Blog - Evidence

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.



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

Updates from the National Forensic Science Commission

The National Forensic Science Commission has fully reported on its last two meetings. Of concern, currently there are no practicing private criminal defense attorneys on the Commission.  As of meeting ten, the Commission has come up with 14 recommendations to the United States Attorney General. Here are some highlights.

Meeting ten occurred on June 20-21, 2016 in Washington, D.C. The Commission reported that it is their view ...read more

Our Tone Matters (Particularly in More Difficult Cases)

Our Tone Matters – Particularly In More Difficult Cases

 

Update from the NCDD Forensics Committee

There have been 9 committee meetings by the NCFS (National Commission on Forensic Science) created by the Obama administration. The commission is comprised of scientists, judges, prosecutors and defense lawyers.  Here are the highlights from each meeting:

 

Meeting 1: Update from the NIST committees, the objective focus has been on strengthening forensic science in the United States.

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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

Breathing Patterns, the Unreliable Test Result and Your Virtual Library

When I see a breath test being given, I always hear, “keep blowing” or “blow harder”. These commands make the subject keep blowing long after they need to, and it helps the police insure the breath test is higher than the true BAC. Especially in close cases, to the legal limit, or the enhanced limit, it can result in the difference between a not guilty and a guilty verdict. The police have no concern about inflating the number when they are rewarded for making more DUI ...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

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

The Science of Fear and Field Sobriety Testing


http://duinewsblog.org/2013/09/16/the-science-of-fear-field-sobriety-tests/

Read the Article here!

The Science of Fear & field sobriety tests:

Fear is not just mental. It is physical. It is involuntary. It causes one to lose normal mental and physical faculties. The field sobriety tests were developed in  a vacuum. The greatest travesty NHTSA perpetuates on our citizenry is the application ...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

Orange County Crime Lab Blood Error Effects More DUI Defendants Than Government Acknowledges


http://www.duilawyerorangecounty.com/blog/tag/oc-crime-lab-blood-test-over-reporting


The District Attorney of Orange County California and the Orange County Crime Lab have acknowledged that errors were made in the calibration of their blood testing equipment in DUI cases which effected the final analysis of forensic blood tests.  Their public comments however minimize the scope of the problem by suggesting that the only citizens effected by their forensic flaws were those with marginal blood alchol levels in the 0.08% range and then boldly profess that ...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.

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Oklahoma Breath Tests are Invalid

Oklahoma Court of Civil Appeals recently decided 6 combined cases regarding the validity of the breath test affidavit. Tulsa attorney Bruce Edge of Tulsa and Oklahoma City attorney John Hunsucker combined forces to bring this issue to a head

Because of their action—ALL breath tests and refusals where the affidavit was printed on the Intoxilyzer 8000 are invalid. This decision was handed down on October ...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

Are Breath Tests Really Accurate?

Are Breath Tests Accurate?

 Keep in mind that a police-administered breath test creates an estimate of the amount of alcohol that is in your breath. Like all estimates, it can be accurate or inaccurate, depending upon the circumstance. However, breath alcohol levels do not necessarily accurately reflect blood alcohol levels. In other words, a sample of breath with a certain amount of alcohol in it may be accurately analyzed for the amount of alcohol in ...read more

Michigan to Host 1 Day Boot Camp on Breath Testing; Metrology and Case Issues

One of the top dui litigators and teachers in the country headlines a 1 day seminar in the Motor City on September 21st. Justin “Encyclopedia” McShane will speak as the first of many nationwide experts on breath testing and metrology (the science of measurement). McShane will be followed by Ron Henson, PhD, who has been educating judges, juries, prosecutors and lawyers about breath testing technology and applications.



Ted Vosk, a scientist/lawyer who consulted with ...read more

Jury just says

The City of East Lansing pulled no punches in trying to convict a man of OWI based on his breath alcohol content. The man was pulled over for making an illegal turn in the middle of a street that was under construction with no traffic around. The officer smelled alcohol and asked him to step from the car after performing a “partial HGN” test on his eyes.



However, once the man stepped from the vehicle – that is when things got interesting. He performed the roadside ...read more

Jury Awards $89 Million In DUI Fatal Crash

Jury awards $89 million against drunken driver for fatal crash

ST. LOUIS POST-DISPATCH

11/25/2009

Franklin County — A jury has awarded $89 million in damages to the family of a man killed in a 2008 crash with a drunken driver, and to the man’s fiancée and daughter.

CRIME STATS

Get the breaking news from our St. Louis Crime Beat blog

See stats around St. Louis and the nation in our searchable database.

“The eye-popping ...read more

California Supreme Court holds that partition ratio evidence is admissable to challenge charge of driving under the influence of alcohol

The California Supreme Court has joined a handful of other courts in the country that have said Breathalyzer results mean different things for different people and ruled that suspected drunken drivers can attack the test results in court.


Defense attorneys lauded Thursday’s unanimous ruling for deferring to science, which has shown for years that the test results are highly variable. Prosecutors, however, predicted the move will undermine California drunken driving cases.


At ...read more