Blog - Constitutional Issues

The NCDD Blog is for our members to comment on matters of general interest in the field of DUI Defense and to ask general questions concerning the topics posted.   NCDD does not monitor or control answers from the various lawyers (many of whom are regarded as among the best in the country) who may respond and the answers or comments they provide are solely their own.  Responses to questions and comments are not legal advice: they are only the opinions of the lawyer providing the answer or making the comment. No attorney client relationship is formed between the person who posts a question or comment and any attorney who posts an answer or comment. The NCDD Blog is not for the purpose of soliciting legal advice for any specific case and should not be relied upon for that purpose. No lawyer can provide advice for a specific case without far more information than can be included in a blog post.   Furthermore, the NCDD Blog is not to be used in any form, for any marketing, advertising or solicitation by any author.  If you need legal assistance or advice, consult a lawyer in your state. You can find NCDD member lawyers in your State listed under “Find an Attorney” in the menu to the left or at the top of the page. No opinion expressed by an attorney or other person on the NCDD Blog represents the opinion or views of the NCDD.



Eyes on the Road: Automatic License Plate Readers

Eyes on the Road: The use of Automatic License Plate Readers by Law Enforcement

 

An automated license plate reader, or ALPR, is a computer-controlled, high-speed camera system. They are generally mounted on police cars or fixed objects such as light poles. 

 

The ALPR system was developed for automated toll collection on toll roads.  An ALPR camera has the ability to automatically capture an image of every license plate that comes ...read more

What It Means to Be Board Certified

Board Certification as a DUI Defense Specialist through the National College of DUI Defense is the most meaningful and significant professional development in my DUI Defense Practice.  I am one of only two (2) lawyers practicing in New Hampshire with the designation and one of only (3) three practicing in Massachusetts with the designation. Prospective clients, colleagues and friends ask me, “what does the Board Certification mean?”  I tell them that following a rigorous ...read more

How the NCDD Board Certification Exam Became ABA Approved. By Steve Oberman.

Our Board Certification Committee is often asked how the NCDD Board Certification Program came to be approved by the American Bar Association (ABA). In response to this query, allow me to provide a historical perspective.

 

In the mid-1990s, the NCDD made a historical commitment to create a Certification Program and focus on the promotion of Board Certification for DUI Defense across the nation. This need was necessitated by the concern for those accused of DUI who were (and ...read more

3 Tips For Preparing To Take The Board Certification Exam

If you are considering taking the Board Certification examination, congratulations! You are taking a huge step forward in the quality of representation that you provide to your clients. You are making a huge investment in what type of lawyer you want to be. That is a great thing. So, I want to provide you with 3 simple tips that I believe will benefit you greatly in preparing for the exam. 

 

  1. It is never to early to begin compiling your application materials. Gathering ...read more

Board Certification: Its About a Lot More than You.

When I originally took the Board Certification Test for DUI Defense it was solely about me.  In fact, when I took it, the Florida Bar rules prohibited me from telling people I was Board Certified, however, I thought I was one of the better DUI attorneys in my area, but I had so much less experience than the others.  I wanted to prove to myself that I belonged among the best.  I worked hard to qualify to sit for the test and took it after being an ...read more

Successful Criminal History Challenge in Kansas DUI Cases

In a recent appeal, No. 112828, I argued that Kansas can no longer use some Missouri DUI convictions because the acts prohibited by Missouri’s law differs from the acts prohibited by Kansas’ law.  The Kansas Court of Appeals ...read more

Are Field Sobriety Tests a Search?

I have an appeal pending that addresses, in part, the State’s ability to comment upon the Defendant’s right to refuse a warrantless search. Georgia has well-established case law that precludes the State from commenting upon a Defendant’s refusal to submit to a warrantless in “traditional” criminal cases, and I thought, perhaps naively that this rule should be extended to DUI suspects who are asked ...read more

Board Certification for You

In 2001 when I applied for Board Certification, the designation was in its infancy. I have since been recertified twice. Preparation, then and now, really consists of being a solid DUI defense lawyer and brushing up on some statistics. You cannot, and should not, cram for this exam. There’s a lot of talk about how difficult the exam is, but if you know your stuff because you’re immersed in it every day, all you really need to do is refresh your memory on some of the finer points on ...read more

How NCDD's Board Certification Program Became ABA Approved

Our Certification Committee is often asked how the NCDD Board Certification Program came to be approved by the American Bar Association (ABA). In response to this query, allow me to provide a historical perspective.

 

In the mid-1990s, the NCDD made a historical commitment to create a Certification Program and focus on the promotion of Board Certification for DUI Defense across the nation. This need was necessitated by the concern for those accused of DUI who were (and continue) ...read more

Yes, You Should Take NCDD's Board Certification Exam

Is it demanding?  Yes.  Is it challenging?  For sure.  Will it make you a better lawyer?  Hell yes.  And that reason alone is why you should take NCDD’s Board Certification Exam. I practice in Washington State, where specialties and Board Certifications are not recognized by my State Bar Association.  I had the same thoughts that many good DUI lawyers have – why should I take it?  What is the benefit?  Since my state doesn’t recognize ...read more

Why You Should Take NCDD's Board Certification Exam

Why Take the Board Certification?

 

For many years, I was of the opinion that I didn’t need to take the Board Certification test. Oklahoma didn’t recognize certification. I have never been asked by a potential client about it. I was competing for and signing up cases without it. I took the bar exam and wasn’t taken any more exams. I had lots of reasons why I didn’t need it.

Truth was that I wasn’t up for the challenge. Was I really good enough ...read more

How to Tackle NCDD's Board Certification Exam

You may have heard how difficult the DUI Board Certification test is. Unfortunately, there are many among us who allow themselves to be discouraged from taking the test because they have allowed themselves to believe it is too difficult.

 

The truth however, in my experience is a little different. Taking the test begins with the application process. This part of the task can seem to be the most difficult as you or your assistant must dredge up old files to find dispositions ...read more

The Great Dichotomy of Birchfield v. North Dakota

There are various aspects to the United States Supreme Court’s recent holding in Birchfield v. North Dakota (2016) ___ U.S. ___ (Docket No. 14-1468) that trial and appellate courts will have to address in future cases. A couple of them derive from the following two paragraphs in the opinion:

“It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath ...read more

The Incredible Shrinking Fourth Amendment

The Supreme Court decided two Fourth Amendment cases this week that diminish our freedom from police searches.  The Fourth Amendment says:

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to ...read more

Going Against the Government's Adminstrative Scheme

When decisions are made behind closed doors, it’s that much harder to get your hands on the evidence of impropriety in the decision making process. That’s what happened with British Columbia’s drunk driving scheme. When we finally got the evidence that Administrative Adjudicators were being told how to decide cases, we went to use the evidence for the benefit of our clients. The Government then sued us to force the truth back into the shadows.

 

Last week we ...read more

NCDD Members Gerstenzang and Epstein To Serve as Legal Defense Experts at Roundtable Discussion Held at the Department of Transportation Conference Center in Washington

Peter Gerstenzang and Steven Epstein Will Serve as Legal Defense Experts at an August 24th Roundtable Discussion Held at the Department of Transportation Conference Center in Washington, D.C.

 

Two NCDD members, Peter Gerstenzang and Steven Epstein, will ...read more

MADD the Interlock and the Future of DUI Defense

MADD, the Interlock Industry, and the future of DUI/DWI offenses


I have the advantage after nearly forty (40) years professional life in criminal justice of seeing both sides of the equation involving DUI enforcement and DUI defense. In the first part of my adult life, I was a state trooper and saw the early stages of the “war on drunk driving” or “war on drunk drivers” (take your pick)…in the early 1980s, the concern really was “drunk driving” ...read more

Lying Expert Witnesses: The Shabby State of Criminal Justice in Our Country

The American Criminal Justice System: “Houston, We have a Problem.”


Mark Fuhrman, convicted of a felony perjury after the O.J. Simpson trial, is now a national Fox legal analyst, an “expert witness” on police matters. Last week, the 6th Circuit Court of Appeals in Cincinnati, Ohio, ruled “Dr.” James Ferguson, a state toxicologist, convicted of perjury, could NOT be sued or found liable for lying in a murder case where his expert witness testimony was relied upon ...read more

Hero or Harasser ? Hero I Say.



Man gets arrested for warning drivers about upcoming speed traps. He is also against how the speed traps are being enforced (cops hiding behind signs and jetting out weaving in and out of traffic to catch the speeders is more dangerous than most of the speeding driving they are pursuing). My two cents: this is a free country, he has a right to protest, and he makes a good point. I realize most cities now earn a necessary part of their administration fees through the traffic ticket fines ...read more

Oral argument in Navarette v. California - or - Can Police Stop a Car for a Crime That Can't be Prosecuted?

The U.S. Supreme Court held oral argument last week in the case of Navarette v. California. This case presents the important issue of when police can stop a car based on an anonymous tip without corroborating the details provided by the caller. An anonymous caller informed police that Navarette’s vehicle was driving recklessly and almost ran them off the road. The caller provided a description of the vehicle. Police spotted the vehicle 19 miles down the road and followed for another ...read more

Two American Stories that Illustrate the Presumption of Innocence

A DUI defense lawyer must be a scientist and a legal scholar.  The most important skill of any trial lawyer, however, is storytelling. Stories are what we use to give emotional depth and impact to dry legal concepts.  Personal stories are often best but sometimes stories from history are effective.

I have often used the story of the Boston Massacre trial to illustrate the significance of the jury system and the importance of the ...read more

A Chance to Rethink DUI Checkpoints


http://www.christianpost.com/news/dui-checkpoints-yay-or-nay-109476/

I wanted to re-post this very well written article from Rachel Alexander, who is an attorney and the editor of the Intellectual Conservative.

DUI
sobriety checkpoints, also known as roadblocks, are one of those things that
sound good until you think it through. No one wants drunk drivers on the road.
But no one wants texters or people eating lunch on the road, either, which are
even more dangerous. In order to ...read more

Blood Testing- Fermentation


http://duinewsblog.org/2013/05/22/blood-testing-fermentation/


On the topic of blood testing:
 Blood Test practice tip:
“1-propanol, acetaldehyde, acetone, 2-propanol,
isobutanol… have been considered as biochemical markers.. to be flagged as
suspicious for microbial contamination.” Forensic Science Intl 174(2008)
133-151  Have seen many client chromatograms with these compounds……  Blood
testing needs to be regulated. In Texas there are NO regulations for blood
testing. ...read more

DWI/DUI Marijuana


http://duinewsblog.org/2013/03/13/dwidui-marijuana/



This news article demonstrates the fervor of law enforcement to get a DWI/DUI even when there is no evidence. A person may show from a toxicology screen that they may have THC in their system with no evidence of impairment at the time of driving (some of these tests may show positive if the person smoked in the last 6 weeks).  Scary stuff.

read more

The Dirty DUI


http://www.sfgate.com/crime/article/Ex-cop-Tanabe-convicted-in-Dirty-DUI-scandal-4784564.php

In the quiet community of Danville, California, desperate people will do desperate things.  And what greed can do to an individual is only topped by what it can do to our entire system of justice.  Gordon Gecko may have said “greed is good” but in American jurisprudence, it is toxic.  And so goes the story of the “Dirty DUIs.”

It all began in in the late 1990′s in Contra Costa County, California.  That’s where Deputy Stephen Tanabe met fellow Deputy ...read more

Do the Police Have to Read Miranda Rights to Me, When I am Arrested?

The short answer is “No.” The triggering event for Miranda
Rights is whether you are in custody or not. If you are not in custody, the
police can ask you whatever they want to ask, and if you give an incriminating
response, they can use it against you in a court of law. That’s why the police
will sometimes conduct criminal investigations over the phone. A detective may
have a report of a crime and suspect that a specific person is involved. The
detective ...read more




http://youtu.be/JlBJGG4cLG8

The Downfall of the State of Colorado's DUI Blood Testing Laboratory

There were signs that the Colorado Department of Health’s Laboratory Services Division had problems long before the bottom fell out in June. Many persistent Colorado DUI attorneys challenged the former supervisor of the state’s toxicology laboratory over a long period of time. (Chet Hardin, read more

The Scandalous Tale of the Tampa Bay Setup


http://www.tampabay.com/news/courts/prosecutors-drop-dui-charge-against-todd-mj-schnitts-attorney-citing-set-up/2133760

As Chairman of the NCDD Website Committee, I get the pleasure of tweeting news stories on behalf of the College.  Perhaps you follow us @NCDDNews.  Occasionally, you come upon a story that is too good not to share.  I followed this story for several months and I now want to share it with you.  

Ever heard the phrase, “truth is sometimes stranger than fiction?”  Well here is a tale that certainly personifies that.  It is the story of Tampa Bay attorney ...read more

Is America More Concerned About Texting and Driving Than Drunk Driving?


http://www2.potsdam.edu/hansondj/files/Driving-while-Texting-Six-Times-More-Dangerous-than-Driving-while-Drunk.html

Is America more concerned about texting and driving than drunk driving?  One recent study suggests that.  However, law enforcement and politicians have not raised their level of concern to that of the public’s.  Why is that?  The answer should be pretty obvious.  Police Departments will not get bigger budgets because they need more officers out on the streets to bust those texters.  Politicians will not get more votes by pounding on their chest and demanding tougher ...read more