Times have changed.? For a simple, first offense DWI–with no accident, property damage, personal injuries, or aggravating facts, the true cost to the driver has been estimated by various groups and organizations to be somewhere between $10,000 and?$20,000:

• ?CNBC $20,000
• Alcohol Problems and Solutions $20,000
• MADD of Orange County, CA About $11,000
• Illinois Secretary of State $14,660 (assumes jail and lost income, but?low legal fees due an “uncontested plea”)
• Erie County, NY $9,500
• Texas Department Of Transportation:? $9,000 – $24,000

??? All of these estimates include some assumptions that I don’t agree with and?some costs that don’t exist in?New Hampshire.? More important, the true cost will vary significantly from individual to individual.?

?? More after the break.??

?If you lose a good job or a professional license (CDL, pilot, school bus driver, etc.) due to a DWI then the true?cost?to you will be high indeed.? Anyway,?here’s?what you’re looking at in New Hampshire for a simple, first offense case with no aggravating facts, no accident, and no injuries:

• Bail?Commissioner’s fee:? $30.
• Bail Bondsman’s ?fee if cash bail is set and posted by surety bond:? About 10% of the cash bail.
• Fine & Penalty Assessment:? $600 to $1,440 (typically, fines tend to be at or near the minimum of this range).
• Impaired Driver Intervention Program:? $460 (IDIP) or $585 (Weekend IDIP).
• License Reinstatement Fee:? $100.
• Laboratory analysis of the second sample of preserved breath (if there was a test):? $120.
• ALS hearing audio CD (if there is a hearing and you want the testimony transcribed):? $25.
• ALS hearing transcript (if there is a hearing and you want a transcript for the DWI trial):? About $200.
• Increased insurance premiums:? Typically several thousand dollars, but the precise cost?varies by carrier, amount of?coverage, driver’s age, driving history and other underwriting factors.
• Attorney’s Fees for DWI and ALS proceedings:?? A good attorney will?meet?with you long enough to conduct an in depth interview, review the police?reports, demand any necessary additional discovery, interview witnesses, visit the scene, research and litigate legal motions, and determine how to challenge the state’s evidence.? The attorney may be required to appear at the Department of Safety for an ALS hearing and in District Court on one, two or more separate occasions.? Unless the attorney has other cases in the same court that day, each appearance, including travel and waiting in court, typically takes up about half of an attorney’s day (although, of course, some appearances take substantially less time and some hearings last for a day or more).? I don’t pretend to know what every attorney in the state charges for DWI cases, but I do know that the cost will vary dramatically with
  • ?(a) the nature of the case?(i.e., Will there be a need to?locate and interview witnesses?? To file?suppression motions?? To?challenge the Intoxilyzer? To?put together a?defense based on the driver’s medical history?? To retain?an expert toxicologist, or?forensic breath analyst, or field sobriety test expert, or medical expert?);
  • (b) the quality and experience of the attorney (How many DWI cases has he or she handled??If there was a breath test, how knowledgeable is the attorney about Intoxilyzer and BrAC issues?? If there is a blood test,?is the attorney familiar with the legal and factual issues surrounding forensic blood alcohol testing?? Is the attorney a member of the National College for DUI Defense?? If the case is heading for trial, is the attorney skilled at trial advocacy?? Is the attorney familiar with? search and seizure, interrogation, and arrest issues that arise in DWI cases?);
  • (c) the distance of the court from the attorney’s office; and
  • (d) the attorney’s billing practices.
• Expert fees (if you and your attorney decide to retain an expert witness for your case);
• Possible lost income, due to court appearances and possibly due to the loss of a job if a driver’s license is required for your work.

?I realize that I did not include any figures for?the larger expenses, which are measured in thousands of dollars, e.g.? iinsurance costs,?legal fees, possible expert fees?and lost income.? However, these vary so widely from one individual to the next that it would make little sense to put down any specific number.?

The true cost of an Aggravated DWI or a DWI, Subsequent Offense is much higher due to mandatory jail time, mandatory residential treatment?at the driver’s cost in a state facility that?is not?covered by medical insurance,??prolonged license revocation, ignition interlock costs and the potential for a jury trial following an initial bench trial.

??

?? But there is one essential part of the Intoxilyzer 5000 which has been off limits to study–the computer source code which runs the whole machine.? Although the machine uses infrared spectrometry to analyze a fixed sample of breath, it is the computer software that is responsible for:

• Telling the machine what numbers to report;
• Telling the machine whether it can report a result at all;
• Correcting for possible interferents (e.g. chemicals other than ethyl alcohol);
• Correctly reading the machine’s internal and external standards.

??? The machine’s so-called “slope detector”–which is supposed to tell the machine to abort when BrAC continues to rise steeply when the subject is blowing, due to the likely presence of mouth or stomach alcohol–depends entirely on the source code.? I’ve heard a number of highly qualified experts say that the slope detector does not always work correctly.? I’ve also heard a world class expert say that the?machine?often reports inaccurately high BrAC results when?the subject has a small amount of alcohol (the proverbial two beers) but has been exposed to potential interferents (certain volatile chemicals that mimic alcohol’s infrared spectrograph).? Although the software is supposed to correct for?such interferents, it may not always work correctly when there is?some alcohol in the mix.?

???? So how do we know that?the Intoxilyzer 5000′s source code is doing its job correctly?? As a result of some dogged litigation by DUI defense lawyers in Florida, Kentucky, Minnesota and New Jersey, the Intoxilyzer’s source code will finally be analyzed by qualified computer scientists.??

???? More after the break.?

???? In recent years, DUI defense attorneys began to request copies of the source code for the Intoxilyzer 5000 and other machines.? Eventually a number of?trial and appeals courts?ordered the production of the source code.?

?? In New Jersey–where a team of attorneys and experts doggedly pursued the issue to the state supreme court–the source code for that state’s machine (the Alcotest 7110 manufactured by Draeger Safety Diagnostics, Inc.) was produced and analyzed.? The forensic source code experts determined that entire machine was unreliable because the source code was bug ridden and could not pass industry standards for software development and testing.? They also determined that the Alcotest’s source code actually disabled the machine’s catastrophic error detection software–so that the machine will spit out BrAC results when it should instead abort!? As the expert report states, “turning off these safeguards means as these conditions are encountered the machine produces unpredictable results.”? The experts hired by the?the Alcotest’s manufacturer agreed that the source code was?”not written in a manner consistent with usual design?best practices” but concluded that “there are no obvious defects intentionally written to produce anything other than consistent results.”?The New Jersey Supreme Court will soon determine whether (a) the Alcotest’s source code is sufficiently reliable to allow any continued use of that machine in court and administrative license suspension proceedings and (b) if so, under what conditions the machine can be used.

?? The New Jersey experts’ findings have no direct applicability to New Hampshire because we use?the Intoxilyzer 5000 EN, not the Alcotest 7110.? To date, no New Hampshire court has ordered the production of the Intoxilyzer’s source code and, to my knowledge, no defense experts have ever examined the source code in any jurisdiction.? However, the Intoxilyzer’s source code has been the subject of highly contested litigation in at least three states.

??? In Minnesota the courts have ordered the state to produce the source code in hundreds of DWI and ALS cases.? The Intoxilyzer’s manufacturer, CMI of Kentucky, Inc. refused to produce the source code, claiming that it was a trade secret and that it was not in the state’s control.? The DUI defense attorneys convinced the Minnesota courts that, pursuant to its contract with CMI, the State of Minnesota did in fact have the right to the source code and, therefore, the state could be ordered to produce it.? The courts also held that, while CMI would be entitled to a reasonable protective order to safeguard its legitimate interest, it could not require either the state or the DUI defense bar to sign the ten page confidentiality agreement that the company proposed.? Last week–with hundreds of DWI and ALS cases facing dismissal, the State of Minnesota sued CMI in federal court seeking to recover the purchase price it paid for?Intoxilyzers?it can no longer use until the source code is produced.? If you’re interested, the Complaint in the federal lawsuit in Minnesota can be found here.

???? In Florida, there have also been dozens, if not hundreds of cases in which accused drivers have sought access to CMI’s source code for the Intoxilyzer 5000.? While the Florida courts never ordered the state to produce the source code, a number of trial and intermediate appeals courts?ordered CMI to produce the source code pursuant to interstate subpoenas.? At first, CMI refused to honor these subpoenas claiming that?the Florida courts lacked jurisdiction.? Then CMI insisted on onerous confidentiality agreements that would have stymied rather than assisted the Florida courts.? Finally, however, CMI appeared through counsel in a Florida court and agreed to produce the source code if a protective order was in place.? Two weeks ago the Florida court ordered CMI to produce the source code and issued its own reasonable protective order.? The Florida decision is here.

?? Finally, in late 2007, a Kentucky court of appeals ordered CMI to produce its source code to DUI defense experts.? The court’s opinion is here.? Since CMI is a Kentucky corporation with substantial assets in the state, it will have no jurisdictional defenses and no ability to avoid compliance with the Kentucky order (unless, of course, it is reversed or overruled by statute).

?? So, why has there been no source code litigation in New Hampshire?? Well, any DUI defendant who is fortunate enough to get the source code would have to spend tens of thousands of dollars for an expert to analyze it.? Chances are that, despite the increasing number of appellate court decisions rejecting CMI’s trade secrets claim, a New Hampshire DUI defendant would have to litigate the issue at both the trial and appellate levels.? That would be very costly as well.? Finally, the holy grail of source code litigation–a hearing to determine whether the software is reliable–would entail many days of testimony by a group of high priced experts.? Whatever the result of that hearing, it would be appealed by one party or the other the New Hampshire Supreme Court.? The?whole endeavor would take several years?(as was the case in New Jersey, Florida, Minnesota and Kentucky) and cost somewhere in the six figures.?

??? Of course, there is always the chance that a DUI defendant could?get an order?requiring CMI to produce the source code and then an order of dismissal when the company refuses to comply.? The State might also choose to plea bargain some source code cases on very advantageous terms.? Nonetheless, if you ask for the source code you have to be prepared for the possibility that you might just get it.

?? Chances are that the issue will either be raised by a group of attorneys pooling their efforts in a number of cases with?some pro bono assistance from both attorneys and experts.? Failing that, however, New Hampshire may just have to wait to see how things shake out elsewhere once the source code is analyzed.

?? As for me, I’d be happy to demand the source code and seek a hearing on its reliability if I had a client who wanted to start down that track.

???? -There is the prosecution in court for Driving While Impaired; and

????? -There is usually also an administrative ?loss of license (ALS) which is imposed by the Division of Motor Vehicles for either (a) refusing a post arrest alcohol concentration test (breath, blood or urine) or (b) taking a test which discloses an alcohol concentration of more than 0.8, for adults, and more than 0.2 for other adults, e.g. those who are under 21, and juveniles.

???? The ALS loss of license is 6 months–but it?the driver has either a prior DWI or a prior “refusal,” the ALS suspension is for two years.? So the mandatory ALS suspension is for a longer period than the minimum suspension for a DWI, First Offense.? In “refusal” cases, the suspension is always consecutive (e.g. in addition to) any court imposed revocation.? In “per se” cases, the suspension always concurrent with the court imposed revocation.

????Now, I understand that its not technically two prosecutions.? Under the law, the ALS is an administrative proceeding designed to further the State’s regulatory purpose of ensuring driver safety.? In other words, it’s not a criminal proceeding and the ALS loss of license is not a form of criminal punishment.? That’s why it does not violate the double jeopardy provisions of the State and Federal Constitutions to impose both a DWI sentence and an ALS license suspension.? But if its your license, you sure would feel as if you were prosecuted twice for the same offense.

???? It is also true that not everybody who is charged with DWI is subject to double prosecution.? Some small fraction of persons arrested for DWI are not asked to take an alcohol concentration test–typically because the Intoxilyzer 5000 or its operator are unavailable.? Some drivers may be prosecuted despite a low Intoxilyzer test.? But most of the time, if you’re charged with DWI you? are also likely to face an ALS suspension.

???? This puts many, many drivers between the proverbial rock and and hard place.? Most (but not all) New Hampshire police departments and prosecutors will agree to withdraw the request for the ALS suspension in return for a plea to a DWI charge.? In the case of a “refusal” this could save the driver from a six month consecutive license suspension–so its not an inconsequential offer.? But for a driver who is innocent of DWI, rejecting this offer is the price of going to trial.?

??? Yes, the driver gets an ALS hearing (if he requests one?within thirty days of arrest or notice of the test results)?at which the arresting officer must testify and be cross-examined.? And yes, the driver can get a transcript of this hearing which can prove invaluable in court in the DWI case.? But what if the?driver?loses the ALS hearing before going to trial on the DWI?? It is more difficult to win the ALS hearing than it is to win a DWI trial because: (a) you face a Department of Safety Hearings Officer rather than a judge; (b) the State does not need to prove its case beyond a reasonable doubt; (c) you have no right to suppress illegally obtained evidence; and (d) the State does not need to prove that you were actually impaired by alcohol.?? Also, if you have an expert based defense to the ALS (such as you might have if you were challenging an Intoxilyzer result), you would have to pay the expert to come to the ALS hearing in addition to the trial.

???? So, for many drivers this means that the price of a DWI trial?can be a six month (or two year) ALS suspension.? Pony up the ante.

???

???? The Derry District Court and the New Hampshire Supreme?Court (over a vigorous dissent) held that?the test results could be admitted.? The driver–a 17 year old who was convicted of DWI, First Offense–appealed the issue to the U.S. Supreme Court.? The National College For DUI Defense?has filed an amicus brief urging the Supreme Court to accept the case.??

??? The chances that the Court will decide to hear this case–State v. O’Maley (N.H. Supreme Court decision here), docketed as O’Maley v. New Hampshire (U.S. Supreme Court docket sheet here)–are slim:? The?U.S. Supreme Court?receives somewhere around 8,000?petitions for review?each year.??It?accepts just a small fraction of these cases, writing?less than 80 opinions (statistics for?the 2006 term available at this??link at Scotus Blog), and summarily vacating and remanding others with identical issues.? Most of the? that the Court accepts come from the federal courts of appeal and only a handful are direct appeals from state Supreme Courts.

???? Yet the New Hampshire?DWI case that the justices will discuss today, however briefly, has some chance of being accepted for review, even if that chance is quite small.? The case raises an important and unresolved issue concerning the Federal Constitution’s Sixth Amendment right of “confrontation.“? The right of “confrontation” is the right that every criminal defendant has to face, confront and cross-examiner his or her accusers at trial.?

?? Professor Richard Friedman, whose writings on the confrontation clause have animated the U.S. Supreme Court’s recent decisions, finds the O’Maley case to be “cert. worthy.”? (Cases generally reach the U.S. Supreme Court by means of “petitions for certiorari” or, in common parlance, “cert. petitions.”? Thus among the lawyers who study such things, a case that is “cert. worthy” is one that presents issues which the U.S. Supreme Court might find worthy of review).? You can read Friedman’s discussion of the?O’Maley case?on his blog, The Confrontation Blog. ???

???? The case itself arose from relatively routine facts.? A seventeen year old driver crashed into a phone pole.? He vehicle was damaged and he walked home with a possible?head injury.? The police found him at his house a short time later.??Because he admitted to drinking and driving, and because he had an odor of alcohol about him, they arrested him for DWI.? The police then brought the driver to the hospital for treatment where they read him his “implied consent” rights (see, N.H. RSA 2365-A:4) and took a blood test.???

???? Three separate individuals then became involved in the case:

???? A.? A technician took a blood sample at the hospital, and filled out a form noting that he or she complied with all of the applicable regulations for State blood draws in DWI cases (see,? N.H. Code of Adminstrative Rules and Regulations, Saf-C 6402.2).

???? B.? An analyst tested the sample at the State Police Forensics Laboratory, noting that he or she complied with the regulations for testing such samples in DWI cases (see, Saf-C 6402.6 above).?

??? C.? The laboratory’s assistant director reviewed the test results and calculated the alcohol concentration to be 0.14.

?? Only one of these three individuals–the?lab director–testified at the driver’s trial.? Neither the technician who drew the blood nor the analyst who tested the sample testified.? The driver argued, among other things that the Sixth Amendment’s confrontation clause required exclusion of the lab test unless both the technician and the analyst testified.

??? The Sixth Amendment question turns on whether the technician’s and analyst’s statements (on the government forms and certificates they signed) were “testimonial” as that term is used for Sixth Amendment purposes.? In 2004, in the case of Crawford v. Washington,?the U.S. Supreme Court held that? out of court “testimonial” statements are not admissible in a criminal case unless the defendant is given the opportunity to cross-examine the person who made such statements.? The Court did not, however, provide a detailed and workable definition of “testimonial.”? Instead, it referred to the historical circumstances which led to the inclusion of the confrontation clause in our Constitution.? Since those circumstances did not include the routine use of criminal forensics laboratories, there are good grounds for disagreement about how Crawford should be applied in the present context.

??? The young driver in this case has a pretty good argument:? The witnesses involved in State blood draws and tests make statements on the certificates and forms they fill out for just one purpose–to be used as evidence in court against the defendant in a criminal case.? What grounds–other than the witness’ convenience–can justify the admission of their ex parte, out of court accusations without the opportunity for cross-examination??

?? Even if Mr. O’Maley never makes it to the U.S. Supreme Court, this issue is sure to be resolved either by the U.S. Supreme Court or by the slow accretion of precedent in the lower courts.?

Members of Inadmissible Classes include those who have been convicted of MINOR OFFENCES (including shoplifting, theft, assault, dangerous driving, unauthorized possession of a firearm, possession of illegal substances, etc.), or of INDICTABLE CRIMINAL OFFENCES (including assault with a deadly weapon, manslaughter, etc.). As well, those who have been convicted of DRIVING WHILE INTOXICATED (DWI) are considered Members of an Inadmissible Class. Driving while under the influence of alcohol is regarded as an extremely serious offence in Canada.

* * *

Those who have been convicted of an offence OUTSIDE CANADA, and have had 5 years elapse since the termination of the custodial portion (if any) of the sentence imposed (not the sentence served), may apply for a Minister’s APPROVAL OF REHABILITATION. The Minister’s Approval will permanently remove the inadmissibility caused by conviction.If less than 5 years have elapsed, or if persons are only seeking entry to Canada for a single or limited period, then they may apply for a TEMPORARY RESIDENT PERMIT.????

Apparently, this has been the law in Canada for quite some time, but it is being more vigorously enforced these days because the Canadian border authorities now have immediate access to most U.S. criminal record abstracts.? Here’s what you need to do if you want to visit Canada and you have been convicted of a DWI: Persons may apply for a Temporary Resident Permit, Approval of Rehabilitation, or Permission to Return to Canada either in Canada or at one these CANADIAN VISA OFFICES IN THE UNITED STATES:

• The Canadian Consulate General in BUFFALO, NY
• The Canadian Consulate General in NEW YORK, NY
• The Canadian Consulate General in DETROIT, MI
• The Canadian Consulate General in LOS ANGELES, CA
• The Canadian Consulate General in SEATTLE, WA

DOCUMENTATION THAT MAY BE REQUIRED BY A CANADIAN VISA OFFICE TO PROCESS TEMPORARY RESIDENT PERMIT OR APPROVAL OF REHABILITATION APPLICATIONS:

• POLICE CERTIFICATES from the jurisdictions where the applicant has lived since his/her 18 birthday (or for the last 10 years).
• THE APPLICANT’S OWN STATEMENT OF CIRCUMSTANCES leading up to his/her conviction.
• COURT RECORDS relating to the applicant’s conviction(s).
• REPORTS OF PROBATION OR PAROLE OFFICERS.
• A COPY OF THE STATUTE under which the applicant was convicted.
• THREE LETTERS FROM PERSONS OF STANDING IN THE COMMUNITY who know the applicant personally, and who can attest to the applicant’s rehabilitation.

The Canadian Embassy’s website makes no distinction between misdemeanor (and felony) DWIs, on the one hand, and violation?DWIs on the other hand, which are recorded as non-criminal offenses.? Under present New Hampshire law,?even a DWI, First Offense is a Class B Misdemeanor, but the convicted driver may petition the court to reduce the offense level to a violation after one year.? While I don’t know for sure, it seems unlikely that a post-arrest reduction in offense level will change one’s status with the Canadian authorities.? However, it can’t possibly hurt when it comes to applying for either a temporary permit to enter the country or a certificate of rehabilitation.

???? 1. The law presumes that the ratio of:

Breath Alcohol (BrAC) / Blood Alcohol (BAC)
is the same for all of us. This presumption–equating BrAC with BAC–has been written into law in New Hampshire. See, RSA 259:3-b (defining Alcohol Concentration (AC) as either BrAc or BAC. Yet it is a lie. The ratio of BRAC to BAC (called the partition ratio) varies from person to person. And it varies within each individual person over time. It is true that that only a small percentage of the population has a significantly higher than average BrAC/BAC ratio. Indeed, the Intoxilyzer actually understates BAC for most drivers. But if you have a much higher than average BrAC/BAC ratio, the average fits you no better than a suit that’s three sizes too big. In your case, the Intoxilyzer 5000 result would overstate your actual blood alcohol concentration.
???? 2. BrAC depends on body temperature. The higher your temperature, the higher your Intoxilyzer results. While the range of human temperatures is pretty narrow–there’s nobody walking around at 107F and there’s nobody walking around at 93F–it is a range and if your temperature is significantly higher than average (like when you have a fever), your Intoxilyzer result will overstate your actual blood alcohol concentration.
???? 3. The Intoxilzyer assumes that none of us have gastric reflux. The “breath” that matters for breath alcohol testing is so-called “deep lung air.” Mouth air and stomach air should not be tested. Think of it–if you were sober but swirled a shot of Jack Daniels around in your mouth and spit it out, the breath from your mouth would have a very high alcohol concentration even though your deep lung air would have virtually none. Likewise, if you drank wine and then burped, alcohol filled stomach air would enter your mouth.
???? New Hampshire law requires the police to observe a driver for twenty minutes prior to an Intoxilyzer test so that (a) alcohol in the mouth will evaporate (although this does not always occur) and (b) the driver does not burp or otherwise let stomach air into his or her mouth. The twenty minute waiting period is a useful safeguard for most of us. But persons with gastric reflux continually have stomach air going into their mouths. When their mouths are connected to the Intoxilyzer, their stomach air goes into the machine. But the Intoxilyzer assumes we are all average and does nothing to take this fact into account.
The myth that we are all average is also applied when the State uses hospital blood tests (an issue which raises important privacy and privilege concerns). Hospitals test blood plasma, but alcohol concentration is defined as the percent of alcohol in whole blood. While the State toxicologists freely admit that Blood Plasma AC is greater than Whole Blood AC, they ignore the fact that the ratio between the two can vary dramatically from individual to individual (and within a given individual over time). Instead, they use the average ratio and testify that Blood Plasma AC is 15% to 20% higher than Whole Blood AC. While that may be true for most of us it may not be true for you. So your alcohol concentration might be much lower (0r higher) than the State toxicologist says.
???? Finally, State toxicologists assume we are all average when they attempt to extrapolate BrAC and BAC tests results to estimate alcohol concentration several hours earlier (a process called reverse extrapolation). This typically occurs when the BrAC reading is close to 0.8 but the test was taken a hour and half or more after the arrest. We metabolize alcohol at different rates. Yet the State toxicologists assumes that we all metabolize alcohol at the same rate. That’s great for many of us. But it may not be great for you.

PORTSMOUTH ? Police are getting a new tool in their fight to keep drunken drivers off the roads.? The mobile-home-sized, rolling command post — complete with blood-testing machines, holding cells and room for bail bondsmen and fingerprinting equipment — should start operating late this summer, according to Peter Thomson, head of the state Highway Safety Agency.? Link:? here