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Archive for 16. February 2008

Fox Sportscaster gets tased after DUI arrest

16. February 2008 by admin.

FOX Sportscaster to Cops: Don’t Tase Me, Bro!!

FOX Sportscaster Josh Booty - brother of USC quarterback John David Booty - was arrested early this morning for DUI — and was so uncooperative he had to be tased!

Law enforcement sources tell TMZ Booty was taken to the Orange County Jail, where he was booked — and that’s when he went ballistic.

O.C. Sheriff’s spokesperson Jim Amormino tell TMZ, “Booty was belligerent and uncooperative.” Amormino says his deputies used a taser — “less than lethal force” — to contain him.

After being tased, Josh fell to the ground, hitting his head on the floor and cracking it open. He was taken to a hospital where he was stitched up.

We represent people charged with DWI/DUI, reckless driving, speeding tickets and people injured in car crashes. If you have questions about any of these topics please look on our site for the information E-Books: http://www.bobkeeferlaw.com. Attorney Bob Keefer has been practicing in the Shenandoah Valley area of Virginia for over 25 years. He routinely goes to court in Rockingham County VA; Harrisonburg VA; Augusta County VA; Staunton VA; Woodstock VA; Shenandoah County VA; and Waynesboro VA. His other sites are http://www.keefercard.com; http://www.duidriver.net; http://www.recklessdriving.net

Posted in Harrisonburg VA DUI, Virginia DUI, Intoxilyzer 5000, sobriety field tests, preliminary breath test, marijuana possession, PBT, drunk in public, underage possession, DUI, Driving While Intoxicated, Alcohol, DWI/DUI, speeding, reckless driving, DWI | No Comments »

VA DFS changes public records to hide problems with Rockingham County Intoxilyzer

16. February 2008 by admin.

1. In a June 28, 2006, email, the Department of Forensic Science (DFS) admits that the breath testers used to convict Defendants are failing. Ms. Lohmann, head of DFS’ breath alcohol section attempts to minimize such failures.

~~Instrument failure and repair rates are increasing~~ Increasing difficulty in obtaining parts and technology changes dictate that replacement must be scheduled.

2. Earlier in an August 31, 2005 email from Lohmann admitted:

We need to obtain and implement new equipment because some Intoxilyzer units are already 10 (almost 11) years old. The manufacturer is no longer making all the same parts. The motors the instrument currently uses no longer last very long (due to changes in manufacturing).

3. The motor problem is apparent in a September 1, 2005 email to Lohmann and the head of DFS. Aside from the reliability issue, the technology used in the Intoxilyzer is obsolete.

The motors are another issue; the current motor will be discontinued as of January 1, 2006. The “replacement” motors are currently in short supply and have jumped from $5 to $80-$100 per motor…I believe CMI doesn’t want to continue to support the 5000 line since they have 2 generations of instruments produced since that time.

4. In furtherance of its obligation to ensure adequate tests, DFS has kept a trouble call log for all the breath testers in the state.

5. The relevant trouble call log was begun in 1997 when the evidentiary breath tester was placed at the Rockingham County Sheriff’s Department.

6. In late February or early March, 2007, in the face of failing technology, this log was discontinued without notice or explanation for the local breath tester. The fact this log was discontinued at a time this breath tester was failing is exculpatory. The state’s refusal to provide a credible reason why only this tester’s log was discontinued in the state is exculpatory.

7. DFS has manipulated the trouble call log in the past to make this breath tester seem reliable.

8. This manipulation was done despite the fact the trouble call log is a public record. Making such alterations is illegal and improper.

9. On July 27, 2006 the breath tester displayed DVM (Differential Voltage Measurement) values and processor failure.

10. In response to this serious problem, the relevant technician initially wrote her response was to “check all vitals via modem and found no problem.” However, DFS has “limited ability to troubleshoot from Richmond” and the technician cannot check all vitals via modem.

11. DFS then altered the technician’s response to “contacted instrument via modem. Instrument functioning properly.”

12. DFS has consistently failed to note this alteration or any other alterations to the trouble call log in responding to subpoena duces tecum or FOIA requests.

13. The relevant breath tester suffered electronic instability on July 28, 2007 and DFS made no trouble call record of this incident.

14. The relevant breath tester suffered electronic instability on December 23, 2007 and was unavailable until December 27, 2007. DFS made no trouble call record of this incident.

15. Article 1, Section 11 of the Virginia Constitution provides that “no person shall be deprived of his life, liberty, or property without due process of law.” Due process of law is also required by the Fourteenth Amendment of the United States Constitution. “A fair trial in a fair tribunal is a basic requirement of due process.” Billips v. Commonwealth, 48 Va. App. 278, 630 S.E.2d 340 (2006), quoting, In re Murchison, 349

U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). Due Process represents “a profound attitude of fairness between man and man, and more particularly between the individual and government.” Joint Anti-Fascist Refugee Committee v. McGrath, 341

U.S. 123, 162, 71 S.Ct. 624 (1951). In fact, “fair play…is the essence of due process.” Galvan v. Press, 347

U.S. 522, 530, 74 S.Ct. 737 (1954). “A citizen has the right to expect fair dealing from his government.” S & E Contractors, Inc. v. U.S., 406

U.S. 1, 10, 92 S.Ct. 1411 (1972).

16. Illegally altering records to hide problems with the government’s case is not fair dealing. 17. Discontinuing the trouble call log for the government’s evidentiary breath is not fair dealing.18. Refusal to provide exculpatory evidence is not fair dealing.

19. Refusal to provide truthful, accurate and complete responses to subpoena duces tecum and FOIA requests is not fair dealing.

Breathalyzers Outdated, Unstable and Unreliable

16. February 2008 by admin.

Report: Breathalyzers Outdated, Unstable, Unreliable

Posted by Lawrence Taylor on June 13th, 2007

Unique among criminal offenses, a citizen accused of drunk driving faces trial by machine. If the breathalyzer indicates a blood-alcohol concentration of .08% or higher, he will usually be charged with two offenses: driving under the influence of alcohol and driving with a BAC of .08% or higher. Amazingly, he will be presumed by law to be guilty of both offenses (see my earlier post ”DUI and the Presumption of Guilt”) and the burden of proof will be shifted to the accused (see “If You Can’t Prove It, Make the Defendant Disprove It”).

Prosecutors continue to assure jurors that these state-of-the-art breathalyzers are highly accurate scientific instruments — so accurate and reliable that they can feel comfortable finding the defendant guilty beyond a reasonable doubt based solely upon the machine.

And yet….Law enforcement agencies are beginning to abandon them in favor of blood tests (see “So If Breathalyzers Are So Accurate…”). Just how accurate and reliable are these “state-of-the-art” breath machines?

Not very, according to internal documents from the State of Virginia’s Department of Forensic Science.

Attorney Robert F. Keefer of Harrisonburg, Virginia, filed a demand under the Freedom of Information Act for records concerning the machine used in that state, the Intoxilyzer 5000 (the most commonly used machine in the country over the past 15 years). Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models. The following are direct quotes from those documents:

Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available. These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.

In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?”, the following response was given:

To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.

Unstable and unreliable. But do you think this is what prosecutors in Virginia tell juries? Of course not. They tell them exactly what they always tell them: accurate, reliable, state-of-the-art proof…guilty beyond a reasonable doubt.

And do you think it is just Virginia that uses the Intoxilyzer 5000? It remains one of the most commonly used machines in the country (including by my own home town cops, the Long Beach Police Department).

So how many thousands of innocent American citizens do you think have been wrongly convicted based upon these marvels of science? And how many more will continue to be?