DUI and Retrograde Extrapolation

Delayed Blood-Alcohol Estimates Draw Criticism in Cases.

The way prosecutors saw it, the Defendant was driving while intoxicated when he raced own a Long Island freeway at 100mph this summer and slammed into a car carrying a family home from church. The fiery wreck killed a father and his two children. The defendant’s blood-alcohol reading, taken Retrograde Extrapolationabout four hours later, was 0.06 which is below the legal limit of 0.08. The Defendant was still charged with Driving under the influence and vehicular homicide because a forensic technique estimated that his blood-alcohol level at the time of the crash was actually 0.12.

This technique is known as retrograde extrapolation and has been used to win convictions in DUI cases nationwide for decades, but has increasingly come under scrutiny by drunken-driving experts as an unreliable measure of a person’s intoxication. Some defense attorneys have even labeled it junk science. A former prosecutor who is representing the Defendant stated that, “Retrograde extrapolation is about as scientifically reliable as astrology. It relies on the assumption that a person’s blood-alcohol content peaked prior to the arrest without any basis to prove that.”

While there are no national statistics to document the use of retrograde extrapolation, prosecutors in many states have offered evidence of estimated intoxication levels at trial, whereas, courts in other states have severely restricted its use requiring prosecutors to use only blood-alcohol readings taken at the time of arrest. Prosecutors who have used retrograde extrapolation swear by it as a proven technique that doesn’t reward DUI suspects for fleeing the scene and avoiding immediate blood-alcohol testing. Experts say the intoxicating effects of alcohol are not experienced until it is absorbed into the blood stream. After a person stops drinking, the blood-alcohol level peaks when the most alcohol has been absorbed and the least amount of alcohol has been eliminated. Defense attorneys argue that alcohol absorption and elimination rates vary widely depending on a person’s gender, drinking habits, the type of beverage, what a person ate and how much, and whether a person had experienced trauma, which sometimes slows the rate.

Don’t trust the junk science. If the police “expert” says a person was drunk, you need to hire an experienced DUI attorney who knows how to attack drunk driving, and DWI, charges. The experienced DUI attorneys at Durflinger Oliver & Associates will meet with you for free and explain your options. Call today, and ask about our convenient payment plans and military discount – 253-683-4180.

Criminal Attorney

Legal Financial Obligations

Legal Fines and Fees

Legal Financial Obligations Can Hurt.

Imagine paying a fine…for 25 years. It can happen, and the Washington Supreme Court just did something about it.

The Court has ruled that two Pierce County defendants will get new sentence hearings because the judges in those cases imposed standard legal financial obligations without looking at whether the defendants could afford them.

Although attorneys for neither defendant objected at their sentencings, they made their case to the court of Appeals, which declined to take up the case. The Supreme Court said it issued a ruling to “emphasize the trial court’s obligation to consider the defendant’s ability to pay.” Chief justice Barbara Madsen wrote that the sentencing judges in these cases used boilerplate language rather than assessing each defendant’s financial circumstances and whether they could pay the amounts. “The Legislature did not intend Legal Financial Obligation (LFO) orders to be uniform among cases of similar crimes,” Madsen wrote in the decision. “Rather it intended each judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant’s circumstances.”

The ruling notes studies that have shown ordering standard financial obligations without consideration of a particular defendant’s case can make it harder for the person to re-enter society. It also increases recidivism rates and makes it difficult for the government to recoup the money, according to the ruling.  Some poorer defendants never pay their legal fees and otherS pay a small stipend. That means the court stays involved in the defendant’s life much longer – possibly creating issues with employment, housing and credit rates – and the defendant could end up paying more in the long run, the ruling states. In fact, it can take some defendants 25 years of minimum payments to pay off LFOs. Failing to pay the LFOs is a bar to expunging or vacating criminal records.

Counties in Washington with higher violent crime rates, smaller populations and those that designate less of their budgets to law and justice assess higher legal financial obligations than other counties, according to the ruling. This imperative under RCW 10.01.160(3) means that the court must do more than sign a judgment and sentence with boilerplate language stating that it engaged in the required inquiry.

If you have been charged with a crime, you not only have to consider the potential loss of liberty but also the fines and fees that go along with a conviction. You need to hire an attorney who understands all the implications of a criminal charge. You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver to give you all the info and options you need to make the right choices. Call today for a free consultation. We offer military discount and easy payment plans.



Criminal Attorney

 

Should I Hire an Attorney? Yes!

Trash Collector Jail

Kevin McGill, criminal trash collector, Left, and his prosecutor, Right.

How’d you like to go to jail for picking up garbage. 30 days of jail. What if picking up garbage was your job? Kevin McGill, a sanitation worker in an Atlanta suburb has been charged criminally and sentenced to 30 days in jail for doing his job too early in the morning. Kevin should have hired a lawyer.

Mr. McGill was cited for violating an ordinance in a wealthy suburb which prohibits garbage collection before 7 am. Mr. McGill had worked for the sanitation department for three months and had never before been cited for any violation.

Instead of going to court with an experienced criminal defense attorney, Mr. McGill went with a representative from his company who later claimed he was only expecting a fine to be imposed.

Chief prosecutor Bill Riley admitted that the jail sentence was his idea because “fines don’t seem to work…The only thing that seems to stop the activity is actually going to jail.” Jail. For doing his job and picking up trash?!

After taking Kevin’s guilty plea, the court heard from Mr. Riley who claimed there was “automatic jail time for violators” of the noise ordinance. Kevin was “stunned” when he learned he might have to serve jail time for collecting garbage too early.

When Riley asked for the maximum punishment for Kevin, which was 30 days in jail, the judge granted the request without hesitation. Although Kevin tried to explain to the prosecutor and the judge that he had no criminal history and that he had never violated the ordinance before, neither seemed to care or take his lack of history into account.

Kevin, who didn’t have an experienced criminal attorney with him for good advice, grudgingly accepted the punishment, and agreed to serve 30 days in jail. 30. Days.

Fortunately, someone in the courtroom suggested that McGill do weekends in jail so that he could continue working and collecting the suburb’s trash. The court, in its only reasonable act that day, agreed. Kevin began serving his 15 weekend sentence.

An experienced criminal attorney would never have agreed to a sentence that was so clearly disproportionate to the alleged conduct. Kevin has since hired an attorney, who recently filed a motion to withdraw his client’s guilty plea.

After news of McGill’s punishment spread, it was suddenly announced that prosecutors would amend his sentence, saying in a statement, “The actions of the court with regards to Mr. McGill’s sentence for violating the city’s noise laws was disproportionate to a first-time offense.”  “As such, the court has amended its sentence to time served and further probation (is) suspended,” the statement said.

The judge who initially imposed the 30 day jail sentence admitted “There are times when taking a step back provides the opportunity for better perspective…“In retrospect, the actions of the court with regards to Mr. McGill’s sentence for violating the city’s noise laws, was disproportionate to a first-time offense.”

While the judge and prosecutor’s office ultimately acknowledged what every criminal defense attorney already knew, Mr. McGill had already served two weekends before prosecutors and the court admitted their absolutely crazy mistake. Kevin’s response to all of this was that it’s been hard on his wife who had to take care of their children and pets by herself while he was locked up. The Judge and Prosecutor didn’t care about that either when they sent Kevin to jail with violent criminals and thieves.

The moral of the story is this…don’t ever try and defend yourself in a criminal case. An experienced criminal attorney would have known that there was no automatic jail time for violators of this ordinance. The judge and prosecutor took advantage of the fact that Kevin was unrepresented and just didn’t know any better. Fortunately, there was a wide-spread public outcry, or neither the judge or prosecutor would have done anything differently in Kevin’s case.

While Kevin is fortunate that he will not be spending anymore weekends in jail, many who appear unrepresented and are railroaded by the system are usually not so fortunate. If you’re asking “should I hire an attorney?” The answer is YES! Call Natalie Durflinger with any questions about how her firm can help you, or your family, with any legal questions or issues. We offer free consultations and a military discount.



Criminal Lawyer

 

 

 

 

 

Warrantless Record Searches

Warrantless Search

Prosecutors can snoop even if you’ve done nothing wrong.

Your private records aren’t so private. A Washington law adopted in 1971 allows investigator’s to get a suspect’s bank, phone, email and other records without a search warrant. Prosecutors have been able to get those records without even showing probable cause that a crime has occurred, the standard that applies to search warrants.  Instead, law enforcement can get the information with a subpoena issued under a lesser standard in a secret hearing called a special inquiry. But some judges and justices are having problems with these warrantless searches.

Justices on Washington’s Supreme Court heard arguments over whether that’s a violation of privacy protections in the state constitution. A King County senior deputy prosecutor argued that while a warrant is required to search someone’s home or their actual phone, probable cause should not be required to obtain records a person voluntarily turns over to third parties, such as phone records. Some justices questioned that analysis noting that in many cases phone companies or cloud computing firms maintain virtually everything that’s stored on a phone, making a records search very similar to a physical search. Justice Mary Yu stated,”The distinction you’re drawing between something that exists in the phone and what’s stored offsite is a reality that doesn’t exist anymore.” Defense counsel told the justices that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special inquiry law.

The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. They were designed to be a more efficient alternative to the grand jury system, which prosecutors found to be expensive and cumbersome. The procedure allows the judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has ‘reason to suspect’ crime. Reasonable suspicion is a lesser standard than probable cause and that’s the problem. Under Washington’s Constitution, people can’t be disturbed in their private affairs without ‘authority of law’. The high court has never ruled on whether a special inquiry judge subpoena meets that standard. Under the federal constitution, such third-party records are not generally protected but Washington’s Constitution is considered more protective of people’s privacy.

Prosecutors have used the special inquiry judge subpoenas as substitutes for warrants. The justices noted that subpoenas are used to obtain records in a variety of legal proceedings, including civil business disputes and divorces, however, the key difference is that the records aren’t obtained by police. Furthermore, the party whose records are being sought has an opportunity to contest the subpoena or narrow the scope. No such opportunity is afforded under the special inquiry law; the person whose records are being searched may not ever learn about it. If the court rules that probable cause is needed to obtain records in criminal investigations, it should also clarify that subpoenas based on less than probable cause are still valid in other settings. The Seattle attorney who challenged the use of special inquiry proceedings stated, “Sometimes you want things to be more difficult and more expensive for the government, to discourage them from sifting through all our records.”



Criminal Attorney

Weed and Driving Okay?

DUI Stoned Driver

False Advertising?

If you want to avoid a car crash, trade a joint for that glass of wine. A study from the National Highway Traffic Safety Administration (NHTSA) found that drivers who used marijuana were at a significantly lower risk for a crash than drivers who used alcohol. After adjusting for age, gender, race and alcohol use, drivers with marijuana in their system were at about the same level of accident risk as those who had not used any drugs or alcohol prior to driving. Apparently, weed and driving are okay.

Interestingly enough antidepressants, pain killers, stimulants and quite a few other legal and illegal drugs do not significantly increase the risk of being in a crash. Alcohol use greatly increases the likelihood of an accident even at modest blood concentrations. In fact, a blood alcohol concentration over 0.05 increases your odds of a wreck nearly seven fold.

The study’s findings underscore an important point: The measurable presence of THC (marijuana’s primary active ingredient) in a person’s system doesn’t correlate with impairment in the same way that blood alcohol concentration does.

The NHTSA study points out that “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” There are many reasons why detectable drug presence doesn’t indicate impairment the way it does with alcohol. Most psychoactive drugs are chemically complex molecules whose absorption, action and elimination from the body are difficult to predict. Also, there are considerable differences that exist between individuals with regard to the rates with which these processes occur. Alcohol is more predictable. In heavy marijuana users, measurable amount of THC can be detected in the body days and even weeks after the last use, and long after any psychoactive effects remain. Washington Initiative 502, passed in 2012, set a legal limit at which the driver is automatically determined to be impaired at 5 of nanograms of active THC per milliliter of blood. However, this number tells us nothing about whether a person is impaired or fit to drive.

Eyewitness Misidentification

eyewitness misidentification

Eyewitnesses often help convict innocent people.

Eyewitnesses suck. They suck so much because they are the single largest reason why innocent people get convicted of crimes they didn’t commit. According to the Innocence Project, Eyewitness misidentification played a significant role in 72% of convictions overturned through DNA testing. More than 7 out of 10 innocent people were convicted with the help of very confident and very wrong eyewitnesses.

I just lost a trial where the only witness who confidently ID’d my client as the shooter was absolutely, undeniably full of cr**. It didn’t matter to the jury who did mental gymnastics to believe the witness was sixty yards closer than she really was. The jurors said that they believed her because she was so confident. Yeahh, rightttt.

I brought in Dr. Mark Reinitz, Ph.D. a psychologist who is an expert on memory and recall. Dr. Reinitz was awesome on the stand. Unfortunately, the jury really, really didn’t like my client, so they were willing to believe a witness that every other witness contradicted. Pfft.

Dr. Reinitz testified to the following facts:

  • The mind is not a video recorder. You collect fragments of info and put them together in a way that makes sense later. The more fragments you gather, the more accurate the memory will be.
  • Every time we access a memory, we add fragments, and we lose fragments. That’s why memories are less accurate with time.
  • Stress can wipe out memory. Witnesses to violent events are generally less accurate in recalling the situation than witnesses to non-violent events.
  • Post Event Information can influence memory. People frequently take outside information and insert it into a memory, believing that new memory to be accurate.
  • Confidence does not equal accuracy.
  • Weapon Focus. Witnesses frequently focus on the weapon used in a crime and do not pick up other fragments of information because those fragments are less important for survival. That is why victims can often describe quite accurately the gun pulled on them, but are quite wrong in their description of their aggressor.

Eyewitnesses suck. As soon as you learn of an eyewitness in a case, you need to interview that person and lock them down in their story. You also need to find as many other witnesses, and as much objective evidence (audio, video, etc.) as possible. Whatever happens, do not assume that an eyewitness is accurate unless you have strong corroborating evidence. 7 in 10 bogus convictions. 7 in ten.


James E. Oliver, Esq.

James E. Oliver, Esq.

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. After serving six years in the Army Reserves, James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as well respected and zealous advocate for a wide variety of clients.

DUI Basics

DUI, DWI, Drunk DRiving, Physical Control

Call today for your free consultation.

For many people, a first time DUI raises a lot of questions. What does “under the influence mean”? What happens to my license? What happens in court? What is “Mandatory Minimums Jail Time” (Man Mins)? What is EHM? What is an Ignition Interlock Device? What is probation?

Under the Influence

In the State of Washington, you are considered to be Driving Under the Influence (DUI), if your Blood Alcohol Concentration, or Breath Alcohol Concentration is .08 or greater, or if the THC concentration is greater than 5 nanograms per milliliter of blood.

Even if the alcohol or THC in your blood is below the above limits, you may still be “under the influence of drugs or alcohol if your driving was substantially impaired by the effects the marijuana or alcohol.

An experienced DUI attorney can help you understand the numbers and attack the way the testing was done, so that you get the best result possible.

What Happens to My License

There are several ways to lose your license following a DUI arrest. One way is to lose the administrative hearing, which you have to request and pay for. If you don’t request the DOL hearing, you will automatically lose you license. Another way to lose your license is if you’re convicted of DUI, or reckless driving. A drunk/drugged driving conviction will lose you your license for between 90-365 days. A reckless driving conviction will cost you your license for 30 days. Of course, both of these scenarios assume that you are not a Habitual Traffic Offender.

You may be eligible for an Ignition Interlock License (IIL), or an occupational license. With either license you must get SR-22 insurance and pay an application fee to the DOL. The also requires installation of an Ignition Interlock Device that randomly tests the driver for alcohol. An experienced DUI defense attorney is your best chance at keeping your license, or getting it back.

What Happens in Court

Your first hearing is called the Arraignment. This is your chance to plead not-guilty. The judge or commissioner will then order conditions of release. These conditions address the following: Consume no alcohol/drugs without a valid prescription; drive only with valid license and insurance; don’t refuse breath or blood tests; Don’t drive with BAC above .00; obey all laws; appear for all court appearances.

The judge can also order bail, EHM, and Ignition Interlock Device.

Your next hearing is the Pre Trial Conference (PTC), which is your defense attorney’s opportunity to negotiate your case with the prosecutor. You may have several PTC’s before settling the case, or proceeding to trial.

What is “Mandatory Minimums Jail Time” (Man Mins)?

A first DUI with a BAC below .15 requires 1 day in jail, or 15 days EHM, a $950 fine, and cost recovery for the arresting officer’s time. If the BAC was above .15, then the Man Min is two days in custody, or 30 days EHM.

The Maximum Term and Fine is 364 days in custody, and a $5,000 fine. The maximum is very rarely given.

What is EHM?

Electronic Home Monitoring is frequently referred to as “house arrest”. EHM is considered an alternative to confinement, which means the person is still considered to be in custody, but not in jail. While on EHM, the person must wear a monitoring “bracelet” on their ankle. The bracelet reports where they are. Although, people on EHM can go to work, doctor’s appointments, and do some other chores outside the house, all of these activities require prior approval.

You are frequently required to pay for EHM. Costs range from $9 – $20 per day, so it can be very expensive.

What is an Ignition Interlock Device

As mentioned above, an Ignition Interlock Device (IID), also referred to as a “blow and go”, is installed in your car and will only allow the driver to start and continue to operate the vehicle after performing alcohol free breath tests. The driver is required to pay for the device, if required. Costs range from as low as $80 per month, to as high as $150.

What is probation?

There are two types of probation: Formal, and Bench. Formal probation requires meeting with an assigned probation officer as often as he or she wants to meet with you. Bench probation simply means that your name is loaded into a computer and stays there unless you get into new trouble. At that point, the computer tells the court to call you in to explain why you are in trouble again. Probation generally last five years, but people are rarely on formal probation for the entire five years. If you violate the terms of your probation, you could find yourself in custody for 30 days.


DUI, DV, Defense Attorney

Natalie Durflinger, Criminal Attorney

Natalie Lynn Durflinger is a criminal defense attorney with over 7 years of experience representing defendants in DUI, Criminal Traffic, and misdemeanor cases. Some of the more common charges she defends against are drugs, firearms, assault, DV, and theft. Natalie completed her legal studies at Gonzaga University School of Law where she was a Thomas More Scholar before graduating with Honors in 2007. Natalie is respected by judges, law enforcement officers and deputy prosecutors across the Puget Sound.

Cops’ Flawed Tests Create DUI

SFST KlingonIf you’re pulled over for driving under the influence, don’t trust the cop’s tests. Too many people think that the cops and the machines they use are perfect. The fact is they’re not.

Any Tacoma DUI attorney will tell you that the Preliminary Breath Test cops “offer” in the field isn’t even allowed in trial for proof of DUI. It gets even better with the Datamaster machine, which went out of production in the late 1980s. Over the years, there have been numerous problems with Datamasters and the people who certify them. One thing even the cops have to agree with is that there is a margin of error in every test. That means that the number the machine spits out about your blood alcohol concentration (BAC) is really only an estimate.

Cops and State experts also have to agree that the machines can give bogus numbers indicating a driver is drunk even if he isn’t. That’s why it’s important to have an experienced DUI lawyer defend you.

These false results are frequently caused by residual alcohol in the mouth of the person being tested. Even if the driver’s BAC is under the legal limit, residual alcohol can cause an exaggerated BAC reading. Residual alcohol can be caused by everything from belching to using mouth wash.

For this reason, the State of Washington requires that officers remove all foreign objects from the driver’s mouth and observe him/her for at least 15 minutes before administering the BAC test. Removing foreign objects (food, dip, studs, gum) prevents alcohol from “hiding” in these items and causing a false high reading. The 15 minute observation period allows the residual alcohol to evaporate off. Of course, officers do not always follow these requirements and this can lead to an inaccurate result.

Social Media And Sex Crimes

Internet sex investigations.

Innocent people are accused of internet sex crimes every day.

It shouldn’t surprise you to learn that Facebook, Photobucket, Twitter and other social media companies are using advanced software and old-fashioned surveillance to catch sex predators on their companies’ sites. News reports indicate that the companies use technology and employees that search out questionable language and suspicious exchanges of personal info.

The concern I, and other criminal lawyers, have is that the software and the cyber snoops employed by these companies will get it wrong and innocent consumers will end up facing police detectives and the emotional trauma of false allegations of mixing social media and sex crimes.

How can someone sitting in a room in Silicon Valley, or central India, alerted by software of a possible thought crime, know the background of the offensive language? Without context, even a bad joke can look very, very bad. Who are the people making decisions about our private communications? What kind of training do they have? Can you even train someone to appropriately interpret a stranger’s conversation, or post?

As much as I’d like the different social media companies to screen their sites for perverts and predators, I’m concerned about the lack of privacy, and I hope I don’t type anything weird.  Those of you with a twisted sense of humor, or unusual interests had better beware. An additional concern is that the average computer today frequently has a number of different users throughout the day. How does someone identify the person who engaged in the allegedly questionable online conduct?

If the police want to question you about a sex crime, you need to immediately contact an experience criminal lawyer. DO NOT SPEAK WITH POLICE. Things are even more serious if you have been charged with an internet sex crime. The police and prosecutors will stop at very little to prove that you are guilty, while ignoring every piece of information which would prove your innocence. An experienced Tacoma criminal defense attorney can position you for the best possible outcome.

~ James E. Oliver

Don’t Trust Cop Tests

Tacoma DUI Tests

If a cop has you do a test, he already thinks your drunk. Guess what his test will show?

If you’re pulled over for driving under the influence, don’t trust the cop’s tests. Too many people think that the cops and the machines they use are perfect. The fact is they’re not even close to great much less perfect.

Any Tacoma DUI attorney will tell you that the Preliminary Breath Test cops “offer” in the field isn’t even allowed in trial for proof of DUI. It gets even better with the Datamaster machine, which went out of production in the late 1980s and is no longer warranteed to accurately test for blood alcohol concentration (BAC). Over the years, there have been numerous problems with Datamasters and the people who certify them. One thing even the cops have to agree with is that there is a margin of error in every test. That means that the number the machine spits out about your blood alcohol concentration is really only an estimate.

Cops and State experts also have to agree that the machines can give bogus numbers indicating a driver is drunk even if he isn’t. That’s why it’s important to have an experienced DUI lawyer defend you. In fact, before you take any test, you can ask to speak with a lawyer to be safe from false test results.

These false results are frequently caused by residual alcohol in the mouth of the person being tested. Even if the driver’s BAC is under the legal limit, residual alcohol can cause an exaggerated BAC reading. Residual alcohol can be caused by everything from belching to using mouth wash to booze soaked food stuck in a cavity or dental work.

For this reason, the State of Washington requires that officers remove all foreign objects from the driver’s mouth and observe him/her for at least 15 minutes before administering the BAC test. Removing foreign objects (food, dip, studs, gum) prevents alcohol from “hiding” in these items and causing a false high reading. The 15 minute observation period allows the residual alcohol to evaporate off. Of course, officers do not always follow these requirements and this can lead to an inaccurate result.

If you have been charged with driving under the influence in Tacoma, Puyallup, Fife, Fircrest, Lakewood, Seattle, or any other puget sound court, an experienced DUI attorney at Durflinger Oliver & Associates is ready to help. Call today for a free consultation.