SCOTUS Affirms Blood Withdrawal from Unconcious Driver without Warrant

 

The United State Supreme Court affirms that police can order blood drawn from a suspect in a DWI case while the suspect is unconscious.  SCOTUS holds that state law assuming driver’s consent to blood test for alcohol/drugs - even with the driver unconscious - provides an adequate exception to the warrant requirement under the 4th amendment.

Mitchell v. Wisconsin June 27, 2019 

NH Replaced 1988 Breath Machines with Intoxilyzer 9000, State is Afraid to Provide Access and Training.

NH has a long history of working with CMI, Inc. the manufacturer of the Intoxilyzer breath machines. NH purchased 88 Intoxilyzers in 1988 for $480,280.  The average cost was a bit more than $5,000.  NH has used the Intoxilyzer 5000EN until this year including a long term profitable training and maintenance contract between CMI, Inc and NH. 

Two images below are of an Intoxilyzer 5000 EN one at the Colebrook Police Department and the other showing the EPROM on three chips from a training.  Historically, CMI, Inc. has steadfastly refused to sell their machines, t-shirts or even a baseball hat to a defense lawyer. I have tried.   I have been told by the company that they only sell to government entities and to facilitate work place compliance such as oil rigs and transportation companies.

Colebrook PD I5000 EN

EPROM on Three Chip I 5000 EN

Back in 2017 NH agreed to spend $994,620 to purchase 139 Intoxilyzer 9000s from CMI, Inc. These new machines cost slightly more than $7,000 each plus will have a long term training and maintenance cost.  This means that NH citizens will be paying over $1,000,000 to CMI, Inc. but will not be provided any details on the inner workings, algorithms, science or trainings.  There is littlet doubt that these new intoxilyzers were neede to replace the aging equipment that was used as late as December of 2018 to convict NH citizens accused of DWI.  However, it is important that in any government transaction that there be transparency and candidness.  As the official breath testing maching of NH the Intoxilyzer 9000's inner workings have remained hidden from scrutiny and shrouded in secrecy.

I 9000

I 9000 Inside

As a NH defense attorney that focuses on DWI defense I have requested that the state of NH order an Intoxilyzer 9000 for me and my expert.   It was our hope to conduct experiments and test the Intoxilyzer 900.  We offered to fully reimburse the state and CMI, Inc would make for any costs associated with the additional purchases.  The NH State Forensic Laboratory refused my request on behalf of CMI, Inc.  I also have requested that the NH State Lab provide training on the Intoxilyzer 9000 for defense lawyers and again offered to pay for any costs associated and promised not to speak unless spoken to.  As a member of the NH Association of Criminal Defense Lawyers I also sought a co-ordinated training program for all NH lawyers to participate.  Again the Lab refused.

Expecting NH and CMI, Inc. to resist providing company training I  have traveled around the country to take advanced training courses on breath testing devises including the Intoxilyzer 5000, 5000 EN, 8000 and most recently on the 9000.  It is with these courses that I was able to obtain training on the science and methodology used by the Intoxilyzer 9000. 

I remain committed to learning the science and the proper protocols that are required to produce reliable results.  The extensive training that I have taken helps me to understand how to best defend a person accused of DWI.  The machines used by our government and made by a for profit corporation are not perfect and in fact they do make mistakes.  It requires work to discover how the machines work but armed with the knowledge of the machines inner workings means that you need not accept the test results as a guilty finding.  If you are charged with a DWI based on the printout from an Intoxilyzer 9000 and have doubts about the validity of the result contact me so I can review your case.

Even though NH and CMI, Inc do not want to provide the details about the inner workings, protocols and coding used there are other sources to discover the truth about breath testing and how to properly challenge the results.  I have taken the time, spent the time and invested in learning how the Intoxilyzer works and more importantly how it fails.

I 9000 Breath Capture Tube

It remains one of my goals to understand the technology and learn its limitations at the highest levels.  I  will continue to demand that NH and CMI, Inc. remove the shroud of secrecy and allow for scientific testing to be conducted.  No matter how many bells or whistles are added to a breath testing devise it is clear that they are still only estimates of blood alcohol levels.

As with all breath testing the equipment is really making an estimate of blood alcohol using a breath sample that will always be a poor substitute for actually testing blood.


There are many different substances that can interfere with a breath sample reading for alcohol.  Additionally, changes in breath temperature, pressure and many other factors can affect the precision, reliability and accuracy of a breath alcohol reading used to estimate a blood alcohol concentration.

5 Ways to Avoid Carjacking From Team O'Neal, A Local Driving School

Most Powerful Person In NH Criminal Justice System? County Attorney

Jeanne Hruska police director of the ACLU-NH recently published an opinion in the Concord Monitor about the importance of a county attorney in NH, entitled Why County Attorney Races are a Big Deal.  As election day approaches most folks will only have one candidate to select, but think about how much power that person will have over lives of literally all citizens in NH.  It is an awesome and almost omnipotent power that must always be viewed by a single person seeking justice.

As a defense lawyer for over 25 years. I have witnessed several county attorney's offices go through changes over the years.  It has always amazed me how one person can influence the lives of so many.  I look forward to a change in Grafton County and wish for a more progressive approach to justice that encompasses treatment and counseling.  In Coos County there will be an incumbent elected but again the power of that elected official is amazing over the course of thousands of lives.

The power of a prosecutor to decide to: bring a case, reduce it, drop it or pursue it to the fullest affects victims, defendants, witnesses and everyone connected to the involved.  The county attorney is the highest law enforcement authority in each county and decides whether to charge felonies.

This is a moment to reflect on our county attorney and to make sure that as gatekeepers of the criminal justice system that they are grounded,  accountable and reasonable.

Oh Canada, DWI Laws Prohibit Americans Entering Canada with History of DWI

A DWI record or other serious offense can keep you barred from Canada. Having a DWI on your record can get you banned from visiting Canada.  Drunken driving is considered an indictable offense in Canada.  If you have a DWI you will have to wait at least five years and complete lengthy paperwork to be considered for admission.  It is presumed that you are rehabilitated after ten years.

One of the collateral consequence of a DWI conviction is that Canada will bar entry and if you are found in Canada with a DWI or many other offenses you can be charged with a crime in Canada.  There are also many interpretations by the Canadian Border Agents that would prohibit a reckless driving, negligent driving or other lesser offenses.

As Canada prepares to enact Canada's Cannabis Act, which legalizes recreational marijuana. This law will take effect in October. There is a growing concern that the enforcement of this bar against DWI offenders will have a larger impact.  Canada is going to crack down even harder on DWI offenders.


 

If you have business or vacation plans to go to Canada it is important to understand that the law is about to become even more strict.  If you have entry concerns it is best to contact an immigration attorney.  Sentencing-Severity-Surge-Dui-Conviction is an arctile written by Attorney Marisa Feils, of Montreal, QC who recently spoke at a NHACDL seminar.

Make a Difference today!

As many of you know I grew up in WNY and am a life long Bills fan.  This causes some grief to me as I live in Northern NH during the Brady era.  However, everyone will feel the power of Jim Kelly's emotional, humbling and loving tribute to others as he accepted the Jimmy V award.  This is Kelly tough at its best.  Try not to cry.

COURT RULES THAT 2017 BORDER PATROL CHECKPOINTS IN WOODSTOCK, NH WERE UNCONSTITUTIONAL

COURT RULES THAT 2017 BORDER PATROL CHECKPOINTS IN WOODSTOCK, NH WERE UNCONSTITUTIONAL

Plymouth, NH – The New Hampshire Circuit Court has ruled that the border patrol checkpoint that occurred in August 2017 on Interstate 93 in Woodstock, New Hampshire was “unconstitutional under both State and federal law.”  Woodstock is a small town (population 1,374) in the White Mountains—a popular tourist attraction—that is approximately 90 driving miles from the Canadian border. 

The American Civil Liberties Union of New Hampshire (“ACLU-NH”) challenged the constitutionality of this border patrol checkpoint on behalf of 16 individuals.  These 16 individuals were travelling in New Hampshire lawfully and were seized and searched during this checkpoint without any suspicion that they had committed a crime.  The State ultimately charged these individuals with allegedly possessing small amounts of drugs for personal use.  These 16 individuals are being represented by Gilles Bissonnette (Legal Director for the ACLU-NH), Professor Buzz Scherr from UNH School of Law, and defense attorney Mark Sisti. 

During this border patrol checkpoint, the Woodstock Police Department (“WPD”) worked in concert with federal United States Customs and Border Protection (“CBP”) to circumvent the independent protections provided by the New Hampshire Constitution against dog-sniff searches in the absence of a warrant or reasonable suspicion.  Specifically, CBP agents used dog-sniff searches in situations where New Hampshire law enforcement would have been barred from conducting similar searches. The CBP then turned over to the WPD resulting evidence from these federal searches for state drug prosecutions. 

The Circuit Court ruled that the “evidence was seized in violation of the constitutional rights recognized” under the New Hampshire Constitution.  As the Court explained, “given that the defendants in this matter are facing prosecution in the State court for violations of State laws, the constitutional protections of the New Hampshire Constitution should apply.”  The Court added: “[T]he inadmissibility of the evidence does not change based on the fact that it was seized by federal officers and then handed over to the State.”  Indeed, according to the Court, CPB and the WPD “were working in collaboration with each other with the understanding that the WPD would take possession of any drugs seized below the federal guidelines for prosecution in federal court and bring charges in this [state] court based on that evidence.” 

The Court also separately ruled that this border patrol checkpoint, given the facts of this case, violated the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures.  Under the Fourth Amendment, a border patrol checkpoint is unconstitutional if its primary purpose is to detect drugs.  The Court concluded that, based on the evidence presented, “it is patently clear that the primary purpose of WPD being present at the checkpoint in August [was] to accept the illegal drugs confiscated by the CBP searches in order to prosecute the defendants on state drug charges.”  The Court added: “[T]he State and federal authorities were absolutely working in collaboration with each other.”  Thus, the Court ruled, “while the stated purpose of the checkpoints in this matter was screening for immigration violations, the primary purpose of the action was detection and seizure of drugs.”

“This decision is a victory for civil liberties.  As the Court ruled, these checkpoints flagrantly violated the New Hampshire Constitution and the Fourth Amendment,” said Gilles Bissonnette, the Legal Director for the ACLU-NH and co-counsel on the case.  “CPB and the WPD searched and seized hundreds, if not thousands, of the individuals during the summer tourist season without any reason to believe that these individuals had committed a crime.  This is not how a free society works.”

“The New Hampshire and Federal Constitutions do not allow law enforcement to engage in a fishing expedition for criminal activity.  Yet this is precisely what happened here,” said Buzz Scherr, a professor of law from UNH School of Law and co-counsel on the case. 

“The checkpoints ignored the presumption of innocence and assumed that all those passing through were guilty of criminal activity.  This ‘ends justifies the means’ approach is precisely what the New Hampshire and Federal Constitutions have rejected since their inception,” said Mark Sisti, who was counsel on the case.