“What is a gas chromatogram?”
Seems like a simple question, but it gets to the heart of who’s out there purporting to be a DUI Defense Attorney. Whether the person knows the answer shows whether DUI defense is what they do – or just another in a long list of things they advertise for.
The answer is:
A chromatogram is a graphic representation of the test that’s done by the cops to determine the accused’s blood alcohol content at the time of the test.
If the person who wants to be your DUI Defense Lawyer can’t answer the question, or says it doesn’t matter, you need to thank that person for their time and leave.
I was recently in Court fighting to get the Chromatograms for my client and I was the only one in the room who knew what a Chromatogram was. I had to explain what Chromatograms are to the Judge AND the Prosecutor. Other Lawyers were taking notes about chromatograms – because they didn’t know.
Judges and Prosecutors ask all the time: “Why do you need to see that?” because most other lawyers aren’t asking to see these essential test results.
Blood tests can be fought – ALL DUIs can be fought – and knowing whatc hromatography machines are and exactly how they work is essential to that fight. Gas chromatography machines are NOT infallible. If you know where to look, you can find that the machine or the blood sample are probably contaminated.
Even if your DUI doesn’t involve a blood test, if it’s a refusal or a breath test, not knowing the answer to this question discloses that the person you asked doesn’t really know what he or she is doing. Chances are they’re just saying what you want to hear in order to get hired and they will just be going through the motions during your case. Chances are no matter how great what they say sounds,when they’re trying to get hired, you will end up pleading guilty to a DUI.
If your case does involve blood testing, the Lawyer who can’t answer your question will probably end up telling you, “It’s a blood test, there’s no way to fight that.” Without even looking at the chromatograms!
You’re going to end up spending thousands of dollars, even if you hire a cheap “Do Nothing” Attorney. It’s important to your future; you should know what to ask and know what you’re getting. Even if you settle for the guy who doesn’t know what a chromatogram is, you should know your Lawyer’s limitations.
The California Legislature has ordered the DMV to provide licenses to people who reside in California, even if you don’t have proof of citizenship.
The big picture is if you are a non-citizen, you can now get a drivers license and avoid fees and convictions for driving without a license.
20 Jan 2015
Walmart Partners Up With Lawyers In a Race To the Bottom In Legal Representation
Walmart has earned a reputation as the retail leader in the race to the economic bottom. For years they’ve negotiated the lowest prices for the goods they sell and for the services of those who toil at Walmart. A staggering number of Walmart employees and their families live below the poverty line and require public assistance to get by.
Walmart is able to do this because they have such huge bargaining power. The mega-chain is able to negotiate the lowest prices for goods because they buy in such high volume. Walmart is able to pay its employees low low wages because they are often the only employer in the area.
So now Walmart has teamed up with Legalzoom to provide Wills and Trust services and Axxess Law to provide onsite attorneys at their stores. Given their history in other areas of purchasing goods and services, I’m sure that they’ve negotiated really great deals for new and struggling lawyers to provide low cost legal services.
But is this in your best interest?
No. Choosing a lawyer is not buying a box of cornflakes. A lawyer that charges low, low fees has to take many, many cases and can’t give your case the attention it needs. A lawyer that must provide a wide variety of legal services (personal injury, contracts, bankruptcy, et c.) can’t devote his time to being outstanding at the area of law you need.
So you may choose to shop at Walmart for groceries because of price or variety, but it is not the place to shop for a DUI or criminal lawyer. Your LIBERTY is at stake!
A good defense is never cheap and a cheap defense is never good
16 Nov 2014
NBC News recently reported that CHP officers are making a game of stealing racy photos. CHP Officer Harrington of the Dublin area CHP was arrested recently for stealing photos from the cell phones of women he arrested. He would search an arrestee’s phone and then text the pictures to his friends – also members of the California Highway Patrol.
He was charged with two Counts of Computer Data Theft, a Felony. The two Counts stem from two separate instances when he sent the private photos from the arrestee’s phone to his cop buddies. The article describes the conduct as part of a game among the officers.
Officer Harrington says essentially he’s sorry that he got caught and fired and hopes he can move on with his life.
At least one of the cases where Martinez was arresting officer has been dismissed because of the charges against him.
At least one of my clients who was stopped by the CHP says that they took their phone and looked through it. If this is in fact part of a larger game among CHP officers, it has probably happened more than twice.
If you’ve been stopped or arrested by the CHP or any law enforcement agency, you should search your phone to see if there are any texts to numbers you don’t recognize. If you’ve been the victim of an invasion of privacy by CHP you can make a complaint here. Complaint procedures against local law enforcement should be on their websites.
If you need help because your privacy has been invaded by the CHP, call me at (213) 479-5322 to discuss your case more fully.
16 Nov 2014
This is an exciting development for people convicted of certain felonies.( I list them below.) Prop 47 allows reduction of felonies to misdemeanors. One of the most important things about this Proposition is it applies retroactively. This means no matter when you were convicted you can get your felony reduced to a misdemeanor. As you know, this effects your employment, voting rights, gun ownership and more. In addition, once you get your conviction reduced to a misdemeanor, you can have it expunged.
Expunged means it shows up on your record as a “dismissal after conviction”. So when asked, you can answer “No, I do not have any misdemeanor or felony convictions.” about the conviction. And you can do this for all felonies that fall under the list below.
But it doesn’t happen automatically, you have to take steps to get obtain your reduction. This is a process some people can do themselves but if you have any questions, I am here to help. I can offer advice, file your reduction or help you decide whether you need an attorney.
Here are the Felonies affected:
– Health & Safety Code Sections 11350(a) (Possession of Cocaine/Heroin, etc.), 11357(a) (Possession of Concentrated Cannabis) and 11377(a) (Possession of Methamphetamines).
– Penal Code Section 459.5 (Shoplifting where the person entered a business with intent to commit larceny during business hours and took property worth less than $950.) Unless also charged with petty theft or 2nd Degree Burglary.
– Penal Code Section 473 (Forgery (PC 470(a), 470(d), 475(a), 475(b), 475(c), 476) where the value of the check is less than $950.[DA cannot aggregate]) Unless also convicted of identity theft (PC 530.5).
– Penal Code Section 476a (Making bad checks where the value of the check is less than $950.[DA can aggregate]) Unless 3 or more prior convictions for PC 470, 475, 476 or 476a.
– Penal Code Section 490.2 (Grand theft (PC 487(b), 487(c), 487(d)(1), 487(d)(2), 487a, 484e(a), 484e(b), 484e(d)) where the value of the property is less than $950.)
– Penal Code Section 496a (Receipt of Stolen Property Valued at $950 or less).
– Penal Code 666/484 (Petty Theft with a Prior). Unless also suffered a prior felony conviction for theft or PC 368(d) or (e).
Anyone convicted of these offenses is eligible to have their sentence retroactively reduced from felony to misdemeanor UNLESS they have either a prior strike offense or are subject to PC 290 registration.
In Los Angeles, the process to obtain your reduction is as follows:
1. Fill out the form here.
2. Serve a copy on the District Attorney. Their office can be found in the same court where you go for Step 3.
3. File in Court where your case took place.
4. The District Attorney fills out their portion of the form and submits it to the Court.
5. The Court will then either (1) grant your request or (2) set the matter for hearing.
Remember, If you have any questions with obtaining relief under Proposition 47 or need assistance in filing your Prop 47 request for reduction you can contact me at (213) 479-5322.
22 Aug 2014
THE CHALLENGES OF DEFENDING SOMEONE ACCUSED OF DUI
AND DOING IT RIGHT
Here is the DUI interview I did with DUI attorney Mark Rosenfeld, Mr. DUI LA. It includes us talking about the challenges of DUI Defense and going through a recent DUI trial victory of mine. In the interview Mark and I discuss the common misconception that DUI cases are unwinnable. I describe a recent DUI trial victory to illustrate the point that DUI Cases are winnable with the right attorney. This is video is a good example of the issues in a DUI case as the case study involves, field sobriety tests, breath testing, blood testing, and issues of time of driving. After all, the State must prove that the accused driver was impaired and/or over .08% blood alcohol content at the time of driving. In this case, the defendant had to fight because of onerous immigration consequences related to travel to Canada. He was tested with three separate machines, the preliminary alcohol screening device, the Datamaster breath testing device and hi blood was analyzed by gas chromatagram. In the DUI interview I discuss how all three of the tests were flawed. If, after watching this DUI interview, you are ready to fight and win your DUI or you have questions about whether your DUI can be won, please call me at (213) 479-5322 to set up an appointment.
04 Jul 2014
As smoking marijuana is now legal, at least with a doctor’s recommendation, and at least as far as California law is considered, there has been an increase in charges of DUI Marijuana. The problem with DUI marijuana is that the tests used to determine the presence of marijuana in a person’s blood/urine are inaccurate.
DUI Marijuana is easy to charge but hard to prove.
First, these prosecutions for DUI marijuana are problematic because NO scientific literature has shown that marijuana impairs a person’s ability to drive. The results of crash fault studies fail to show that drivers with marijuana in their system are significantly more likely than drug-free drivers to be at fault in crashes.
The active ingredient in marijuana (THC or delta-9-tetrohydrocannibinal) is metabolized to 11-Hydroxy-THC or THC-OH (which is psychoactive) which can be detected in the blood, but not the urine. THC-OH is quickly metabolized to 11-nor-9-carboxy-THC or THC-COOH (non-psychoactive).
According to research, the level of THC rises to 150 ng/ml instantly after use, it then decreases to 15 ng/ml after 1 hour and 5 ng/ml at 2 hours. The THC quickly dissipates and by the time the blood is tested (after the stop, initial investigation and DRE, transport to station or hospital for blood draw) the THC is low even if the person had smoked just before driving. THC can remain at low levels for 8 hours without any measurable sign of impairment. Journal of Anal. Tox. Vol. 32: 160-164 (2008).
As with all blood tests, there are two problems: (1) a single blood test cannot predict concentration at the time of driving, the only thing that can do that is a blood test AT the time of driving; and (2) even drug concentrations at the time of driving can never predict whether a person was impaired by drugs because of the wide responses to a drug. This is a pharmacological truth and cannot be changed by crime lab personnel to obtain a criminal conviction.
Even NHTSA recognizes difficulty of DUI marijuana prosecutions. In their Drug and Human Performance Fact Sheets, they state that it is difficult to establish a relationship between a person’s THC level in blood and performance impairing effect. They acknowledge that “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH levels.”
So if you’ve been accused of DUI marijuana, it is easy to fight and win when you know the science of drug use and testing.
My article on DUI Drugs in general is here.
My article on preliminary drug testing is here.
If you have questions about DUI marijuana call me at (213) 479-5322. If you have an opinion, leave a comment.
04 Jul 2014
More arrests are being made for DUI drugs than ever before. While it’s always been illegal to drive while under the influence of drugs, the legalization of marijuana, ready availability of other illicit drugs and proliferation of prescription medications has increased the number of arrests and prosecutions of people for driving while their ability to drive is impaired by drugs.
The way a DUI Drugs arrest usually happens is that a cop observes something that he feels is indicative of being under the influence. He then pulls the person over, runs them through the field sobriety tests (see here for an explanation why the FSEs are bunk). He then does a preliminary alcohol screening test and it comes up negative or below the legal limit for alcohol. The cop then calls in a different cop with training in a different level/kind of voodoo called a Drug Recognition Evaluater (DRE).
That cop then runs through a 12 step protocol (irony alert) to determine if the person’s ability to drive is impaired by drugs. One of the things they are taught to look for is a green tongue as evidence that the person has smoked marijuana. This is ludicrous.
As part of the DUI Drugs screening, the cop asks the person to identify all the drugs they take, legal and illegal. Most people want to cooperate with cops (this is always a mistake — remember: unless you are a lost six year old, that cop is NOT there to help you!) because they think that will get them on their way. The person admits to using some drug, often thinking that if they admit to the drug they are legally taking, they will be released.
At the end of the DUI Drugs evaluation, the evaluation cop makes a guess about what drug the person is under the influence of (mostly based on what the person tells them) and sends their blood out to be tested. The case is prosecuted as a DUI Drugs case. The blood test comes back and shows the person has a drug in their system or doesn’t.
These DUI Drug cases are insidious because they are so easy to charge. The drug the person has in their system doesn’t have to be illegal and since a majority of people use prescription drugs to manage some problem and all these drugs have some side effect, the cop can easily make an arrest. The cops take two mostly unrelated events: admission to drug use and failure on their Drug DUI evaluation to correlate that the person’s supposed impairment (based on the cop’s observation of ‘poor’ driving) is caused by drugs.
The problem is that science tells us that you can’t determine whether a person is impaired by drugs by the fact that they have a certain drug in their system. First, drugs remain in the blood a long time after they have any effect on one’s ability to drive. So presence in the blood doesn’t mean the drug is still acting on the body.
Second, and most importantly, everyone who uses a drug — prescription or other — develops a tolerance to the drug. That tolerance is unique to the individual and can’t be predicted. The person who uses a drug over a period of times adapts to it’s presence in the body. So use of a drug, doesn’t predict that the person was impaired by the drug.
This means that DUI Drugs prosecutions are difficult if not impossible to convict. The State’s lab tech has to admit that he can’t tell by the presence of a drug that the person was impaired by the drug. The prosecutor then has to rely on the obviously biased testimony of the DRE cop to say that the person’s behavior was due to being under the influence of whatever drug the blood test showed. This can be a different drug than the one they guessed during their evaluation. The problem with this scientifically and logically is that it’s confusing correlation (the presence of two variables) with causation (one variable [drugs in the body] caused the other [subjective failure of the DRE]). There is also the problem present in all DUI prosecutions that failure on subjectively evaluated tests means impaired ability to drive.
See my article about DUI and marijuana here.
See my article about the DUI Drug Test in CA here.
If you have any questions about DUI Drugs, impairment by drugs, or other DUI or drug related topics, call me at (213) 479-5322. If you have an opinion, leave a comment.
Blood Test or Breathalyzer: Which Test Makes It Easier To Fight Your DUI?
I used to say that it didn’t matter which test you took, blood or breath, because both of the tests were subject to attacks based on scientific problems with the tests themselves. As a result of the recent decision of the California Supreme Court in People v. Vangelder, I have changed my recommendation. I now recommend that people who have been arrested for DUI choose a blood test as their implied consent test.
The reason is that a lot of the problem with breath testing is that it doesn’t directly measure the amount of alcohol in your blood. Alcohol in your breath does not affect your ability to drive, either physically or mentally. Only alcohol in your blood does. If you are absorbing (which can happen for up to 6 hours after drinking) the amount of alcohol in your breath is much higher than the amount of alcohol in your blood.
The Vangelder decision has done away with most attacks on breath.
The California Supreme Court, in a decision that flies in the face of science and due process, has said that when the legislature wrote the DUI law all of the problems with breath testing were known and the Court must assume the legislature knew about the problems when they wrote the law the way they did. The Court also said since the machines used to test breath in California are on the Federal approved products list, the problems inherent in their design are off-limits for attack. The problem is that there is no requirement that products on the list be scientifically tested.
Still, the Court left open an avenue of attack, but it’s hard to use because you need the right expert to testify. The Court has said that you can attack the specific machine when it was not used properly. When dealing with a breath test, a proper defense has to be carefully laid and it is much easier to attack the fermentation that occurs in blood taken by cops.
The method by which blood is collected and measured is discussed in my article How Blood Testing Works.
The fermentation problem is discussed in my article Fermentation: The Big Problem With Blood Tests.
The problem with breath testing is discussed further in my article Breath Test Science in DUIs?
If you have any questions about whether to take a blood or breath test at all, how to defend against them, which test to take or DUI in general:
Call me at (213) 479-5322. If you have an opinion, please leave a comment.
Problems With the CA DUI Blood Test: Fermentation and Contamination.
The first problem with blood testing for alcohol is that it’s impossible to tell how much alcohol was present at the time of the blood draw and how much alcohol was created by later fermentation of the sugars in blood by microorganisms. In other words, the microorganisms naturally present in the blood begin to produce alcohol in the sample.
What happens while the blood is stored is that the glucose (sugar) naturally occurring in the blood is converted by microorganisms (Candid Albicans and Saccharomyces Ellipsoideus, among others), through the process of fermentation, to alcohol. Fermentation is a fancy name for eating. These microorganisms eat the sugar, remove energy from the sugar and leave carbon dioxide and alcohol as waste products. Studies show that over .20% BAC can be produced in improperly stored samples.
When the blood is drawn, if it is not done by accepted medical practices, the sample can be contaminated. Simply using a non-alcohol sterilizing agent on the area where the blood is drawn is not enough to prevent contamination. Improperly sterilizing the area can cause contamination.
Even if the area of the blood draw is properly sterilized, microorganisms present in the blood can cause fermentation.
A preservative/anti-coagulant is supposedly added to blood drawn by the cops, but no lab in California tests for the presence of preservative/anti-coagulant. So we never know if it was present in the proper amount or if it was properly distributed in the sample. In fact, breweries add the preservative supposedly used by law enforcement to their beer to ensure that only the right microorganism ferments their beer.
Once collected, the sample is supposed to be stored at or near freezing (32 F) and the test is supposed to be performed with 7 days to minimize fermentation. This is rarely, if ever, done.The sample is usually stored for 4 weeks, unrefrigerated.
Another problem is that the sample can never be proven by the State to contain only alcohol present before the blood was taken from the body. When the chromatograms of the blood tests are reviewed it is often shown that acetaldehyde is present. Acetaldehyde is a precursor to alcohol produced in the microorganism fermentation process after the blood is taken.
In addition to the fermentation that takes place post-draw, there can also be further contamination that can be seen in the peaks in chromatograms. A proper peak is symmetrical and shows only alcohol. An improper peak is broad or has a front or tail that is not symetrical. An improper peak is evidence of contamination in the sample. It means that there is more than one volatile organic compound in the tube at the same time and not only alcohol. So the test reads higher in alcohol than it really is.That means that the State can never prove what the BAC is because the amount that is coming out that is alcohol can never be determined.
Read more about How Blood Testing Works.
Why Blood Testing is now the implied consent test that I recommend is discussed in my article ” Blood Test or Breathalyzer? Which test should I take?”
If you have questions about blood tests, their problems, which test to take or DUI in general:
We’re here to fight for you. Free Consultation. Call me at (213) 479-5322.
If you have an opinion, please leave a comment.