Kentucky DUI Defense Lawyer

Common Mistakes Police Officers Make In DUI Arrests

Police Officers frequently make mistakes when they investigate and arrest a driver for driving under the influence in Kentucky. Many of these mistakes include, but are not limited to the following:

1. Assuming that "witnessed" driving behavior (i.e.: weaving, cell phone use, distraction) is related to alcohol consumption.
2. Observing driver behavior from a distance and attributing the behavior to the driver and not to the road conditions (i.e.: swerving to avoid potholes or animals in the roadway)
3. Assuming that the odor of alcohol means a person consumed alcohol and is intoxicated, when in fact the odor may be due to other causes (i.e.: mouthwash, denture solutions, alcoholic drink which was spilled on the driver's clothes, etc.)   
4. Failing to investigate a driver’s potential medical problems which could imitate intoxication (such as diabetes, knee / ankle / leg / foot problems, inner ear disturbance, etc.).   
5. Requesting all people submit to Standard Field Sobriety Tests (SFST), regardless of whether the person is physically unable to pass the exercises even while totally sober.   
6. Failing to eliminate distractions and obstacles during the SFST which invalidate the test (i.e.:   loose gravel, unlevel surfaces, wind blowing, darkness, strobe lights, moving traffic, etc.)   
7. Failing to properly instruct the driver during the instructional phase of the SFST's.
8. Failing to properly instruct the driver during the administration of the SFST's.   
9. Failing to properly follow the sequence of the SFST as described in the National Highway Traffic Safety Administration (NHTSA) Manual or the Kentucky Department of Justice Center for Training (KDOJCT) Manual.
10. Administering invalid field sobriety “tests” which are not supported by research studies.
11. Failing to properly administer the Portable Breath Test (PBT), causing a false positive result (i.e.: not following the law and waiting 20 minutes before administering the test) to support a probable cause for arrest. (Note: PBT results are not admissible in Kentucky courts.)
12. Not having the Intoxilizer 5000EN breath test within 2 hours of cessation of the vehicle operation.

The above list of police officer mistakes is only a partial list of mistakes made by officers. It applies to Kentucky DUI / DWI arrests. If any of the above mistakes exist in a Driving Under the Influence matter, then a good defense may exist to the DUI / DWI charges.

Post by Kentucky DUI Lawyer, Stephen J. Isaacs, Isaacs Law Office.

Phoenix Intoxilyzer Machines Failed on 1/1/06

Phoenix Intoxilyzer Machines Failed on January 1, 2006 according to an article by Attorney Daniel Jaffe, Jaffe Law Firm.   Many of the City of Phoenix's Intoxilyzer 5000 machines, manufactured by CMI, Inc., which are used to test a person's breath alcohol content in DUI cases failed. Apparently, the programmer of the machine's internal computer gave the machine a 100 year life span, starting in 1906. The machines failed because they did not know what to do at the beginning of the New Year.

The Intoxilyzer 5000 machines are also used in Kentucky.  Defense lawyers in the states of Florida, Arizona, New Youa, and Nebraska have uncovered through discovery inconsistencies in the machines, but have been prevented by the courts and by CMI, Inc. from discovering whether the Intoxilyzer's software code contains errors which could produce erroneous results. CMI has refused to reveal the computer source code for its machine stating it was a trade secret. Before the Florida courts could rule on whether to suppress the alcohol breath test, the Florida Legislature amended 316.1932(1)(f)4 to restrict the information obtainable on the device from "full information" to only the "results of the test." The fact that some of Phoenix's Intoxilyzer 5000 machines failed on January 1, 2006 due to programming errors supports the theory that the machines may be flawed. Scientists subject all formal research to peer review and studies.  Defendants in the majority of criminal matters are afforded their Due Process right to verify and contest evidence against them.  Due Process requires the state to disclose to criminal defendants favorable evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Due Process also mandates that the state turn over evidence which also may be exculpatory in nature. Yet defendants charged with DUI claiming their innocence are frequently prevented from verifying the accuracy of the Intoxilyzer devices, in violation of their Due Process Rights. If the Intoxylizer devices were properly designed, properly programmed, and properly working, then why are CMI, Inc., the states, and the courts refusing to allow defendant's the right to check and contest the results?

Post by Nicholasville Kentucky, Criminal Defense, and DUI Attorney Stephen J. Isaacs.