Kansas Criminal Defense Attorney

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July 19th, 2007 Texas Governor Signs SWI Penalties Bill

July 19th, 2007 Florida Governor Approves New DUI Law

This looks to be a trend lately with the pressures on state law makers to make these laws tough.

Stricter DUI laws now in effect in Kansas

The Kansas Legislature passed tougher DUI penalties, which took effect July 1. Provisions of the .08 blood alcohol concentration, the state’s legal limit, will remain in effect. That’s a 30-day suspended license followed by a 330-day restricted license.

But now, if a driver is pulled over and has a BAC of .15 percent or greater, his license will be suspended for one year. After the suspension, the offender must pay to install an ignition interlock device in his car that will remain for another year.

Also new is that anyone under age 21 who is driving drunk will be subject to the punishments for a .15 or greater BAC.

Kansas is following many other states. The federal government has been pushing for the harsher laws with the incentive of additional funding if certain laws are in place.

As I have always told people. If you are 21 or older, it is not illegal to drink. However, it is illegal to drink and drive. Now those convicted in Kansas of DUI will face tougher punishments. It will be interesting to see if the new stricter laws will have any affect on the number of DUI’s.

Child Hearsay does not Come in

Kansas Supreme Court posted the decision in the State of Kansas -vs- Elroy D. Henderson, No. 92,251, affirming the Court of Appeals decision that a "video taped interview with the purported victim, a three year old girl, was testimonial. Becuase the victim did not testify at trial, the district court erred in allowing the jury to watch the tape, and the defendant's right to confrontation was violated." Conviction reversed and case remanded for a new trial.

5 Requirements for Chemical and Roadside Tests in DUI

1. The officer must have had a reasonable suspicion that you were violating the law.


2. The officer must have either had probable cause to arrest you or obtain your consent for roadside tests.


3. The officer must tell you that you have a right to refuse a portable breathalizer test.


4. The officer must have probable cause before he arrests you and before he requires you to take a chemical test.


5. The officer must give you your Miranda rights after you are arrested, if he is going to interogate you.

Source for Post: DWIBook.com

DUI Information

The Kentucky DUI Defense Lawyer provided the below post today on his blog. While the information is not specific to Kansas, it is helpful.

New York Attorney Anthony Colleluori, also known as 'That Lawyer Dude', wrote an informative article entitled 'Drinking and Driving Does Not Equal Driving While Intoxicated.'' He notes that in America the anti-alcohol lobby has done an excellent job of telling Americans, wrongly of course, that if you drink and drive, you're guilty of Driving While Intoxicated.' This article helps to dispel this myth.' Note, in Kentucky, Attorney Colleluori's article would not apply to drivers of commercial vehicles.

Attorney J. Matthew Guilfoil, the Managing Member of The Guilfoil Law Group, LLC, wrote an interesting article on retrograde extrapolation and the defense of rising BAC entitled 'The Defense of ‘Rising BAC’ or Rising Blood Alcohol Content in a Driver’s License Suspension Hearing in a Missouri DWI Case and ‘Retrograde Extrapolation’'.

Another article well worth reading is by Texas DUI attorney Jamie Spencer, entitled 'Is Refusing The Breath Test Consciousness Of Guilt In A DWI' (DUI).' Mr. Spencer discusses how in Texas a person arrested for suspecion of driving under the influence is asked to provide evidence against themselves AFTER arrest by blowing into an Intoxilyzer' breath test device under the theory that you they will be released if they blow under 0.08 BAC.' However, Mr. Spencer states that when folks blow ‘under the legal limit’, the State proceeds on the alternate theory that they had lost the normal use of their mental and/or physical faculties - despite being under the ‘per se’ limit of .08.' 'Attorney Spencer goes on to ask the rhetorical questions of 1) isn’t refusing to take the Intoxilyzer actually evidence that you have not lost the normal use of your mental faculties? and, 2) if so, then why would anyone submit to an Intoxilyzer test unless they’ve literally had nothing to drink in the last twelve to twenty four hours?

Source for Post: Kentucky DUI Defense Lawyer.

Roadblocks and DUI

Denver Post Columnist David Harsanyi recently quoted Supreme Court Justice John
Paul Stevens to describe the roadblocks as 'elaborate, and disquieting,
publicity stunts.''

Read David's interesting article for his opinion on how police road blocks block basic rights of all drivers.

Source for Post: Kentucky DUI Defense Lawyer.

Inaccuracies of the Horizontal Gaze Nystagmus Test

The National Highway Traffic Safety Administration (NHTSA) studies pertaining to Horizontal Gaze Nystagmus (HGN) contain flaws suggesting they are not reliable indicators of a' level of intoxication.' NHTSA studies allege that Horizontal Nystagmus, or the horizontal jerking of the eyes, is considered to be an indicator that a person is under the influence of alcohol or drugs.

Police officers frequently give the HGN test as one test of the NHTSA three Standardized Field Sobriety Tests (SFSTs). NHSA alleges in their materials that the HGN test is 77% accurate in determining whether a person has a 0.10 BAC or more.However, experts have criticized the administration of this test by police officers who are not an ophthalmologist trained in the detection of eye movements and or eye pathologies. Furthermore, experts have opined that the HGN test when administered according to NHTSA standards will not stand up to peer review and may lead to false results.

For a test to be scientifically valid, there must be high reliability and validity both measured by a correlation coefficient ranging from 0 to 1.0 (highest end of the scale). Reliability relates to the consistency of scores based on re-testing. Validity relates to the ability of a test to predict particular benchmarks. For a test to be reliable the reliability and validity correlation coefficient must be 0.85 or higher.' According to the 1977 NHTSA study which studied the Horizontal Gaze Nystagmus test, the validity correlation coefficient for the HGN for a person with a BAC of 0.10 was 0.67, equating to an approximate 33% better prediction than chance. In 1981, the HGN was researched again in the laboratory and the error rate was found to be 32% for a person with a 0.10 BAC.' No validity correlation coefficients were mentioned in this study. Reliability correlation coefficients were given for the HGN of 0.66.' When different officers performed the test on the same subject with the same BAC, the coefficient for the HGN dropped down to 0.59. In other words, in a laboratory condition, the officers were wrong 41% of the time that a person with a' 0.10 BAC experienced Horizontal Gaze Nystagmus.

NHTSA alleges that Horizontal Gaze Nystagmus (HGN), or the horizontal jerking of the eyes, is an indicator that a person is under the influence of alcohol or drugs. According to research, there are 47 types of nystagmus which can be found in individuals, including horizontal nystagmus.' There also exist numerous causes of HGN.' The court in Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995) judicially recognized (identified) THIRTY EIGHT (38) medical conditions unrelated to alcohol which can cause Horizontal Nystagmus. These conditions included:

problems with the inner ear labyrinth; irrigating the ears with warm or cold water under peculiar weather conditions; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; muscular dystrophy; multiple sclerosis; Korchaff’s syndrome;' brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eyestrain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute trauma to the head; chronic trauma to the head; some prescription drugs, tranquilizers, pain medications, anti-convulsants; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide;' extreme chilling;' lesions; continuous movement of the visual field past the eyes; and antihistamine use.

Ophthalmologists (medical eye doctors) receive training in the detection of eye movements and or eye pathologies, including nystagmus and its causes, over many years of medical school and residency. Officers frequently receive less than 40 hours of training in learning how to assess if a person is under the influence, including learning how to conduct field sobriety tests. It therefore follows that even if an officer does correctly identify Horizontal Nystagmus, it is unrealistic given the numerous causes of horizontal nystagmus that a police officer can distinguish the cause of the Nystagmus.' As a result, officers can jump to the false premise that if they do identify HGN, that it must be indicative of ethanol (alcohol) intoxication.

Another problem experts have identified with the Horizontal Gaze Nystagmus (HGN ) test is both determining the presence of alcohol and the actual alcohol concentration. The HGN, as administered by the NHTSA protocol for the SFSTs has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range. So it is a fallacy to use this test to determine whether someone may has a .08 BAC or above.' Also troubling is the fact that nystagmus can remain for some time even after all alcohol clears from a persons blood (a BAC of 0.00).

Source for Post: Kentucky DUI Defense Lawyer.

New Kansas DUI Law may Increase Use of Ignition Interlocks

Under Kansas DUI laws, anyone with a second, third, or fourth DUI has his driver’s license suspended for one year. After that, there is a one-year period in which the person can drive only with an ignition-interlock device. Most Kansans ignore the law. A 2005 survey showed that only 18 percent of those required to get an ignition interlock do so.

So, Kansas has introduced a new law. Drivers who are ordered to get ignition interlocks must now send documentation to the State that they’ve had a system installed. Their driving privileges will not be reinstated until the system has been in use for one year. The owner of a Lawrence Kansas franchise that installs interlocks believes that the number of drivers getting the devices will be “five to 10 times more people at the end of next year than at the end of this year.”

New Technology to Stop Drunk Driving

Mothers Against Drunk Driving (MADD) launched a new campaign, in conjunction with a number of other groups, under which it proposes that alcohol-detection technology be used by drivers to disable their automobiles if they are found to be over the legal blood alcohol limit.

The initial phase includes an effort to modify existing drunken-driving regulations in 49 states to include a mandate that would order people convicted on drunken-driving charges to install devices that shut down their vehicles if alcohol is detected on their breath, the Times reported.

The devices, dubbed ignition interlocks, are already used in several states for people who have been convicted of drunken driving on numerous occasions.

New Mexico last year passed a law that requires first-time drunken-driving offenders to employ ignition interlocks, and attributed its 11.3 percent drop in related fatalities last year in part to the use of the devices, though the regulation wasn't official until June 17, 2005.

DUI License Suspensions May Get Tougher in Kansas

A Kansas legislative committee is considering a proposal to impose longer license suspensions on drunk drivers whose BAC exceeds certain levels. Under the proposal, a first-time DUI offender would receive twice the standard license suspension if his BAC was .16 or greater. Three offenses at the higher level would result in permanant revocation of driving privileges.

The Kansas Court of Appeals recently affirmed that the state can suspend a driver's license even if he has not been convicted of DUI.

Diet Cocktails are More Intoxicating

Having your alcohol with a sugar free artificial sweetened mixer may cut calories, but it will also cause your blood alcohol levels to spike unusually high, a recent study shows.

The findings, published in the September issue of the American Journal of Medicine, are based on an experiment with eight healthy young men. The volunteers had their blood alcohol levels measured repeatedly in each of two conditions: once after having a vodka beverage made with a sugary mixer, and once after drinking the same amount of vodka with an artificially sweetened mixer. The researchers also used ultrasound tests to measure each volunteer’s rate of stomach emptying after having the drink.

Source of Post: Fight A DUI

How do police decide if you are drunk?

Police officers in most states are trained in DWI detection methods based on standards created by the National Highway Traffic Safety Administration, a federal government agency that helps reduce accidents and fatalities on the nation’s highways.

The NHTSA guidlines break DWI detection down into 3 phases, before the driver pulls over, when the officer makes first personal contact, and when the officer gives the field sobriety tests.

• Phase 1

The first phase involves the officer observing the driver and vehicle in motion before being pulled over. The NHTSA mandates that officers should consider such factors as the driver weaving in his or her lane, failing to pull over in a timely manner, or slumping over the steering wheel when deciding whether or not someone might be intoxicated.

• Phase 2

The second phase involves the officer makig personal contact with the alleged intoxicated driver. The NHTSA guidlines state that the officer should observe the suspect as he or she gets out of the car, and considers factors such as odor (alcohol, breath mints, tobacco, marijuana), stability (i.e., leaning on the car, falling over, etc.), and ability to follow directions. Many people are surprised to find that officers are specifically trained to observe the ‘cover up’ odors of breath mints or gum and use them as evidence that someone is intoxicated.

• Phase 3

The third phase involves the standardized field sobriety tests such as the Walk and Turn, One Leg Stand, and Horizontal Gaze Nystagmus test.

Source for Post: Fight the Ticket

The Necessity Defense to DUI

This from the DUIblog. Interesting idea, but I don't see a Kansas court agreeing that necessity is a defense for DUI.

Let's say that after dinner -- and too many drinks -- at a friend's house, your'husband is driving you home.''He'suddenly feels intense pain shooting up his left arm,'swerves off the road and loses consciousness.' You jump behind the wheel and start driving at high speed for the hospital.' As you pull up to the emergency center, a police car'follows in after you, its lights flashing.' Shortly afterwards, you are arrested for drunk driving.

Guilty?

Maybe -- and'maybe not.' The courts, as is common in DUI cases, are in considerable disagreement.''Some states recognize the affirmative defense of necessity, or as it is sometimes called, the'choice of evils defense.' As one New Jersey judge observed, 'When, as here, there is a collision between law and common sense, this court should exert its best effort to vindicate common sense.' Our institutional legitimacy depends on our succeeding in that endeavor.'' State v. Fogarty, 607 A.2d 624.

Other courts prefer law over common sense in DUI cases, or severely'limit the defense's'application.' In People v. Slack, 258 Cal. Rptr. 702, for example, the defendant was fleeing across the Mexican border from Tijuana police who had beaten him in the past.''The court held that he had not adequately shown that there was no alternative to drunk driving, or that the emergency was not the result of his own conduct.' More to the point, the court said that 'the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated person pales in comparison.'

Continuing the inconsistencies, some courts permit the defense in criminal cases -- but, illogically,'not in license suspensions.' As'another California court has held:

(The) relevant statutes and their clear public policy preclude the application of the necessity defense to administrative hearings....In contrast to criminal prosecution for drunk driving, the administrative remedy involving the suspension of driver's licenses was designed to be a 'swift and certain' method of deterring such conduct.'

However,'yet another California court had earlier come to the opposite conclusion, saying that 'It is undeniably true that under any reasonable concept, right and justice would be defeated by the erroneous suspension of (his) driver's license.'' Curtin v. DMV, 123 Cal. App.3d 481.

To'muddy the waters'further, there is a separate but related defense of duress which is often confused with the necessity defense.'

So....Was driving your'husband to the hospital a criminal act?' As is often the case, that may depend upon what state you were in,'or what cases the judge chooses to follow.

Source for Post DUIblog.

Why a Breathalyzer Test May be Inaccurate.

Here are some reasons why a breathalyzer test may provide inaccurate results:

1) The interference of radio frequencies - an electronic device that is close to the breathalyzer machine can interfere with the energy emitted by the machine which provides incorrect results

2) Officers fail to provide regular maintenance on the machines - any machine that doesn’t receive frequent maintenance is due to break down sooner or later

3) The officer who administers the test may not use the machine properly which can alter the test result

Source for Post: San Diego DUI Information

How Accurate is Urinalysis for Measuring Blood-Alcohol?

Not very.

Despite this,'many states still'permit urinalysis to be used in determining a suspect's blood-alcohol concentration.' This is consistently the least accurate of the three available methods of analysis.' The reasons for this are basically three.

First, the test is completely dependent on the subject voiding his bladder and then waiting 20 minutes for fresh urine to be secreted into the bladder for a more representative sample.' And it is virtually impossible for an individual to completely void his bladder:' There will usually be about 10cc of old urine left.' This urine will combine with approximately 20cc of fresh urine produced during the wait, resulting in a sample that is one-third old urine --'a sample'that'will contain alcohol from many hours before the subect was driving.

Second, the'concentration of alcohol in the blood is'arrived at by assuming that the amount of alcohol in the urine is 1.33 times greater.' In other words, a partition ratio of 1.33:1 is used.' And as I've written in an earlier post concerning breath-to-blood partition ratios ('''' ), this is only an average:' the ratio varies from person to person and within one person from moment to moment.' Translated into practical consequences, a person with a blood-urine ratio of 2.0:1 who has, for example, a true blood-alcohol level of .06% will have his urine sample analyzed as indicating a blood-alcohol level of .10% -- that is, a presumably sober person will be 'scientifically' proven to be under the influence of alcohol.

Third, urine often contains a'yeast called Candida albicans.' This organism has an interesting characteristic:' it manufactures alcohol in the urine (caused by the'interaction with glucose).''This 'immaculate conception' of alcohol in the bladder has been confirmed by numerous scientific studies.' See, for example, 'Bladder Beer -- A New Clinical Observation', 95 Transactions of the American Clinical Climatological Association 34.

To make things more interesting, Candida albicans is also unaffected by preservatives added'by the'police to urine specimens.' In other words, alcohol will continue to be produced inside the evidence vial'for days until it is finally analyzed at the crime lab.

Source for Post DUIblog.

Why Breathalyzers Are Inaccurate: Reason #37

The following, excerpted from my book Drunk Driving Defense, 6th ed., was kindly provided by Dr. Stefan Rose, M.D., and Dr. Kenneth G. Furton, Ph.D.:

The longer the exhaled breath, the higher the breath alcohol concentration.' This is explained by the fact that gravity causes the blood to 'pool' at the base of the lungs.' More alcohol is contained at the base of the lungs than at the top of the lungs.' The last part of an exhaled breath comes from the base of the lungs and contains more alcohol than the first part of an exhaled breath, so that the breath-alcohol concentration will be higher at'the end of the breath sample than at the beginning.' Therefore, the 'real' concentration of alcohol in the breath sample can never be determined.

Source for Post DUIblog.

Kansas v. Marsh

What if you were on a jury charged with sentencing a double murderer in a capital case? What if the prosecution had proven beyond a reasonable doubt that this was not just any murder - that it was the most heinous kind of murder, in which a small child was knowingly burned to death? What if the defense presented mitigating circumstances and you were at least partially persuaded to grant mercy? What if you deliberated with the other jurors for a long time and decided it was a tie? If you were on a jury in Kansas, that tie would impose the death penalty on the defendant. The question then becomes whether it is a violation of the Constitution to impose the death penalty by statute when the jury decides that the aggravating and mitigating factors are in equipoise. Today, the Court held that it is not.

On the evening of June 17, 1996, Michael Marsh broke into Marry Ane Pusch’s home and hid in her bedroom closet. Marsh needed money for a trip to Alaska and had planned to take Marry and her nineteen-month-old daughter hostage, using them to extort the money from Marry’s husband Eric. Unfortunately, Marry came home early. Marsh panicked and his plan went awry. As soon as Marry walked into the bedroom, Marsh shot her in the head three times. He then stabbed her twice and doused her body in lighter fluid. He set fire to the body and ran from the house, leaving the baby inside. She suffered severe burns in the blaze and died six days later of multiple organ failure.

Marsh was charged with capital murder, first-degree premeditated murder, aggravated arson, and aggravated burglary. A Kansas jury convicted him of all charges and sentenced him to death for the capital murder of the child. Marsh appealed his conviction to the Kansas Supreme Court. In a 4-3 decision, the court held that the Kansas death penalty statute, Section 21-4624(e), was unconstitutional on its face because it required the jury to impose the death penalty if the aggravating factors were not outweighed by any mitigating factors. The majority found that this weighing equation violated the Eighth and Fourteenth Amendments to the Constitution, reasoning that the equation could result in a tie and the automatic sentence of death. The State of Kansas filed a petition for certiorari, which the Supreme Court granted in May 2005.

The Court heard oral argument on December 7, 2005 and re-argument, for the benefit of newly appointed Justice Samuel Alito, on April 25, 2006. Phill Kline, the Attorney General of Kansas, argued for the State and Rebecca Woodman, of the Capital Appellate Defender Office, argued for Mr. Marsh. Although the Court had directed the parties to brief and argue two additional issues - whether the Kansas Supreme Court’s decision was sufficiently final to give the Court jurisdiction to review it and whether the Kansas Supreme Court’s judgment was adequately supported by an independent state law ground - both oral arguments centered almost exclusively on the constitutionality of the Kansas death penalty statute. Both parties presented some argument on the jurisdictional issues in December but gave none during re-argument in April.

In a 5-4 decision handed down today, the Court found for the State on both jurisdictional questions and upheld Kansas’s death penalty statute. Justice Thomas wrote for the majority and was joined by the Chief Justice and Justices Kennedy, Alito, and Scalia (writing separately). Justice Souter dissented, joined by Justices Ginsburg, Breyer, and Stevens (writing separately). The majority found that the Kansas Supreme Court’s decision was sufficiently final for review and that review was appropriate because the state decision was not supported by adequate and independent state grounds.

Having dispensed with the jurisdictional issues, the majority relied on Walton v. Arizona to uphold the death penalty statute itself. In his majority opinion, Justice Thomas pointed out two parallels between the Arizona death penalty statute upheld in Walton and the statute at issue in Marsh. First, both statutes permit the imposition of the death penalty upon a finding that aggravating circumstances are not outweighed by mitigating circumstances. Second, both statutes place the burden of proving aggravating circumstances on the prosecution, allowing the defendant to proffer mitigating evidence. Justice Thomas then pointed out only one distinction between the two - a distinction that works in favor of Kansas defendants. Under the Arizona statute, the defendant has the burden of proving that the mitigating circumstances outweigh the aggravating circumstances. Conversely, the Kansas statute puts the burden of proof on the State, requiring the prosecution to prove that the mitigating circumstances presented by the defendant do not outweigh the aggravating circumstances. In Kansas, the defendant bears no additional evidentiary burden.

The majority also relied on its death penalty jurisprudence generally. Justice Thomas wrote that, even if Walton does not apply, the Court’s earlier rulings permit the Kansas capital sentencing system. The Kansas statute rationally narrows the group of death-eligible defendants by allowing the death penalty only after the prosecution has proven one or more of the statutorily enumerated aggravating circumstances beyond a reasonable doubt. The Kansas statute also permits a jury to consider any relevant mitigating evidence, whether it was presented by the defendant or not. Additionally, the majority found that the Kansas statute does not create a presumption in favor of the death penalty just because it imposes death when the aggravating and mitigating factors are in equipoise. Instead, the majority characterized such an outcome as a reasoned decision by the jurors that the mitigating evidence does not warrant leniency. Kansas jury instructions explicitly state that a tie will result in the death penalty so the Court assumed the jury was aware of the consequences of an equipoise finding. Justice Thomas concluded with an outright dismissal of the dissenting opinions as ‘irrelevant,’ stating that the Court does not sit as a moral authority. It is not the Court’s place, Thomas argued, to pass judgment on the entire capital punishment system.

Justice Souter’s dissent stressed that the death penalty should be reserved for ‘the worst of the worst.’ He argued that, since the determining factor in an equipoise situation is not the nature of the crime or the characteristics of the individual defendant, the jury’s decision is not connected to a particular crime or criminal. Subsequently, a tie breaker cannot identify the worst of the worst ‘or even purport to reflect any evidentiary showing that death must be the reasoned moral response.’ Souter characterized the Kansas statute as ‘morally absurd’ because, in his view, it requires the death penalty when the prosecution has failed to convince the jury that the aggravating circumstances outweigh the mitigating circumstances. He further wrote that ‘the Court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.’ Justice Souter relied on a small number of death penalty studies to support his contention that the Kansas law inappropriately maximizes death sentences. He specifically pointed to the advent of DNA testing and Illinois’s death penalty moratorium to illustrate the number of false verdicts in the American justice system, alleging that the percentage is ‘disproportionately high in capital cases.’

Justice Stevens joined Justice Souter but wrote a separate dissent to express his disagreement with the Court’s use of Walton as controlling authority and with the Court’s grant of certiorari in the first place. Justice Stevens drew attention to Justice Blackmun’s dissent in Walton, which he joined, arguing that the Court did not actually address the equipoise situation presented in Marsh. Therefore, Walton should not control. Additionally, Justice Stevens disagreed with the Court’s decision to grant certiorari in Marsh because he viewed the case as simply a review of a state court’s interpretation of its own precedent and a state law. He encouraged judicial restraint, emphasizing that ‘[n]othing more than an interest in facilitating the imposition of the death penalty in [Kansas] justified this Court’s exercise of its discretion to review the judgment of the [Kansas] Supreme Court.’

Justice Scalia wrote a classically quotable concurring opinion that mocked Justice Stevens’s characterization of the jurisdictional issues and likened all of the dissenters to a bunch of confused Martin Luthers, ‘nailing their policy agenda…to the door of the wrong church.’ Justice Scalia spent about one-third of his concurrence enlightening Justice Stevens on the certiorari process and the Court’s role in the judicial system. He then chastised the dissenters for giving the impression that their views in Marsh were motivated by their personal views on the death penalty. He also devoted considerable space to discrediting the studies Justice Souter cited in his dissent. In shaming the dissenting view that the death penalty is an ‘undesirable situation,’ he pointed out that regardless of the Justices’ opinions, thirty-eight states impose the death penalty. He also wrote that ‘as far as anyone can determine (and many are looking), none of the cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.’

Overall, the Justices behaved as expected in this case. The usual suspects hung together and Justice Alito broke the tie. The most notable thing about Kansas v. Marsh is how contentious it is. The Justices got pretty personal right off the bat. Maybe everyone just needs a vacation.

Source for Post SCOTUSblog.

"I Smelled a Strong Odor of Alcohol on the Suspect's Breath"

You will never see a DUI case where the officer does not report an odor of alcohol on the suspect’s breath. Never. The officer expects to smell it and it is a psychological fact that we see, hear and smell what we expect to see, hear and smell. In fact, most police DUI reports are formatted'for the usual symptoms: there will be a box for 'odor of alcohol', which the officer checks off. There are often three'boxes, labelled 'strong', 'moderate' and 'weak'; there is no box for 'none', so that is not an option for the officer.' The''strong' box is almost always checked.' Presumably, the stronger the odor of alcohol, the more intoxicated the person arrested.

There is only one problem with this:' alcohol has no odor.

Assuming the officer actually does smell an odor on the breath, what he is smelling is not ethyl alcohol but the flavoring in the beverage. And the flavoring can be deceptive as to the strength or amount consumed. Beer and wine, for example, are the least intoxicating drinks but will cause the strongest odor. A much stronger drink, such as scotch, will have a weaker odor. And vodka leaves virtually no odor at all.

Consider a simple experiment. Have a friend drink a can of 'near beer' -- the stuff that looks, smells and tastes like beer but has no alcohol in it. Then smell his breath. You will smell an 'odor of alcohol' -- and maybe a strong one.

And, of course, there can be any number of causes of an 'odor of alcohol' on a person’s breath: mouth wash, throat spray, cough syrup. Illness, indigestion'or simple bad breath has been the cause of more than one officer’s trigger-quick conclusion that the suspect has an 'odor of alcohol on his breath'.

The point of all this is that the odor of alcohol has very little relevence in a drunk driving case. It may or may not indicate that the person has consumed alcohol. It has absolutely no evidentiary value on the much more important question of how much the person has consumed -- or what he had to drink, or when. Depending upon circumstances, a person with a single drink can have a 'strong odor of alcohol on his breath', and an extremely inebriated person can have a 'weak' odor. And an experienced and honest DUI officer will readily admit this....if he is ever asked.

Unfortunately, evidence of the odor of alcohol on a person’s breath'can have a significant impact on a DUI case. This is because most officers who pull a driver over for some driving irregularity at night are looking for further signs of drunk driving. When the officer approaches the driver’s window and smells alcohol, that confirms his suspicions. Since few can pass the 'field sobriety tests', particularly under the conditons in which they are given, an arrest is likely.

Are there any scientific studies to back up my claim that breath alcohol odor is largely irrelevant yet disproportionately weighted as 'evidence' of intoxication?

In 1999, the same scientists whose federally-contracted studies became the basis of the so-called 'standardized' battery of field sobriety tests conducted another study on the effectiveness of alcohol odor in detecting intoxication. These researchers used 20 experienced officers working with 14 subjects who were tested at blood-alcohol concentrations (BACs) ranging from zero to .13 percent. Over a four-hour period, the officers smelled the subject’s breath odor under optimal conditions, with the subjects hidden from view.

The conclusions of the study: Odor strength estimates were unrelated to BAC levels. In fact, estimates of BAC levels failed to rise above random guesses. Further, officers were unable to recognize whether the alcohol beverage was beer, wine, bourbon or vodka. According to the scientists, these results demonstrate that even under the best of conditions, breath odor detection is unreliable. Moscowittz, Burns & Furgeson, 'Police Officers’ Detection of Breath Odors from Alcohol Ingestion', 31(3) Accident Analysis and Prevention 175 (May 1999).

Source for Post DUIblog.

Supreme Court Upholds Police Evidence in Searches Without Knocking

The Supreme Court ruled Thursday that police can use evidence collected with a warrant even if officers fail to knock before rushing into a home.

Justice Samuel Alito broke a 4-4 tie in siding with Detroit police, who called out their presence at a man's door then went inside three to five seconds later.

The case had tested previous court rulings that police armed with warrants generally must knock and announce themselves or they run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

Justice Antonin Scalia, writing for the majority, said "whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house."

The court did not say how long police officers must wait after knocking before they enter a home to execute a search warrant.

Source for Post: USA Today

States move to validate use of deadly force

"A campaign by gun rights advocates to make it easier to use deadly force in self-defense is rapidly winning support across the country, as state after state makes it legal for people who feel their lives are in danger to shoot down an attacker - whether in a car-jacking or just on the street."

Source for Post Stateline.org RSS - State by State Roundup.