Virginia backs down from drunk driving charge after attorney threatens to test accuracy of breathalyzer machine

Fairfax, VA

Questioning dogmatic faith in the machine...

A Fairfax County, Virginia General District Court judge earlier this month backed away from driving under the influence of alcohol (DUI) charges filed against a motorist after a defense attorney cast doubt on the accuracy of the county's breath testing machines. Police and courts often entrust machines like the ten-year-old Intoxilyzer 5000 with the authority to exonerate or convict a motorist of serious charges that carry significant monetary penalties, loss of license and jail time. Richmond DUI attorney Bob Battle found that this particular machine, which is being phased out in Virginia, has a significant weakness.

"When I got the records of the machine, it showed that one of the motors -- it's called a chopper motor -- had been replaced," Battle explained. "I found out that Virginia bought a bunch of replacement motors from random companies and they couldn't even tell you what motor was in there... it's very important what they are, and if they measure that the Ohms that they use, the frequency, is different than the original, it's going to cause the whole contraption that is this Intoxilyzer 5000 to be inaccurate."

Electrical engineer Thomas Workman, a former quality manager for Hewlett Packard, explained the importance of this particular motor to the Intoxilyzer 5000.

"If a replacement motor rotates at a faster RPM, then the processor may not have enough time to complete all the computations it must perform each revolution of the wheel (since there are more computations that must be done, since there are more revolutions of the wheel per unit of time)," Workman wrote. "Make the motor turn slower and the problem is that the software thinks that slopes are not being met when they should be, making the mouth alcohol detector faulty."

Although the general principles behind the machine's components are well known, the software used to generate the final calculation that determines guilt or innocence is held to be a "trade secret." Manufacturer CMI Inc. has refused to disclose the source code that would allow an independent analysis of the device. The state Department of Forensic Science guidelines only recommend testing Intoxilyzer machine components with an oscilloscope -- something the state has never done.

Presented with the evidence on the motor issue, the judge in the Fairfax County case agreed to allow experts to test the breath machine for accuracy. To avoid this, the prosecutor offered to reduce the DUI charge to reckless driving allowing the accused to keep his license -- a deal too good to turn down. Battle believes one day the machine will eventually be tested.

"I sincerely believe it's going to be like that scene from the Wizard of Oz," Battle said. "Once they roll back that curtain, they're going to find that this machine is not the perfect machine they try make it out to be -- that this is an outdated contraption. That's why Virginia, when they contracted for the new replacement machines, one of the conditions was that it couldn't have this type of motor in it."

In 2007 the General Assembly appropriated $1.8 million to replace the Intoxilyzer 5000. At the time lawmakers argued that replacement was necessary because machines like the Intoxilyzer were "dated, unstable and unreliable."

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New Jersey cop convicted of DWI after 2005 crash in 2nd accident, charged DWI again and suspended

Hudson County, NJ

hyp·o·crite [hip-uh-krit]

–noun

1. a person who pretends to have virtues, moral or religious beliefs, principles, etc., that he or she does not actually possess, esp. a person whose actions belie stated beliefs.

2. a person who feigns some desirable or publicly approved attitude, esp. one whose private life, opinions, or statements belie his or her public statements.

[Origin: 1175–1225; ME ipocrite < OF < LL hypocrita < Gk hypokrits a stage actor, hence one who pretends to be what he is not, equiv. to hypokr(nesthai) (see hypocrisy) + -tés agent suffix]

Hudson County Sheriff Juan M. Perez has suspended the sheriff's officer who was already on modified duty when she was arrested in Manhattan on a drunk driving charge this weekend, officials said.

Officer Aleisha Cruz, 30, of Kearny, was suspended without pay yesterday pending the outcome of the police investigation triggered by her arrest at 4:15 a.m. Sunday at 42nd Street and Dyer Avenue, officials said.

Cruz was apparently involved in a collision near the mouth of the Lincoln Tunnel, and Port Authority police arrested her based on her behavior after she refused to take a Breathalyzer test, officials said.

On March 16, 2006, Cruz pleaded guilty to drunk driving and refusing to take a Breathalyzer test in connection to a July 2005 incident in Lyndhurst, officials said.

In that incident, Cruz became enraged when her date told her he wasn't going to spend the night with her and she repeatedly drove her 2005 Ford Explorer into his car, cops said. When he got out of the car to calm her down, she struck him with the SUV, but he wasn't seriously injured, police said.

Criminal charges of aggravated assault and assault with an automobile were filed against her, but she entered a pre-trial intervention program and the charges were to be dropped if she stayed out of trouble for 18 months, officials said at the time.

Since then, Cruz has been unable to carry a gun based on an order by the Bergen County Prosecutor's Office -- which handled the Lyndhurst case -- and has been assigned duties that can be performed by an unarmed officer, a sheriff's office spokesman said.

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Prosecutor drops DWI charge against man with 0.00 blood-alcohol , says can't prove case beyond a resonable doubt

Atlantic City, NJ

This case clearly illustrates the insanity caused by the DWI industry. This 47 year-old man was arrested and charged with DWI and reckless driving after stopping at a sobriety checkpoint roadblock, despite the admitted facts that (1) no improper driving was observed and (2) a Breathalyzer test resulted in a blood-alcohol reading of 0.00 percent.

He was arrested and taken to jail, his car was towed from the scene, and he had to hire an attorney to defend him against the charges.

The city prosecutor admitted Wednesday she had no case against a Somers Point man who had been charged with drunken driving even though he registered a blood-alcohol reading of 0.00 percent.

Michele Verno dropped both the DWI charge and a reckless driving charge against Tyrone Foxworth on Wednesday in municipal court, saying she could not prove the case beyond a reasonable doubt.

Afterward, Foxworth, a black man who in 2003 led a rally against racial profiling in Linwood, and attorney Justin Laughry questioned whether race was a factor in the initial arrest.

"It's a question in our minds," said Laughry, "and we have to reflect on it."

It was about 3 a.m. Nov. 27, Thanksgiving morning, when Foxworth approached a DWI checkpoint along Shore Road while driving with two friends.

Verno told Judge Matthew Powals that standard procedure at such checkpoints is for every fifth vehicle to be flagged and pulled over.

"I felt as though the stop was arbitrary," Foxworth said Wednesday, "although I agree that there are procedures and practices they're supposed to follow."

When asked by police if he had been drinking, Foxworth said he answered no. He was then asked to perform a sobriety "balance" test, he said, after which he was placed under arrest for drunken driving. A Breathalyzer test, however, resulted in a blood-alcohol reading of 0.00 percent.

It was unclear whether it was alcohol or drug use that was initially suspected by police, however. Laughry said one of the passengers may have been drinking - leading to an the odor of alcohol in the car - while the arrest report by Officer Kristina Ramsi states that Foxworth was suspected of being "under the influence of alcohol/drugs."

Northfield police Chief Robert James said only that there was a "suspicion of intoxication."

"I don't want to say alcohol or narcotics," James said Wednesday.

Foxworth denies using either drugs or alcohol that night. In any event, there could be no evaluation of drug use anyway, since there was no drug-recognition expert available at the time of the arrest.

"It was a multijurisdictional DWI checkpoint," James said. "Officers for several departments were involved. We followed procedure and followed the guidance of the legal adviser on call that weekend."

Foxworth, James said, "was in one of the last cars to go through the checkpoint." Northfield does not have its own drug-recognition expert, he said, and the department had been "utilizing an officer from another agency that had already been released for the night. We were unable to locate (another) one."

No blood or urine was taken for testing, Verno told the court - "And even if they had a drug-recognition expert, I doubt they would have," Laughry said.

The reckless driving charge was tied directly to the DWI charge, and Powals made sure to enter into the court record that there was "no observed improper behavior" on Foxworth's part.

"They didn't pull him over because he was doing anything wrong," Powals said. "It was random."

Foxworth was one of four people to be charged with DWI that night at the checkpoint, which had been featured in a Dec. 1 story in The Press of Atlantic City examining the effectiveness of such stops.

"I presume that their endgame required me to at least get an attorney to get to the bottom of this," Foxworth said of why he believed the charges were not dropped earlier. "I'll be reviewing my options with my attorney how to proceed with regard to whether my constitutional rights were violated."

Foxworth led a rally against racial profiling targeting the Linwood Police Department in 2003. He had been pulled over and charged with DWI in April 2003 by a Linwood officer who, Foxworth said, "lost his temper" and approached him "in a threatening manner."

In an interview in January, Foxworth was more vocal about the Northfield case.

"I don't think any other driver was stopped and got a reading of 0.00 and was issued a DWI," he said. "My car was towed, I had to pay to get my car out and I had to hire an attorney. ... The issue here is simple. I'm 47 years old, and I know that race is an issue in this country. The only way to change that is with exposure."

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Man arrested for DWI after driving to police station to visit friend arrested earlier for DWI

Spring Valley, NY

OOPS!

The Rockland County Sheriff's Department today arrested a man on a drunken driving charge after he came to headquarters to assist a friend who had been pinched on the same charge.

Sergei Marincenko, 22, of Fairview Avenue in Spring Valley, was arrested at 5:10 a.m. today and charged with operating a vehicle with a blood alcohol level of .08 percent and driving while intoxicated, both misdemeanors, the Sheriff's Department said.
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Marincenko went to the Sheriff's Department to visit a friend who was under arrest for an unrelated DWI charge. Marincenko was seen driving his vehicle in a restricted area, was stopped and was found to be intoxicated, police said.

He was arrested, processed at the Sheriff's Department and released on a summons. He is due in Clarkstown town Justice Court March 23.

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Texas prosecutor busted for DWI

Austin, TX

hypocrite
Main Entry: hyp·o·crite
Pronunciation: \ˈhi-pə-ˌkrit\
Function: noun
Etymology: Middle English ypocrite, from Anglo-French, from Late Latin hypocrita, from Greek hypokritēs actor, hypocrite, from hypokrinesthai
Date: 13th century
1 : a person who puts on a false appearance of virtue or religion
2 : a person who acts in contradiction to his or her stated beliefs or feelings
— hypocrite adjective

Austin police arrested a Travis County prosecutor Saturday on the charge of drinking and driving.

Richard Gentry, who works at the Travis County Attorney's Office, was pulled over on West 6th Street for a traffic violation, according to Austin police.

They say an officer gave Gentry a field sobriety test and he agreed to take a breathalyzer test. According to police, Gentry's blood alcohol level was .18. The legal limit in Texas is .08.

Travis County Attorney David Escamilla told KEYE Monday Gentry has submitted his resignation. Escamilla will appoint a special prosecutor to handle the case to prevent conflict of interest.

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Save a Life Tour is on the road, cashing in on DWI prevention

Utica, NY


The Save a Life Tour is the cash cow brainchild of Kramer Entertainment, Inc., "The Nations Leader in High-Tech Entertainment and Attractions."

Kramer Entertainment is a full service agency providing high-tech, crowd gathering entertainment and attractions to colleges, universities, corporate events, conventions and places of business. Attractions include drunk driving simulation and awareness programs, full-motion NASCAR simulators, live acts, interactive events, games shows and much more. Kramer Entertainment is located in Grand Rapids, MI and has been in business since 1949.

Kramer rakes in a per event charge of about $5,000, but that's not all. They also shamelessly go after corporate sponsorship money, including paid product placement in the simulation. Still can't afford the $5k charge, don't worry. Kramer provides information on funding possibilities to help pay their fee.

The Save a Life Tour visits over 250 locations annually. That's $1,250,000 per year in event fees. Not bad for a traveling video game. One only can imagine how much more Kramer is collects in corporate sponsorship fees.

The DWI industry is just that. It's an industry.

Utica College junior Andrew Demyan was swerving all over the road Monday afternoon. He barely missed hitting a woman on the sidewalk as he over corrected after turning down a street.

“I felt like I was driving drunk,” the 21-year-old said after he stepped out of a drunk driving simulator set up in the student center of the college. “I’m definitely going to throw my keys at people when I drink.”

The simulator was part of the Save A Life Tour that stopped at the college Monday for six hours to show students the consequences of drinking and driving.

Brian Beldyga, cofounder of the Save a Life Tour, said the program is designed to grab students at different levels. There is “the shock factor” of an open casket, the more than 30-foot simulator and screens, Beldyga’s speaking and videos showing victims of DWI crashes.

Nine-and-a-half years ago, Beldyga watched his fiancee die after a 19-year-old who had consumed three beers hit the car they were in.

While Beldyga wasn’t drinking that night, he said before that he had gotten behind the wheel “maybe 1,800 times” after drinking.

“I thought I was the exception to the rule,” he said.

Since then, he has toured the country hoping that someone who sees the presentation or drives in the simulator may someday take the keys away from a drunken friend.

“This is for the friend that knows it’s bad,” he said. “Maybe something they learn here will make them say ‘I’ll take the keys.’”

The simulator was sponsored by the Inter-Greek Council to help curb drinking and driving over spring break next week.

“We were looking for something different,” said Maureen Murphy, council advisor and assistant director of student activities. “This has the best shock factor and is real and in your face.”
In the more than nine years Beldyga has been doing the tour, he said he has never met anyone who admits to driving while drunk.

“They never cop to being drunk while driving,” Beldyga said. “Drunk to them is vomiting and you can’t say your own name. But we know it’s a problem. If you have one drink, you’re affected.”

Senior Matt Falso, 22, said he enjoyed the presentation.

“It’s a good tool to encourage people not to drink and drive,” he said. “I’m going to head back to the dorms and grab a couple of people to see it.”

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Schenectady police officer suspended, charged with DWI

A city police officer, apparently returning home from an off-duty fundraiser, was arrested Sunday in Colonie on misdemeanor charges of driving while intoxicated and leaving the scene of an accident, police said.

Officer Michael R. Brown, 27, a five-year veteran, was immediately suspended for 30 days without pay, Schenectady Police Chief Mark Chaires said. Chaires said the suspension took effect immediately after Colonie police released Brown on an appearance ticket.

Brown, of Pattersonville, is accused of rear-ending a vehicle at 10:15 p.m. Sunday on Route 9 at Menands Road, said Police Lt. John Van Alstyne. Brown also allegedly drove away from the accident. Colonie police found his vehicle two-tenths of mile away on Route 78 and police said he appeared to have been drinking.

Brown, who was not on duty at the time, refused a Breathalyzer test, Van Alstyne said. Refusal results in immediate revocation of the person’s driving license. Van Alstyne said police do not know Brown’s blood alcohol content.

Brown, however, smelled of alcohol as he spoke with a Colonie police officer at the scene, according to papers filed in court.

According to papers:

The accident had initially been called in as a hit-and-run, with one of the vehicles leaving the scene. But as the responding officer arrived, Brown’s truck was found stopped a short distance away.

Brown got out of his truck and was bleeding from his head. Blood ran down the front of his face and onto his clothes.

Brown admitted to driving the truck. He was also “very concerned” about the driver of the other vehicle. Upon asking Brown for identification, the officer spotted Brown’s Schenectady police badge in his wallet.

Brown told the officer he played in a band and had been coming from a fundraiser in Charlton to benefit a restaurant that had burned recently.

That was an apparent reference to an event for the Charlton Tavern, which was destroyed by fire Jan. 10. The fundraiser began at 8 p.m. at the Elks Lodge in Clifton Park, according to a published notice.

Brown also allegedly admitted to having a few drinks. There were several beers in the car, some full and some empty. He later told a doctor, in the presence of the officer, that his last drink was at 5 p.m.

As he was being loaded into an ambulance, Brown allegedly declined to take a breath screening test.

Brown’s injuries required a total of nine stitches to close.

The other driver’s injuries were minor, but she sought medical attention, police said. Van Alstyne did not have the woman’s name, nor the extent of damage to each vehicle.

Brown’s vehicle struck the other vehicle, which was stopped at a red light, according to police. The impact sent it the woman’s car into a third vehicle, Van Alstyne said. Brown was heading south toward Albany when the accident occurred. A witness called in the accident.

Chaires said Schenectady police have launched an administration investigation. “There will be some type of sanction. We have zero tolerance for driving while intoxicated,” Chaires said.

Brown came to the police force in 2004 after graduating from the police academy, Chaires said. Brown’s father, also named Michael Brown, is a longtime detective with the police force.

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Cop charged in DWI hit and run crash

Atlantic City, NJ

A 14-year veteran of the Lower Township Police Department is charged in a hit and run accident over the weekend.

Officials say just before 2 a.m. on Saturday morning, a gray dodge pickup truck swerved into the opposite lane and sideswiped a New Jersey Transit bus on Townbank Road near Bayshore Road.

Authorities followed scrape marks on the street to a home on Crawford Road and found a pick up truck with heavy front-end damage. Officer Douglas Whitten, 44, was charged with driving while intoxicated, leaving the scene of an accident and failure to report an accident.

Officer Whitten is suspended from duty.

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