When should you talk to the police?

Troy Broussard — Demystifying the Intoxilyzer 5000

Mr. Broussard recounts a conversation with a police officer:

I was speaking with a state trooper friend of mine at court the other day about different breath testing devices. We started talking about recent news reports of a flashlight, which also contained a device for detecting alcohol and the inherent problems with such a device.

When this trained police officer stated, “It’s not infallible like the Intoxilyzer 5000.” Even though I knew that some officers say this, and CMI, (the manufacturer of the Intoxilyzer), thinks the Intoxilyzer 5000 is God’s gift to law enforcement, I was still blown away (pun intended) by this troopers sincerity.

He actually believed this statement.

Unfortunately, many judges in this state believe the same as the trooper. It is incumbent upon us as defense attorneys to challenge this erroneous assumption and offer facts, which will provide judges, prosecutors, and law enforcement officers, with realistic limitations of this machine.

This article will attempt to point out some of those limitations.

In his article, Broussard outlines several key arguments that exemplify weaknesses of the Intoxilyzer 5000. The link the entire article is below.

Among several enlightening observations, Broussard states the following:

Accuracy is like trying to hit the center of a bull’s eye. It is the ability of the machine or method to provide a result as close to the true value as possible. Precision, on the other hand, is associated with the repeatability or results from analysis of the same sample. Is there clustering of the “hits” on the target or are they scattered? It is possible to have good precision without having good accuracy.
Thus, simply repeating a measurement does not insure accuracy.

Read the whole article here.

Joint Custody in Arkansas

From an article by Bodenhamer in a California Law Review article:

There are four criteria that parents must meet before obtaining a joint custody decree.

The first one is that it is a mutual proposal; almost never will a joint custody decree be had in a contested case.

Second, the parents of other custodies must demonstrate more maturity than normal.  They both must demonstrate the emotional stability necessary to make joint custody work.

Third, they must geographically live close to each other.  If the child is about to start, or has started, school they should live in the same school district.

Fourth, there must be a fair division of periods relating to events in the child’s life, such as birthday, school vacation, Christmas, etc.

On rare occasions  the children are divided  between the parents or other custodies.

Two factors contribute to these rulings.  The age and desire of the children.  If the children are becoming independent enough to cause the judge concern about their running away, and if they simply will not live together, then the judge will split them.

New Development in WM3 case — Terry Hobbs saw them last

The defense team for Damien Echols issued a press release today claiming  there are new eyewitnesses.

ArkansasMatters.com reports the West Memphis 3 story here.

An excerpt of the release is as follows:

Three eyewitnesses have come forward and provided sworn statements that they saw Steven Branch, Christopher Byers and Michael Moore with Terry Hobbs, the stepfather of Steven Branch, at 6:30 p.m. on Wednesday, May 5, 1993, immediately before the time the boys disappeared. Hobbs was calling loudly at the children and ordering them to return to his house. The new evidence establishes that the last person who had custody of the three boys before they vanished and died was Terry Hobbs. Jamie Clark Ballard, who lived only three doors down from Terry and Pam Hobbs, has supplied a sworn affidavit, as have both her mother and her sister.

St. Louis Judges and Courts defend DWI plea deals

The St. Louis POst-Dispatch reports that several area courts have pled DWI cases to SIS maing it difficult for repeat offenders to be held to a harsher standard.

Regardless, the common plea deal is a suspended imposition of sentence (SIS). It means no conviction for the defendant if two years of probation is successfully completed.

Charles Billings, a judge in Fenton, Overland and Des Peres, said most courts believed they were administering real punishment and leaving enough of a paper trail that the SIS would count as a prior offense, as the law allows.

Read the story here.

I am in the New York Times today

I was interviewed last week by the New York Times regarding the community feelings towards the West Memphis Three (WM3) trials.

The portion of my interview that made it to the press is as follows.

To Shaun Hair, 30, who left West Memphis for college after the killings, it was a jolt to hear friends and neighbors begin questioning the verdict. “I was like, ‘That’s stupid, quit buying the hype,’ ” he said.

But when Mr. Hair, who returned to the area in 1999 and now works as a criminal defense lawyer, re-examined the case, he found it troubling. “If I were the defense attorney,” he said, “I would want a retrial.”

The point of the interview was to gather information about the feelings of the community these many years later.  Read the whole story here.

My point was basically that we in Crittenden County do not have any stronger feelings about the case than people in Nashville or Seattle.  We see it on the news and that’s the end of it.  Some people feel strongly. Some do not.  Regardless of what we believe about the case, I do not believe we identify to the case because of our community roots.

1,200 DWI convictions inTexas to be set aside

“More than 1,200 driving while intoxicated convictions in Harris County are invalid after a contractor was convicted of faking inspections of alcohol breath testing devices, prosecutors said.

Deetrice Wallace, a Department of Public Safety contractor, told investigators that she had falsified inspections records for the South Houston and Clute police department intoxilyzers.”

This story illustrates that every single aspect of the record keeping and inspections should be targeted during the cross examination of a DWI case.

I am taking notes.

Read the whole story here.

Arkansas ban in texting while driving may send mixed message

In a story by the Associated Press:

Fiddling with your iPhone behind the wheel can get you fined across much of the nation. But many states are more than happy to tweet you with up-to-the-minute directions on how to steer clear of a traffic jam.

It is a mixed signal that some safety experts and politicians say could be dangerous.

I am not surprised that the State of Arkansas found a way to reconcile the two.  “Please check from home,” they say.   It is undisputed that twitter targets mobile users so this position seems disingenuous or ignorant.

Secondly, where do law enforcement draw the line?  Is it illegal to look at the time on your cell phone? Is it illegal to hit one key to see the time?  How many buttons do you have to hit before it becomes a misdemeanor? How does an officer know whether you are looking at the time or texting?

This law seems like a nightmare to enforce but a dream come true for officers looking for probable cause to look for something else.

DWI dismissed because bilingual driver could not understand field sobriety test instructions

This story was reported by KOAT out of ALBUQUERQUE, N.M. — Maria Vaughn works as a translator and advocate for domestic violence victims.

She’s fluent in both English and Spanish and that’s why what happened in court Wednesday is so confusing.

“I was just stunned as to how it played out; it became English as a second language,” Vaughn’s mother-in-law, Lorie Vaughn, said, adding the judge’s decision baffled her and she never communicates with Maria in Spanish.

Maria Vaughn was stopped on Interstate 40 last November because she was suspected of driving drunk and police tried to give her a field sobriety test.

Vaughn’s attorney, Phillip Sapien, said that’s when the language barrier became a problem.

“She does speak English and can converse, but when we’re talking about instruction on a field sobriety test, there’s more technical language used and I think there was a communication issue,” said Sapien.

But in Maria Vaughn’s job as an advocate for domestic violence victims, Action 7 News is told she’s required to speak both English and Spanish.

Vaughn’s lawyer said since his client couldn’t understand the officer’s instructions, the field sobriety test is unreliable.

“She didn’t understand that process,” he said.

A judge agreed and dismissed the case.

All DWI charges against Maria Vaughn were dropped and she only faces a charge of driving without her headlight.

(Reported by www.koat.com)

Supreme Court weighs Arkansas lethal injection rules

By: Associated Press – Texarkana Gazette -

Published: 10/09/2009

LITTLE ROCK—The Arkansas Supreme Court listened Thursday as lawyers argued whether a new law fulfills its aim by clarifying the state’s lethal injection procedures or puts death-row inmates at greater risk of suffering unconstitutional harm.

A federal public defender for death-row inmate Frank Williams Jr. claimed the new law puts additional mental stress on all condemned inmates, and public defender Josh Lee claimed it strips away regulations that required the state prison system to use a three-drug cocktail approved by the U.S. Supreme Court.

“Under the new statute, we have no way of knowing what procedure will be used,” Lee said. Without that oversight, he said the risk of botched executions grows. He mentioned a recent Ohio case where an inmate undergoing a failed lethal injection wept as executioners stuck him with needles as many as 18 times.

Nevertheless, the justices’ questioning appeared to give the state an edge.

Justin Allen, the state’s chief deputy attorney general, said there would be no repeat of the Ohio case in Arkansas. Allen said the new law passed by the Legislature this year made public the amount and kind of drugs used by executioners and that the state’s prison director couldn’t use “rat poison” or anything else to execute prisoners, as he would be subject immediately to a federal lawsuit.

“As a practical matter, Larry Norris or any other prison director would be out of his mind not to follow” the law, Allen said.

Justice Robert L. Brown said he agreed with Allen’s point, one of the few moments that indicated what the justices thought.

The justices gave no indication of when they might rule.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution. They argued the state prison system had altered its execution protocols without following a requirement that state agencies offer notifications and hold public hearings when they change administrative rules.

A lower court judge issued an injunction halting Williams’ execution and the case quickly made its way to the state’s highest court. While there, lawmakers passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution