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Archive for 25. February 2008

Virginia’s breath testers unfair to Women and Blacks

25. February 2008 by admin.

Attorney Claims More Problems With DUI Tests

Briefs claim Intoxilyzer inaccurate when used by women, blacks

By CHRISTIAN NOLAN

A Connecticut defense attorney said he has found further evidence of problems with a device used by police to measure blood alcohol levels.Hearings before the state Department of Motor Vehicles have revealed that the Intoxilyzer 5000 can give inaccurate results when used by women and African-Americans, said Jay Ruane of

Shelton, whose practice focuses on DUI defense.Ruane hopes that the evidence will eventually cause the state to cease using the Intoxilyzer because, he said, the accuracy issues mean that the device violates the equal protection clause to the state Constitution. He said the state should not use a machine that is “inherently biased towards a percentage of the population.”“This is something of national significance I would think,” said Ruane. “It could be the start of a national trend.”There are about 170 Intoxilyzers in use in

Connecticut, with each one costing about $5,000. The manufacturer, CMI, a Kentucky-based corporation, acknowledges an overall margin of error of up to 10 percent, but does not concede that the variations can be explained by the gender or race of the user. Connecticut State Police have repeatedly defended the accuracy of the device.New Britain Superior Court Judge George Levine ordered the DMV hearings in 2006 while presiding over a drunken driving case involving two men, represented by Ruane, who failed Intoxilyzer tests.Most the hearings took place in the fall. In covering one of them, the Law Tribune reported on testimony that the device was less accurate when used by shorter people and people with asthma and other lung disorders. An expert also testified that the way a person breathes into the machine could affect the reading. Attorneys for both sides had until Feb. 15 to submit final briefs. In doing so, Ruane emphasized evidence that he said showed the machines have accuracy issues when used by women and blacks.Dr. Michael Hlastala, of the University of Washington, who does forensic consulting in physiology of breath testing and alcohol in the body, testified at one hearing that a woman who ingests the exact same amount of alcohol as a man will produce a breath reading that exceeds the man’s by 5.6 percent.“Thus, a 5.6 percent margin of error is implicit in every case where a woman is the arrestee giving the breath sample,” argues Ruane.Further, Hlastala testified that the lung capacity of an African-American male is approximately 3 percent smaller than a Caucasian. “Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, the Intoxilyzer 5000 results are inflated by a factor of 3 percent,” Hlastala concluded.Dr. Robert Powers, the state’s chief toxicologist, did not rebut any of the newfound evidence during the hearings, Ruane said.

Attorneys handling the matter for the DMV could not be reached for comment as of press time Thursday.The DMV hearing officer, attorney William Grady, will take all of the evidence submitted by both sides and submit the findings to Levine. Ruane estimates that it will be two or three months before any further action is taken.

He said the losing side would likely appeal the decision in the state Appellate Court. He said the dispute is, at this point, “one-third to halfway through a very long process.” •

Virginia also uses the Intoxilzyer 5000 although an earlier model.

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

The Breath Tester Virginia Police use to Prosecute You for DUI

25. February 2008 by admin.

In the mid 1990’s Virginia Division of Forensic Science (now Department of Forensic Science) began using the Intoxilyzer 5000 model 68. This breath tester is listed as the CD/FG5 on the NHTSA conforming instruments list. There have been several models of the Intoxilyzer 5000 including the model 64, 66, 68 and 68-EN. The 68 model is two generations back since it was replaced by the 68-EN and the current Intoxilyzer 8000.

The Intoxilyzer 5000 is simply a computer based on very old technology. The brains of this outfit is a Z-80 microprocessor which was introduced almost 30 years ago in 1975. The Z-80 microprocessor was the basis for some of the very first home computers in the early 1980’s such as the “Radio Shack” TRS-80.

The Intoxilyzer 5000 works on the theory of infrared absorption. The machine has a light bulb positioned at one end of a breath capture cylinder. There are filter wheels at the other end of the cylinder and on the other side of these filter wheels is a light receiver.A person suspected of or under arrest for DUI blows into a breath tube which leads to a breath chamber cylinder. The machine shines an infrared light through this cylinder and the filter wheels will be spinning on the other end of the breath tube chamber. The infrared light causes the alcohol molecules to “vibrate” or “absorb” light at a particular frequency.

The filter wheels are designed to filter out potential contaminants.The amount of the breath sample and any reading of alcohol are very minute. The machine must make a multiplication conversion to an amount great enough for us to understand. The difference in light emitted and received is computed through a computer program in the machine to come up a value that can be compared to a .08.

A small mistake in the beginning becomes a large mistake at the end.

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, DWI, Alcohol, DWI/DUI, speeding, reckless driving, TBI | No Comments »

Maryland DUI prosecutor arrested for DUI in County Owned Vehicle

25. February 2008 by admin.

Wicomico County State’s Attorney Arrested

OCEAN CITY, Md. (AP) ― Wicomico County State’s Attorney Davis R. Ruark apologized Saturday for his drunken driving arrest the night before, calling it “a tremendous error in judgment” and saying he hoped the community would forgive him.

Ruark, 52, was pulled over Friday night in Ocean City after officers observed him speeding and crossing the center line, police said.

After failing field sobriety tests, Ruark was arrested and taken to Ocean City police headquarters, where he agreed to take a breath test and was found to have a blood-alcohol concentration greater than .08 percent, Maryland’s legal threshold for drunken driving, police said.

“This, by far, is the saddest day of my professional career,” Ruark told a small group of reporters Saturday, according to The (Salisbury) Daily Times. “I made a tremendous error in judgment.”

Ruark said he would attempt to get his case heard as soon as possible. In the meantime, he said he would not personally handle any alcohol- or drug-related cases that involve vehicles.

He said he hoped he would be forgiven in time. “This will never, ever happen again,” he said.

It was Ruark’s first drunken driving arrest, and court records show no other run-ins with the law. However, his 22-year-old son, Davis Lee Ruark, was arrested for driving under the influence last year. Prosecutors did not pursue the charge — in part, Ruark said, because his son was under consideration for entry into the armed forces.

“I did not intervene on Lee’s behalf at all,” Ruark wrote in an e-mail, adding: “I have spoken on the dangers of drunk driving on any number of occasions, including with my own family.”

Ruark, a Democrat, has been state’s attorney in Wicomico since 1989. He is a member of the county’s Drug and Alcohol Abuse Council, and in 2004, he prosecuted Olympic swimming star Michael Phelps for drunken driving. Phelps pleaded guilty to driving while impaired and received 18 months’ probation.

Ruark said he had been working late Friday and stopped for drinks at an establishment in Salisbury before heading in a county-owned vehicle to a condominium in Ocean City where he had been staying. He did not say how long he was at the bar or how much he had to drink.

He said he did not argue with police after he was pulled over and did not try to use his role as the top prosecutor in neighboring Wicomico to influence the officers’ decision to charge him. Police corroborated that account, saying Ruark was cooperative.

“It was all fairly routine,” said Officer Michael Levy, an Ocean City police spokesman.

Ruark praised the officers for their professionalism and said he left a message apologizing to Ocean City Police Chief Bernadette DiPino.

Officers began following Ruark after on Coastal Highway after getting a 911 call about someone driving erratically on Route 90 heading into Ocean City.

“That is not an uncommon thing, for people in our jurisdiction to call us when you have people on Route 90 that are causing problems,” Levy said. “If we have the availability to watch for that car, that suspect vehicle coming in, we do it.”

Ruark was driving about 50 miles per hour in a 40 mph zone on Coastal Highway, and he turned onto westbound 94th Street, where he crossed the center line and was stopped, police said.

He was charged with driving under the influence, speeding and failure to keep right of center.

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

DO THE MATH—saying you cannot afford to hire a lawyer for your reckless driving (by speed) charge may be very expensive

25. February 2008 by admin.

Bob Keefer started practicing law in Virginia in 1983. During that time he has helped thousands of motorists charged with this serious Class One criminal misdemeanor offense have their charge reduced to a traffic infraction or dismissed. Often he has been able to accomplish this without the accused even coming to court.

Recently Keefer spoke with a young lady charge with reckless driving by speed in Shenandoah County, VA. She had been told by someone that she should appear on her own, plead guilty and then ask for a reduction. In Keefer’s experience, 100% of persons who plead guilty are found guilty. With a competent lawyer, such cases are usually reduced or continued and then dismissed upon completion of driver improvement and good behavior.

Keefer has seen people that contacted him attempt to represent themselves in Court. It is usually unsuccessful if for no other reason than the accused did not understand how the Court works.

What most accused persons do not realize is that most Judges view their mandate from the Virginia General Assembly as an umpire, not an advocate for the accused. If the evidence shows you were doing 81 mph or more in a 65 you will be convicted as charged. You need an attorney to increase your chances of a much different result.

Once convicted the cost to the motorist is:

1. A permanent criminal record;

2. Fines and costs;

3. The $350 first civil remedial fee payment (the legislature has not repealed the civil remedial fee)

4. Increased insurance—approximately $3,000 over three years, if the Judge suspends the person’s license the insurance consequences are greater;

5. 6 points on a Virginia Driving Record and transferable offense to his or her state of licensure;

6. Loss of one or two days of work; and,

7. Loss of job or potential job due to criminal record: possibly hundreds of thousands of dollars.

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 »