Arizona DUI Defense Blog | Rosenstein Law Group
Again, as in Herman 1, it was provided. Over a year ago, we filed a Petition with the Arizona Supreme Court requesting that they:. A few weeks ago, the Arizona Supreme Court decided to review the matter. The Court's decision merely means they granted part one of our request: they will hear the case. The oral argument is open to the public, but it is expected to be a full house. If you want to attend, get there early. If you are making a decision based upon a measurement, then you have two choices. One, you can simply accept any number a machine produces as true; or.
If you just want to know how hot it is outside, a twenty-year-old thermometer, combined with stepping outside will probably do. However, if the measurement is critical to an important outcome, then you need to ask, and answer, the question how did you get the number? A critical measurement is a measurement where, the result of an important analysis, is dependent upon the measurement. A measurement is critical if an incorrect measurement could place people in danger. If a scientist measured the wrong amount of a drug when making a pill, then it could harm someone — that is a critical measurement.
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If a lab employee measures the wrong amount of alcohol in your system in a DUI case, then it could result in an unwarranted prison sentence — that is also a critical measurement. After the Supreme Court decided the case of Missouri v. McNeely , the question of when a warrant is required, before law enforcement may draw a person's blood became more interesting to say the least. On one side of the issue was the position that a blood alcohol concentrations is constantly changing, thus, there is a justification for law enforcement to bypass the traditional warrant requirement. The contrary, and as it turns out the prevailing position, is that our Constitution does not allow law enforcement unfettered discretion to decided if they can stick a needle in your arm without a warrant i.
The reality of modern technology is that a telephonic warrant can be obtained in about 15 minutes for most cases. Accordingly, the exigent circumstances reasoning for bypassing the warrant requirement is unsound. But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
See McDonald v. United States , U. Ed The results produced by a gas chromatograph are usually the difference between innocence and guilt in a DUI case. The measurement process starts long before the gas chromatograph is actually turned on. The blood must be collected, identified, stored and transferred properly before the sample is put into the gas chromatograph. Even the best machines cannot account for, or identify, that a sample has been corrupted. The principle of garbage in garbage out must be kept in mind.
That is, incorrect or poor quality input will always produce wrong output. Human are also responsible for teaching the machine a specific alcohol concentration. The machine does not come out of the box knowing any specific alcohol concentration. Typically a lab will purchase approximately four 4 different alcohol concentrations from a vendor. For example,. If the analyst tells the machine a sample is a. Ensuring a calibrator is what it purports to be is known as traceability.
The headspace vials usually over containing the samples are loaded into a part of the machine called the autosampler. The samples are then heated in a headspace tube forcing molecules in the liquid portion of the sample to rise. After the molecules are vaporized, a needle punctures the top of the headspace vial and extracts a microscopic portion of the gas above the liquid.
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These vaporized molecules are pushed through long thin columns by a carrier gas hydrogen or helium. These thin columns have a chemical coating inside them designed to interact with the molecules passing through them. The carrier gas moves at a constant pressure. This results in different molecules in the gas to group together e. Each molecule group, such as ethanol, has a unique rate of speed.
This accounts for the separation of the each substance in the columns. After each molecule group is pushed out of the column, they will be pushed to a detector.
The time when is substance exits the column is called the time it elutes. The Flame Ionization Detector , as the name implies, then burns each molecule group and then measures how much is burned. The measurement is found here. The above summary just scratches the surface of the measurement process using a gas chromatograph. If you are going to rely upon the measurement produced by this technique, then every step in process both the human and machine must be shown to have been done correctly.
The underlying premise of the test is: you drink enough alcohol, and then you eyes will show HGN. Alcohol, however, is not the sole cause of HGN. In State v. Horn , the court recognized the following causes or possible causes of HGN:. When should you trust a blood test result that claims to measures an alcohol concentration? Start by reading the test's "Warning Label.
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence.
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The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement. A complete measurement includes more than just a reported result. As a matter of fact, simply providing a reported result is often misleading. No measurement is perfect. The result of any measurement is only an estimation of its value. A complete test result, must also include:.
This means, the reported result could be as low as a.
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If this statistic were true, this would certainty be a reported result that you could trust. On the other hand, what if for the same reported result of. Here, this means the reported result could be as low as. Furthermore, if you continued to test this sample on the same equipment, , times of out of a million, the reported result would be outside the range stated above. When comparing the two complete test results , you can see that providing a mere reported result does not tell us the whole story.
Merely telling us the reported result can actually tell us a very misleading story. Science will not accept incomplete measurements. Why should the law? She refused and told me to get a court order. At that time I was surprised. Why would she refuse to do a routine interview? Today we know the answer. It's true - Arizona has reduced the penalties for DUI convictions.
Here are some of the highlights:. There are a lot more changes in the new law. The legislature, without a public debate, removed the statutory right to jury trial for non-extreme DUI cases. There may still be a right to jury trial in regular DUI cases under Arizona's common law. In any event, the jury trial has not disappeared - there will be a big legal fight to come on this issue.
Short tagline goes here Submit Case for Review. Posted on May 14, by Lawrence Koplow. Good news! The house passed.