ATTENTION: NEW ALABAMA EXPUNGEMENT LAW

Gov. Bentley recently signed a new expungement law that will go into effect on July 6, 2014. If you have been previously arrested and charged with either a misdemeanor or felony, and your case was dismissed or you completed deferred prosecution or drug court, you may be eligible to have your criminal record expunged. For a free phone consultation, contact us at 205-823-8000.

http://blog.al.com/.../alabama_senate_approves_bill_t_3.html

Breathalyzer Tests Accurate enough?

Like your computer, cell phone, or other gadget, a breathalyzer is a technological device that can have glitches or improper results if not used or functioning properly. Most DUI defendants do not have a comprehensive understanding of how a breathalyzer works and therefore they may not realize that results can be wrong—and challenged in court. If you were given a breathalyzer test and are facing DUI charges, remember that you do have the opportunity to challenge the evidence presented against you.

Breathalyzer function and calibration can be critical points of interest in DUI defense. In addition to reviewing evidence surrounding your arrest we will also investigate arresting officers and equipment to ensure that any blood alcohol test results were legally obtained and accurate.

Law enforcement officers must be properly trained in the administration of a breathalyzer exam. To ensure accurate results, all breathalyzers must be properly calibrated to ensure accurate results. The process of calibration involves checking and adjusting the accuracy of a unit and must be performed periodically to ensure accurate readings.

Even though many breathalyzers are calibrated by manufacturers or “pre-calibrated” they must be routinely calibrated after purchased. Depending on the manufacturing and usage, breathalyzers need to be calibrated every six months. Administering a breathalyzer also requires that a subject wait at least 15 to 20 minutes after eating or drinking. Blowing into a tester immediately can damage the sensor and require immediate calibration.

Tests should be performed by law enforcement agencies to ensure that machines are working properly. With a limited number of breathalyzers throughout the state, many agencies can put off proper calibration leading to inaccurate results. All of the information on calibration must be maintained by prosecution and should be reviewed by an experienced attorney. Lack of calibration is grounds to invalidate the readings on your breathalyzer exam.

To calibrate a breathalyzer, solutions are introduced to the machine at certain levels. If the readings match the levels of alcohol introduced, then they are a match. If not, the machine needs to be calibrated. The results do not have to be exactly the levels of ethyl alcohol contained in the solution, but they should be within .05% of solution levels.

In addition to improper calibration there are other reasons that a reading may be faulty. Improper administration, patterns of breathing, diabetic miscalculations, “mouth” residue and environmental factors can all influence the levels of alcohol that turn up on your breathalyzer. If you suspect an inaccurate BAC reading you should consult with an experienced drunk driving defense attorney.

After a DUI arrest, you could face serious and penalties and charges upon conviction including loss of license, jail time, and a longstanding criminal record. To protect your rights, all elements of your case should be reviewed, including the circumstances of your arrest and evidence presented against you, including field sobriety or breathalyzer results. Working with an experienced advocate who understands how a breathalyzer works gives you leverage and helps you protect your rights.

Call Birmingham DUI Defense Lawyer Steven F. Long at (205) 823-8000.

RECENT CASE DISMISSALS

Tuscaloosa vs H.S. -  Domestic Violence ===Tuscaloosa - 2013 - Dismissed!
State vs H.B. - Distrib. of Controlled Substance === Shelby Co - 2013 - Dismissed!
State vs W.B. - Robbery 1 == Tuscaloosa County - 2012 - Probation!
Thorsby vs. M.R. - Trespass ==== Chilton County - 2012 - Charges Dismissed!
Hoover vs. B.T. - Marijuana Possession ====> Jefferson County ===; Case Dismissed!
Harpersville vs. C.S. - DUI ====> Shelby County ===; Case Dismissed!
State vs. D.M. - Rape ====> Chilton County ===; Case Dismissed!
State vs. L.V. - DUI ====> Jefferson County ===; Case Dismissed!
State vs. J.H. - Theft, Fraud ====> Chilton County ===; Case Dismissed!
State vs. D.H. - Probation Revocation ====> Chilton County ===> Probation Restored!
State vs. D.J. - Robbery ====> Jefferson County ===; Case Dismissed!
State vs. T.R. - DUI ====> Chilton County ===; Case Dismissed!
Hoover vs. S.J. - Theft ====> Jefferson County ===; Case Dismissed!

Hoover vs. D.W. - DUI; Unauthorized carrying pistol ===; Cases Dismissed!

Evidence on Cell Phone Location Admissible

A Federal Court of Appeals in Iowa has ruled that testimony of a Defendant's location based upon his cell phone was admissible. This opinion is relevant and important to Alabama as the Court cited similar opinions from the 11th Circuit Court of Appeals in which Alabama is included.

The court allowed testimony from the State's expert witness, an engineer, as to the location of the Defendant's cell phone. A radio frequency expert testified based upon the cell phone company's records that showed the vectors and the cell phone towers that were involved for every call or text message received by the Defendant's cell phone. The engineer explained he could map out the Defendant's approximate location whenever there was an incoming and outgoing transmission, which placed the Defendant in the area of the crime (murder) during relevant time periods.

The Defendant's attorney tried to exclude the testimony and claimed lack of proper foundation. The Court disagreed, allowed the testimony, and the Defendant was convicted.

In affirming the conviction, the Court stated that the records were regular business records of the company and were automatically stored on the company server when a call is created. The engineer demonstrated personal knowledge of the call detail records and how they were automatically generated - and how this procedure tied the Defendant to the pertinent facts of the crime charged.

ATTORNEY NOTE: The testimony would be admissible in Alabama state and federal courts if the prosecution offers expert testimony and lays the proper foundation.

U.S. Supreme Court Holds that Forensic Lab Reports not Admissible without the Lab Technician's Testimony

SUPREME COURT OF THE UNITED STATES

LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS

At a state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by state law, the certificates were sworn to before a notary public and were submitted as valid evidence of what they asserted. The Defendant objected, asserting that under Crawford v. Washington, 541 U. S. 36, it required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and the Defendant was convicted. The Massachusetts Appeals Court affirmed, rejecting Defendant's claim that the certificates' admission violated his Sixth Amendment rights.

Held: The admission of the certificates violated Defendant's Sixth Amendment right to confront the witnesses against him.

(a) Under Crawford, a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. The certificates here are affidavits, which fall within the "core class of testimonial statements" covered by the Confrontation Clause. They asserted that the substance found in Defendant's possession was, as the prosecution claimed, cocaine of a certain weight-the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," but under the relevant Massachusetts law their sole purpose was to provide genuine evidence of the substance's composition, quality, and net weight. The Defendant was entitled to "be confronted with" the persons giving this testimony at trial. ATTORNEY NOTE: The same state statute was used in drug trials in Alabama. This Supreme Court case now requires all states to provide the actual analyst to testify in court, but only if the Defendant's attorney requests it.

A minor child can give consent to search parent's home

In Allen v. State of Alabama, (May 1, 2009), the Alabama Court of Criminal Appeals, in a matter of first impression, held that a minor can provide a valid third party consent to a request to conduct a warrantless search of his or her parents’ house. Here, the minor was 17 years old. The Court stated that the age and maturity of the child, and whether he lived in the home and had the right of access to the premises should be considered in determining whether such consent was valid under the totality of the circumstances. ATTORNEY COMMENT: The ruling in this case could open the door for police to come to a home, without a search warrant, with full knowledge that a young person or teenager resides therein, and intimidate them into “giving consent” to search the home. The potential for police abuse, in order to do an “end run" around the search warrant requirement, is ever present.