minnesota as well.



Blow into Your iPod Please – test your BAC with the new iBreath

By Mary Ann

The latest gadget for the iPod is the iBreath, allowing your iPod to tell you if you are drunk.

The attachment is a compact breathalyzer and FM transmitter. It features a BAC range of .00 to .10% and allows your iPod to play music through your radio.

If you have been out drinking, using the product can help you decide if you should be driving. According to the instructions, you unfold the blow wand and exhale for five seconds.

After about two seconds, the iBreath gives you your blood alcohol level. You can also set up a timer that will remind you when it’s time to take the next test.



This Week on Total DUI

By Mary Ann

State Law Provides Illinois DUI Memorial Signs

Under a new Illinois DUI law, memorial signs for those killed in drunken driving accidents may be requested by the victims’ families. A sign with Caitlin’s name and the date of the accident that took her life was the first to be requested under “Tina’s Law.” The law is named for Tina Ball, a construction worker with seven children who was killed by a drunken driver while working on I-57 during September 2003. Read more.

Study Shows Felony Wisconsin DUI Offenders are Avoiding Prison

The Milwaukee Journal Sentinel reported that lawmakers intended to get repeat Wisconsin OWI (DUI) offenders off the road. However, an analysis of Wisconsin DUI sentencing has shown that less than half of the people who are sentenced for fifth-offense drunken-driving in Milwaukee County end up serving time in prison. View the full article.

Drug Testing Drivers Could Become as Simple as Breath Tests

The National Institute of Health has recently released research guidelines that may lead to the development of new testing methods for drug abuse that can be used as routinely as breath tests. These guidelines were published in the August journal Addiction. Read on.



Arizona Judge Reverses Ruling on Breath Test Evidence

By Mary Ann

According to the Tucson Citizen, a Tucson City Court judge threw out breath test evidence in 19 alleged DUI cases.

On September 8, Judge Margarita Bernal ruled that testimony from a Superior Court case changed her mind about allowing the breath tests to be used in the trials.

In a statement given by Toby Hall, president of CMI, the company that makes the Intoxilyzer 8000, he cites anomalies, errors and issues that can have an impact on the machine’s reliability and credibility.  The Intoxilyzer 8000 machine and software is used in Arizona.

Recently, breath tests in more than 100 DUI cases in Tucson have been thrown out because of problems with CMI and the breathalyzer.  Many of these cases have been dismissed.



UK Man Attempts to Beat the Test with Copper Penny

By Mary Ann

In Blackpool, a United Kingdom electrician tried unsuccessfully to beat a breathalyzer test with a copper coin in his mouth.  Martyn Shepherd, 47, was stopped while driving a Vauxhall Combo van in St. Annes.

According to the police report, Shepherd was not steady on his feet and had a copper coin in his mouth, which some believe will have an adverse influence on a breath test.  Shepherd had over 61 micrograms of alcohol in his system, although the legal limit is 35 micrograms.

Shepherd plead guilty to driving with excess alcohol in front of the Blackpool magistrates.  He has been restricted from driving for 18 months and fined over 400 pounds.