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Attorney

Why Your New York State Breath Test May Be Falsely High?

Living in the land of “Ignorance is Bliss” and “What you don’t know won’t hurt ya” can cause lots of problems for the guy on the street, and moreso for criminal defense lawyers. Understanding the science behind DUI machines can open your eyes to the truth. It’s crucial for the police to check your mouth and to watch you for 20 minutes before giving you a breath test. Contaminated samples (with mouth alcohol) can give falsely high results.
In upstate New York drunk driving tests the police take only one breath sample. The city and town police use the Datamaster breath machine, and the breath is checked only one time for alcohol. State police use the Draeger Alco Test which checks the same sample twice.
Scientists in labs normally do “duplicate” testing. They test two separate samples. Many states do duplicate sampling. I am a fan of the CSI TV show, on the show it is the forensic norm to test two separate, and distinct samples for all criminal evidence. This lab procedure assures greater accuracy of the results because we have confirmation.
Upstate NY Police Procedure: One Sample with One Test = NO Confirmation of Results
Imagine for a moment going to the doctor, and getting a high blood pressure reading on his machine. Should the doctor make a diagnosis based solely upon the one test, and prescribe medication? Doctors have to have three separate office visits with a showing of high blood pressure before making a diagnosis of high blood pressure let alone prescribe drugs for this condition. How about a more serious scenario, you have a blood test for HIV, and you are told it is positive. Imagine if the doctor states that you cannot have another test. Sorry, no second opinions for you, you just have to live with those results. Having to live with the results of one single test means coming to a conclusion with NO confirmation. This is in my opinion bad science, bad medicine, and bad testing.
Well having a breath machine spit out a number without confirmation of the result is scary stuff. The machine is an unsworn trial witness.
An inaccurate test result is bad enough but when you only get one opinion (from one test sample), and the police make that one test critical to your guilt or innocence of DWI (based on that one test) then fairness has been eliminated from the process. In a State without an expungement statute that truly is a life sentence.
Take away: To insure a clean and accurate breath sample your defense attorney must check that the police did a mouth check, and followed the mandated 20 minute observation period before your test.…

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Legal Advice

The Legalizing of Marijuana in Washington State Could Still Lead to Prosecutions and Harrassment

On Nov. 6, 2012, the marijuana law passed in the states of Washington and Colorado, prevent users over 21 to be prosecuted for possessing no more than an ounce of pot. Many people in the cities of Seattle and Denver were dancing in the streets, lighting joints and bongs sometimes in the faces of news cameras, reporters, and even police officers. Citizens of those states were now free to use marijuana for recreational purposes without fear of arrest. Analyst estimated a legal marijuana market will be bring hundreds of millions of dollars in new tax for schools, healthcare, and government functions. It was a big win for people who believe that the criminal justice system has been unfairly targeting certain groups of people in the decades old “war on drugs.”
After the initial noise died down and the celebrations subsided, the complicated facts started to resolve. It is still illegal to smoke in public places and federal properties such as military bases and national parks. It will likely be a very complicated and messy task for each county to determine the acceptable number of licenses and permits to stores, growers, and processors that will meet consumer demand. Counties will need to figure out how they will monitor the quality and potency, and ensure it is not accessible to minors. It is also still illegal to casually grow and sell the substance. The new freedom to use cannabis will more than likely increase its demand, and according to basic principles of supply and demand, there will be a lot of people growing and selling marijuana illegally.
The biggest concern that people should have is the roll that the Justice Department will have in all of this. It is unclear how they will respond to the Washington and Colorado state laws that are legally streamlining a substance that, under federal law, is still very much illegal. While states have the ability to remove all penalties under their own laws for marijuana, the federal government will still have the power to raid the establishment of any state-licensed store or grower and prosecute them in federal court. Regardless of state licenses, permits, or even appropriate medical marijuana documentation, Washington state citizens still fear that their door might get kicked down by police in the middle of the night.
While the vote to legalize marijuana was a moment of celebration for many, its possession and distribution still remain consequential. It is important for users and future users to make sure they are complying with state laws to prevent needless legal entanglements.…