Tom Brady Suspension Decision Vacated

Appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge). Following an investigation, the National Football League imposed a four‐game suspension on New England Patriots quarterback Tom  Brady.  The suspension was based on a finding that he participated  in a scheme to deflate footballs used during the 2015 American  Football Conference Championship Game to a pressure below the  permissible range.    Brady requested arbitration and League  Commissioner Roger Goodell, serving as arbitrator, entered an  award confirming the discipline.  The parties sought judicial review  and the district court vacated the award based upon its finding of  fundamental unfairness and lack of notice.    The League has  appealed.  

We hold that the Commissioner properly exercised his broad  discretion under the collective bargaining agreement and that his  procedural rulings were properly grounded in that agreement and  did not deprive Brady of fundamental fairness.    Accordingly, we  REVERSE the judgment of the district court and REMAND with  instructions to confirm the award.

NFL v. Tom Brady Complete Decision

Will the entire Second Circuit review?  Will the US Supreme Court intervene?  Either en banc or Supreme Court review are very rare. 

NH Seeks To Replace 20 Year Old Breath Machines

 Intoxilyzer 5000EN

 
I had the honor of testifying about the bill to remove breath test captured samples from NH breath testing on behalf of the New Hampshire Association of Criminal Defense Lawyers.  See the related story in the Union Leader:  http://www.unionleader.com/article/20160414/NEWS07/160419616

The law in NH currently requires that a person who submits to a breath test be given samples of their breath for independent testing.  The current law means that a person who provides a breath test is capable of challenging and disputing the indirect measure of a person's blood alcohol content.

The new proposed law would eliminate the captured samples and instead permit a person to get a blood sample after they have provided a breath sample.  It is my position that blood testing is the best solution and to eliminate breath testing all together.  Blood testing is simply more accurate, more reliable and more precise.  Blood testing also permits a person to have the sample retested to ensure that the testing was done properly.


The Intoxilyzer 5000 was first manufactured in 1982 and has been used and continues to be used extensively in the United States.  New Hampshire purchased 88 Intoxilyzer 5000 units in 1988 for $490,280.00 and continued to purchase the improved Intoxilyzer 5000EN. Four units were purchased for $22,300.00 as recently at July of 2007.  The Intoxilyzer 5000 has undergone significant changes since the initial purchase: going from 3 filters to 5 filters, increasing the sample chamber size, changing the wavelengths measured, increasing the chamber temperature and improving filters to detect interferents.  The most modern breath testing devices from CMI, Inc., the manufacturer of the Intoxilyzer machines, are named the Intoxilyzer 8000 and Intoxilyzer 9000. They both use a smaller sample chamber with a pulsed light source and measure different IR wavelengths than the Intoxilyzer 5000EN.

Prosecutorial Discretion

http://legalinsurrection.com/2013/01/david-gregory-will-not-be-prosecuted/