Proponents of the Phoenix light rail system that is deep into construction claim that the project will reduct DUI cases by offering people an alternative mode of transportation to and from downtown for cultural and sporting events. I'm not so certain.

In Phoenix, I would estimate that at least half of the DUI cases that come through my office resulted from an officer pulling over a vehicle shortly after it left a non-downtown bar.

While the light rail project may result in a redistribution of Phoenix Police Officers from the light rail area to other areas, my prediction is that they increase enforcement around the bars with the extra manpower (if the budget cuts don't get the manpower first).

The other argument against light rail as the cure to DUI is that alternative modes of transportation already exist and have for years. Cabs. Buses. Designated drivers. They are all available in the Phoenix area (although buses with some effort). DUI is often about a bad last minute choice. The 2 am judgment call. Will the availability of light raid alter the way people think? I doubt it.

In DUI cases the state wants everybody to believe that the Intoxilyzer machine has been tested. Because it has been tested with known standards of alcohol, they want us to assume that it can also analyze an unknown. They also want us to assume that the software has no flaws or bugs that could render a false high under various conditions.

The source code of the Intoxilyzer matters because we need transparancy in the justice system. In Arizona, a first time extreme DUI (read as about average DUI of .150) requires 30 consecutive days in jail. This is serious. It also creates a permanent record. Very serious.

I believe that the constitutional rights of people accused of drunk driving are more important than a corporation's "interest" in the work product of their software.

If CMI continues to refuse to divulge the source code without conditions or exceptions, then law enforcement agencies and prosecutors should do the right thing and stop using them. Our government wastes a vast amount of taxpayer money. If we took all the Intoxilyzers in Arizona and threw them out (or recycled them), the amount of money lost on those machines would probably be less than the cost of convicting innocent people (they lose their jobs, stop paying taxes, etc), and the cost of litigating the cases combined.

If they don't let it out, then we should throw it out.

There is an interesting post on Lawrence Taylor's DUI Blog about linking previous DUI convictions to a future murder charge.  According to Mr. Taylor, upon conviction for DUI in California, the judges make defendants sign a statement saying that they understand that DUI is dangerous. That statement is then used to predicate murder charges (rather than manslaughter) if the person later kills somebody while driving drunk.

Prosecutors have been trying to make DUI murder for years. But this new strategy is the first that I've heard of the courts becoming involved. It seems to me that there would be a coercion argument. In other words, yes the person signed the statement, but did they understand it, and did they sign it willingly? Later, in a murder prosecution, the state would still have to prove the mens rea (mental element), which I believe would be difficult or impossible based only on the previously signed in-court statement. The prosecution would likely have to prove that the defendant not only understood it at the time it was signed, but also at the time of the accident that forms the basis for the murder charge.

The quote below is attributed to Tucson DUI Attorney James Nesci as reported by the Citizen. Mr. Nesci is talking about how the company that manufactures the Intoxilyzer breath test machine (that is used to convict people of DUI
in Arizona) plays fast and loose with the law in Arizona. They allegedly dodge subpoenas, ignore court orders and are not registered to do business in Arizona.

In CMI's mind, this may all amount to a hill of beans since they have been given essentially "sweetheart" contracts by Arizona, and enjoy a monopoly here. CMI has every right to feel that it can operate above the law in Arizona, because for years they, essentially, have.

But as more and more town and cities in Arizona switch to blood testing, CMI's flawed products are starting to collect dust. My prediction is that at the end of the product life-cycle for the latest version, the Intoxilyzer 8000, bureaucrat and politicians will think twice before subscribing to this company's next incarnation of machinery.

Quoted from http://www.tucsoncitizen.com/daily/local/99046.php:

"It bespeaks an astonishing degree of hubris for a Kentucky corporation that designs and markets a device specifically designed to produce evidence for use against Arizona citizens, in Arizona's courts, to believe that it can escape the reach of Arizona's courts by operating in violation of Arizona state law," Nesci wrote in his motion.

A special thanks to Frank Wilson for pointing this artlice out to me.

The average citizen of Arizona is given the information contained in the article below. The information is false for most people.

We are constantly told that you can be arrested (and presumably convicted) for having one drink and then driving.

While this is theoretically true, the reality is that a jury instruction, commonly referred to as the "presumptions instruction" lets jurors know that they can presume a person completely sober if they are under .05. For all but the extremely light of body weight, it takes more than one standard drink to get there.

Quoted from http://www.paysonroundup.com/news/2008/sep/26/getting_arrested_dui_costly/:

Arizona statute 28-1381 A1 bars driving under the influence to the slightest degree, including being under the limit. Meaning you could have one drink, drive and be arrested.

For example, a person can be pulled over for expired tags and if an officer smells alcohol on their breath can arrest them based on probable cause they are under the influence.

Despite the fact that the one drink equals guilty is a myth, my recommendation is to never drive any motor vehicle after consuming anything to drink. I see every day the high cost paid by those who drink and drive. In Arizona, it's simply not worth it.

What most prosecutors don't seem to understand or want to acknowledge is that breath testing in DUI cases can be extremely inaccurate. It has been scientifically proven that the Intoxilyzer machine has the following accuracy rates when it comes to reporting an alcohol content that corresponds(in approximates) to the actual concentration in a person's blood:

• 11-percent of the time the machine is accurate
• 44-percent of the time the machine underestimates the person's blood alcohol content
• 44-percent of the time the machine overestimates the person's blood alcohol content

How is it that a machine that is that prone to getting it wrong is used in the justice system in DUI cases? That is an excellent question and one that many jurisdictions are now seeking to remedy by providing blood tests instead of breath tests.

There is no good breath test machine. Breath testing for alcohol is a crude enterprise hardly worthy of the label "science." Until breath testing is eliminated or improved from its current state, there will be people wrongly accused and convicted of DUI, and there will be people wrongly exonerated of DUI.

Until organizations such as MADD and prosecutors offices open their eyes and demand a stop to this injustice, innocent people will face the ordeal of a DUI trial in courtrooms across the country daily.

I admin that I have not followed the latest OJ circus closely. But from the beginning I knew that he would be convicted. In high profile celebrity cases a defendant may get one free pass through the system, but it would be highly unusual to get two major passes. I can't think of a single example off the top of my head where an individual has twice stood trial for crimes that could result in a life-sentence, and twice been acquitted of all charges. Given Simpson's notoriety, the chances seemed even more remote, given that there is not one adult human being in the United States that isn't at least vaguely familiar with OJ's legal history.

His attorneys promise appeal. They promise a motion for a new trial. The chances are remote. I predict that Simpson will do at least 15 years in prison, maybe longer.

NHTSA, the National Highway Traffic Safety Administration publishes clues for nighttime driving behaviors that are indicative of DUI driving. They do so for both four-wheeled vehicles and motorcycles. Here are their clues for motorcycles:

• Drifting during turn or curve
• Trouble with dismount
• Trouble with balance at a stop
• Turning problems (e.g., unsteady, sudden corrections, late braking, improper lean angle)
• Inattentive to surroundings
• nappropriate or unusual behavior (e.g., carrying or dropping object, urinating at roadside, disorderly conduct, etc.)
• Weaving

• Erratic movements while going straight
• Operating without lights at night
• Recklessness
• Following too closely
• Running stop light or sign
• Evasion
• Wrong way

My DUI book entitled "HOW TO SCREEN FOR AND HIRE THE RIGHT DUI LAWYER" is now available for download.

The download is free, and the book is intended to give the public the skills necessary to find and hire an excellent DUI attorney.

In the past weeks it has come to my attention that DUI officers, especially in Phoenix and Scottsdale, may be charging extreme DUI in citations without evidence to back it up. Typically, a preliminary breath test result of .150 or greater is sufficient to allege extreme DUI. If the blood test result came back under .150, then the prosecutor's office would simply dismiss the charge.

On the other hand, if the preliminary breath test came back under .150, the officers would not charge extreme DUI. If the blood test result then showed a .150 or more, the prosecutor's office would file an additional count of extreme DUI to supplement the .08 and impaired charges already issued by the officer at the time of release after the arrest.

Now it seems that the officers are starting to charge extreme DUI even if they lack information to support it. If this is the case, it could signal a new practice that would simplify things for the prosecutor's office. It is much easier for the prosecutors to dismiss an wrongly charged count of extreme DUI than to add a legitimate count of extreme DUI later.

So if you are looking at your citation and it says "extreme DUI," but you don't remember the officer taking a hand-held breath test (and you took a blood test), don't despair. It may be that they overcharged you. If this is the case, the process will sort it out.

A word of warning. DO NOT plead guilty to extreme DUI without first consulting with a DUI lawyer. If you do, you will be stuck with it even if the evidence should have exonerated you.