DWI: Will NJ allow the Alcotest machine? Yep.

The New Jersey Supreme Court on Monday approved the state’s new breath test for drunken driving, allowing the prosecution of more than 10,000 suspected drunken drivers to resume.The manufacturer, however, must provide training and software data on the Alcotest 7110 for defense lawyers under the 6-0 ruling by the state’s highest court.

The decision came seven years after the Alcotest machine began being used in New Jersey. The rollout was halted in 2006 after lawyers for accused drunken drivers raised questions about the reliability of the machine.

Prosecutions of more than 10,000 DWI cases from 17 of the state’s 21 counties have since been on hold while the state’s highest court evaluated the Alcotest.

The Alcotest machines replaced Breathalyzer devices, which had been used for a half-century.

Alcotest machines measure blood-alcohol levels using two independent tests and leave much less room for human error than the Breathalyzer test.

However, higher breath temperatures were found to give higher blood-alcohol readings.

The reliability of the new machines is critical in New Jersey because judges, not juries, hear all drunken driving cases and rely nearly entirely on the reading of the machine. So, if a driver is determined to have a blood-alcohol level above .08 percent, he or she is guilty.

Alcotest is made by a Pittsburgh-based U.S. unit of the German company Draeger. The unit had been in Denver. Messages seeking comment from Draeger was not immediately returned.

The state had already spent millions buying Alcotest machines to replace Breathalyzer devices, when prosecutions were halted following objections from defense attorneys about the reliability of the tests.

The case went up to the New Jersey Supreme Court, which appointed Michael Patrick King, a retired judge, as a special master to obtain expert testimony on the machine.

The court’s 131-page decision largely adopted King’s determination that the Alcotest was reliable. It rejected, however, King’s suggestion that a breath temperature sensor be added to the Alcotest machine, concluding that was unnecessary and impractical.

The attorney general’s office, which backed the machine, had argued it would cost $1,300 more for a machine with a sensor, $1,600 per to retrofit existing machines.

Attorney General Anne Milgram said her office was pleased that the court upheld “the scientific reliability of the Alcotest and the admissibility of its results in evidence.”

“The court’s ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws,” she said in a statement. “The Alcotest, utilizing state-of-the-art technology and a host of additional safeguards, will provide strong evidence and sure justice for those who violate New Jersey’s drunken driving laws.”

The decision was generally welcomed by a lawyer who represented the New Jersey State Bar Association in the case, Jeffrey E. Gold.

Besides training and access to software changes, the ruling allows defense lawyers and experts to purchase the $13,500 machines, Gold said.

“That’s very important, to put the defendants on an even playing field with the state,” Gold said. “We want transparency and fairness.”

He believes the decision is the first on Alcotest’s reliability by a state’s highest court.

Evan M. Levow, a lawyer for many DWI suspects, said they would ask the U.S. Supreme Court to accept an appeal.

He maintained that the machine has not been proved reliable. He said that lawyers can’t confront officials who program the Alcotest _ to challenge the way they calibrate the machines, among other things. That inability deprived defendants of due process and equal protection, he said.

“This case raises fundamental issues of constitutional rights,” Levow said.

DWI: Blood test without consent?

Is a search warrant required for the most intrusive of searches?  The Minnesota Supreme Court is trying to decide where to draw the line.

The case involves a 48-year-old Burnsville, Minn., woman who crashed head-on into another car and injured the other driver in May 2006. Attorneys made their arguments before the state supreme court on Wednesday.

No one is disputing that Janet Sue Shriner, who had four previous DWIs, was drunk that evening. After the crash, she drove the wrong way into traffic, then along a sidewalk and across a busy intersection against the light. When an officer stopped her, she had bloodshot eyes, smelled of alcohol and couldn’t stand up.

The officer had her blood tested, without her consent, at a nearby hospital. Charges against her included first-degree drunken driving, criminal vehicular operation and leaving the scene of an accident.

But a Dakota County judge agreed with Shriner’s attorney that the officer should have tried to get a search warrant before testing her blood. The judge threw out the evidence and dismissed the drunken-driving and criminal vehicular operation charges. The state court of appeals upheld that ruling.

Read the whole story here.

AR: NO TO ID

The state doesn’t want to comply with a federal law aimed at preventing people illegally in the country from obtaining driver’s licenses even if it could pay the cost.

“Real ID” is a set of federal standards for issuing state driver’s licenses. Those standards require people who want a driver’s license to provide birth certificates and other documents ensure they are legally in the country. The information and updates to the licensee’s personal information, such as changes of address, would then be stored in a format that could be shared with other states and the federal government.

Terrorists used state driver’s licenses with false information as identification to board the planes used in Sept. 11, 2001, terrorist attacks. Residents of states that do not comply with Real ID would not be allowed to use state driver’s licenses as valid identification to board planes of federally regulated airlines or get into certain federal installations.

Arkansas and 45 other states received an extension until Dec. 31, 2009 to start implementing Real ID. At least three of the four remaining states announced they will not ask for an extension because they refuse comply.

Doug Thompson has more here.

CBS Video on Bullet Evidence

Earlier, I posted an article regarding the discrediting of bullet evidence.  CBS has released a video on the topic.

Hold ‘em or Fold ‘em? That’s The Question.

FROM THE ANB:

A few months ago, Christy Martin started letting the Ultimate Poker League hold poker nights at her club, the Ice House of Bentonville.

The club does not charge people to play, but Martin said poker has been a moneymaker for her business in other ways.

When players are away from the poker table, “they’ll play pool, they’ll eat food,” Martin said. “It brings people in.”

Poker, especially the Texas hold ‘em version featured on ESPN’s “World Series of Poker,” has experienced an unprecedented surge in popularity, and entertainment businesses are cashing in. Midland Bowl in Fort Smith, Billy’s Blues Club in Fayetteville and Zack’s Place in Little Rock are among dozens of Arkansas businesses that lure customers in the door by hosting poker games.

“Pretty much every club here (in Bentonville) has it,” Martin said.

The businesses say they are able to host the games legally, despite Arkansas’ anti-gambling laws and constitutional ban on lotteries, because customers are not really gambling - they pay nothing to play and no betting is allowed.

“We don’t take any money at all. It’s totally free,” said Cindy Carter, a manager at Fox and Hound English Pub & Grille in North Little Rock.

The National Poker Challenge has made similar claims about its poker club in Little Rock, but the club’s future is uncertain following a Nov. 18 raid by Little Rock police.

“The fact that we are most proud of is that it is non-gambling, not a lottery and that no customer ever has a chance to risk money,” the Memphis-based company said in a statement posted on its Web site, explaining how it could operate in Arkansas.

Local authorities see things differently. Four people who worked at the club now face felony charges of maintaining a gambling house.

West Memphis business proprietors being sued for $4.1 million

Bank of America is suing two businessmen who ran a West Memphis company in an attempt to collect $4.1 million.

Theodore M. Jenney of Holley, N.Y., and Stanley J. Chiras of Florida are the principals of Diaz Intermediates Corp., which produced chemicals that were supplied to Tetra Industries and other agriculture and pharmaceutical clients.

In September 2002, the company borrowed $6.5 million and eventually went out of business.

But Jenney and Chiras had each signed guarantees for half of the unpaid principal, plus any interest, court costs and other fees if Diaz defaulted on the loan. In January, the bank notified the two businessmen that the loan was in default. In May, BOA told Jenney and Chiras to pay off the loan, but they didn’t.

The bank has sued in U.S. District Court to collect the money.

Pay Check Loans Constitutional?

Some have wondered if the wildly high interest rates charged for pay check loans violate constitutional usury limitations. Apparently not. Judge Barry Sims found the 1999 law to be constitutional. However, his decision will be appealed to the Arkansas Supreme Court…with 400 % interest.

More here.

New Rules

New Appellate Rule 2 (Criminal) — Click here for details.

New Rule regarding late fees for late payment of Arkansas Bar dues — Click here for details.

New Rules governing admission to Arkansas Bar — Click here for details.

Discredited Bullet Evidence May Overturn 1995 Conviction

The Washington Post and 60 Minutes have this story:

Former Baltimore police sergeant James A. Kulbicki stared silently from the defense table as the prosecutor held up his off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki’s mistress.

“I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel,” the prosecutor said during closing arguments.

Prosecutors had linked the weapon to Kulbicki through forensic science. Maryland’s top firearms expert said that the gun had been cleaned and that its bullets were consistent in size with the one that killed the victim. The state expert could not match the markings on the bullets to Kulbicki’s gun. But an FBI expert took the stand to say that a science that matches bullets by their lead content had linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of first-degree murder in the death of his 22-year-old girlfriend. He was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the image of the calculating killer portrayed in the 1996 made-for-TV movie “Double Jeopardy.”

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a trail of false credentials, inaccurate testimony and lab notes that conflicted with what he had told jurors. Two years before, the FBI crime lab had discarded the bullet-matching science that it had used to link Kulbicki to the crime.

Now a judge in Baltimore County is weighing whether to overturn Kulbicki’s conviction in a legal challenge that could have ripple effects across Maryland. The case symbolizes growing national concerns about just how far forensic experts are willing to go to help prosecutors secure a conviction.

“If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?” said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki’s case as a public defender.

Prosecutors are fighting to uphold Kulbicki’s conviction, arguing that there is still plenty of evidence that proves his guilt.

The entire story is at the Washington Post. (You have to register but it is free.)

Developers Sue City of Harrisburg

Two developers said they are out nearly $1 million after they built homes at the city of Harrisburg’s request, but the city hasn’t installed the water and sewer lines.

Tom Ford and Charles Dunham, who own Ford/Dunham Subdivision, are suing the city of Harrisburg, the mayor and the city council alleging breach of contract, fraud and intentional infliction of emotional distress. The developers are seeking nearly $8 million in damages in Poinsett County Circuit Court.

In 2006, city of Harrisburg officials asked Ford to build moderately priced homes in a section of Harrisburg, according to the lawsuit. In exchange, the city would install water and sewer lines to the homes.

After four homes were built, at a cost of $258,000, the city then backed out of supplying the utilities, the lawsuit said.

“The refusal of the Defendants to honor the agreement has made the constructed residence virtually unsellable and uninhabitable,” the lawsuit said.

Read the whole story at Arkansasbusiness.com.