Kentucky DUI Defense Lawyer

Help Wanted With "The Top 10 DUI Defenses I Learned From My Horse"

     I am currently preparing a Continuing Legal Education (CLE) presentation for the Kentucky Bar Association where I teach other attorney's how to prepare a legal defense to the charge of Driving Under the Influence (DUI). This will be the fourth year I have been invited to either write or present the CLE materials.  As part of the presentation this year, I decided to add a little humor centered around DUI defenses and Kentucky's love for Horses.  

     To that end, I am reaching out to the community for help. I plan to preface each DUI topic with a "Top DUI Defense I Learned from My Horse". The general topics include: Standard Field Sobriety Tests; One Leg Stand; Walk and Turn; HGN or Horizontal Gaze Nystagmus Test; Portable Breath Test or PBT; Alphabet Test; Touching The Nose Dexterity Test; Counting Test; Suppression of the Traffic Stop; Implied Consent; Suppression of the Breath Test or Intoxylizer; Suppression of the Blood Test; the Officers Violation of the Statutory Observation Period; When a DUI can be Expunged, and more.  I am seeking your suggestions and comments which I can use in the presentation.

     For example, a few of the suggested "Top DUI Defenses I Learned From My Horse" currently under consideration include:

1)  If I was meant to stand on one leg, then I would have been born with one leg!

2)  But officer, I only had a few beers, they make my coat shine.

3)  HGN, lets see, does that mean Have Grain Now?

4)  Officer, you stopped me for speeding?  What part of RACEHORSE do you not understand?

5)  You want me to count to thirty while I stand on one leg? You must be horsing around!

6)  You want me to say the alphabet from H to R?  How can I do that when I can not even pronounce my own name?

7)  Walk and Turn, no problem. I can do that, but do I take 9 steps with each leg or only the front two, and if only using the front legs, what do I do with my rear legs? 

8)  Field Sobriety Test, hmmm, yes, I see the field and it has grass in it.  Out of my way, I want to  taste the grass to test if I can maintain sobriety.

9) Look at my hoofs, you expect me to take these tests with heels over two inches?  

     Note, by posting suggestions in the comment section, you are giving me permission to use the best of the suggestions in my presentation to Kentucky's future DUI defense lawyers.  Thank you. 

     Post by Lexington, Kentucky DUI Attorney Stephen Isaacs, Isaacs Law Office.

Breath Alcohol Concentration Tests Can Vary As Much As 20%

While the states contend that the science behind Breath Alcohol Testing is reliable, researchers are finding flaws with the science upon which Breath Alcohol Testing is based. 

Lung physiology researcher Dr. Michael P. Hlastala, Ph.D. Professor of Physiology, Biophysics and of Medicine Pulmonary and Critical Care Medicine of the University of Washington tested the consistency of measurements from breath alcohol concentration (BrAC) testing machines and compared them to measurements of blood alcohol concentration (BAC) measurements.  Dr. Hlastala discovered that the results could vary by as much as plus or minus 20%.

In his research, Dr. Hlastala states that:

. . . subjects with larger lung volume may have a lower BrAC than a subject with a small lung volume because these subjects do not need to exhale as great a fraction of their vital capacity as subjects with smaller lung volume to fulfill the minimum volume exhalation required before stopping exhalation (usually ~1.5 liters). A person with smaller lung volume must breathe farther into the exhaled breath, resulting in a greater BrAC-to-BAC ratio.   Michael P. Hlastala, Invited-Editorial on "The Alcohol Breath Test," 93 Journal of Applied Psysiology 405 (2002).

According to this research, breath testing machines based on the "average" person can result in a bias favoring individuals with large lung capacities causing a low BrAC-to-BAC ratio, and against individuals with small lung capacities causing a higher BrAC-to-BAC ratio.

Stated another way, a person legally under the influence with a 0.08 blood alcohol concentration and with large lung capacity may inaccurately measure 0.064 BrAC on a breath alcohol concentration test machine.   A person not considered to be under the influence with a 0.067 blood alcohol concentration and with a small lung capacity may inaccurately measure 0.08 BrAC on a breath alcohol concentration test device.

Post by Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Kentucky Appellate Court Orders Disclosure of Intoxilyzer 5000 Source Code

    A Kentucky Appellate Court recently held that a defendant can examine the source code of the breathalyzer instrument manufactured by CMI, Inc., more commonly known as an Intoxilyzer 5000, so they could challenge the validity of the breath alcohol readings.  See Lennie House v Commonwealth of Kentucky, No 2007-CA-000417-DG (Ky App 01/18/2008)

     In this case, the defendant sought to discover the source code of the Intoxilyzer 5000 so it could be examined for "bugs" or flaws in the code's logic which could result in an incorrect blood alcohol reading. Kentucky Court's have previously prevented defendant's access to this information, siding with CMI and the Commonwealth of Kentucky that the computer source code is a protected trade secret and that this should weigh against disclosure. However, the Kentucky Court of Appeals stated that the defendant's need for this information could only be quashed upon a showing that providing the information would be unreasonable or oppressive.

Post by Nicholasville Kentucky Attorney Stephen J. Isaacs , Isaacs Law Office.

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DUI Blog Article Review

I have listed a few recent articles on other DUI Attorney websites of interest to readers of this website.

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?

Post by Lexington Kentucky DUI Attorney Stephen J. Isaacs, Isaacs Law Office.

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Tap Water Defense Causes 300 DUI Cases to be Dismissed

A Florida appellate court ruled on January 3, 2007, that improper maintenance of the Intoxilyzer 5000 alcohol breath-test machines with tap water renders the results of a DUI breath test inadmissible. 

Since July 29, 2001, Florida Department of Law Enforcement (FDLE) regulations have required the use of distilled or deionized water in monthly agency inspections of breath testing instruments, including the Intoilyzer 5000 machines.  Officers at the Davie police department and the Broward Sheriff's Office used tap water instead of distilled water to test the machines. Accordingly, Defense lawyers brought a Motion to Suppress any and all results of a breath test, in that the State used tap water, and not distilled or de-ionized water as required by law. The trial court judge ruled in favor of the defendant.

On Appeal, the Florida Fourth District Court of Appeals ruled that the improper maintenance of the alcohol breath-test machines rendered the Intoxilyzer results inadmissible.

The State v. Cubic, No. 4D05-3553 (Fla. App. 1/3/2007) (Fla. App., 2007) decision is not final, but the end result is that approximately 300 drunk driving cases in Broward County could be dismissed because of the inadmissible Intoxilyzer 5000 test results.

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

Police Video In DUI Case

Police often video various aspects of the arrest and booking of a person driving under the influence (DUI) or driving while intoxicated (DWI). Few people picked up for DUI / DWI ever see themselves as others see them. Even fewer realize they are being recorded by the police.

Defense attorneys have a difficult job when their client can not accurately recall events so as to assist in their defense.  Alcohol and other intoxicants affect brain functions which affects thought processes, memory, and motor control. Fortunately, police video's are many times very helpful tools for Kentucky criminal defense lawyers. Based on the facts involved in each DUI case, these video's may show constitutional and / or procedural violations.  If the video shows such a violation, then the skilled Kentucky criminal defense attorney will usually file a motion to suppress evidence in an attempt to get the Court to rule that a part or the entire police video is inadmissible at the DUI trial.

Click on the link to see a police video discovered on the Internet showing an individual believed to be under the influence of alcohol as he was given a breath alcohol test by a police officer at a police station.  This is the type of video which would be detrimental to the defense of a DUI case, and one in which the criminal defense attorney would try to suppress.

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

DUI Blog Review - 2006 - Week 52

The Austin DWI Lawyer featured an article by Attorney Jamie Spenser entitled Watch The Witness, which described how officers use cheat sheets to answer defense lawyer's testimony in the courtroom.

The Underdog Blog featured an article by Attorney Jon Katz discussed the many reasons unrelated to alcohol which can affect a suspect's performance on field sobriety tests.  He discusses the junk science used to support the Field Sobriety Tests (FST's) and the fact that the tests only show the presence of alcohol in one's body and not the level of alcohol present. He further discusses that too many judges rely on the FST's to find probable cause to arrest a suspect, request a breath or blood alcohol test, and to enter a guilty verdict for driving while impaired or driving under the influence of alcohol.

Washington State DUI Blog posted an article about how police in Washington conduct the Finger to Nose field sobriety test. The post notes that most sober individuals cannot perform this test, so it is not a valid indicator of sobriety.  Note, in Kentucky, Field sobriety tests are voluntary.  They are primarily used to gather evidence of impairment.

Guy Sharpe reported on the Georgia DUI Blog a Canadian study which suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content, leading to the overestimation of true breath alcohol and erroneous test results.

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

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.

Attack the Breathalyzer Results with Evidence of Sobriety in DUI

Evidence concerning alcohol intoxication can constitute circumstantial proof impugning the accuracy of the blood and breath-alcohol concentration tests.

A question frequently comes up in "per se" DUI prosecutions whether the accused can attack the Intoxylizer 5000 results. Prosecutors have argued that evidence of alcohol intoxication is not relevant in DUI "per se" prosecutions.

The Court in Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 08/16/2002) addressed this issue.

The Mattingly Court stated that juries are entitled to draw reasonable inferences from circumstantial evidence, and that such evidence is relevant because it makes less probable a material element of DUI per se - whether the accused's blood- or breath-alcohol concentration was .08 or higher.

Therefore, at trial in Kentucky, a defendant may introduce evidence that the Intoxylizer 5000 breathalyzer test was not accurate by introducing evidence of his intoxication.

For example, an accused could offer proof that he suffers a severe alcohol allergy, thus preventing him from consuming alcohol. Similarly, he could offer proof that he only consumed a single alcoholic beverage a considerable time before administration of the breathalyzer test. Clearly, the evidence in the above examples would tend to impugn any contrary results of a breathalyzer test.

Likewise, evidence that an accused performed satisfactorily in a field sobriety test could also tend to impugn the test results showing a blood-alcohol concentration above the legal limit.

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