Recent Blog Posts

DUII DIVERSION REQUIRES INSTALLATION OF IGNITION INTERLOCK DEVICES

Don J. Molnar — Thu, 01 Mar 2012 20:48:00 GMT

A new law effective January 1, 2012 requires drivers in Oregon's DUII Diversion program to install ignition interlock devices for the duration of the diversion period. DUII Diversion is a program typically reserved for first time DUII offenders. The requirements of diversion include participation in an alcohol rehabilitation program, attendance at a Victim Impact Panel, and payment of court fees. Successful completion of the diversion program results in dismissal of the DUII.

Before 2012, Diversion participants could drive as long as they had a valid driver's license and insurance. Under the new diversion law, driving is allowed only with installation of an ignition interlock device for the one-year diversion period. These devices prevent the operation of an automobile after the detection of alcohol. The installation and monthly charges for the device will be an added financial strain for those who opt to enter the diversion program.

ILLEGAL TRAFFIC STOPS AND SUPPRESSION MOTIONS

Donald J. Molnar — Tue, 25 Oct 2011 20:18:00 GMT

In all criminal prosecutions, the State has the burden to prove the legality of a traffic stop. An officer must have probable cause to stop a vehicle for a traffic violation. If the officer has reasonable suspicion that the driver has committed a crime, such as driving under the influence of intoxicants or driving while suspended, the officer may also stop a vehicle and conduct an investigation. In virtually all cases, it is important for the defense attorney file a motion to suppress the stop. If the court determines the stop was illegal, then all evidence obtained by the cop as a result of the illegal stop gets thrown out as well. That means the case gets dismissed and the client walks away without a conviction.

A recent case result, while unusual, highlights the importance of filing motions to suppress traffic stop. Client was charged with felony driving while suspended. We filed a motion to suppress but knew that it was unlikely the court would suppress the stop. The District Attorney's office, however, failed to subpoena to the officer for the suppression hearing. Without the officer at the hearing, the State was unable to prove the lawfulness of the stop. The felony driving while suspended charge was dismissed and the client avoided a risky trial and possible prison time. The lesson is that even in cases where suppression of evidence might be be difficult, the suppression motion must always be filed.

Drugs, Medication, and DUI

Donald J. Molnar — Tue, 27 Sep 2011 01:10:00 GMT

DUI is not limited to alcohol. Increasingly, drivers are being arrested and prosecuted for driving under the influence of drugs, commonly prescription medications. Drivers taking therapeutic doses of prescription anti-depressants, anti-anxiety medication, or pain relievers are routinely arrested for impaired driving and subjected to invasive tests by so called "drug recognition experts." These are police officers who receive minimal training in drug detection. The officers perform a series of medical, eye, and coordination and balance tests and guess what of type of drug is allegedly impairing the driver. "Guess" is the proper term because studies done on these tests showed that the officers were right less than 50 percent of the time. In other words, flipping a coin would produce the same or better results. Yet courts typically allow these officers to refer to themselves as experts

DUI Lawyers throughout the country convened in San Antonio, Texas last week for intensive training on the Drug Recognition Evaluation Program and defending drivers accused of drugged driving. Among the presenters were medical doctor and ophthalmologist Dr. Joseph Citron, pharmacologist Dr. Fran Gengo, and former police officer and standardized field sobriety test instructor Dr. Lance Platt. The combined expertise of the instructors was unparalled. Any attorney doing drug dui cases without this training, from these instructers, is doing a serious disservice to his or client. Many attorney, and judges for that matter, are intimidated by these cases. Knowledge of the DRE testing protocol is critical for winning these cases.

ATTORNEY DONALD MOLNAR RECEIVES NHTSA CERTIFICATION IN DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTS

Donald J. Molnar — Mon, 22 Aug 2011 01:20:00 GMT

This month, Attorney Donald Molnar received certification in the NHTSA/IACP Standardized Field Sobriety Testing Practitioner Course. The intensive training course was offered by Dr. Lance Platt, renowned expert and instructor in the field sobriety testing.

For decades, police officers throughout the country have utilized a battery of standardized tests to detect impaired drivers. The three standardized tests used in DUI detection are horizontal gaze nystagmus (the eye test), the Walk and Turn, and the One-Leg Stand. Horizontal gaze nystagmus is an involuntary jerking of the eyes as the eyes follow a stimulus (pen or finger) from side to side. The Walk and Turn and One-Leg Stand are balance and coordination tests that require the subject to concentrate on several tasks at the same time. Prior to administering standardized field sobriety tests in the field, officers are required to participate in a 24-hour course on DWI/DUI detection and field sobriety testing. Officers are required to perform a proficiency examination before receiving certification to conduct these tests.

According to studies funded by the National Highway and Safety Traffic Administration, performance on these standardized field sobriety tests are correlated with blood alcohol content. It should be noted these tests have never been correlated to poor driving. This is important because not everyone with a blood alcohol of .08 or higher will be too impaired to drive. Alcohol affects everyone differently. Many factors, including gender, weight, tolerance, the amount of food eaten during drinking, can dictate how alcohol affects the individual. Despite the lack of correlation to poor driving, however, lackluster performance on the field sobriety tests is frequently used by police officers to justify arrest and prosecution for drunk driving.

Defense attorneys are often unfamiliar with the proper administration and interpretation of standardized field sobriety tests. Left unchallenged, a suspect's poor performance on these so called "scientifically validated" tests can be persuasive evidence of guilt. When the tests are properly broken down, however, it becomes evident that police officers routinely fail to administer the tests in accordance with NHTSA guidelines. NHSTA proclaims the validity of these tests is compromised if they are not performed in a standardized manner. In addition to improper administration of the tests, there are frequently alternative explanations for poor performance on these tests. For example, many non-impairing prescription drugs can cause nystagmus that is indistinguishable from nystagmus caused by alcohol. Back and knee injuries, age, fatigue, and other factors other than alcohol can cause difficulty on the Walk and Turn and One-Leg Stand.

The training received from Dr. Lance Platt will be instrumental in mounting successful challenges to field sobriety tests that will result in further dismissals and not guilty verdict in DUI cases.

Defendant has the right to cross-examine analyst who tested his blood, says U.S. Supreme Court

Donald J. Molnar — Mon, 11 Jul 2011 02:01:00 GMT

In a recent ruling, the Supreme Court has confirmed that a defendant in a DUI case has the right to cross-examine the Forensic Scientist who performs the lab tests on bodily fluid tests, rather than simply making due with a proxy from the state crime lab.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall have right to confront his accuser. This means that in all criminal prosecutions, a defendant has the right to cross-examine the witnesses against him. In a DUI case, this typically means the right to question the police officers that arrested the defendant. It has become increasingly common, however, for the police to seek warrants for blood samples or request urine samples from suspected drunk drivers. These urine and blood samples are sent to the Oregon State Department of State Police Forensic Laboratory for analysis. The Forensic Scientist who performs the forensic testing and certifies the result is often not available for cross-examination at trial. Instead, the prosecutor calls another so called "expert" from the state crime lab. Under this arrangement, a Portland criminal defense attorney is left without an opportunity to cross-examine the analyst who actually conducted the test.

The United States Supreme Court addressed this issue in the case of Bullcoming v. New Mexcio. Mr. Bullcoming was charged with driving under the influence of intoxicants. A blood test of defendant resulted in a blood alcohol content of .21 percent. At trial, the prosecution failed to present testimony of the analysis that actually conducted the blood analysis and certified the results. Instead, the State brought in a witness from the crime lab who had not been directly involved in the analysis of the defendant's blood sample. The trial court allowed this witness to testify regarding the blood test results over the objection of defense counsel. The New Mexico Supreme Court agreed with the State and upheld the conviction.

The U.S. Supreme Court reversed the New Mexico Supreme Court in a 5-4 opinion. The Majority Opinion by Ruth Bader Ginsburg can be effectively summed up as follows: "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Since the State could not prove the analyst was "unavailable" for trial, and Mr. Bullcoming did not have an opportunity to cross-examine the analyst, the Court reversed Mr. Bullcoming's conviction.

This case will help protect rights of confrontation in DUII cases and other criminal cases. At a minimum, defense counsel will now have an opportunity to cross-examine the analyst to determine whether he or she is properly qualified to conduct the forensic testing in question, and whether the analyst performed the testing in accordance with proper scientific methods. If not, the reliability and validity of the test result can be severely compromised, and even thrown out of evidence.

If you have been charged with driving under the influence of intoxicants, contact attorney Donald J. Molnar, a Portland DUI attorney, for a free phone consultation.

Welcome to our Criminal Defense Blog

Criminal Defense Attorney — Wed, 22 Jun 2011 23:05:00 GMT

We are pleased to announce the launch of our Criminal Defense Blog with an RSS feed available at /Blog/Entire-Blog-Feed/RSS.xml