Articles Posted in DUI/OVI continuing education

Vegas-2017-strip-closed-300x201A few hours before the Las Vegas shooting, I checked-in at the Monte Carlo, four ‘doors’ down from Mandalay Bay. I was there to attend the DUI defense seminar presented by the National College for DUI Defense (NCDD). The desk clerk said the Monte Carlo was being renovated (no pool, no spa, nearly no restaurants), and she offered to move me to Mandalay Bay. I decided to stay at the Monte Carlo and just use the pool at Mandalay Bay. My body was still on Ohio time, so I was going to bed when the shooting started. I was aware there was a lot of noise (apparently, the Monte Carlo was locked-down), so I put in earplugs and went to sleep.

Vegas-2017-news-reporter-300x225The next morning, I woke up and learned the nation’s largest mass shooting took place just down the Strip. Still on Ohio time, and traveling with an Ohio police officer, I walked down to the area. Witnesses were returning from police interviews: draped in hotel towels, crying, and wearing outfits obviously selected for a country music concert. News reporters, like the one pictured here, were reporting on the incident from every angle.

 

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And then there was the police presence. Law enforcement had Las Vegas Boulevard shut down south of Tropicana Avenue. Police cruisers and motorcycles lined Las Vegas Blvd. from one end of the Strip to the other. Groups of officers were stationed outside each resort.

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Lawyers disagree on what part of a trial is the most important. Some lawyers say the closing argument is the most important part because that’s when we tie everything together and persuade. Others say the closing doesn’t matter much: trials are lost or won during jury selection. Still others say the most critical phase of a trial is cross-examination.

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Cross-examination was the subject of a recent workshop in Charleston, South Carolina (a couple days after Hurricane Irma hit!), and I was part of the faculty for the workshop. The workshop was part of a three-day seminar presented by the DUI Defense Lawyers Association (DUIDLA), and first two days of the seminar were lectures on various DUI/OVI topics. The third day was a trial skills workshop focused on improving the attendees’ cross examination skills.

 

In DUI/OVI cases, cross examination is very important. In all OVI trials, the defense attorney cross-examines the prosecution witnesses. In many OVI trials, there are no defense witnesses testifying, so all of the testimony comes from the prosecution witnesses. Therefore, it is critical for those prosecution witnesses to be effectively cross-examined.

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In his book Good To Great, Jim Collins discusses ‘the hedgehog concept’. The concept is essentially this: although the fox is a cunning predator, the hedgehog always defeats the fox because the hedgehog focuses on doing one thing well – it rolls into a ball of spiky quills the fox cannot penetrate. The hedgehog concept applies to practicing law: focusing on one narrow area of law and doing it well leads to expertise and effectiveness. In the narrow area of DUI/OVI defense, one great way to learn is attending advanced level seminars like the summer session of the National College for DUI Defense (NCDD).

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I recently attended the NCDD summer session at Harvard Law School. Over the course of three days, some of the best DUI lawyers in the country discussed advanced topics in DUI defense. The seminar included lectures, demonstrations, and workshops. Additional learning took place informally each night as the lawyers exchanged ideas, tactics, and best practices.

While all the presentations were informative, there were two presentations which stood out to me: one about metrology, and one about pharmacology. The metrology presentation discussed the uncertainty involved in measurements and explained common failures in the measurement of blood alcohol concentration. The pharmacology presentation compared the work of law enforcement Drug Recognition Experts to that of pharmacologists in DUI/OVI cases involving drugs other than alcohol.

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Lawyers sometimes learn through trial and error;  literally.  Education at the school of hard knocks can be valuable, but learning from the experience of others has its own value.  One way attorneys can shorten the learning curve is by attending high quality continuing education seminars.  One outstanding annual seminar for DUI/OVI lawyers is ‘The Premiere Ohio DUI Defense Seminar’ sponsored by the Ohio Association of Criminal Defense Lawyers (OACDL).

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The focus of this year’s seminar, held last week, was drugged driving.  Ohio has seen an increase in the number of drivers charged with OVI for being under the influence of drugs.  With medical marijuana on the horizon, it’s likely the numbers of drugged driving cases will continue to increase.  With that in mind, the presentations addressed the science, the law and the litigation involved in drugged driving cases.

The Science Of Drugged Driving
Pharmacologist James O’Donnel taught the basics of pharmacokinetics.  He described, in terms understandable by non-scientists, the absorption, distribution and elimination of drugs in the human body.  Interestingly, he explained why retrograde extrapolation cannot accurately calculate the concentration of a drug in a person’s system at a particular point in the past;  like when the person was operating the vehicle.

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Yes, I saw Carlos Santana perform at the House of Blues.  It’s true, I rented a convertible Mustang.  I admit I hiked a breath-taking trail in Red Rock Canyon.  I also acknowledge I enjoyed the luxury of Bellagio and saw amazing views from the High Roller.  However:  the primary purpose of my trip to Vegas was to learn more about DUI/OVI defense.

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I recently attended the annual ‘DWI Means Defend With Integrity’ seminar.  The seminar is co-sponsored by the National College for DUI Defense and the National Association of Criminal Defense Lawyers.  It’s held in Las Vegas each year at the end of September or beginning of October; not a bad time to be in Vegas.  The location has historically been Caesar’s Palace, but for the last two years, the seminar has been held at Bellagio.  This year marks the 20th anniversary for the seminar, and I have attended for about 15 years.

 

This is a great seminar.  The speakers are some of the best DUI lawyers and experts from around the nation.  I have been practicing since 1997, and I have been focusing on DUI/OVI defense since 2002.  I feel like I have developed a bit of expertise in this area.  When I attend this seminar, however, I always learn more.  Hearing from the seminar faculty helps me avoid the limiting comparisons of my local market and allows me to benchmark against world class attorneys.  It also adds to my box of tools for winning.

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Last week was the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL).  One of the slogans now attached to the seminar is ‘The Premiere Ohio DUI Defense Seminar’.  When I hear that slogan, two questions come to mind:
1.  Are there any other Ohio DUI defense seminars?
2.  If so, what makes this one the ‘premiere’ seminar?

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Full disclosure:  I co-chaired the seminar this year, so my opinion is probably not unbiased.

With that said, my answers are:
1.  Yes, there are, in fact, several other seminars focused on Ohio DUI/OVI, and
2.  What makes this one the ‘premiere’ seminar is the topic of this blog entry.

One factor which makes the OACDL seminar impressive is the sheer volume of information.  The seminar lasts for about 20 hours.  During that time, about 35 speakers give presentations on topics relevant to DUI/OVI in Ohio.  No other Ohio DUI/OVI seminar comes close to providing that amount of information.  For some, such a long seminar may sound like a nightmare.  For me, it’s time well spent.

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Even someone with a poker face gives a lot of information to others through facial features. I learned this in Vegas, but not at a poker table: I learned it at the 2015 Las Vegas DUI seminar presented by the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL).

The annual seminar is titled “DWI Means Defend With Ingenuity”, and this year’s magic-show theme was “Secrets Revealed: Overcoming The Illusion Of Guilt”. The presentations included “Techniques For Making Judicial Bias Vanish”, “Magical Techniques And Strategies To Win”, and “Pulling Back The Curtain: Overcoming Biased Prosecutorial Practices”. The seminar featured some of the best DUI lawyers and experts in the country and took place at one of the best hotels in the country: Bellagio Las Vegas.

WP_20151001_010The most novel part of the seminar was Mac Fulfer’s presentation on face reading. Fulfer practiced law for 22 years but now runs face reading workshops. According to Fulfer, examination of a person’s face can reveal information about personal history, personality, and preferences. Fulfer is not talking about interpreting facial gestures. Instead, he is reaching conclusions from facial features such as the shape of the nose, the slant of the forehead, and the curvature of the mouth.

When I saw the topic, I thought face reading sounds like quackery on par with fortune telling.  Fulfer, however, explained the science behind face reading, based primarily in genetics.  Genes work in concert with other genes and share multiple functions.  The genes responsible for personality, preferences, and processing information are also involved in shaping the features of our faces.  Facial features change with time, so our faces are a combination of genetics and life experiences  (now I understand how teenagers cause parents’ faces to wrinkle).

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‘Best in the Midwest’ has become one of the slogans associated with the annual DUI/OVI seminar presented by the Ohio Association of Criminal Defense Lawyers (OACDL). A speaker from another state poked fun at the slogan by asking, “isn’t this the only DUI seminar in the Midwest?” I’m sure there are plenty of other DUI seminars in the Midwest, but this is the only one I know of which is nationally recognized and approved for credit from the National College for DUI Defense (NCDD) and the national DUI Defense Lawyers Association (DUIDLA). The seminar is two-and-a-half days and draws speakers and attendees from around the country. Whether it’s the best or not, the seminar held last week in Columbus was outstanding.

OACDL 2015 DUI seminar brochure page 1The seminar’s theme this year was ‘trying cases post-Ilg’. State v. Ilg is the breath-testing case decided recently by the Ohio Supreme Court. In that case, the Court reiterated a defendant in an OVI case has the right to challenge the accuracy of the specific breath test result in his or her case. Ilg clarified the holding of State v. Vega, which had been subject to misinterpretation for the last 30 years.

Thursday’s presentations focused on scientific issues in OVI cases. Thomas Workman from Massachusetts discussed breath test data, explaining what data is maintained, what data is not being provided to defendants, and what should be done about it. Pharmacologist/statistician Robert Belloto and attorney Andrew Bucher presented a scientific and statistical assessment of the Drug Recognition Evaluation program. There was also a panel of judges discussing State v. Ilg and breath test challenges at trial. It was interesting to hear the different interpretations of Ilg and various predictions about the future of breath-testing litigation in Ohio OVI cases.

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Last week, I completed a short course in gas chromatography. Completing the course reminded me of what Stephen Covey used to say: “To know and not to do is really not to know.” He is so right. It’s one thing to know the law of blood and urine testing. It’s a very different thing to know the science of blood and urine testing. To know the science, you have to do the science, and lawyers typically do not have the opportunity to do the science. Now, however, lawyers get to do the science of gas chromatography in a short course presented by the American Chemical Society.

The course, Forensic Chromatography Theory and Practice, is held in Chicago at the Axion Analytical Laboratories & Training Institute. Axion is the training arm for the American Chemical Society. The president of Axion, Lee Polite, Ph.D., is a leading authority in chromatography and serves as the primary instructor for the course.

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The 40-hour course consists of both lectures and labs. The lectures feature analogies which make chemistry understandable to even the least scientific lawyers. During the lectures, participants learn the scientific principles underlying the operation of the gas chromatograph. They also learn the parts of the instrument and the multitude of variables which must be set correctly for the instrument to produce an accurate result.

The labs are hands-on. Class participants run tests with known and unknown substances and learn to interpret the printed chromatograms. Students manipulate testing conditions to understand how those conditions affect results. Class participants also calibrate the instrument, use the associated software to program a calibration curve, and even take apart the injectors and columns.

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If you get a ride from an ARIDE officer, it’s because you’ve been arrested for DUI/OVI. The acronym stands for Advanced Roadside Impaired Driving Enforcement, and ARIDE is a course which some police officers complete to improve at investigating and prosecuting Ohio DUI/OVI cases involving drugs. To better understand what officers are learning at ARIDE, I recently completed the program myself, and I expect it to improve my effectiveness in defending cases involving driving under the influence of drugs.

ARIDE photo with certificateBefore an officer can take the ARIDE course, the officer must first complete the training program for DWI Detection And Standardized Field Sobriety Testing sanctioned by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP). I completed that program in 2005. That program explains the three phases of DUI/OVI investigations and includes hours of hands-on training for administering the three standardized field sobriety tests (SFSTs). The three SFSTs are the Horizontal Gaze Nystagmus test (follow the pen with your eyes), the Walk And Turn test, and the One Leg Stand test.

Field sobriety testing is the focus of the first part of the ARIDE course. Participants undergo updated training for administering the SFSTs and are introduced to two additional tests. The first new test, the Romberg Balance test has requires a subject to tilt his head back, close his eyes, and estimate 30 seconds. The second new test, the Lack of Convergence test, involves moving a stimulus close to the subject’s nose to see if the subject’s eyes cross. Course participants must pass an SFST proficiency test to continue to the second part of the ARIDE course.

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