Recent Blog Posts

Motorcycle Riders--Watch Your Backs

Reno DUI Attorney — Fri, 23 Sep 2011 23:12:00 GMT

Okay, we all remember the joke where some unlucky kid in our school was walking around with a sign on his back reading, "Kick Me." In case no one told you, riding a motorcycle is a lot like being that kid, and a lot of police officers have very little tolerance for your rights to ride a bike around town making noise and burning gas. If your colors are "in your face," advertising your membership in the "Satan's Rascally Riders" motorcycle club, your chances of being detained are high.

In other words, YOU ARE A TARGET FOR POLICE OFFICERS if you ride a motorcycle. There is no such thing as safety in numbers, nor does it much matter that you didn't actually touch the lane marker--you stand a better than average chance of getting stopped by law enforcement than your grandfather did in his Buick.

In Reno, we are currently in the midst of the motorcycle festival, Street Vibrations. As a DUI Defense lawyer, I have seen a number of "iffy" stops of motorcycle riders, along with illegal seizures and arrests. If you are detained while riding a motorcycle, expect to be treated with something like disdain. Certain defenses are not available to you if you are on a bike, rather than in a car. If you look like a badass, you will be treated as a badass, and it is quite possible that you could be subjected to unreasonable police conduct, just because the officer doesn't like motorcyclists. If you are stopped, you ARE NOT REQUIRED to perform any of the "stupid human tricks" or field tests that are offered. You ARE REQUIRED to submit to either a breath or blood test if ordered to do so by a law enforcement officer.

Drive carefully, without lane splitting, and be sensible. Don't ride after drinking or indulging in any controlled substances. Have a great time, and if the police try to ruin your day by arresting you, call the office of Walter B. Fey, Attorney at Law.

It's All a Numbers Racket!

Reno DUI Attorney — Fri, 15 Jul 2011 19:48:00 GMT

Many motorists are of the mistaken belief that DUI laws are “Drunk Driving” laws, which make it illegal for intoxicated drivers to operate vehicles. As a Nevada DUI defense lawyer, I can assure you that nothing could be farther from the truth. Many years ago, the American Medical Association was asked to supply a Blood Alcohol Concentration (BAC) value that would be consistent with impaired driving. The value the AMA came up with was 0.15 grams of alcohol per 100 milliliters of blood. States, including Nevada, adopted this standard.

Over time, the per se value was lowered due to lobbying from victims’ rights groups, like Mothers Against Drunk Driving (MADD), and also due to a very negative public perception of drunk drivers. The value was decreased to 0.10 g/100 mL, and then down to 0.08 g/100 mL, the current value. When the illegal per se value was decreased from 0.15 down to 0.10, the decrease in highway deaths and injuries was striking. The last decrease, which took place in 2003 to the current level of 0.08, did not result in such a dramatic drop in injuries or deaths. Why not?

As a DUI defense lawyer, I believe that we have reached a point of diminishing returns because the current per se level of 0.08 doesn’t correspond to a consistently measurable level of impairment. Some people are impaired at a 0.08; some people are not. Yet, the law makes no distinction between the impaired driver and the driver who is merely “over the limit.” In other words, it makes no difference if you are drunk or not if you breath or blood test reveals an elevated BAC.

Some facts:
1. It is LEGAL in Nevada to drive a vehicle after drinking alcohol. Otherwise, what is the purpose of a parking lot outside a bar? It is only illegal if you are under the influence of alcohol, or if your BAC level is over the per se limit.
2. Your sobriety is rarely being evaluated by officers who make arrests. What the police are doing is seeing if you are unable to pass Field Tests, which do not themselves indicate intoxication but rather tend to predict an elevated BAC level.
3. Even if you are physically able to safely operate a motor vehicle with a 0.08 BAC, you are driving illegally if you do so.
4. You are not competent to testify to what you think your BAC was at the time of operating a motor vehicle.
5. Your complete lack of impairment is never a defense to a per se charge of DUI.

Walking Back the Dog....

Reno DUI Attorney — Fri, 08 Jul 2011 23:11:00 GMT

A retrograde extrapolation is a "scientific" method in which the State attempts to determine a Blood or Breath Alcohol Concentration (BAC) at some earlier time when a blood or breath test is taken at a later time. Knowing, for example that a person's blood was drawn 2 hours and 15 minutes after driving, and that the BAC is 0.10 grams/100mL of blood, it is theoretically possible to determine what the BAC was AT THE TIME OF DRIVING. I say theoretically, because first, lab technicians are notoriously inept at retrograde extrapolation, and second, the "science" which underpins the process is sketchy and open to attack.

Generally, the attempt to do a retrograde extrapolation is made after only one sample of blood or breath is obtained and for whatever reason, the sample is taken outside the 2 hour window permitted under Nevada law for a per se illegal status. The normal scenario goes something like this: A motorist is discovered at the scene of an accident in a rurual area of the county and after determining that he is not injured, he is transported to the jail for evidentiary testing. The motorist requests a blood test, and because the phlebotomist is not onscene at the jail, he is transported to a local hospital for blood testing. Despite the officer's best efforts, the blood sample is drawn 2 hours and 5 minutes after the motorist was discovered in his vehicle, in actual physical control of it.

The State wants to have the lab use the value of the BAC obtained from the blood draw used to establish a theoretical BAC which occurred at the time of driving. Now, if the blood had been obtained within the 2 hour window, there would be no problem with using the BAC because Nevada law permits a conviction if a person measures over 0.08 grams/100mL of blood 2 hours after driving. Here, however, the sample is obtained beyond that 2 hour mark, the only way to use a BAC is to manufacture one at an earlier time. The thinking is that if the BAC was illegal at time A, then it is possible to show that it was also illegal at time B. This thinking is actually flawed in most instances.

In order to make an accurate retrograde extrapolation, there are certain assumptions or facts that are required:

1. The measured BAC must be assumed to be accurate;
2. No alcohol was consumed between the time of the blood draw and the time being extrapolated back to (in this example, 2 hours and 5 minutes earlier);
3. No alcohol is being absorbed between time of the blood draw and the time being extrapolated back to; and
4. The rate of alcohol metabolism is same as members of the normal population and is consistent over the time period being extrapolated back to.

As a DUI defense attorney, I know that these conditions and assumptions are just not realistic in most cases and in a case where the State wants to "walk back the dog" to the time of driving, they will face an uphill battle.

You need an "Expert" for all that.....

Reno DUI Attorney — Sat, 02 Jul 2011 23:06:00 GMT

Here they come, the “Experts” who are going to be able to unerringly determine whether a motorist is under the influence of drugs or prohibited substances. These are the Drug Recognition Experts, or the DRE officers.

In what was intended to be a massive nationwide program of education and training for experienced law enforcement officers to use when confronted with motorists who seem impaired by something other than alcohol, the National Highway Traffic Safety Administration (NHTSA) created the Drug Recognition Program.

What does DRE stand for? Take your pick; it either stands for Drug Recognition Examination or it stands for Drug Recognition Expert. The word “Expert,” however, is truly a misnomer, because in the State of Nevada, an expert has a particular definition. I could call myself a legal “Expert” or a trial “Expert,” for example, but that wouldn’t make me one. In order to qualify as an expert in a Nevada court, it is incumbent upon a judge to declare that a person is an expert, and in many cases, to be “certified” by the judge as an expert.

Police officers who complete the DRE training are no more experts in drug detection than I am, yet they come into court and posit and deduce and surmise and speculate and guess about whether a motorist is under the influence of Cannabis, or Methamphetamine, or Zoloft, or whatever drug may be in the person’s system.

A drug recognition examination (DRE) is supposedly conducted by a drug recognition expert (DRE) but as a Nevada DUI Lawyer, I have yet to see a completed DRE examination in a DUI case. What normally happens is that a person is asked whether they have consumed any drugs and if the answer is yes, the investigation focuses on the time and quantity of ingestion of THAT PARTICULAR DRUG! If a motorist admits to using marijuana (Cannabis), for example, the DRE officer invariably concludes that the motorist is under the influence of that drug.

I once had a client who was accused of being alternately under the influence of either a narcotic analgesic drug or a central nervous system (CNS) depressant. Not only was my client absolutely NOT under the influence of any medication, but the officer testified that his training and experience in detecting drugged drivers was such that he didn’t need to conduct a full DRE investigation because her overt symptoms of drug intoxication were so acute. Why was she arrested? She truthfully told the officer that she had a prescription for a muscle relaxant medication, and then showed him the prescription bottle. That’s when the phony drug recognition tests were administered and she was taken into custody.

When confronted with a rabid, zero tolerance, drug phobic police officer, you should contact a Nevada DUI Lawyer to assist you. Your freedom is at stake.

Don't Bogart that Joint, my Friend...

Reno DUI Attorney — Fri, 24 Jun 2011 23:55:00 GMT

The latest craze among law enforcement officers is detaining and arresting people for what is known as “drugged driving,” or operating a motor vehicle under the influence of either a controlled substance or a prohibited substance.

For simplicity’s sake, controlled substances are usually “good” drugs, such as Valium, Xanax, Percocet, and Ambien, the medications which are prescribed by medical doctors and which responsible, law abiding citizens are permitted to use responsibly. Prohibited substances are those controlled substances which are “bad” drugs, like Cannabis (marijuana), Cocaine, PCP (Angel Dust) and the other substances which are drugs of abuse and which have limited medical uses.

As a DUI defense lawyer, I have noticed that law enforcement officers (LEO) do not much care whether a person has lawfully ingested medication or in the alternative, has unlawfully used an illegal recreational drug. This means that law abiding citizens are often caught up in the legal net that used to be reserved for lawbreakers. What is going on?

I have personally had cases where a motorist stopped for an equipment violation has been forced to subject himself to invasive and painful blood and/or urine testing when a LEO has observed a bottle of blood pressure medication or when a motorist has admitted to taking anti-depressants which were prescribed by his physician. Drugs are drugs, it would seem, and the discretion to subject a motorist for testing is virtually unfettered, creating real issues of unlawful searches and seizures. The tragedy of this all is that citizens are being subjected to humiliating and unwarranted intrusions into their private affairs, have to incur expenses for lawyers and other experts, and may suffer the loss of their driver’s license or privilege.

The Field Sobriety Tests which are discussed in prior Blog entries were not designed to be used on individuals who are under the influence of, or who have lawfully been consuming, controlled substances. Further, the prohibited levels of “bad” drugs are sometimes set so low as to create a situation where someone with low, second hand levels of these chemicals in their blood or urine, may be found to be “impaired,” even where no impairment actually existed. By way of contrast, lawful users of “good” drugs have no guidelines to assist them (or the LEO) in determining what levels of medication may be unsafe to consume.

It is imperative that anyone who is arrested for Driving Under the Influence of drugs to immediately consult a competent DUI defense lawyer for information about defending against a charge of “drugged driving.” It is your freedom, and your future, which is at stake.

Maybe the Eyes DON'T Have It....

Reno DUI Attorney — Fri, 17 Jun 2011 21:11:00 GMT

It is said that the eyes are the window to the soul. As a DUI defense lawyer, I don’t know if that’s true, but there actually is information to be gleaned from looking in a person’s eyes, providing that the eye examination is correctly administered and scored. As this relates to DUI investigations, the problem seems to be that most officers are not administering or scoring the tests correctly. This includes ALL the field testing, not merely the Horizontal Gaze Nystagmus (HGN) testing.

In a 1998 Validation Study of the Standardized Field Sobriety Tests, the authors of the report note that it “is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside.” Huh? If the police are not measuring driving ability, then what are they measuring? In fact, the Standardized Field Sobriety Tests are calculated to provide a probability of an elevated Blood Alcohol Concentration (BAC). Nothing more.

Nevertheless, many (and possibly most) law enforcement officers incorrectly believe that the tests do, in fact, indicate driving performance. Because of this, it is common for officers to speculate that a person was “under the influence” of alcohol or a controlled substance based solely on their performance of the field tests. This is a dangerous assumption, and it leads to an opinion of impairment that can form the basis of a wrongful conviction, loss of driver’s license, and many other collateral consequences. The remedy, of course, is to better educate the law enforcement officers on issues of impairment and the relationship of the field tests to such impairment. When the various police departments fail in their duty to educate, I consider it my duty to educate officers on the witness stand, sometimes in front of a jury, on the intricacies and details relating to the correct way to conduct Standardized Field Sobriety Testing. I am sure they will one day thank me for pointing out their errors in administering and scoring the tests.

The Horizontal Gaze Nystagmus test is neither easy nor quick to administer. Angles of offset and distance between the stimulus (the officer’s finger, or pen, or flashlight, or whatever he is having the subject follow with his eyes) and the subject’s face are critical. Speed of the horizontal passes is also critical. The human eye also fatigues quickly, especially in circumstances where a subject is told to move the eye all the way to one side and to hold it there for a period of time. When the eye is tired, it begins to jerk, and the jerking movement, or nystagmus, is presumed to be a result of alcohol ingestion. In fact, it is often just the result of the eye muscles becoming fatigued.

No test is perfect, and the Standardized Field Sobriety Tests are no exception. For this reason, officers must take care to administer and score them in a manner which maximizes the likelihood that the tests will be probative of something. A slapdash rush to complete the tests will induce errors and will likely cause the officer to conclude prematurely and erroneously that a motorist is somehow impaired. Surely we deserve better than this when our liberty is at stake.

The Eyes Have It

Reno DUI Attorney — Fri, 10 Jun 2011 20:10:00 GMT

What in the world are the police looking for when they do the "eye test" on subjects who are believed to be under the influence? Many years ago the concept was that "drunk" driving was a punishable offense. Police officers would watch motorists driving in an erratic or unlawful manner and would stop them to see if they were intoxicated. We tend to know what intoxication looks like but at the years passed, states realized that intoxication was too high a standard for prosecutors to prove. The revenue stream provided by drunk driving convictions was drying up and it was useful to look for something short of intoxication, something that could only be recognized by individuals who had received specialized training. That "something" was an amorphous concept called "IMPAIRMENT."

How to show impairment? As a DUI defense lawyer, I hear many of my clients still clinging to the belief that because they weren't intoxicated or "drunk" that this will protect them from a DUI conviction. Nothing could be further from the truth. Impairment is presumed when one or more physiological manifestations are present, manifestations that have nothing to do with intoxication or, for that matter, with the act of driving.

Hence, the famous "eye test" that is conducted by police at roadside when they suspect that a person may have had more than their fair share to drink. This test is known officially as the Horizontal Gaze Nystagmus test and it has been validated to predict with some degree of accuracy a blood alcohol level, or BAC. Indeed, the National Highway Traffic and Safety Administration (NHTSA) has stated that if the HGN is properly administered and scored, it is 77% reliable in predicting when a motorist's BAC will exceed 0.10g/100mL of blood. In a Validation Study conducted in San Diego, California in 1997, this test was revitalized and is now believed to have a 77% reliability factor in discriminating out to the lower BAC of .080g/100mL of blood. Regardless whether the San Diego Validation Study was properly conducted to declare the HGN test even more accurate than before, the fact remains that even with the new study, the test is still a shot in the dark.

A 77% reliability factor means that almost 1 in 4 motorists will be incorrectly catalogued as impaired drivers and possibly arrested, based primarily upon this test. It is said that the HGN is impossible to game and therefore is a much more reliable indicator of impairment than the other two tests included in the Standardized battery of Field Tests (SFSTs). In fact, however, most law enforcement officers do not consistently administer the HGN in a correct manner and it is not uncommon for officers to mistake fleeting or transitory movements of the eyes for nystagmus, which is best described as a "jerking" of the eyeball.

This jerking is subtle, and officers who have been trained and certified by NHTSA often are unable to actually detect true nystagmus from what they "think" is nystagmus, and sometimes their incorrect administration of the HGN test actually causes nystagmus to appear where it would not have appeared had the test been properly undertaken. Angles are critical, distances from the stimulus (a finger, pen, or small flashlight) even more so. The speed with which the stimulus is moved can ruin any predictive value of the test. Officers overly confident in their ability to accurately guage offset angles by using a "one size fits all" approach consistently overstate the presence of nystagmus and its significance. This "test," however, is what often makes the difference between an officer making an arrest and his decision to let the motorist proceed on his way.

Coming soon, what the test actually means. Film at eleven...

It's a Machine--And it's stupid

Reno DUI Attorney — Sat, 04 Jun 2011 00:07:00 GMT

Welcome to the wonderful world of the CMI Intoxilyzer 5000EN model (as well as its ancestors, so long as they hold up). The machine in this picture is familiar to lawyers who work in the field of DUI defense and sadly, to those who are dragged into detention facilities across this state in handcuffs and are forced to blow into this machine. Beneath its brushed stainless steel case beats the heart of an Atari-era processor that spits out a small card showing the alleged breath alcohol concentration (BAC) of our hapless motorists. At its heart, it is a device that funnels air down a long tube (shown on the left of the machine) into a sample chamber where a lightbulb shines a beam of light into and across the chamber. As the light crosses the tube-like chamber which contains about 81-82 milliliters of air, the vapor from volatile substances in the breath absorb light in certain wavelengths.

An infrared detector on the other side of the chamber measures the light received, subtracts that from the light transmitted on the other side of the chamber, and comes up with a number which is then converted, by way of some arcane and mysterious algorithm into a number which purports to represent an individual's BAC. I say arcane and mysterious because the manufacturer of the machine, CMI, will not disclose the mathematical process by which the machine does this computation. This process is contained in the "source code" which CMI claims to be proprietary and secret and therefore not susceptible to discovery or disclosure. Further, CMI refuses to disclose its operating manual or any other documentation to anyone who is not connected with law enforcement. If I wished to purchase a new Intoxilyzer from CMI, their corporate decision is that the company will not sell any of its products to criminal defense lawyers. Now what could possibly be the reason for such a business decision other than to hide the workings from the public? What is CMI hiding? Fortunately, eBay sells used machines from time to time, and it isn't all that difficult to obtain a unit, even though the software may be different from the software purchased by the State of Nevada.

As a Reno DUI Lawyer, I am expected to accept at face value the accuracy and the precision of this fine machine. I have had some judges tell me that because the machine has been accepted for use in Nevada by the Committee for Testing and Intoxication, its accuracy is not subject to challenge. This is akin to saying that because Ford has installed airbags in a vehicle, the safety of that vehicle can never be challenged. Accurate? Not hardly. The machines have a margin of error (or margin of reliability, as the lab people like to say) of anywhere between 10% and 20%, depending upon who you are listening to. In addition, although the unit is calibrated at least every 3 months (imagine having to tune up your car every 3 months to make sure that it continues to drive) it is cross checked for accuracy each time against a "known" value aqueous solution that itself, can vary by 5% from the stated value.

Like almost all products, the Intoxilyzer comes with a warranty. The warranty, however, is only good for one year and very few of the models currently operating in this state are newer than 2 years old. Additionally, you would expect that a warranty would provide some confidence that the machine would do what it purports to do, that is, to measure a concentration of alcohol in a person's breath. No such luck. The warranty provided by CMI expressly states that it is not a warranty of fitness for a particular purpose meaning, I suppose, that so long as it turns on, makes a pleasant humming noise, and spits out cards with "values" on them, it is not important whether those values approximate a motorist's real breath alcohol concentration.

In short, we have an expensive machine in virtually every police substation in this state which might work and might not, which might show a breath concentration or might not, and which may form the basis of putting our citizens into jail or prison, and we are almost powerless to stop this madness. Welcome to the gulag, folks, and the madhouse that is DUI enforcement in the State of Nevada. Is it any wonder my hairline is rapidly receding?

Stupid Human Tricks

Reno DUI Attorney — Fri, 27 May 2011 20:35:00 GMT

As a Nevada DUI Defense Attorney, I have noticed that one of the first images of DUI enforcement is the picture of a police vehicle stopped at roadside with a motorist out of his own vehicle and moving or walking in some manner dictated by the would be arresting officer. Euphemistically described as "Stupid Human Tricks," with apologies to David Letterman, these roadside gyrations are officially known as the Standardized Field Sobriety Tests (SFSTs) and they are taught and validated by the National Highway Traffic Safety Administration (NHTSA) as being the be-all/end-all indicators of motorist impairment.

The normal battery of tests consists of the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn (WAT) test, and the One Leg Stand (OLS) test. In actuality, they are not really tests, nor do they measure sobriety. What they do, however, is give the arresting officer something to talk about.

Consider this: None of these "tests" is used to either receive a Nevada Driver's License or to renew a license. None of these tests measure the skills necessary to safely operate a motor vehicle. Standing on one leg and balancing while cars and semi-trucks whiz by merely tests your nerve and relative fearlessness which, I would argue, are actually not good qualities of a careful driver. Similarly, walking up an imaginary line heel to toe by the side of the highway with your arms down at your side serves no purpose and demonstrates no skill that is translatable to the safe operation of a vehicle.

Yet, despite what seems obvious, these tests are the "gold standard" for sobriety testing.

In days of yore, before SFSTs even existed, officers would do subjective evaluations of drivers to determine whether they were "drunk" or sober. Motorists would stand and try to touch their noses with the tips of their fingers or officers would ask them to pick up some scattered coins from the ground or to trace a picture. The manner of performance of those tasks would, in the officer's opinion, show that the motorist was intoxicated. Today, the officers use the "standardized" line of subjective tests to imply impairment and suggest that a person's blood may measure over the current alcohol limit of 0.08 grams/100 mL of blood. What rubbish!

At least some officers are honest when they admit that despite the motorist's good or bad performance on the field tests, the decision to arrest doesn't depend on the motorist's performance on those tests.

Skip the tests--Nevada law doesn't require you to pretend that you are a gymnast. The only test you are required to take roadside is the preliminary breath test. Repeat after me, "Officer, if I am required to take or perform this test, then I will cooperate. If I am not required under Nevada law to take this test, then I respectfully decline to do so."

Into the Fray

Walter B. Fey — Fri, 20 May 2011 19:20:00 GMT

As a Reno DUI Defense lawyer, I am presented with daily examples of police overreaching and government supported harassment of decent citizens who have chosen to drive on the streets and highways of this state. Let me start out by saying that there are too many injuries and deaths which are traceable to alcohol impaired drivers. This Blog is not intended to condone irresponsible drinking and driving. The sad fact remains, however, that many of those who are convicted of DUI offenses are not, in fact, impaired by alcohol or other drugs.

Mothers against Drunk Driving (MADD) has captured the ears and the pocketbooks of our legislators and as a result, the DUI laws in Nevada are among the toughest in the nation. These laws capture the innocent as well as the guilty and as a result, we become frightened by the prospect of conviction of a criminal offense which punishes conduct based upon the reading of a machine.

I shall attempt to be at all times candid in this Blog, to reveal what I see and what I have learned about foolish policies and unfair procedures. Readers are invited to weigh in on any issues. It is time for each of us to take back our streets, to strengthen and improve our system of justice, and to reveal the truths about the unfair and illogical prosecution of DUI offenses.

Welcome to our DUI Defense Blog

DUI Defense Attorney — Wed, 04 May 2011 00:34:00 GMT

We are pleased to announce the launch of our DUI Defense Blog with an RSS feed available at /Blog/Entire-Blog-Feed/RSS.xml