Follow up to Utah's DUI Single Breath Test

I saw this story about Cynthia Sommer and was overjoyed that an innocent woman was released from jail. I was saddened that it took 2 years of jail, a jury conviction, and a "second test" to finally exonerate her. Why did it take so long for a second test. This was a murder case. This was a case that the prosecutors convicted an innocent woman. This was a case that could have been solved without ruining a life of a grieving woman with a simple duplicate test. What does this story have to do with DUI's in Utah? People in Utah accused of DUIs are requested to take a single test. The breath sample is not preserved for later testing by an independent agency. Compare the breath test machine that has the same computer chip of the 1970 version of the Atari computer game with the high tech blood testing machines used in most murder cases, and yet the first test was wrong. How many innocent people have been convicted of DUIs because only one test was given? In Utah the answer could be astonishing.

The story follows:


MSNBC.com
Cleared woman questions prosecutors
She spent two years in prison for husband's alleged arsenic death
The Associated Press
updated 6:11 p.m. MT, Fri., April. 18, 2008
SAN DIEGO - A woman who spent more than two years in jail before she was cleared of killing her Marine husband with arsenic questioned Friday how prosecutors could sleep at night, now knowing that new tests showed no traces of poison.

Cynthia Sommer, 34, said she barely slept herself on her first night of freedom after a San Diego Superior Court judge Thursday dismissed charges that she poisoned her husband in 2002.

She was convicted of first-degree murder in January 2007 after initial tests of Sgt. Todd Sommer’s liver showed levels of arsenic 1,020 times above normal.

But prosecutors found no traces of poison in previously untested tissue as they prepared for a second trial. A judge had ordered a new trial in November after finding she had ineffective representation from her former attorney.

At her trial, prosecutors argued that Sommer used her husband’s life insurance to pay for breast implants and pursue a more luxurious lifestyle.

With no proof that Sommer was the source of the arsenic detected in her husband’s liver, the government relied heavily on circumstantial evidence of Sommer’s financial debt and later spending sprees to show that she had a motive to kill her 23-year-old husband.

'I did what I did'
Sommer criticized prosecutors for questioning her behavior after her husband’s death, saying, “I did what I did.”

She was set free within hours of the judge’s ruling and emerged from the Las Colinas Detention Facility in suburban Santee.

“The only question I have for (prosecutors) is how they sleep at night?” Sommer said.

Her attorney, Allen Bloom, said he felt the evidence was contaminated. “We’ve said that all along,” he told reporters outside the courthouse.

Bloom accused the district attorney of “gross negligence.”

San Diego County District Attorney Bonnie Dumanis defended her handling of the case Friday, saying that justice was served and that her office acted appropriately.

Earlier samples contaminated?
“We did what we were supposed to do,” Dumanis told KFMB-TV. “We’re all looking backwards now and second-guessing everything.”

A recently retained government expert speculated that the earlier samples were contaminated, prosecutors wrote in a motion filed in court. The expert said he found the initial results “very puzzling” and “physiologically improbable.”

Todd Sommer was in top physical condition when he collapsed and died Feb. 18, 2002, at the couple’s home on the Marine Corps’ Miramar base in San Diego. His death was initially ruled a heart attack.

Dumanis said Thursday there was no proof of contamination but offered no other explanation. She said she didn’t know how the tissue may have been contaminated.

“We had an expert who said it was arsenic and no reason to doubt that evidence,” Dumanis said. “The bottom line was, ’Was there arsenic in Mr. Sommer causing his death?’ Our results showed that there was.”

Sommer said she wasn’t sure what she would do now that she was out of jail. She was looking forward to seeing her four children, ages 8 to 16.

“It’s already been an incredible day. I can’t wait to finish it,” she said.

© 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
URL: http://www.msnbc.msn.com/id/24207106/

MSN Privacy . Legal
© 2008 MSNBC.com

Utah DUI--Happy New Year 2008

New Years is always a busy time for me. The police officers are usually working overtime shifts to take Utah DUI drivers off the road. As a result, DUI Arrests in Salt Lake City and Ogden tend to escalate. The news media is warning people that the police will be working over time. The question is how many innocent people will be caught in the police fisherman net. The story writes below that they will be fishing around the bars. Make no mistake, if you are seen leaving a bar, you will be pulled over. You may say, "not me, I'm not doing anything wrong." Well, that is your opinion. The officers will always find a reason to pull you over. Don't be fooled. I see it all the time.

Here is the story from the Deseret Morning News.

Troopers keeping watch for DUIs

By Joseph M. Dougherty
Deseret Morning News

Published: December 31, 2007

MURRAY — During the kickoff to a DUI blitz by the Utah Highway Patrol, nine troopers arrested seven motorists who showed signs of intoxication late Saturday and early Sunday.

They also arrested two people who have alcohol-restricted licenses, meaning they had prior DUI convictions and are not allowed to have detectable amounts of alcohol in their systems while driving. An impaired minor was also arrested.

The arrests are just the first to take place leading up to one of the biggest holidays for drinking and driving.

Between 2001 and 2005, the New Year's holiday is the deadliest part of December when it comes to crashes involving an impaired driver, according to the National Highway Traffic Safety Administration.

Nationwide, an average of 54 people died each day during the New Year's holiday during the five-year period, compared to 45 deaths a day around Christmas and 33 deaths a day during the rest of December.

To prevent such deaths in Utah this year, UHP troopers will be out in force during the late hours tonight with plans to nab drinking partygoers who get behind the wheel.

The 25 troopers who will take on various overtime shifts to conduct the DUI blitz along the Wasatch Front have their time paid for from a donation by the New Car Dealers of Utah, formerly known as the Utah Auto Dealers Association.

Craig Bickmore, executive director of the 80-year-old association, said Utah is lucky to have the UHP and thanked troopers Saturday night for their work.

UHP Lt. Rich Christianson said a similar blitz on Dec. 14 netted 18 arrests — one for each trooper working that night.

Trooper Brandon Whitehead spent a couple of hours Saturday night driving a Deseret Morning News reporter around Salt Lake-area bars, and though various traffic stops yielded no DUI busts, Whitehead was confident things would pick up later in the night.

Whitehead, who belongs to the UHP's DUI squad, said his average arrest happens at 1:30 a.m., shortly after the bars have their last call.

Tonight, Whitehead's fellow troopers will be out again, patrolling the bars and looking for impaired drivers.

He has a word of advice for those who will be pulled over tonight: If you're impaired and driving, you can count on being cited because it's illegal.

Some people think officers should spend their time catching "real" criminals, he says, adding that some people call driving under the influence a "victimless" crime.

But not when there's a fatal crash involving that driver, Whitehead says, and he or a fellow trooper is faced with making a long walk to the victim's home to tell the victim's family he's never coming home again.

"The mindset is that it always happens to someone else," he said, so he's glad to give out DUI citations to impaired drivers.

"If you can make them think, if nothing else, they might get a DUI out of it, it's worth its weight in gold," Whitehead said.

The Cops are Drawing your Blood in Utah!

The Utah Highway Patrol has been training their officers to draw a citizens blood in a DUI case. Is this clean? Is constitutional? Here is a story that was run two and half years ago. Now, they are in full force and I see more and more cases with the officer sticking my clients with a needle.

OGDEN (January 30, 2005) – Some Utah Highway Patrol troopers are becoming medically certified to draw blood from motorists they suspect of driving while intoxicated. Without the medical certification, troopers now must either take a suspect to a hospital or call in a certified technician to stick a needle in the suspect’s arm and take a sample. Every time a trooper does that, it costs the Highway Patrol $50 or $60. Perry said that costs about $25,000 per year. A Federal Highway Safety Administration grant provided the funds to hire the Utah School of Phlebotomy to teach troopers how to draw blood. Beth Anderson, president of the school, said the compressed four-session course certifies the troopers as phlebotomists, legally and medically able to safely take a blood sample. The course teaches troopers how to get used to the idea of sticking someone with a needle, which isn’t always that easy, she said. ‘’The thing is, you’ve got to get over that mental state of going in through some guy’s skin,’’ she said. ‘’Then you hold [the vein] so it doesn’t roll, and you’re in there.’’ Instruction also includes patient care, confidentiality, and what to watch for if the subject is about to collapse at the idea of being stuck with a needle. The troopers actually poke each other with the needles for practice in the classes – eight sticks per trooper at each of the four sessions. By the end, the dozen troopers in an early first class sported arms flecked with bruises and needle marks.

And in Court, everyone believes the Sharp dressed Officer?

Here's and article printed in the Tribune where a dozen officers were de-certified as police officers for various forms of misconduct. Are officers always honest?

Nine Utah officers decertified for misconduct

Offenses ranged from sex with minors to abusing drugs

By Nate Carlisle
The Salt Lake Tribune

Article Last Updated: 06/14/2007 05:40:09 PM MDT

Crackdown on cops The Utah Peace Officer Standards and Training Council took action against 12 former cops on Thursday: -- Matthew J. Allen, Davis County Sheriff's Office, decertified, for felony sex abuse of a minor. -- Ryan Atack, Salt Lake City Police Department, decertified, for use of controlled substances. -- * Marcus J. Barrett, Salt Lake City Police Department, decertified, for disorderly conduct. -- Brandi L. Jones, Rich County Sheriff's Office, decertified, for having sex on duty. -- Christopher R. Stapel, Utah Highway Patrol, decertified, for theft. -- Jeremy Zobell, Draper, decertification, for sexual misconduct with a minor. -- Matthew S. Jones, Ogden Police Department, decertified, for sexual misconduct involving a co-worker and a pattern of misconduct. -- Nancy L. Peckering, Daggett County Sheriff's Office, decertified, for theft. -- David A. Schirado, Rich County Sheriff's Office, four-year suspension, for falsifying time sheets and not performing duties. -- John T. James, Summit County Sheriff's Office, three-year suspension, for driving under the influence. -- Lisa Wind, Utah Valley State College, four-year suspension, for sexual misconduct with co-worker. -- Steven Ward, West Valley City, decertification, for use of steroids * Subject has option to appeal.

Posted: 5:39 PM- SANDY - One policeman tested positive for amphetamines. Another had sex with a 16-year-old boy. And a sheriff's deputy bought $1,500 worth of cigarettes with her county credit card.
These cops and six others who misbehaved have something else in common: They have been booted from Utah law enforcement.
The Utah Peace Officer Standards and Training Council voted Thursday to decertify the officers, including Ryan Atack, the former Salt Lake City narcotics sergeant who failed a drug test last summer.
Atack and the other eight officers already had resigned or been terminated from their respective police forces.
Atack first came under suspicion on July 19 when a supervisor noticed him acting strange and agitated, according to a POST report. The police department asked Atack to take a urinalysis, which tested positive for amphetamines, the POST report says. The department placed Atack on administrative leave. He resigned three months later.
A Salt Lake City Police Department investigation revealed "Atack had been addicted to controlled substances for some time," according to the POST report. Earlier this month, he pleaded guilty to trying to pass a bogus prescription in American Fork in February.
Utah defense attorneys have raised the possibility Atack's drug use could spur a review of criminal

convictions where Atack was an investigator or made the arrest. Atack was assigned to narcotics for about two years.
Decertifying a peace officer prohibits him or her from working in Utah law enforcement.
In addition, the council voted to apply multi-year suspensions to three officers, who would can resume their law-enforcement career when their suspensions end, though POST staff said Thursday only a small percentage of suspendees choose to do so.
Among the cops who lost their certifications was Jeremy Zobell, 24, a former Draper police officer, who in November 2005 met a 16-year-old boy at a restaurant. The teen said he was 18. The pair were at Zobell's condominium watching a DVD when the boy revealed his correct age, POST says, and the two engaged in kissing, fondling and oral sex.
The 16-year-old's parents found out and the West Jordan city prosecutor took the case. Zobell pleaded guilty on Jan. 18 to a class B misdemeanor charge of contributing to the delinquency of a minor. He was fined $587 but served no jail time.
POST also decertified former Daggett County sheriff's deputy Nancy L. Peckering, who bought $1,500 worth of cigarettes on a county-issued credit card. Peckering resigned in lieu of termination on March 7, according to a POST report. A week later, she pleaded guilty to a misdemeanor theft charge.
The council on Thursday also approved revised discipline sentences for peace officers. POST Director Rich Townsend said the guidelines attempt to create more uniformity in the sentences administered by the council, particularly on drunk driving cases.
Townsend said some cops caught driving drunk were being decertified while others received suspensions.

Maybe it was just an accident that had nothing to do with DUI

In this story published by the Tooele Bulletin Transcript. In short, this young man's attorney was honest and candid with the Court. He told the Court that his client had two prior DUIs in other states. The Court and Victims were upset because they did not know about the prior DUIs. The story revealed that the young man's blood alcohol level was low.

Here's what happened from the article: http://www.tooeletranscript.com/index.php?option=com_content&task=view&id=21757&Itemid=54

"Treacherous road conditions and alcohol played factors in the accident, which happened 22 miles east of Wendover, Utah Highway Patrol Lt. Mike Rapich said.

Laub had attempted to pass another vehicle and lost control of his car. Both vehicles rolled over as a result of the collision."

Because there was evidence of some alcohol, people think that the accident was caused by alcohol. It's easy to jump to that conclusion. However, there is no evidence in the story that alcohol played a part in the accident. Maybe, it was just an accident. So here you have people angry and want to crucify this young man for his past sins and not the crime at hand. What happened to these people is horrible. What this man has to live with is horrible. But don't jump onto the witch hunt band wagon and say--"get tougher on DUIs." This appears like the government didn't search the national records.

Don't Forget to Request a DUI Driver License Hearing within 10 days

A Bill was introduced recently Entiled S.B. 4 "Driving Under the Influence Amendments -- Walker, C."

53-3-224. Filing a petition for hearing -- Judicial review of license cancellation, revocation, or suspension -- Scope of review.
(1) A person denied a license or whose license has been cancelled, suspended, or revoked by the division following an administrative hearing may seek judicial review of the division's order.

So a citizen is arrested for a DUI. The officer takes their license and gives them a 30 day permit to drive. The citizen has ten days from when they are arrested to request a hearing. The officer is supposed to explain to the person that they must send a letter to the DMV to request a hearing to get their license back.

Many times the citizen does not understand the procedure to request a driver license hearing and fail to make that request within 10 days. As the law is now, if the person feels they are not guilty of a DUI, the person can file an appeal to District Court within 30 days of the DMV suspending the citizen's license.

It appears that SB 4 is trying to take the appeal away if the citizen does not request a the hearing within 10 days.

Here's the sad part. Many people are arrested and are not guilty of the crime for which they are accused. The shock of being arrested and the circumstances surrounding the arrest destroys any concentration on what needs to happen. The only thing the person focuses on is the Criminal aspect of the case and know they need to contact the Court not realizing that has nothing to do with their Driver's License. Ten days expire before they realize that a letter needs to be sent to the DMV. Under this bill, an innocent citizen can have their license stripped away from them without any due process in asking a District Court to make the determination as to whether this is fair.

Driving Under the Influence (DUI) Mistakes the police can make and how this can help you in your DUI defense.

Mistakes the police can make on a DUI in the State of Utah:

• Stopping a vehicle on the basis of an anonymous call. An officer can not rely on a phone call to stop you, if he does not have a name and address for the caller.

• Following a driver into his residence without an invitation or without enough information to justify the entry. Your home is protected under the fourth amendment.
  

• Detaining a driver longer than is reasonable to investigate. The constitution does not allow officers to hold you without limit.
  

• Stopping a vehicle without an particularly suspicion. An officer can not stop you just because he thinks you are suspicious.
  

• Stopping a vehicle because it stops in the middle of the street or it is driving too slow. Unless there is a specific traffic ordinance you are violating, such as impeding traffic, it is not lawful for an officer to stop you.
  

• Weaving within a lane. The statute only requires you to drive as nearly as is practible within a single lane. Some cases hold that one weave into the shoulder is not enough reason for a stop.
  

• Failing to follow the rules of the Department of Public Safety and Intoxilyzer operation manual. These failures may invalidate any alcohol testing.
  

• Stopping at an improper roadblock. There are guidelines that must be followed to validate the stop.
  

• Stopping a vehicle just to check the driver's license and registration. There must be an actual traffic violation or an articulable suspicion of a crime.
  

• Stopping a vehicle without being able to identify it as the one actually committing a traffic infraction. Officers must be able to convince the Court that they stopped the right car.
  

• Stopping a vehicle for no reason at all. It's done. Officers usually do not show up in Court on these.
  

• Blocking a vehicle's exit without justification. Officers may not restrict a drivers freedom to leave without a reason.