Law Office of Glen W. Neeley

Top Utah DUI Attorney, Board Certified in DUI Defense by the National College of DUI Defense

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  • Field Sobriety Tests: Do they meausre if you are impaired?

    In trial, the prosecutor’s last question to a testifying officer is almost always "Officer, after these field sobriety tests, did form an opinion as to the defendant’s ability to safely drive his car?"  The officer always answers, "I formed the opinion that the defendant was too impaired to safely drive a car."

    The interesting thing about that opinion is the field sobriety tests were never validated to measure impairment.  They were only validated to give the officer an estimate of whether the person is over the legal limit.

    Marcelline Burns and Jack Stuster, in their study entitled "Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent" writes on page 27 of the study as follows:

    "Many individuals, including some judges believe that the purpose of a field sobriety test is to measure driving impairment.  For this reason, they tend to expect tests to possess "face validity,"  that is, tests that appear to be related to actual driving tasks.  Tests of physical and cognitive abilities, such as balance, reaction time, and information processing, have face validity, to varying degrees, based on the involvement of these abilities to driving tasks; that is, the tests seem to be relevant "on the face of it."  Horizontal gaze nystagmus lacks face validity because it does not appear to be linked to the requirements of driving a motor vehicle.  The reasoning is correct, but it is based on the incorrect assumption that field sobriety tests are designed to measure driving impairment.

    Driving a motor a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities.  It is unlikely that complex human performance, such as the required to safely drive an automobile, can be measured at roadside.

    It seems as though that the person that developed and validated these tests is saying the officers are incorrect when the officer says these tests measure impairment. The developers say these tests estimate a person’s blood alcohol content.

    For the complete study, click here.

  • Utah “DUI Blitz”–Justifying the Expense

    If the UHP is getting paid for 75 eight-hour overtime shifts to look for drunken drivers,  don’t you think they better find some to justify the cost and expense.  Think about it, they get all this to look for drunken drivers, and what would happen if they have no arrests, no DUIs, and nothing else to justify the cost and expense.  Are there going to be angry people who donated?  As a result, are there going to be innocent people pegged as DUI to justify the cost?

    It’s like paying the mechanic to fix your car.  You hear a clank, so you take your car to the mechanic.  The mechanic inspects it, test drives it, and gives it a good look-over.  Then he comes back and informs you that there is nothing wrong.  "That will be $500 please."  The reality is that the mechanic must give you something to justify his cost.  He might recommend that you change the johnson rod or the the timing belt, etc.

    Here’s the story.

    By the end of Labor Day weekend, the Utah Highway Patrol will have paid for about 75 eight-hour overtime shifts for troopers looking to stop drunken drivers.

    "This is the big last getaway of summer for many people," said highway patrol Sgt. Ted Tingey, explaining the statewide blitz. "We just hope that people keep safety in mind."

    Tingey said that the highway patrol has staged these DUI blitzes for several years over the Labor Day weekend, and has found that sending a strong message during the final holiday of the summer tends to keep people safe through the winter.

    (more…)

  • Innocent Dolphins Caught in the Utah DUI Net

    I once heard a story about how the tuna fisherman would go out on the ocean to harvest the tuna fish.  They would use big, huge, over-sized nets to reap this harvest.  In these big nets, on too many occasions, innocent dolphins would get caught in this net.  The dolphins were considered just collateral damage by the fisherman.  "That is the price you have to pay to get the most fish with the biggest net", the fisherman would reason.  The innocent dolphins were killed and cast aside.

    This week, the DUI fisherman (UHP, MADD, and other Law Enforcement Agencies) are casting out their huge nets across the state.  In this net, there will be many innocent people caught and thrown in with the guilty to prove their innocence.  Here’s the article announcing the fishing hunt.

    Coming off a record year in 2006 for highway fatalities, the Utah Highway Patrol is gearing up to make sure there isn’t a repeat this Labor Day weekend.
     (more…)

  • Driving Permits after cited for DUI

    Most, if not all, of my clients ask me when they come in for a consultation, "if my driver’s license gets suspended, can I get a work permit?" 

    Answer:  No, not in Utah.

    The Department of Motor Vehicles will not issue a work permit.  I have only seen one in my years of practicing law and the client was not supposed to get it.  It was rare.  It was a mistake on the part of the DMV and the license suspension was not related to a DUI.

    Utah’s Law:  Utah has no provisions for a work permit.  My friends in Texas can get a "needs necessity license" that allows people to go to and from work and to conduct visitation with children.  Utah has no such license.  If your license gets revoked or suspended, and you get caught driving on that suspension, you not only face more criminal charges, but the DMV will extend the suspension.

    Alternate Transportation:  My advice is to find alternate transportation.  I know what you are thinking, "the bus doesn’t work for me."  Do some creative thinking.  If I was in high school and had no money, I would have been happy to drive someone around for a small cost.  Hire a driver.  Find someone who has no job, but has a driver’s license.  Put them to work.  That way, there is no risk for you on the suspension Issue.

  • Utah DUI Fatalities are the highest in the Country

    Utah had the biggest increase of alcohol-related deaths in 2006 and the UHP doesn’t like that.  The UHP blames it on misleading statistics.  Imagine that, the statistics are misleading. 

    "But before there is a public outcry, Utah Highway Patrol trooper Preston Raban said Utahns should know the statistics are a bit misleading."

    Consider the following:

    • Whether alcohol caused the accident or not, if alcohol is smelled, it is reported as "alcohol related fatality."
    • If the person who was at fault in the accident was not impaired by alcohol in any way, but the other person smelled of alcohol, it is considered a "alcohol related fatality."

    It’s just like the college professors used to say…"there are lies, damn lies, and statistics." (more…)

  • Intoxilzyer–can the way you breath affect the result?

    The Courts in Florida are recognizing the fact that the breath test machines are not as accurate as everyone wants you to believe.  In fact, the way you breath, or how long you breath into the machine, can determine a high or a low test.  The machine only requires 1.1 liter of breath to qualify to give a result.  So what happens if the person puts 2 liters, or 3 liters of breath into the machine.  It makes sense that your result will double and triple.  This is not uncommon.   

    The judge in Florida stated, "Rules that permit a test operator to have the subject blow into the machine as long as he, in his undirected discretion wishes … is insufficient to create a scientifically reliable test." (more…)

  • Intoxilyzer Breath Guesser Manufacturer is in Contempt

    On August 12, 2007, I wrote a little bit about the Source Code that the manufacturer is refusing to let anyone see.   A Defendant has a right to see and challenge the evidence against him or her.   This issue is being heavily litigated in Florida.  Apparently, CMI Inc., the manufacturer, said we are not providing the source code and we are going to disobey a court order to produce the source code.  Click this link to see the order.

    The highlight of the order is that CMI is being fined $3200 for every day they do not comply with the order.

    Makes you wonder what are they hiding.  Is their multi-million dollar company going to be exposed as convicting innocent people?  Again, it sure seems odd that people who swear up and down that they had very little to drink fail the breath test in a big way with really high numbers.

  • Intoxilyzer Source Code

    Many times, clients ask me how the intoxilyzer determines their blood alcohol content. I try to explain the mechanics of it, the theory of it, and the science of it. The problem is that the manufacturer of the machine, CMI Inc., will not release the source code of the software in the machine. For all we know, the machine generates random numbers that essentially say you are guilty. It is interesting that many people will swear up and down that they only had one or two drinks. When they take the test, they end up being way over the limit. There are some serious questions about this machine. Why would the manufacturer be afraid of releasing the source code? Their argument is that it is copyrighted. I can see that argument, but they will not release the source code even under a protective order that will prevent the code from being released to anyone else and can only be used for analysis. Maybe CMI is afraid that their conviction machine will be revealed for what it is, a box that makes them money and convicts innocent people.  This machine uses a processor like computers do.  However, it is not state of the art.  The processor is the Z80 chip.  This processor was used in the Atari that I played with 30 years ago.  Here’s a story about litigation over that source code.

    (more…)

  • Utah’s Breath Test Guesser

        In Utah, it is illegal to drive when your blood/breath alcohol content is over a .08%. To determine how much alcohol is in your breath, the government uses three methods: a breath machine, a blood sample, or a urine sample. The most common method to test for alcohol in a person’s system is using the breath machine. Utah uses two different machines made by the same company: the Intoxilyzer 5000 and the Intoxilyzer 8000. The technicians that maintain these machines for the government used to argue that the Intoxilyzer 5000 was state of the art machine. Now, they argue that the Intoxilyzer 8000 is more accurate that other machines. Doesn’t that raise a question about the accuracy of the machines? If the 5000 was so accurate, why then is the 8000 even more accurate. Stephen Hamilton in Lubbock Texas writes about how these machines are breath test guessers. The machine is simply guessing what your alcohol content is at the time you take the test.

        Guessing! Why is the government employing a program that guesses your alcohol content and then tells the world that you or your loved one was driving while intoxicated? Everyone knows that if you give two simultaneous breath tests, one will not be the same as the other.  A breath test is an indirect measurement of what is in your blood. Why doesn’t the government employ a program that takes a direct measurement of what is in your blood like a blood test in all cases?

        Maybe it is too expensive. Maybe it is too inconvenient. Maybe it would show that officers make mistakes in arresting everyone who smells like alcohol. If the government is accusing you of a crime, try to lock you up, take your license from you, and infringe substantially on your life, shouldn’t they use the most accurate means of proving your innocence or guilt instead of using a breath test guesser.

  • Utah DUI Lawyer–What to Look For in an Attorney?

    People often ask me what to look for when hiring a lawyer to defend their DUI. Generally speaking, there are six things that a person should see in a lawyer. Look for a specialist, someone who focuses on your type of case, and someone who has experienced and is trained in this area of the law. It has been said that DUI cases are the most complex type of cases because of the science and the intricate facts that surround a DUI case. That being said, if you had to have brain surgery, you would not go to a family physician. You would seek out the best surgeon you could find. Here are the five things I think a person should look for in an attorney.

    Associations: The National College of DUI Defense is an association that provides the most advanced training in defending a DUI. The best attorney’s from around the nation are members of this organization and help train other attorney’s in this specialized field. Your attorney should be an active member of this organization and it will give you a good clue that the attorney knows how to properly defend a DUI. The attorney should also be a member of his local Criminal Defense Association (i.e. Utah Association of Criminal Defense Lawyers). The attorney should also be a member of the National Association of Criminal Defense Association. The attorney should also have formal training in trial work such as the Trial Lawyers College so they have not only been trained in the knowledge but also in the presentation.


    Experience: Ask questions about how long the attorney has been representing citizens accused of DUIs. Ask the attorney how many trials they have done that relate to DUI. Ask the attorney about suppression hearings they have done.

    Case Load: You want to determine if the attorney is just a dump truck that takes your case, takes your attorney fee, and then walks you in and says there is nothing we can do, just plead guilty. I try to keep my case load between 30 to 50 clients. It does no service to a client if the attorney is just running around on 200 cases trying to do a volume business. Try to decipher if the attorney has the time to think about your case, or just wants your money. Sometimes you can decipher this by what they charge. If the attorney charges your $500, you can expect a $500 job. To properly defend a case, be prepared for a couple of thousand.   Remember, you get what you pay for!

    Practice Focus: Determine what percentage of their practice is focused on DUI. Are they a lawyer that does a run of the mill and is offering to do your bankruptcy, divorce, and personal injury case too? Look at where the attorney focuses his practice.

    Accessibility: Determine whether you will be able to get a hold of your attorney. I provide my clients with all of my contact information including cell phone and email address. Most if not all clients, will receive contact back from within just a couple of hours, unless I’m in trial, then it would be the next day. 

    How do You feel:  Finally, Determine how you feel about the attorney and if you trust the attorney.  Does the attorney sound like a salesman, or is he really interested in your case. Does he ask you in-depth questions about your case and answer your questions?