Saturday, October 24, 2015

What Is SCRAM?

In recent years Judges and prosecutors in DUI cases have been imposing a SCRAM condition for many second and third time offenders.  The SCRAM System is a passive, non-invasive tool that reliably and continuously monitors and measures alcohol consumption 24 hours a day, 7 days a week for an extended period. It is based on transdermal alcohol detection and measures alcohol excreted through the skin in the form of constant, unnoticeable perspiration.

SCRAM Bracelet or Anklet. This tamper- and water-resistant bracelet or anklet contains an analog and a digital component that are attached to the offender using a durable strap (a custom engineered polypropylene blend). The strap houses electronic circuitry that allows the analog and digital sides to communicate.

Some people have reported problems with the product and therefore there are some instances where the device may give false results. The reliance of transdermal alcohol testing on an electrochemical sensor ensures that false positive readings due to organic hydrocarbon solvents or contaminants do not occur. Moreover, because it measures alcohol through the skin, this technology will not produce false positive readings due to the presence of mouth alcohol.  For example, Some foods (e.g., chocolate donuts, certain types of breads) can produce endogenous (internally produced) alcohol. This alcohol is unlikely to be produced in sufficient quantities to result in a positive reading on a transdermal alcohol measuring device. For example, an article published in the Journal of Analytical Toxicology reported that an individual would be required to consume 3 lbs of bread to reach a BAC equivalent to that of a single 12 oz beer with 4% alcohol. As such, “the likelihood of anyone testing positive for alcohol from cooked bread consumption, let alone becoming intoxicated, is therefore remote” (Logan and Distefano 1998, p. 183). Similarly, certain medical conditions, such as diabetes, can also result in the internal production of alcohol. Individuals with diabetes are prone to vascular diseases in the extremities and are potentially at greater risk of discomfort and potential adverse side effects as a result of wearing the SCRAM bracelet. At this time, it is recommended that individuals with diabetes not use SCRAM. 

Sunday, October 11, 2015

Why Is It Taking So Long For My Blood Test Results?

As a DUI Lawyer for the past 21 years I am asked many questions by my clients.  Among the most common is why does it take so long for a blood test result to come back?  The answer is the blood vial in a DUI arrest is not tested at the hospital, jail or clinic where the blood was collected.

The blood sample is sent to a forensic laboratory where the testing is done.  In Los Angeles County, including Torrance, the blood or urine sample is sent to the Sherriff's LASD County Crime Lab in Downey where it is tested among other samples submitted.  In Kern County the vials are tested by the District Attorney Crime Lab in Downtown Bakersfield.  The process of getting the vial from the arresting agency to the lab involves transportation and preservation issues unique to the state evidentiary and regulatory rules.  Once at the lab there is a system of identification, sampling, testing and retesting that takes days if not weeks to accomplish due to the backlog of criminal laboratories and lack of sufficient funding.

Obviously, other tests for crimes such as rape, murder, and other serious felonies are given priority.  Although the blood testing for Drunk Driving cases are typically done within 2 weeks, the official reports which include a review by a senior toxicologist, will usually delay the reporting time to about 30-45 days.  In drug cases the reporting time can be longer since the specific drug needs to be tested twice, once for qualitative results, ie.  Is the drug present within the sample?  Then again quantitatively, ie.  What is the actual concentration of the drug?

The delay in the reporting of the results vary but you must remember that in a misdemeanour DUI prosecution the District Attorney has a full year to file charges.  In a felony case the DA has 3 years or sometimes more.  Therefore, if there is no result of the blood or urine then the prosecution and Court will usually ask for another Court Date.

Once the result of the state's test is reported it is possible to have the blood or urine retested by a private independent lab.  This process can again take 30-60 days or longer and can cost upwards of several hundred to thousands of dollars or more depending upon the type of testing requested.

Sunday, October 4, 2015

The Cop Never Read My Miranda Rights, Will My DUI Case Be Dismissed?

Having practiced DUI for more than 20 years I can honestly say this is the number one asked question by my clients.  The short answer to the question is most likely no.

Let me start by saying Miranda Rights mean the cop must tell an arrested person they have a right to an attorney and the right to speak to that attorney before answering any questions.  But why is this question the number one question asked?  Well, fundamentally it is due to the fact that in most movies and TV shows when a person is arrested the cops read them their Miranda rights so there is a misconception that Miranda is required in any case where a suspect is arrested, that is simply not the law.

Here is what California law states when it comes to the mandatory reading of Miranda rights in a DUI or any other criminal case:  First, the suspect must be told he or she has a right to a lawyer before they are questioned and prior to making any statements only if they are "in custody" which means there liberty is restrained in a significant way and they are not free to leave.  Second, Miranda is only required when the police intend to interrogate a suspect, meaning they intend to ask them questions that are intended to illicit an incriminating response. So, there is a two prong test before Miranda must be read.

Let's, apply that 2 prong rule in a DUI or drunk driving arrest:  First, a person is definitely in custody because they are handcuffed and placed in the back of a patrol car so this part of the two prong test is satisfied.  However,  the second prong is generally the issue,  this is where the test often fails.  The suspect must be in custody at the time the officer intends to question them about the crime.  In most cases, after arrest the officer no longer questions them about the facts of the crime, for example how much have you had to drink, etc.  Although the officer did ask many incriminating questions it was likely before the suspect was placed under arrest so therefore Miranda was not required.  In short, if the cop places you under arrest for DUI but does not further question you about the facts of the case, other than routine booking information, then Miranda is inapplicable.

There may be instances where Miranda could be implicated in a DWI case.  For example, if the cop arrests you and subsequently questions you about the crime to get you to make incriminating statements then your rights could be violated.  Here's an example, the officer arrests you, places you in handcuffs then sits you in the back of the police car and asks you how much you had to drink, where you drank and the times you drank the alcoholic beverages.  Here, Miranda is required because he asks the questions after you were arrested.  Cops know that the law would require the reading of rights in this instance so they most always ask the incriminating questions before placing you in handcuffs.

What if the cops did violate your Constitutional rights by violating Miranda?  What is the remedy?  In short, it is suppression of the incriminating statements, not dismissal of the charges.

There is one type of DUI case where Miranda is almost always required, it is one involving drugs rather than alcohol.  Here's why:  In drug cases the officer that arrests you will usually call out a DRE or drug recognition expert to further assess you for drug impairment.  Because the situation involves an arrest prior to the DRE being called out Miranda is required.