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May
17

NEW DUI DIVERSION PROGRAM IN MIAMI-DADE

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The link below sends you to yesterday’s Miami Herald online article about the new DUI Diversion Program, code-named “BackOnTrack”. This program was modeled after a similar program in Orange County (FL). One of the main differences is that participants in the the Orlando program get their charges dismissed after they complete the program, not so in Miami-Dade where successful completion gets you a Reckless Driving charge.

Word is that M.A.D.D. gets a nice chunk of change for every participant.

Will this merely be a “get out of jail free card” for first offenders? Will the police stop making arrests in retaliation for getting less overtime? Will the criminal defense bar get their legs cut out from under them?

READ THE HERALD ARTICLE HERE

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Aug
15

Driving Under the Influence of…Bread

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Phil Price, a nationally known DUI attorney in Montgomery, Alabama, conducted an interesting series of tests a few years ago on one of the most commonly used breath testing machines. Without consuming any alcoholic beverages, he submitted himself to repeated breath testing — after eating various types of food.

His findings were startling.

After consuming almost any type of bread product — white loaf bread, donuts, pretzels, pastries, etc. — Price consistently registered blood-alcohol readings on the machine. These levels were commonly around .03%, but rose as high as .05% (enough, along with a drink or two, to reach illegal levels). Further, the Intoxilyzer’s slope detector (an electrical circuit designed to detect alcohol from the mouth rather than from the lungs) failed to indicate the presence of any “mouth alcohol”. He reported this in an article entitled “Intoxilyzer: A Bread Testing Device?”, 15(4)Drinking/Driving Law Letter 52.

Reacting to the use of this article by defense attorneys in their state, the Washington State Toxicology Laboratory conducted their own studies to refute the findings — this time with the machine used in Washington, a DataMaster. Unfortunately, their research only confimed Price’s experience.

As reported in Logan and Distefano, “Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test”, 22 Journal of Analytical Toxicology 18 (1998), a variety of breads and soft drinks were tested and found to contain no alcohol. Alcohol-free subjects then ingested these products and provided breath samples into a DataMaster. The law enforcement researchers’ conclusions:

We found that, particularly at low concentrations but as high as 0.046g/210L, mouth alcohol rather than expiratory breath alcohol may be reported as apparent true breath alcohol…

In other words, alcohol-free subjects who consumed bread or soft drinks were causing the machines to read up to .05% blood alcohol concentrations (readings are rounded off to closest 1/100th percentile). Furthermore, the slope detection system failed to screen the effects of mouth alcohol from that of alcohol coming from the lungs:

It is evident from these results that the slope detector feature was unable to distinguish mouth-alcohol concentrations at these very low levels.

What caused bread to register on breath machines as alcohol? The theory of the state lab’s experts:

Most baked products with listed contents indicating they contained yeast did in fact have some alcohol present. Alcohol is produced by the fermentation process in yeasts by their action on simple sugars used in preparing the dough….Although most of the alcohol in the dough is lost during the baking process, some is evidently retained in the matrix of the bread…

Parenthetically, there exists additional scientific literature reporting intoxication in animals eating dough and sourdough. Suter, “Presumed Ethanol Intoxication in Sheep Dogs Fed Uncooked Pizza Dough”, 69(1) Australian Veterinary Journal 20 (1990); Thrall, et al., “Ethanol Toxicosis Secondary to Sourdough Ingestion in a Dog”, 184(12) Journal of American Veterinary Medical Association 1513 (1984).

The effects of bread on breathalyzers is not just an interesting anecdote. The significance of these findings should be apparent. First, bread dough tends to stick between the teeth and remain there for extended periods of time, later to be breathed into a breathalyzer; it also absorbs alcohol while between the teeth. Second, although it is not illegal to drive with a .04% blood alcohol level,adding one or two drinks to the bread reading could raise that above the illegal .08% level.

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May
10

The Hidden Costs of a DUI

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CNBC News

Having just one more green beer or shot of Irish whiskey won’t cost you too much, right? Well, if that last dance with the bottle on St. Paddy’s Day leads to an unlucky DUI conviction, you’ll be paying for it for years to come.

And that’s only considering the potential financial cost of being ticketed for driving under the influence or driving while intoxicated, better known as DUI or DWI. It’ll take even longer to get past the staggering financial blow if you cause an accident — or the emotional devastation if your actions cause injuries or worse.

According to the National Highway Traffic Safety Administration, there were 134 fatal accidents on St. Patrick’s Day in 2008, the last year for which data are available, and 50 of those involved at least one driver who was legally drunk at the time of the crash. That means 37 percent of the drivers and motorcyclists involved in fatal crashes had a blood alcohol level of .08 or above.

One drink too many puts you at risk not only for an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it’s a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states, that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.

Of course, if you get fired from your job as a result of the arrest, that dollar figure would skyrocket.
Potential expenses from a DUI — first offense
You don’t even have to get convicted to start running up expenses on a DUI charge. But if you’re found guilty, a first offense could mean that last drink cost you dearly. While the amounts vary by location and specific circumstances, here are some of the expenses you may realize:
•Fines.
•Court costs.
•Attorney fees
•Loss of job
•DUI “school.”
•Temporary loss of income
•Car towing, impounding.
•Alternate transportation costs.
•Car ignition interlock device.
•Periodic blood testing
•Monthly monitoring fees.
•Cost of incarceration
•Increased auto insurance premiums.

The financial impact of a DUI arrest on any one person can vary greatly depending on many factors, such as driving record, jurisdiction, blood-alcohol level, attorney fees and fines, not to mention the specific circumstances of the incident and whether there was an accident or if anyone was injured.

The Texas Department of Transportation says a June 2006 survey in that state showed the total costs of a DWI arrest and conviction for a first-time offender with no accident involved would range from $9,000 to $24,000.

And while expenses can vary substantially by jurisdiction, in no city is a DUI charge cheap.

In 2000, when graduate student Kate S. was driving home from a party in Woodstock, Ga., she was involved in an accident. She was not found to be at fault for the mishap, but blood tests at the hospital later revealed she was over the legal alcohol limit and she was booked on a DUI charge. Some costs Kate had to pay included a $2,500 fine, approximately $3,000 in legal fees and insurance premiums that rose an additional $600 per year for the next five years.

“As part of my sentence, I had to go to what they call ‘DUI school,’ and one of the things we had to do was tally up how much it cost you. I came up with about $13,000 in all,” says Kate.

Donald Ramsell, an Illinois attorney, says legal fees can vary from as little as $2,500 to as high as $10,000, even for a first offender.

Ramsell says that many people are quickly arrested and charged with DUI regardless of whether proof exists.

A good attorney is needed, he says, to explore multiple areas of an alleged infraction, including driving behaviors, personal behaviors and the results of chemical tests. And while rarely cheap, a good attorney may help offset other costs.

Ramsell says fines for a first offender in Illinois are up to $2,500 along with “special penalties” costs that can run another $1,500. Mandatory DWI school can cost between $1,500 and $2,500, then there’s a suspension reinstatement fee of $250 to get a license back.

Ramsell says auto insurance could also increase by $5,000 to $10,000 over the next five years. A 2006 fact book published by the Illinois Secretary of State estimated the cost of a DUI conviction to be $14,660, but Ramsell says that could be much higher.
Steep costs
“It just keeps adding and adding. These are just your straight-up out-of-pocket expenses before you start to consider lost income. Some companies will fire you because their own insurance company will not allow someone with a DWI to work for them,” says Ramsell. The threat of lost income during incarceration or even losing a job altogether is a real possibility. If a job includes driving for a living, termination is almost guaranteed, but nowadays, many companies will fire convicted DUI offenders.

Lawrence Koplow, a Phoenix attorney, says his state not only socks DUI offenders with high fines, but they’re also billed for their own cost of incarceration that can run $165 for the first day and $60 each day thereafter. Fines in Arizona can run from $1,400 to $2,000, and a recent law requires “extreme” and “aggravated” DUI offenders, even first-timers, to have an interlock device installed on their vehicle. Similar to a Breathalyzer, the device prevents the vehicle from being started if the driver has a blood alcohol concentration that is too high. The cost of the device, which can run up to $200 to install and $80 per month, is also billed to the offender.

“A DUI is a tremendous financial burden. There are just so many costs that go along with it. A first-time offender here could be looking at $7,000 to $12,000,” says Koplow.

In order to educate drivers on the consequences of driving under the influence of alcohol, many jurisdictions publicize the total estimated costs of DUI convictions.

Erie County, N.Y., estimates a DUI conviction in their county to cost about $9,500; in Kentucky, it can run about $10,000; and according to the Texas Safety Network, a DUI in the Lone Star state can run almost $8,000. But if there’s a child younger than 15 years old in the car during the incident, you can face an additional $10,000 in fines, plus 180 days to two years in jail.

Finally, all of this assumes no property damage or personal injury resulted while the driver was under the influence. An offender’s insurance may not cover certain costs related to damages from an accident when blood alcohol content was over the limit. In Kate S.’s DUI conviction, she was also sued by a property owner for $1,200 in landscaping fees that her insurance did not cover.

“I never would have thought I would have gotten a DUI and I had no idea how much it cost. I’m your quintessential good girl, too. I didn’t have that much to drink either, just enough to put me over the limit,” says Kate. “It’s a real financial burden.”

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Jan
18

How much will a good DUI attorney cost?

by admin

The cost of hiring a good DUI lawyer varies by jurisdiction.

 You should expect to pay more in large metro areas than in small towns in rural areas. You should expect to pay more for a second offense than a first. You should expect to pay more for a felony DUI than for a misdemeanor. With that in mind, you will find a wide range of fees.

Typically, the top DUI lawyers charge more than new lawyers, or lawyers with lesser skills or reputations. However, there are some good DUI attorneys charging less than some terrible ones. For this reason, price alone should not be your main criteria when selecting an attorney to represent you. As a general rule, when it comes to legal representation, you should not expect anything for free.

A DUI lawyer in private practice will probably not agree to take your case pro bono (for free), even if you have a good case, and even if you shouldn’t have been charged with the offense in the first place. The best way to get a feel for attorneys’ fees in your area is to call around and get several quotes. When the economy is good, many lawyers try to charge as much as possible for each client. When the economy is poor, there are often “bottom-feeder” lawyers who charge insanely low prices for defending DUI cases (say less than $2,000.00 for the whole case) with the idea of getting a high volume of business and driving better lawyers out of business. These “bargain” lawyers typically take on way too many cases to be effective in any of them and often times leave their clients wondering whether they would have been better off with a public defender.

If you want an excellent DUI lawyer (and you should), expect to pay for it. Expect to pay between $4,000.00 and $10,000.00 or more depending on the location, the facts and complexity of the case, your criminal history and other factors. High quality DUI lawyers charge substantial amounts of money to put their expertise and skills to work for you. They often times don’t make any more money than the “bargain” or “bottom-feeder” lawyers, because excellent DUI lawyers are excellent because they view their profession as a calling and accept far fewer cases so they can do the best possible job for each and every client.

Money isn’t always the only determining factor of whether you will be able to hire the best DUI lawyer in your area. The truly excellent DUI lawyers get plenty of referrals and don’t have to beg or bargain for cases. Some will assess you to see if your expectations are realistic and if you personality will be a pleasant one for them to work with. (As an aside, “bargain” lawyers don’t care about their clients’ personalities because typically they plead them guilty at the first possibile opportunity and therefore don’t have to spend much time with them anyways.) Top DUI lawyers spend a LOT of time with their clients and earn their fees.

Please visit the other pages of MY WEBSITE.

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Oct
5

Jonathan Blecher, P.A. Serves the Miami-Dade County Area

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Cities in Miami-Dade County that we Serve:

Aventura
Bal Harbour
Bay Harbor Islands
Biscayne Park
Coral Gables
Cutler Bay
Doral
El Portal
Florida City
Golden Beach
Hialeah
Hialeah Gardens
Homestead
Indian Creek
Key Biscayne
Medley
Miami
Miami Beach
Miami Gardens
Miami Lakes
Miami Shores Village
Miami Springs
North Bay Village
North Miami
North Miami Beach
Opa-locka
Palmetto Bay
Pinecrest
South Miami
Sunny Isles Beach
Surfside
Sweetwater
Virginia Gardens
West Miami

…And all of Miami-Dade County

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Jun
23

You want to SuperSize that Breath Test, Sir?

by admin

By Kim Smith
ARIZONA DAILY STAR
Tucson, Arizona | Published: 06.14.2009
Drunken drivers with the late-night munchies soon could get more than just a burger and fries at the drive-through window.
The Pima County Sheriff’s Department’s new anti-drunken driving campaign — called Operation Would U Like Fries, or Operation WULF — hopes to put undercover deputies inside 24-hour fast-food restaurants to spot impaired drivers placing their orders, said Sgt. Doug Hanna, DUI unit supervisor.
If deputies notice someone with any of the classic symptoms of impairment — slurred speech, red or watery eyes, beer breath — they will radio a uniformed deputy stationed just outside, Hanna said.
The second deputy will then pull over the driver and, if field tests confirm what the officer at the drive-through suspected, arrest him or her for driving under the influence.
“The idea is to get them before they get back on the road,” Hanna said.
Bankrolling the intermittent program will be a $128,000 grant the Sheriff’s Department received from the Governor’s Office of Highway Safety for fiscal year 2008-2009, Hanna said. The grant also funds sobriety checkpoints and other anti-drunken driving programs.
Hanna said several local franchise owners and managers are interested in participating in the program, but are waiting for corporate approval. Once they get it, Hanna anticipates Operation WULF would take place every quarter or so.
Tucsonan Carlos Sanchez said he thinks the idea makes a lot of sense, since it’s a popular belief that people under the influence of drugs and alcohol often get hungry while partying.
“It’s just another way to get drunk drivers off the street,” Sanchez said.
Pamela Andrews, another local resident, has mixed feelings.
“I think it’s a good idea, but then again, isn’t it entrapment?” Andrews said. “I’d say do it anyway, though. I’d rather know the kids are safe out there — the ones who aren’t drinking, but are behind the wheel.”
Local defense attorneys and at least two local restaurateurs, were appalled at the idea.
“I have no love for drunk drivers, and I want them off the road, but this is too much like Big Brother,” said Tom O’Connor, owner of Tucson’s 21 Eegee’s.
Watching for impaired drivers from a parking lot is one thing; “fishing” for them from inside a business is another, O’Connor said.
Mike Herndon, who owns seven local Burger Kings, also was opposed.
Defense attorneys Joseph St. Louis, Michael Bloom and Brick Storts all questioned the allocation of resources in these economic times and the legality of such a program.
For example, alcohol on the breath doesn’t mean someone is impaired, Storts said.
St. Louis said law enforcement agencies spend a lot of money training officers to spot impaired drivers — and now those officers will be stuck behind a drive-through window.
“I’ve been practicing law 21 years, and I’ve done in excess of 200 DUI cases, and I can think of one that occurred at a fast-food restaurant,” St. Louis said.
But he did see one upside: “I can’t wait to challenge the first one in court.”
Bloom isn’t sure undercover deputies will have enough time to develop the “probable cause” needed to pull over drivers.
“The deputies will claim the program will deter drinking and driving, but once the word is out, all they are going to do is deter drunk drivers from going through the drive-through. … Project WULF is not going to reduce people’s blood alcohol levels, but it might reduce their cholesterol levels.”
Critics of the program have their own ideas for addressing the problem of drunken driving. Storts suggested more roadblocks. St. Louis advocates dashboard cameras that would provide evidence against impaired drivers while also protecting deputies from allegations of excessive force and other inappropriate behavior.
Local resident Debbie Ammons said she’d rather see grant money used to fund the school resource officer program, which has experienced cutbacks lately.
DUI unit supervisor Hanna said Operation WULF is just another tool for law enforcement agencies to use in battling drunken driving. The more deputies out in the community — whether they are at checkpoints, on the roads, in liquor-serving establishments or at drive-through windows — the more likely the message will get out.
“Hopefully, people will start getting the message, ‘Don’t drive impaired,’ ” he said.
The Royal Canadian Mounted Police were the first ones to come up with the drive-through concept, Hanna said. He learned about their program, Operation WULF, while attending a MADD conference in Dallas.
The sergeant pointed out that former University of Arizona quarterback Willie Tuitama was cited for extreme DUI after McDonald’s employees alerted a Tucson police officer that they suspected he was impaired, Hanna said. Tuitama was placed on 12 months of unsupervised probation last week after pleading guilty to misdemeanor DUI.
“Lots of time we get information from people working the drive-through,” Hanna said. “They’ll say, ‘I wish you’d been here five minutes ago because we had someone who was really smashed just come through.’ “
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Jun
1

Sleeping it Off, OK’d by New Jersey Court

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Drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can’t carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.

Though unpublished, the ruling is notable for its departure from the New Jersey courts’ usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.

In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

“The conclusion that defendant intended to move the vehicle cannot have been made with respect to the moment of arrest, but must have been predicated upon his ‘intent’ before he fell asleep,” said Judges Mary Catherine Cuff and Christine Miniman.

“Here, defendant’s denial of any intention to drive was at least circumstantially corroborated by the testimony of the other witnesses,” they said. “He was in such a deep stupor at 2:00 a.m. when he was arrested that he could not have had any such intent.”

A Lopatcong police officer found Joshua Putz asleep in his truck outside the entrance to a farm where his girlfriend lived at about 2 a.m. on March 8, 2008. The officer noticed the engine was running but the parking brake was off. When questioning Putz, he detected a strong odor of alcohol and performed a breathalyzer test, which showed a blood-alcohol content of .14 percent.

Charged in municipal court with driving while intoxicated, Putz testified and called witnesses to testify that he had not driven the vehicle but only occupied it. According to the testimony, Putz lent his truck to a friend, Patrick Fletch, then went drinking with another friend, Jeffrey Hackett, at a restaurant in Phillipsburg. At around 11 p.m. on March 7, Hackett dropped Putz off at his vehicle, which Fletch had left in front of a horse farm where his girlfriend, Kim Gapinski, lived as a tenant.

Putz testified that he had planned on spending the night with Gapinski, but although the farmhouse was within walking distance, he waited outside because he had standing orders from the farm’s operator, Tuesday Remsburg, to call before entering the property after dark. Remsburg in her testimony corroborated the arrangement and said Putz had called on at least 20 prior occasions.

However, Putz waited until after midnight to call Gapinski, explaining that he assumed he would see her outside attending to chores and would get her attention. She didn’t come out, and it was cold and rainy, so he went and turned on the engine to get some heat and called Gapinski from his cell phone, but she did not answer and he fell asleep. Gapinski testified she had fallen asleep and noticed the following morning that she had a missed call from Putz at 12:12 a.m. Putz did not wake up until the officer began knocking on the truck window.

Municipal Court Judge Bruce Jones, finding the testimony incredible, convicted Putz, suspended his license for seven months and imposed $665 in fines and penalties. The Law Division, on de novo review, came to the same result.

But Cuff and Miniman said they were troubled by Jones’ determination. “The judge also said, ‘It’s a completely absurd story,’ although he later said that he would keep an open mind with respect to the issue of operation,” the panel said. “We do not believe that he did so. … Many of the details of [the] story were corroborated by other credible witnesses, yet the judge never modified his initial credibility determination.”

Though citing a long line of cases that have allowed “operation” of vehicles to be inferred from a variety of circumstances indicating defendants had been driving while intoxicated, Cuff and Miniman said “we have found no reported decision sustaining a conviction based on an intent long since dissipated by the time of arrest.”

They saw a factual similarity to State v. Daly , 64 N.J. 122 (1973), where the driver, found asleep with his seat reclined, told police he realized he was drunk when he left a bar and decided it would be best to sleep it off. The state Supreme Court found that merely switching on the engine was not proof of intent to move the vehicle.

The Law Division judge had distinguished Daly because in that case, the driver’s seat was reclined while Putz’s was upright. But Miniman and Cuff said, “We are not persuaded by the Law Division judge’s reliance on the fact that the parking brake was not set, defendant’s seat was not reclined, and he did not tell the officer that he was sleeping, but rather that he was waiting for his buddy as sufficient to infer that he had an intent to operate his vehicle at some unspecified point in time. This evidence is simply insufficient to support a reasonable inference of intent to operate given defendant’s prolonged stupor.”

(more…)

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May
28

Breath Testing Errors

by admin

All states have now passed laws lowering the blood-alcohol level to .08%. And most people suspected of violating the law are given breath tests to determine the level of alcohol in their blood. The breathalyzer will take a small sample of the suspect’s breath and estimate how much alcohol is in it — and, from that, estimate how much may be in the blood.

And what that machine says is pretty much the end of it. There will be no second tests. There will be no cross-examination of the machine. Are these machines so reliable and accurate that we have permitted them to become judge and jury?

Scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01%. That means that if everything is working perfectly (an unlikely scenario), a .13% breathalyzer test result can be anywhere from .12% to .14%.This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal.Rptr. 366 (California); Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska); State v. Boehmer, 613 P.2d 916 (Hawaii), recognizing an even larger .0165% inherent error).

What does that tell us about the accuracy of these breathalyzers? Well, let’s take a test result of .10%. Taking inherent error into consideration — and assuming the machine was working perfectly, the officer administers the test correctly, and the suspect’s physiology is normal and perfectly average — the true BAC could be anywhere from .09% to .11%. In other words, the true BAC can be 10% in either direction — or, put another way, anywhere within a 20% margin of error.

 

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