In Arizona, most traffic violations and crimes will effect one's driver's license. While some driving crimes (such as a DUI) carry an automatic suspension, other violations will cause MVD to assess the license with points and may lead to a suspension. Here is a brief overview of how Arizona's point system works:
8 - 12 points within 12 months = 3 month suspension
13 - 17 points within 12 months = 3 month suspension
18 - 23 points within 12 months = 6 month suspension
24+ points within 36 months = 1 year suspension.
A driver who accumulates 8 to 12 points may avoid suspension by attending Traffic Survival School. However, if within the previous 24 months the driver already attended Traffic Survival School, this is not an option and driving privileges will be suspended for 3 months.
HOW DOES THE POINT SYSTEM WORK IN CONJUNCTION WITH A DUI?
A DUI conviction causes both a license suspension and the assessment of points. A first offense, misdemeanor DUI will result in a 90 day suspension (with the possibility of a to-and-from work permit after 30 days) and will assess 8 points to the license. But, because a DUI charge is usually accompanied with another traffic violation (for example, running a red light, failing to yield, etc.), a conviction for DUI and the related violation could result in assessment of more than 8 points. Because, under such a scenario, the license would be that much closer to a future suspension, it is important that the driver (or the driver's attorney) negotiate for the dismissal of the related violations.
Other types of DUIs (such as second time, aggravated, and felony) carry different suspensions. Because there are many factors and other scenarios when it comes to figuring out the complicated area of the MVD point system and how it affects one's individual license, the above summary may not apply in all cases.
If you have questions regarding driver's license issues or DUI law, please contact us.
Hot Topic Arizona criminal defense lawyers ( Under List )
5 things you should know about arizona super extreme dui convictions
Posted on
6/17/2010 |
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Arizona is one of a few states that has created something referred to as "Super Extreme DUI." A DUI is "Super Extreme" if a person's blood alcohol concentration is .200 or above. While this crime is still a misdemeanor, it carries a minimum jail term that is greater than most first time felonies. There are several characteristics of this crime that make it unique. Here are the five most important:
1. An extended period of an Ignition Interlock Device. All Arizona DUI convictions require a person to install and maintain an ignition interlock device. For a first time regular DUI, the minimum period is one year. A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)
2. Extended jail period. For a regular DUI conviction, there is a minimum jail term of 1 day. For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days. For an Arizona Super Extreme DUI, the minimum jail term is 45 days.
3. A better chance of getting your name in lights. The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders. While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")
4. Out of state offenders will probably go to trial. If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer. Many prosecuting offices offer long periods of jail for these cases. It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost. For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention. However, out of state offenders may not have these options. While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them. Finding a jail in someone's home state for a few days can usually be accomplished. When it comes to jail terms of 30 to 45 days, it is nearly impossible. Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation. If successful, on that count alone, the minimum jail can be significantly reduced. Thus, trial is often times the best option in these cases.
5. Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI." While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible. There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations? Moreover, there are many other factors that may affect the outcome of the case. The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.
In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies.
1. An extended period of an Ignition Interlock Device. All Arizona DUI convictions require a person to install and maintain an ignition interlock device. For a first time regular DUI, the minimum period is one year. A conviction of Super Extreme DUI requires a minimum period of 18 months (or one and one-half years.)
2. Extended jail period. For a regular DUI conviction, there is a minimum jail term of 1 day. For an extreme DUI (BAC result of .150 and below a .200) conviction, there is a minimum jail term of 30 days. For an Arizona Super Extreme DUI, the minimum jail term is 45 days.
3. A better chance of getting your name in lights. The Maricopa County Attorneys' Office has a website that posts booking photos of DUI offenders. While they do not provide explicit details of how they choose who they post pictures of, we do know that they focus on people alleged to have higher blood alcohol test results (i.e. "Super Extreme DUI" and "Extreme DUI.")
4. Out of state offenders will probably go to trial. If you live in another state and get a "Super Extreme DUI", you will have an inherent difficulty with taking a plea offer. Many prosecuting offices offer long periods of jail for these cases. It is not uncommon for them to offer the same amount of jail the person may get if they went to trial and lost. For the person that lives in Arizona, they may be be able to maintain their employment during their jail term if granted work release and / or home detention. However, out of state offenders may not have these options. While most Arizona courts will permit them to do their jail out of state, there are very few out of state jails that will accommodate them. Finding a jail in someone's home state for a few days can usually be accomplished. When it comes to jail terms of 30 to 45 days, it is nearly impossible. Most out of state jails will not accommodate these requests. Consequently, an out of state offender may need to go to trial and fight the Super Extreme allegation. If successful, on that count alone, the minimum jail can be significantly reduced. Thus, trial is often times the best option in these cases.
5. Simply being charged with "Super Extreme DUI" does not mean you will be convicted of "Super Extreme DUI." While prosecutors tend to offer extended periods of jail on these cases, that does not mean a reduction (or even dismissal) is not possible. There are several factors that need to be examined: (1) How far above a .200 is the test result? (2) Were there any problems with the blood testing process? (3) How bad was the driving prior to the traffic stop? (4) Is there a disconnect between how the person was acting and the test result? and (5) Are there any procedural or constitutional violations? Moreover, there are many other factors that may affect the outcome of the case. The general concept is that if the government believes they might lose the case, the better the chance of a reduced plea offer.
In sum, Arizona Super Extreme DUI convictions are truly unique, in that the increased penalties for this misdemeanor can be more onerous than many felonies.
Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.
For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.
In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.
However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.
On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:
Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).
We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.
In sum, there is nothing “obvious” about Arizona DUI laws.
For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.
In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.
However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.
On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:
Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).
We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.
In sum, there is nothing “obvious” about Arizona DUI laws.
I was reading DUI Attorney Mark Steven's blog and he touched upon a subject that concerns many DUI attorneys. Why don't more police officers videotape DUI arrests? Clearly, this would be the best evidence of a person's degree of impairment. So, why not use videotape in a DUI investigation?
Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded? He writes:
Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.
Mark addresses this issue in his post Why Aren't Most New Hampshire DWI Arrests Video Recorded? He writes:
Just about everywhere you go today in public you are being videotaped. You are videotaped at your bank, supermarket, shopping mall, drive through lines for fast food, donut shops, even little convenience stores. Just about every place is equipped with a video camera these days. If someone holds up a little store or commits just about any crime in public there is a video of the event on the evening news, copied from a surveillance camera. It has become very inexpensive to capture a high quality audio and video recording for safety and security purposes of just about every aspect of our everyday lives.
challenging dui breath testing the timing of the pretest deprivation period
Posted on
6/13/2010 |
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Arizona law enforcement often uses breath-testing devices to determine the blood-alcohol concentration (BAC) of a person suspected of DUI. The Intoxilyzer 8000 is commonly used in Maricopa County. When a person is suspected of DUI, he is generally requested to blow twice into an Intoxilyzer; this is referred to as “duplicate breath testing.”
The Department of Public Safety (DPS) has issued regulations for duplicate breath testing, which it defines as “two consecutive breath tests that immediately follow a deprivation period, agree within 0.020…of each other...”
In addition, the Department of Public Safety defines a deprivation period as “at least a 15-minute period immediately prior to a duplicate breath test during which period the subject has not ingested any alcoholic beverage or other fluids, eaten, vomited, smoked or placed any foreign object in the mouth.” Breath-testing experts have stated that the deprivation period is critical to the breath-testing process. (See Kurt Dubowski, “Quality Assurance in Breath-Alcohol Analysis,” Journal of Analytical Toxicology, Vol. 18, October 1994.)
Commonly referred to as “quality assurance” measures, the DPS regulations seek to prevent any factors from affecting the breath sample. Putting something in the oral cavity prior to the test could certainly change the results. Thus, law enforcement officials must prevent anything being put into a DUI suspect’s mouth prior to the breath tests.
When examining the breath test record, the starting and ending times of the deprivation period must be noted. A 15-minute time span wherein a person does not put anything in his mouth is not sufficient; the deprivation period must “immediately” precede the first breath test.
The record must not show any gap between the deprivation period and the first breath test. Moreover, the police officer who conducted the deprivation period should be questioned. If he cannot account for any gap in time, then the test fails to comply with DPS regulations and may be inadmissible.
The Department of Public Safety (DPS) has issued regulations for duplicate breath testing, which it defines as “two consecutive breath tests that immediately follow a deprivation period, agree within 0.020…of each other...”
In addition, the Department of Public Safety defines a deprivation period as “at least a 15-minute period immediately prior to a duplicate breath test during which period the subject has not ingested any alcoholic beverage or other fluids, eaten, vomited, smoked or placed any foreign object in the mouth.” Breath-testing experts have stated that the deprivation period is critical to the breath-testing process. (See Kurt Dubowski, “Quality Assurance in Breath-Alcohol Analysis,” Journal of Analytical Toxicology, Vol. 18, October 1994.)
Commonly referred to as “quality assurance” measures, the DPS regulations seek to prevent any factors from affecting the breath sample. Putting something in the oral cavity prior to the test could certainly change the results. Thus, law enforcement officials must prevent anything being put into a DUI suspect’s mouth prior to the breath tests.
When examining the breath test record, the starting and ending times of the deprivation period must be noted. A 15-minute time span wherein a person does not put anything in his mouth is not sufficient; the deprivation period must “immediately” precede the first breath test.
The record must not show any gap between the deprivation period and the first breath test. Moreover, the police officer who conducted the deprivation period should be questioned. If he cannot account for any gap in time, then the test fails to comply with DPS regulations and may be inadmissible.
The most common way that a person is charged with aggravated DUI (felony DUI), is at the time when they are allegedly driving under the influence, their drivers license was suspended. As odd as this may sound, it is very common that a person did not know their license was suspended. This is because the procedures of Department of Transportation's Motor Vehicle Division (MVD) are so complicated and confusing, that even most lawyers cannot figure them out. Thus, the difference between a felony DUI requiring a prison term, and a misdemeanor DUI requiring a short term of jail, can be the simple fact the person did not pay an $85.00 fee.
Most people think, "no problem, I will just explain that I didn't know my license was suspended." However, this explanation will not satisfy a prosecutor. This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony. Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.
Here is the basic law regarding aggravated DUI due to a suspended license. Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.
Pursuant to A.R.S. § 28-3318(A), the MVD must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee’s application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to “notify the department within ten days” of any change in address). § 28-3318(C). Moreover, pursuant to § 28-3318(D), “[s]ervice of the notice provided by this section is complete on mailing.” Furthermore, § 28-3318(E) provides:
Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]
Although the law establishes a presumption that the licensee has received notice, and therefore has actual knowledge of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a person may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). “[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice.” State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993).
Therefore, it is not enough for an attorney to merely argue the person did not know his license was suspended. Rather this is just the first step in the defense. The defense must also show the person did not deliberately ignore the status of his license.
Most people think, "no problem, I will just explain that I didn't know my license was suspended." However, this explanation will not satisfy a prosecutor. This is because Arizona law does not require that you actually know your license is suspended to make the crime a felony. Thus, the strategy in defending these cases is to show the client did not deliberately ignore the status of his license.
Here is the basic law regarding aggravated DUI due to a suspended license. Aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734.
Pursuant to A.R.S. § 28-3318(A), the MVD must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee’s application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to “notify the department within ten days” of any change in address). § 28-3318(C). Moreover, pursuant to § 28-3318(D), “[s]ervice of the notice provided by this section is complete on mailing.” Furthermore, § 28-3318(E) provides:
Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]
Although the law establishes a presumption that the licensee has received notice, and therefore has actual knowledge of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a person may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). “[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice.” State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993).
Therefore, it is not enough for an attorney to merely argue the person did not know his license was suspended. Rather this is just the first step in the defense. The defense must also show the person did not deliberately ignore the status of his license.
Drivers operating a vehicle with a commercial driver’s license (CDL) have different standards than other drivers. The reason is because of the safety issues associated with operating larger vehicles such as trucks, tractor-trailers and buses.
The Arizona DUI laws are much more restrictive for people with commercial drivers licenses (CDL). While most Arizona drivers will be in violation of the law if their blood alcohol concentration is .08 or greater, commercial driver have a much tougher standard. For drivers with a CDL, the legal limit is merely a blood alcohol concentration of .04 or greater. Section 28-1381(A)(4) of the Arizona Revised Statutes provides:
It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.
Moreover, a commercial driver may also face a disqualification of their license. Thus, a commercial driver’s livelihood may be put at risk.
The Arizona DUI laws are much more restrictive for people with commercial drivers licenses (CDL). While most Arizona drivers will be in violation of the law if their blood alcohol concentration is .08 or greater, commercial driver have a much tougher standard. For drivers with a CDL, the legal limit is merely a blood alcohol concentration of .04 or greater. Section 28-1381(A)(4) of the Arizona Revised Statutes provides:
It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in section 28-3001 and the person has an alcohol concentration of 0.04 or more.
Moreover, a commercial driver may also face a disqualification of their license. Thus, a commercial driver’s livelihood may be put at risk.
Last night I am reading Gideon’s blog and I see a post with the title: “This Seattle DUI lawyer is a Douchebag.” As someone who loves a good fight, I started reading. Here is the beginning of the post:
So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.
The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…
Towards the end of the post, Gideon concludes:
The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).
Another site that comes up? New lawyer darling Avvo.
So yeah. Douchebag.
Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.
So normally I don’t write posts like this, because I don’t give flyin’ rat’s ass. But lately, I’ve seen a string of hits in my Google Alert for “public defender” (yes, that is one way I keep up with relevant news) from some “let me help you on the internet by giving out free advice” sites.
The most recent one popped into my RSS reader this evening and it followed the same tenor of the others: Don’t opt for a public defender because they’re overworked, don’t have resources, etc. In other words, the same BS that smarmy “defense lawyers” use to scare clients into giving them money…
Towards the end of the post, Gideon concludes:
The problem is that sites like these come up on the first page of a Google search for something like “should I hire a private lawyer or keep my public defender” (and trust me, I get a lot of hits with similar search terms).
Another site that comes up? New lawyer darling Avvo.
So yeah. Douchebag.
Gideon, you had me at douchebag. More importantly, as someone who only does private work, I completely agree with your position. I know plenty of public defenders that do an outstanding job. Moreover, if I were going to make my own top ten list of attorneys you don’t want to represent you – you would not find even one public defender on it.
Law enforcement's primary method for determining if a person is driving under the influence of alcohol is a chemical test. That is, a police officer will take a sample of a susect's blood or breath. The chemical test assumes that the composition of everyone's blood is the same. Specifically, the test assumes that all people have the same hematocrit level. However, this assumption is incorrect.
The hematocrit level, or packed cell volume, is a measure of the proportion of blood volume that is composed by solids. Whole blood is composed of solid particles in liquid. the solid portion of whole blood contains: (1) white blood cells; (2) red blood cells; and (3) platelets. The liquid portion of the blood is known as plasma.
In this manner, if a man has a hematocrit level of .51, then his whole blood consists of 51% solids and 49% liquids (plasma). This solid to liquid ratio will effect the outcome of a blood alcohol concentration test. The reason is the liquid portion of the whole blood, the plasma, contains water. Alcohol is more susceptible of being dissolved in water than is the solid portion. Consequently, the liquid portion of the whole blood will have a higher concentration of alcohol than the solid portion.
Stated another way, the higher the hematocrit level (thus the less liquid) in the blood, the greater the concentration of alcohol in the liquid portion of the blood. Ultimately this means several people with the same amount of alcohol in their body, but different hematocrit levels, will have different test results.
Men and women have different average hematocrit levels. A normal hematocrit for a man is 45 (plus or minus 7%). Women have a normal hematocrit level of 42 (plus or minus 5%). There are numerous other factors that can effect a hematocrit level. However, a person's hematocrit is not proportional to body size.
Hematocrit ranges primarily effect breath alcohol testing. This is because in blood testing the blood is mixed with an internal standard (such as N-Propranol which has similar structure to Ethanol, but has a different number of carbons). In sum, varying hematocrit levels expand the range of accuracy in blood alcohol concentration testing. This expanded range of accuracy can be a valuable defense for a person accused of driving under the influence alcohol (DUI).
The hematocrit level, or packed cell volume, is a measure of the proportion of blood volume that is composed by solids. Whole blood is composed of solid particles in liquid. the solid portion of whole blood contains: (1) white blood cells; (2) red blood cells; and (3) platelets. The liquid portion of the blood is known as plasma.
In this manner, if a man has a hematocrit level of .51, then his whole blood consists of 51% solids and 49% liquids (plasma). This solid to liquid ratio will effect the outcome of a blood alcohol concentration test. The reason is the liquid portion of the whole blood, the plasma, contains water. Alcohol is more susceptible of being dissolved in water than is the solid portion. Consequently, the liquid portion of the whole blood will have a higher concentration of alcohol than the solid portion.
Stated another way, the higher the hematocrit level (thus the less liquid) in the blood, the greater the concentration of alcohol in the liquid portion of the blood. Ultimately this means several people with the same amount of alcohol in their body, but different hematocrit levels, will have different test results.
Men and women have different average hematocrit levels. A normal hematocrit for a man is 45 (plus or minus 7%). Women have a normal hematocrit level of 42 (plus or minus 5%). There are numerous other factors that can effect a hematocrit level. However, a person's hematocrit is not proportional to body size.
Hematocrit ranges primarily effect breath alcohol testing. This is because in blood testing the blood is mixed with an internal standard (such as N-Propranol which has similar structure to Ethanol, but has a different number of carbons). In sum, varying hematocrit levels expand the range of accuracy in blood alcohol concentration testing. This expanded range of accuracy can be a valuable defense for a person accused of driving under the influence alcohol (DUI).
Arizona DUI cases almost always involve a chemical test. There is a movement in Arizona towards the exclusive use of blood testing. It is well settled that blood testing is more accurate than breath testing. But how accurate is blood testing? Can it truly determine a person's blood alcohol concentration? I believe that these are reasonable questions to be asked by a person accused of DUI and facing 30 to 45 days in jail.
Under our system of justice we should demand better answers from the government than "because we said so" or "because our lab has the highest standards." Simple conclusions are not good enough in science and they should not be good enough in justice.
So who checks the government's test results in Arizona? The simple answer is the government. They merely claim to check themselves. I have yet to see one Arizona crime lab that conducts blind testing by an independent party.
Here is how the actual process works. In Arizona DUI cases, The government expert will tell juries that they do double check their work. That is, they have a quality assurance program to make sure the blood alcohol test results are accurate. But the government's oversight of their work is not what you my think. Instead retesting every sample, or randomly retesting a portion of the samples, the lab merely does a technical review.
A "technical review" is not retesting. The Government toxicologist usually puts between 30 to 40 blood samples into a blood tester. Then they turn the blood tester on and leave. The blood tester commonly runs overnight and the printed results are reviewed by the government lab person.
This review of the printed documents is what is known as a technical review. The actual documents are called chromatograms. They are simply pieces of paper with graphs and data on them (retention times, area counts, etc...) If the run has the usual 30 to 40 samples there could be well over 100 pages of data.
In court, the government will tell the jury that they "double check" all the tests. What they actually do is take those 80 to 100 pieces of paper and give it to another employee of the same lab. That person then reviews the data. As long as the data appears to be consistent, they conclude it is an accurate test. In Court, they tell the jury they got a second opinon from another analyst to ensure the accuaracy of the tests.
A nationally recognized expert, Dr. A.W. Jones, has opined that in forensic testing of blood samples retesting should be done, not a mere a "technical review." It is his opinion, that a mere technical review is inadequate to ensure the accuracy of the test results.
This standard makes perfect sense in DUI cases because the level of punishment is often dependent upon the test result. If a person's blood alcohol concentration result is .165 the person is facing a minimum of 30 days in jail. If he was under a .150 then he is merely facing 1 day in jail. Is it too much to ask the government to check their work when 29 days of jail is at stake? I guess the answer depends on how important the result is to you.
If you were at the doctor and she said "the blood tests were back," "we need to operate," let's "prep for the mastectomy." Most people would seek a second opinion. Why...because the issue is too important to merely rely on the first test. When it matter to you - you retest.
P.S. I will address the Defendant's ability to do their own retesting in my next entry.
Under our system of justice we should demand better answers from the government than "because we said so" or "because our lab has the highest standards." Simple conclusions are not good enough in science and they should not be good enough in justice.
So who checks the government's test results in Arizona? The simple answer is the government. They merely claim to check themselves. I have yet to see one Arizona crime lab that conducts blind testing by an independent party.
Here is how the actual process works. In Arizona DUI cases, The government expert will tell juries that they do double check their work. That is, they have a quality assurance program to make sure the blood alcohol test results are accurate. But the government's oversight of their work is not what you my think. Instead retesting every sample, or randomly retesting a portion of the samples, the lab merely does a technical review.
A "technical review" is not retesting. The Government toxicologist usually puts between 30 to 40 blood samples into a blood tester. Then they turn the blood tester on and leave. The blood tester commonly runs overnight and the printed results are reviewed by the government lab person.
This review of the printed documents is what is known as a technical review. The actual documents are called chromatograms. They are simply pieces of paper with graphs and data on them (retention times, area counts, etc...) If the run has the usual 30 to 40 samples there could be well over 100 pages of data.
In court, the government will tell the jury that they "double check" all the tests. What they actually do is take those 80 to 100 pieces of paper and give it to another employee of the same lab. That person then reviews the data. As long as the data appears to be consistent, they conclude it is an accurate test. In Court, they tell the jury they got a second opinon from another analyst to ensure the accuaracy of the tests.
A nationally recognized expert, Dr. A.W. Jones, has opined that in forensic testing of blood samples retesting should be done, not a mere a "technical review." It is his opinion, that a mere technical review is inadequate to ensure the accuracy of the test results.
This standard makes perfect sense in DUI cases because the level of punishment is often dependent upon the test result. If a person's blood alcohol concentration result is .165 the person is facing a minimum of 30 days in jail. If he was under a .150 then he is merely facing 1 day in jail. Is it too much to ask the government to check their work when 29 days of jail is at stake? I guess the answer depends on how important the result is to you.
If you were at the doctor and she said "the blood tests were back," "we need to operate," let's "prep for the mastectomy." Most people would seek a second opinion. Why...because the issue is too important to merely rely on the first test. When it matter to you - you retest.
P.S. I will address the Defendant's ability to do their own retesting in my next entry.
Some things in life seem obvious. It is hotter in the summer. It is colder in the winter. The government must get a warrant to stick a needle in your arm before they forcibly take your blood. However, this last presumption has not been so obvious in Arizona.
For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.
In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.
However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.
On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:
Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).
We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.
In sum, there is nothing “obvious” about Arizona DUI laws.
For years in Arizona, attorneys have been arguing that law enforcement must get a warrant before taking your blood during a DUI investigation. Unless, of course, the person “expressly consents” to the blood draw. However, many Arizona courts have held that, under Arizona law, we should "imply" your consent to the blood test. Thus, there is no need to ask for your consent, nor to get a warrant before taking blood.
In most DUI cases, officers ask the person suspected of DUI if they will consent to the blood draw. The officer will explain that if you refuse to give consent, a one (1) year license revocation will be triggered. Moreover, the officer will likely inform you that they will also get a telephonic warrant, in a matter of minutes, and forcibly take your blood. Consequently, the majority of people do give consent to the blood draw. This scenario is perfectly legal.
However, every year I see a number cases where law enforcement just takes the person’s blood without asking for consent. They merely say "give me your arm" and take the blood. Most experienced DUI officers will not engage in such conduct. Yet this situation keeps occurring. And until now, many courts have upheld the officer's actions.
On September 1, 2009, the Arizona Court of Appeals stated the obvious. They held that law enforcement must obtain a search warrant to take a DUI suspects blood - unless the person “expressly agrees” to have their blood drawn. The Court reasoned:
Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the State to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp. 2005).
We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.
In sum, there is nothing “obvious” about Arizona DUI laws.
The truth of the matter is we don’t really know. Most labs in the Phoenix Arizona area claim to be accurate within 5%. That means if your blood result came back at .08, then the true result can be anywhere from 5% lower or 5% higher.
Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.
After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.
To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.
Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.
As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.
In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.
Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.
Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.
As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.
Other scientific organizations claim 5% is not a realistic range of accuracy. For example, the American Academy of Forensic Sciences claims that the accepted range of accuracy is 10% higher or lower.
After interviewing toxicologists over 100 times, doing a substantial number of DUI trials with blood results at issue, I am convinced that the accuracy is totally dependent on the procedures used by the lab, and most labs overstate their accuracy.
To support my conclusion, I need to explain how blood testing with a gas chromatograph works. At its most basic level, gas chromatography simply compares known alcohol concentrations to unknown blood samples. A blood tester does not inherently know what a blood alcohol concentration (BAC) is. You must calibrate it every time you do a test. You teach the machine what a .08 is by putting known alcohol concentrations into it, and essentially build a ruler.
Most labs in the Phoenix area put four known alcohol concentrations into the blood tester to build their ruler. These known concentrations are called calibrators. It is important to remember these calibrators are water based. That is, they are known alcohol concentrations in water. See the graphic below for an illustration.
As you can see in the example, there are four points on the ruler. The blood tester simply connects the dots on the ruler. If the four places on the ruler are accurate, then you should have a fairly accurate ruler. However, many labs make their own calibrators, and there is no way to know how accurate the ruler really is. There is no outside agency auditing their work. All we have is their word that they are accurate.
In addition, while it is a good first step to be able to build a ruler using water and alcohol, we are not testing alcohol in water in DUI cases. We are testing alcohol in blood. In science, we need to take into account what is known as the matrix effect. Simply put, water and blood are not the same substance. Water does not have red blood cells, white blood cells, plasma, virus, and bacteria. In order to measure alcohol in blood, we need a blood-based ruler. However, law enforcement labs do not actually use a blood-based ruler. This is where the procedures of the lab really make a difference.
Labs will use a known concentration of alcohol in blood and compare it to their water-based ruler. This is known as a calibrator. This procedure may be acceptable if done enough times with an accurate blood based sample.
Here is the problem. There are very few companies that make the blood based alcohol concentrations, they are not accurate, and some labs use only one calibrator (not four like the water-based.) When the blood-based alcohol sample comes from the manufacturer, there is an insert. The insert tells you that the stated blood alcohol concentration is just a target value. It states that the known concentration it is really just a range. For example, I recently had a case with a blood-based control with a target value of .182. However, upon reviewing the insert that came with the sample, according to the manufacturer, .182 could be anywhere between a .166 and a .198. Thus, the ruler used is not as accurate as we would like it to be. That is a tremendous range when we are trying to determine someone’s true blood alcohol concentration. The picture below illustrates what the blood-based ruler looks like with only one this one known value.
As you can see, you can’t build a ruler with only one point on a line. Thus, with using only one known value, your ruler just is not very accurate – unlike the water-based ruler. The less accurate your ruler is, the less accurate your test result will be. Consequently, the true range of accuracy could be significantly greater than even 10%.
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