In a quick and decisive opinion, the Connecticut Supreme Court found that there was sufficient evidence to suspended the licenses of two separate drivers. Remember in Connecticut that a license suspension results from a conviction in criminal court. But also, the DMV suspends your license unless you ask for and win a hearing before that agency.
Both Stash and Marsh lost their respective DMV hearings and appealed to court. Their argument, in essence, was that since both drivers underwent blood alcohol tests, and the statute is designed for breath tests, there was no evidence to show they were driving with an elevated blood alcohol content.
Since blood test results need to be mathematically converted so they can be compared to breath results, and no evidence was before the DMV as to how this was done, the DMV had no factual basis to suspend their licenses.
The Supreme Court did not make much of a statement about the facts and merely endorsed the trial court's recitation of them. Regardless, we are without the benefit of much analysis by the Supreme Court about this case. The statute is intended to be used with breath tests. It would have been nice to have the Supreme Court's view on how it squared this fact with the inherent inaccuracies of blood tests.
Tuesday, June 22, 2010
Wednesday, June 16, 2010
100s of DWI Convictions Tossed
An amazing story in a recent Washington Post shows that the law is enforced against the prosecution in a fair way. At least sometimes, it is.
The head prosecutor in Washington, DC said that since police officer improperly adjusted the various breathalyzer machines. The led to higher readings that would otherwise be obtained had the machine been properly calibrated.
Of course, this will lead to a torrent of lawsuits, as it should.
Despite that, though, Peter Nickles deserves a lot of credit for doing the right thing. It is never easy for a prosecutor to use any discretion in DWI cases. Doing so here was not only the right thing, but a courageous one as well.
The head prosecutor in Washington, DC said that since police officer improperly adjusted the various breathalyzer machines. The led to higher readings that would otherwise be obtained had the machine been properly calibrated.
Of course, this will lead to a torrent of lawsuits, as it should.
Despite that, though, Peter Nickles deserves a lot of credit for doing the right thing. It is never easy for a prosecutor to use any discretion in DWI cases. Doing so here was not only the right thing, but a courageous one as well.
Tuesday, June 15, 2010
How Does Blood Serum Compare To BAC?
In Connecticut, police officers can pick a test of your blood, breath or urine if they suspect you were driving while intoxicated. Most of my clients underwent breath tests. Blood tests occur most often when my client was taken to the hospital due to injuries in an accident. Non-accident blood tests are rare, in my experience.
Breath tests measure alcohol by volume (sort of, since it approximates).
Blood tests measure the weight of the alcohol. It generates a plasma or serum level, which needs to be converted to blood alcohol content ("BAC"). In Connecticut, like most states, a BAC over 0.08 is illegal.
Statutes like Connecticut's are based on "whole blood" levels, which coincide with breath tests, the most common used. A blood sample contains red blood cells, most of which are "spun out" of the sample, leaving a clear fluid on top. This is known as "serum." This happens when the blood sample sits without any kind of anti-coagulant.
If an anti-coagulant is added, due to the weight of the liquids, "plasma" is left on the top of the sample. The red blood cells are also "spun out" of the sample.
Since there is considerably less volume in both of these "spun out" samples, they do not equate to breath tests. And, since the red blood cells are not present, there is a much higher concentration of alcohol present in the serum or plasma than in the entire blood sample.
So, what we do is reduce the blood alcohol content (it usually is labeled "ETOH" in hospital records) by 17% to get the approximate result that would have occurred if a breath test were administered.
Is it exactly accurate?
No. But neither are breath test readings, since they use a complex algorithm to equate those results to what is actually in your blood at the time of operation.
Think of it like this: your body is metabolizing alcohol while you drink it and then as time passes. Netting all these times out, trying to equal the breath versus blood results and getting the times right is a best guess that the law, at least in Connecticut, appears to allow.
Breath tests measure alcohol by volume (sort of, since it approximates).
Blood tests measure the weight of the alcohol. It generates a plasma or serum level, which needs to be converted to blood alcohol content ("BAC"). In Connecticut, like most states, a BAC over 0.08 is illegal.
Statutes like Connecticut's are based on "whole blood" levels, which coincide with breath tests, the most common used. A blood sample contains red blood cells, most of which are "spun out" of the sample, leaving a clear fluid on top. This is known as "serum." This happens when the blood sample sits without any kind of anti-coagulant.
If an anti-coagulant is added, due to the weight of the liquids, "plasma" is left on the top of the sample. The red blood cells are also "spun out" of the sample.
Since there is considerably less volume in both of these "spun out" samples, they do not equate to breath tests. And, since the red blood cells are not present, there is a much higher concentration of alcohol present in the serum or plasma than in the entire blood sample.
So, what we do is reduce the blood alcohol content (it usually is labeled "ETOH" in hospital records) by 17% to get the approximate result that would have occurred if a breath test were administered.
Is it exactly accurate?
No. But neither are breath test readings, since they use a complex algorithm to equate those results to what is actually in your blood at the time of operation.
Think of it like this: your body is metabolizing alcohol while you drink it and then as time passes. Netting all these times out, trying to equal the breath versus blood results and getting the times right is a best guess that the law, at least in Connecticut, appears to allow.
Monday, June 7, 2010
CT's Tougher DWI laws?
Gov. Jodi Rell signed a law today requiring ignition interlock devices on cars operated by people who are convicted twice within 10 years of a DWI offense. The Hartford Court story, though short, hits the high points.
What does this mean?
If you are convicted twice of DWI within ten years, you will face at least 120 days in jail, probation, fines, court costs and fees, a substantial increase in insurance premiums, a one-year license suspension and, now, a requirement that you only operate cars with ignition interlock devices.
Basically, the car won't start unless you breath into a tube that makes certain no alcohol is emanating from your breath.
What does this mean?
If you are convicted twice of DWI within ten years, you will face at least 120 days in jail, probation, fines, court costs and fees, a substantial increase in insurance premiums, a one-year license suspension and, now, a requirement that you only operate cars with ignition interlock devices.
Basically, the car won't start unless you breath into a tube that makes certain no alcohol is emanating from your breath.
Saturday, June 5, 2010
Did The Law Catch Up To Science? Or The Other Way Around?
If you follow appellate law in Connecticut - or if you make a regular habit of reading the Connecticut Law Journal every week - you find that things fall into a particular rhythm. The lower Appellate Court is a high-volume court that applies the law without breaking much new ground.
The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.
At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.
Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.
The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.
The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.
How to do this and is it worth it?
This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.
In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.
And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.
The Supreme Court, on the other hand, oftentimes writes long, expansive decisions that become the controlling law in Connecticut. The Appellate Court follows that lead.
At least once a year, the Supreme Court released an opinion on an area of criminal law that makes concrete a squishy area. For example, for the longest time a passenger in a car kind of had the right to contest the search of the car despite having no property interest in it. Then, in State v. Davis, the Supreme Court held that a property right in the property that was searched must exist before someone has the right to contest the search. Thus, passengers in cars containing drugs had no ability to suppress evidence unless they owned or leased the car that was searched.
Yesterday, the Supreme Court released its decision in State v. Courchesne. Simple facts: the defendant was arrested, tried and convicted for the murder of a pregnant woman, who died once she got to the hospital. Her in utero child was delivered via c-section and lived slightly more than 40 days before dying. Courchesne was sentenced to a prison term for the mother's death and sentenced to die himself for the death of the child.
The basis of the death penalty was, in part, that Courchesne killed two people at once. Things being what they are in America these days, we had no clear science or law on something called the "born alive rule." That doctrine says, in essence, that if a fetus is "born alive" but later dies, the person who sets the events in motion leading to the fetus/baby's death can be convicted of murder.
The Supreme Court overturned the panel that sentenced this defendant to death, saying that the incorrect standard of proof was used. What it really means is that if the Waterbury State's Attorney's Office wants to put Courchesne back on death row, they will need to prove that the baby was not effectively "brain dead" when born and was able to live on her own.
How to do this and is it worth it?
This is where the law in Connecticut - and I suspect many other states - is behind the science. Perhaps not in 1998 when this crime occurred, but now, in 2010, with the state of science being what it is, prosecutors should be required to prove each step of what they allege occurred. It is black letter law that the prosecutor must prove each element of a crime beyond a reasonable doubt. So, simply put, the prosecutor here must prove that this baby was alive so that Courchesne can be liable for having killed it.
In all, I have to say that this is a brave decision. Despite the gravity and independence of those jobs, our Supreme Court justices still need to swallow hard before coming down on the side of a defendant in a case like this. Choosing the strength of law over popularity is not easy.
And to show that this Court thought long and hard about it, the other justices that disagreed with the majority wrote their own views into law. They can be found here, here and
here.
Wednesday, June 2, 2010
When Silence Doesn't Equal Silence
As anyone who has watched any crime show knows, you have the right to remain silent. Anything you say can and will be used against you. So watch out. I cannot tell you how many cases I have represented defendants in when their own statements are what sank them. If words of your guilt come out of your own mouth, that is the most potent evidence there is.
Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.
What does this mean? Why would you care?
It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.
I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.
Wouldn't a non-guilty person have spoken up?
Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?
These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.
Our Constitution permits silence. In fact, per Miranda, it is a right.
Or maybe, it was a right. Now you need to break your silence to assert it.
Comes now the US Supreme Court. In a close 5-4 decision, that court held that a criminal defendant must actively assert his right to silence. Merely the act of being silent does not do it. The Washington Post version of the story can be found here.
What does this mean? Why would you care?
It means that if a defendant is sitting in a police station and does not desire to speak - but never tells his questioners that he is intentionally sitting silently - that this silence is, in itself, a statement.
I know you need to have had the law school labotomy to get this to make sense. But think of it like this: a jury of laypeople sit and listen to a prosecutor's presentation. Part of that presentation is that the defendant sat mutely while his inquisitors asked him question.
Wouldn't a non-guilty person have spoken up?
Who sits there silent while police officers seek to only understand your involvement - or lack of it - in a crime?
These questions go through the jury's mind. And if permitted, a prosecutor will argue they are conclusive signs of a defendant's guilt.
Our Constitution permits silence. In fact, per Miranda, it is a right.
Or maybe, it was a right. Now you need to break your silence to assert it.
Tuesday, June 1, 2010
CT State Police Make 76 DWI Arrests Over Holiday Weekend
The Connecticut Post reports today that the Connecticut State Police made 76 arrests for DWI over the Memorial Day weekend. The story can be read here.
Increasing DWI enforcement over holiday weekends is nothing new for local departments and the State Police. In fact, if you hang out at courthouses enough, you'll here people say they expect the Tuesdays after Memorial Day, Fourth of July and Labor Day to be unusually busy due to extra DWI enforcement.
So what to do if you are one of the 76 who were arrested?
Well, first, call a lawyer. Only an experienced lawyer that knows the details of Connecticut's complex DWI laws can make sure your rights are protected throughout this process. Because don't forget, not only will your license be suspended, but there is the possibility that you could go to jail or wind up with a criminal record if your case is not handled properly.
Second, understand that the proceedings in court and those before the DMV are NOT the same. Your license will be suspended by the DMV unless you ask for and win a hearing before it.
Your license will also be suspended a second and unrelated time by the judge in court if you do not handle your case correctly.
These suspensions do NOT run together. If your license is going to be suspended by both the judge and the DMV, getting these suspensions to run at the same time does not happen automatically. Instead, it must be carefully planned and negotiated.
Third, if the DMV finds that you refused a breath test, your license will be suspended for six months (at least) and you cannot get a work permit for the first half of the suspension. Remember: just because the arresting officer said you refused a breath test does not mean that you did so. The law is very detailed in this regard. If the arresting officer said you refused to take a test, SEEK THE ADVICE OF A LAWYER IMMEDIATELY.
Lastly, do NOT miss court, no matter what. There are no good excuses for missing a court date.
Legal help is only a phone call away. If you have questions about what to do or what your rights are, call a lawyer.
Increasing DWI enforcement over holiday weekends is nothing new for local departments and the State Police. In fact, if you hang out at courthouses enough, you'll here people say they expect the Tuesdays after Memorial Day, Fourth of July and Labor Day to be unusually busy due to extra DWI enforcement.
So what to do if you are one of the 76 who were arrested?
Well, first, call a lawyer. Only an experienced lawyer that knows the details of Connecticut's complex DWI laws can make sure your rights are protected throughout this process. Because don't forget, not only will your license be suspended, but there is the possibility that you could go to jail or wind up with a criminal record if your case is not handled properly.
Second, understand that the proceedings in court and those before the DMV are NOT the same. Your license will be suspended by the DMV unless you ask for and win a hearing before it.
Your license will also be suspended a second and unrelated time by the judge in court if you do not handle your case correctly.
These suspensions do NOT run together. If your license is going to be suspended by both the judge and the DMV, getting these suspensions to run at the same time does not happen automatically. Instead, it must be carefully planned and negotiated.
Third, if the DMV finds that you refused a breath test, your license will be suspended for six months (at least) and you cannot get a work permit for the first half of the suspension. Remember: just because the arresting officer said you refused a breath test does not mean that you did so. The law is very detailed in this regard. If the arresting officer said you refused to take a test, SEEK THE ADVICE OF A LAWYER IMMEDIATELY.
Lastly, do NOT miss court, no matter what. There are no good excuses for missing a court date.
Legal help is only a phone call away. If you have questions about what to do or what your rights are, call a lawyer.
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