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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Tag: criminal defense

Breath Test Machines: Less Reliable Than You Think

Chris Perri

Chris Perri, next to his very own breathalyzer.

Chris Perri, next to his very own breathalyzer.

In DWI investigations, breath test results are very common evidence. Although I advise clients to refuse to provide a sample of their breath, the case isn’t over just because the machine says that the sample is over .08 BAC.

At the outset, it’s important to realize that BAC means blood alcohol concentration, not breath alcohol concentration. Breath test science relies on the assumption that it can obtain a reliable breath alcohol concentration that mirrors a particular person’s blood alcohol concentration. This assumption is fraught with difficulties, as I’ll explain below.

Let’s start with a very simplified description of the mechanics of the breath-test machine (also known as an intoxilyzer or breathalyzer). An arrested person blows into the machine, which takes this breath sample and shoots it through a tube that’s then injected with infrared light. Because alcohol particles block infrared light, the machine detects the amount of alcohol in a subject’s breath by determining how much of the infrared light has been blocked. It then takes this number, makes some calculations, and reports a breath alcohol concentration.

The calculation of this breath alcohol concentration is problematic because there’s a lot less alcohol in the breath than in the blood. For example, in an average person, the number of grams of alcohol in 1 part of the blood is equivalent to the number of grams of alcohol in 2100 parts of breath. This 1:2100 ratio is known as a “partition rate.” So, while a person’s blood alcohol concentration is defined as the number of grams of alcohol in 100 milliliters of blood, that same person’s breath alcohol concentration is defined as the number of grams of alcohol in 210 liters of breath. (Note: 100 milliliters x 2100 = 210 liters). In other words, if you have .08 grams of alcohol in 100 milliliters of your blood, then it’s assumed that you have .08 grams of alcohol in 210 liters of your breath.

While it’s not hard for police to obtain 100 milliliters of your blood, it’s impossible for them to obtain 210 liters of your breath (think about a 1 liter bottle and imagine filling up 210 of those bottles with your breath). For this reason, the breath test machine must multiply any amount of alcohol that it detects by a very large number. As an example, if you provide the machine with one liter of your breath, then the machine multiplies the amount of alcohol it detects by 210 in order to determine the number of grams of alcohol per 210 liters of your breath. This calculation is then reported as your BAC.

Consequently, any error by the machine in determining the amount of alcohol in a given sample would be exacerbated when it multiplies that incorrect number by two-hundred-fold. Such errors can occur when the machine interprets non-alcoholic particles in the breath as alcohol. For example, the machine cannot distinguish acetone (a common substance in the breath of diabetics) from alcohol. Or, imagine the complication of a stray particle of liquid alcohol entering the machine in the form of spit. Any error in the initial measurement of alcohol will render the entire breath test unreliable.

Photograph courtesy of Oregon Dept. of Transportation

Photograph courtesy of Oregon Dept. of Transportation

For my next point, let’s give the machine the benefit of the doubt and assume that it can accurately measure the quantity of alcohol in a person’s breath. Even then, the machine makes a critical and troublesome assumption: that the subject’s partition rate is 1:2100 (recall from above that this means that the amount of alcohol in one part of blood is equal to the amount of alcohol in 2100 parts of breath). This assumption is not true across the population, as studies show that partition rates of normal people vary from 1:1100 to 1:3000.

As an illustration, let’s take a hypothetical subject arrested for DWI and call her Sue. She has a partition rate of 1:1100, which means that the number of grams of alcohol in 1 part of Sue’s blood is the equivalent of the number of grams of alcohol in 1100 parts of her breath. On this particular evening, Sue has consumed enough alcohol that her BAC is .06 grams of alcohol per 100 milliliters of blood. Since her partition rate is 1:1100, there would also be .06 grams of alcohol in 110 liters of her breath (note: 100 milliliters multiplied by 1100 equals 110 liters).However, the breath machine is going to overestimate the BAC by nearly a factor of two. Here’s why:

When Sue takes a breath test, the machine is programmed to incorrectly assume that her partition rate is 1:2100. As a result, it will determine the number of grams of alcohol in 210 liters of her breath. Since Sue’s correct BAC is .06 grams of alcohol per 110 liters of breath (due to her partition rate of 1:1100), she has .11 grams of alcohol per 210 liters of her breath. Due to the machine’s inaccurate assumption that Sue’s partition rate is 1:2100 instead of 1:1100, the breath-test machine will report a BAC of .11, which is nearly twice as high as her actual BAC of .06. This inaccuracy results because the machine is improperly measuring the number of grams of alcohol per 210 liters of Sue’s breath, as opposed to the number of grams of alcohol per 110 liters of her breath. Thus, the machine’s assumption that everyone has a partition rate of 1:2100 creates a critical error by reporting that Sue is intoxicated even though she’s actually below the legal limit of .08 BAC.

Finally, it’s important to remember that it’s only illegal to be intoxicated while driving. It’s not a crime to be intoxicated 10 minutes, 30 minutes, or an hour after operating a motor vehicle. But these chemical tests usually occur over an hour after driving, and the prosecution has the burden of proving how that BAC measurement relates to the time of driving. Unless law enforcement knows a lot of information about a particular person (e.g., number of drinks consumed, when the drinks were consumed, the type of alcohol consumed, amount of food consumed, when food was consumed, etc.), it’s impossible to conduct a reliable retrograde extrapolation, which is the science of determining a past BAC level based on a known BAC level. In other words, if the breath test machine reports that a person has a .11 BAC over an hour after driving, we don’t know whether the person’s BAC at the time of driving was below, above, or the same as the level reported by the machine.

While breath tests are an important tool for law enforcement in that they give a ballpark figure about an arrested person’s intoxication level, it’s a common misconception that a breath test machine provides an exact measurement of a person’s BAC at the time of driving. If you or a loved one have been arrested for DWI and submitted to a breath test that reported a BAC over .08, don’t despair. Call an experienced criminal defense attorney to fight the machine’s potentially inaccurate result.

An update on the recent DNA testing errors

Chris Perri

Update from previous post:

Last week, the Travis County District Attorney’s Office announced that it has formed a Conviction Integrity Unit in order to facilitate the comprehensive review of all cases that might have been affected by the miscalculations of probabilities related to DNA mixtures from 1999-2015. This is definitely a step in the right direction, as many experienced criminal justice practitioners are concerned that the miscalculations could have affected thousands of cases.

If you or a loved one suffered a conviction in a case involving DNA evidence, it’s important to retain an experienced criminal defense attorney to review your case. Chris Perri Law can determine whether your case was potentially affected by the DNA miscalculations and then assist you in obtaining a recalculation of the DNA evidence. Depending on the results, Chris Perri Law can then file a post-conviction writ of habeas corpus seeking to overturn your conviction. Chris Perri Law offers these post-conviction services on both state and federal cases throughout Texas.

Check out Chris Perri’s video interview with Austin’s Fox 7 News for more information about these mind-blowing DNA developments.

Suppression Victories Preserve Our Constitutional Rights

Chris Perri

Chris Perri Law is proud to share that we’ve won three suppression hearings so far this year.

For those who may not know, a suppression hearing is held when a defendant believes that evidence was obtained in violation of a constitutional right. If the court agrees with the defendant, then the evidence is “suppressed,” which bars the prosecution from using this evidence at trial.

For example, in our recent blog post, we discussed a Supreme Court case where officers seized drugs from a vehicle following a positive canine alert during a traffic stop. This issue was litigated at a suppression hearing, where the defendant won the argument that the police officer violated his Fourth Amendment rights.

In many cases, winning a suppression hearing directly leads to the prosecutor dismissing the case due to insufficient evidence. As a result, the public often misunderstands suppression as a legal loophole that allows criminals to avoid accountability for their actions. Chris Perri doesn’t see it that simply.

 “Suppression hearings are my favorite part of practicing law,” Perri says. “The fact that my clients were caught with incriminating evidence isn’t the whole issue. Instead, we’re focusing on whether the police followed the rules. And these aren’t just any rules – these are the foundational principles that glue our country together. If judges allowed evidence to be introduced at trials despite being illegally obtained, then what’s the point of the Constitution? It’s the real possibility of suppression that keeps the police in line when they investigate illegal activity. It’s a part of our system’s checks and balances of power.“

Chris Perri Law Suppression Win #1

Earlier this year a client faced felony cocaine distribution charges after a police officer entered his house without a warrant. According to the cop, who was at the defendant’s front door in order to investigate an anonymous tip, he witnessed our client flushing the cocaine down the toilet, and he entered in order to prevent the imminent destruction of evidence (an exception to the general requirement that a warrant be obtained prior to entering someone’s home). However, the blinds covering the windows were drawn, and the cop had to awkwardly peer up through a crack in them in order to observe the inside of the home. Chris Perri Law successfully argued that while Supreme Court precedent recognizes an implicit license for anyone to come to the front door to knock and briefly wait for an answer (example: Girl Scouts selling cookies), no one—not even a police officer—is invited to violate the homeowner’s right to privacy by bending down to peep through a crack in drawn blinds. In fact, if you saw someone on their knees under someone’s window, trying to peer in through the blinds, you’d probably call the cops. The reasonable Travis County district judge ordered that the evidence be suppressed.

Chris Perri Law Suppression Win #2

At our next suppression hearing, a client faced a DWI charge and sought to suppress the blood evidence that was obtained with a search warrant following his arrest. Because the blood analyst reported a BAC of nearly twice the legal limit, combating this evidence was critical to our case. Our goal was to demonstrate that the officer lacked probable cause to arrest our client (a Fourth Amendment violation), so any evidence derived from an unlawful arrest is subject to suppression. By cross-examining the officer with the video of the stop and presenting evidence that undermined the officer’s credibility, Chris Perri Law convinced the court to suppress the blood results. Subsequently, the prosecution dismissed the charge due to insufficient evidence.

Chris Perri Law Suppression Win #3

Finally, in a pending felony case, Chris Perri Law suppressed key evidence a police officer obtained before reading the client his Miranda rights. Details will have to wait for a future blog post so that we do not compromise the resolution of this case.

Chris Perri Law is proud to practice criminal defense in Travis County, where constitutional principles reign supreme. If you or someone you know has a potential suppression issue, along with any other criminal defense matter, contact us today at (512)917-4378.

Recent Supreme Court Decision Protects 4th Amendment Rights During Traffic Stops

Chris Perri

Last week, in Rodriguez v. United States, the Supreme Court clarified that police officers may not prolong a traffic stop in order to conduct a dog sniff on a vehicle, unless there is reasonable suspicion to believe that the occupants are engaged in criminal activity.

In this case, the defendant was pulled over in Nebraska for illegally driving on the shoulder of the highway. About 20 minutes later, the police officer issued a warning ticket for the traffic infraction. However, the defendant was not yet “free to leave.” The police officer instructed the defendant to exit his vehicle and stand in front of the patrol car while they waited for another police unit to arrive. About seven more minutes elapsed before the arrival of the backup unit. At this point, the officer led a drug-detecting dog around the defendant’s vehicle. The dog alerted to the presence of drugs, and a subsequent search of the defendant’s vehicle revealed a large quantity of methamphetamine. The defendant was convicted and sentenced to five years in federal prison.

On appeal, the Government argued that waiting a mere seven minutes for the drug dog to sniff the outside of defendant’s vehicle constituted a de minimus (minimal) intrusion on the defendant’s Fourth Amendment rights, meaning that the intrusion was so minor that it was constitutionally permissible. Fortunately, our Supreme Court rejected this argument. The Court noted that certain intrusions, such as asking a person to step outside the vehicle during a lawful traffic stop, are “negligibly burdensome precautions” that allow an officer to complete the traffic stop “mission” safely. “On-scene investigation into other crimes, however, detours from that mission,” wrote Justice Ginsburg, who authored the majority opinion.

An officer may not prolong a traffic stop in order to conduct a dog sniff unless facts are developed during the traffic stop that support reasonable suspicion of drug activity. For example, if an officer smells drugs during the stop or notes a contradiction between the driver’s and passenger’s statements regarding their travel itinerary, the officer might have reasonable suspicion to prolong the stop in order to investigate drug activity. However, an officer can’t conduct a dog sniff on a car based on a mere hunch that’s not supported by actual observations of suspicious activity.

Even if the officer had conducted the dog sniff prior to issuing the warning ticket, the result would be the same: “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the stop.’”

This recent case enhances Chris Perri Law’s arsenal for attacking unlawful searches at suppression hearings. We’ve begun 2015 with three victories on suppression issues, and we’ll continue to fight to protect our clients’ constitutional rights.

Recent U.S. Supreme Court Ruling Gives Cops Even More Leeway, But Chris Perri Law Will Strike Back

Chris Perri

Last month, the United States Supreme Court issued a surprising opinion that’s created waves of concern in the criminal defense circle. In Heien v. North Carolina, a North Carolina police officer noticed that one of the brake lights on the defendant’s vehicle was not working, so the officer pulled the defendant over believing that having a broken brake light was a violation of North Carolina law. A subsequent search of the defendant’s vehicle revealed cocaine, resulting in his arrest. The defendant attempted to suppress the evidence on the basis that he didn’t commit a traffic violation. The North Carolina courts reviewed the relevant traffic statute, and they determined that as long as one brake light is working, no crime has occurred.

Since the defendant didn’t commit a traffic violation, the stop was illegal, and the evidence of the cocaine should be suppressed. Seems simple, right? According to an 8-1 majority of the Supreme Court, that doesn’t end the inquiry, as courts must examine whether the officer’s mistaken belief about the law was reasonable. Here, the North Carolina law was somewhat ambiguous because another statute mandated that all “rear lamps” be functioning, and it’s not unreasonable to interpret a brake light as a type of rear lamp. Thus, even though the officer’s interpretation of the law was incorrect, this interpretation was reasonable at the time of the stop.

The Supreme Court’s analysis is problematic. Aren’t police officers supposed to know the law? And if they don’t know the law, how can anyone deem this lack of knowledge reasonable when the officers are trained experts on what’s illegal? If a medical doctor performing an appendectomy mistakenly removes your spleen instead of your appendix, we call that malpractice, and there’s no wiggle room for the doctor to argue that the mistake was reasonable. Apparently, cops get much more leeway.

Many defense attorneys are concerned that Heien might be a slippery slope. Will prosecutors now defend all unlawful stops on the basis that the officer’s mistaken belief about the law was reasonable at the time of the stop?

I say bring it on. I plan to argue that Heien applies to only a tiny set of scenarios: those in which the law is ambiguous and there’s no case precedent that clarifies this ambiguity. In Texas, most of the traffic laws are pretty clear cut. For example, it’s not a crime to swerve within your own lane as long as your car doesn’t cross into another lane. If an officer stops someone for swerving but the defense proves that the car never crossed into another lane, the prosecution won’t be able to argue that the officer reasonably believed that swerving within one’s own lane is against the law. That’s because, unlike the North Carolina law at issue in Heien, there’s no ambiguity in the law in my hypothetical example.

Still, I anticipate that prosecutors will attempt to use Heien as a tool to validate otherwise unlawful stops. As a result, it’s important to retain an experienced, knowledgeable defense attorney to persuade the courts that Heien doesn’t apply.

Chris Perri convinces Appeal Courts to consider New Trial for Pitonyak

Chris Perri

The News of the 5th Circuit Court of Appeals’ Grant of Certificate of Appealability

About a week ago, I heard an exuberant scream coming from our home office late in the evening. As the wife of a passionate, half-Italian criminal defense attorney, I’ve heard this sound before. However, when I entered the room to inquire further, I quickly surmised from his face that the news he received was far greater and more meaningful than I first assumed.

The 5th Circuit Court of Appeals had granted Colton Pitonyak and his attorneys the opportunity to appeal the issue of a Brady Violation. Chris read to me the words from the Court that stated “the impact of the Brady Violation is perplexing and the claim deserves further review.”

After years of Chris working vigorously to get the Courts to recognize the need to explore the details of the Pitonyak case further, I knew how much this meant to him. To Chris, his legal assignments are not just a way to pay the bills, but a way to be a part of how we as humans decide to navigate the muddy trenches between right and wrong. And when Chris smells the possibility of infringement on freedom and justice, especially when it leads to someone spending a 55-year prison sentence behind bars for murder, potentially wrongfully so, like with Colton Pitonyak, he will not stop fighting for what he believes in.

What Does This Mean?

Brady Violation

After getting past the emotional impact this had for Chris and Joe Turner, the other attorney involved in the Pitonyak writ, I wanted to further understand what the 5th Circuit Court of Appeals’ grant really means. As a social worker by training, I take a lot of interest in the human stories told throughout the criminal justice system, as this system is partly a reflection of our society’s values.

I learned that firstly, one must understand that a Brady Violation occurs when the prosecution’s failure to disclose evidence to the defense deprives the defendant of a fair trial.

Overturn of Prior Federal Denial

I also learned that prior to applying for the right to be heard at the 5th Circuit Federal level, Chris first had to exhaust all claims at the state court level. The state courts denied Chris’ request and stated that “the admission [of Hall’s 2005 confession] would have no reasonable impact on the trial”. Chris then filed his writ in the federal district court, but they denied him as well. That didn’t stop Chris from persevering forward to the 5th Circuit Federal level, where Chris argued that the “federal court was woefully misguided” about the law. The federal district court had denied Pitonyak the right to appeal the case to the 5th Circuit, so Chris first had to get the 5th Circuit’s permission to hear the appeal. After hearing Chris’ motion, the 5th Circuit agreed that reasonable jurists could debate whether Pitonyak had demonstrated a Brady violation, which means that Chris overturned the federal court’s initial denial of his right to appeal the case.

Possibility of New Trial

What this all comes down to is that Chris’ request convinced judges at the 5th Circuit Court level to allow Chris to argue on Pitonyak’s behalf for a new trial that would include the previously withheld evidence of Laura Hall’s confession. The Evidence Withheld from Pitonyak Background Mystery and sensation surround this case, which has amounted to several TV documentaries and national interviews trying to tease apart an understanding of what really happened.

What we do know for sure is that in August of 2005, Jennifer Cave was found shot to death and chopped up into pieces, and left in the bathroom and in trash bags of Pitonyak’s apartment. After the incident, Pitonyak and Laura Hall fled to Mexico, where they were arrested by Los Federales and returned to U.S. Custody.

Although Pitonyak received a conviction for murder and Hall received only a ten year sentence and conviction for tampering with evidence and hindering apprehension, there has always been a major question of who really murdered Jennifer Cave. Pitonyak reports that on this night he was under the influence of xanax and alcohol to such an extent that he formed no memory of what happened. In Texas, voluntary intoxication is not a defense to a crime, but it can leave a lot unknown. The prosecution struggled to come up with a motive for why Pitonyak would want Cave dead, but what is known is that Pitonyak had a romantic relationship with both Cave and Hall.

The New Evidence In 2009, when Joe and Chris began working on Pitonyak’s appeal, they came across a record from Hall’s jail stay that indicated two other inmates informed a counselor that Hall was “acting crazy” and had confessed to killing Cave. Since then, these two women have provided sworn statements that this was in fact true. Others have come forward as well to say that Hall confessed to being the killer.

What Chris and Joe are trying to argue is that if this information had not been withheld from the defense team, then it could have been used at trial, giving the jury a lot more to chew on when deciding Pitonyak’s innocence or guilt.

Why This Matters

Whenever I hear this story, my heart goes out to the deceased victim and her family. I cannot imagine what this process has been like for the victim’s family, and how for them more than anyone, getting to the bottom of this matters most for closure and their grief process. The fact that Jennifer Cave died so gruesomely and prematurely will never be okay.

This also has an impact on all of us. We live in a country that says we each have the right to a fair trial and to be seen as innocent until proven guilty, beyond a reasonable doubt. If evidence this substantial was withheld from the criminal defense team, then there is an issue of personal liberty at hand. Pitonyak was not allowed the fair fight we have all been guaranteed.

Hearing this story and this new evidence doesn’t answer all the questions for me about the truth of Jennifer Cave’s devastating death. It doesn’t mean Pitonyak is innocent. Yet, it does mean we should all want to know more and take a closer look. Not just to find the truth in this case, but also to uphold the highest standard of fairness in our criminal justice system.

My hope, and I believe the goal of the system, is that if both sides – prosecution and defense – fight fairly but zealously, then the truth will ultimately be unveiled. That didn’t happen in this case, so we are left in the dark about why a young man is serving a 55-year sentence for a crime we can’t honestly say he committed.

I’m thankful that there are attorneys like Chris and Joe Turner willing to turn over every stone to make sure their clients’ rights are protected and the prosecution is held accountable. In the end, we all want justice to be served, but not at the price of the truth.

What’s Next

Chris and Joe have now been given permission to file a comprehensive brief to be turned in next month. If the 5th Circuit finds that the Brady evidence undermines confidence in the jury’s verdict, then a new trial in Austin will be ordered for Pitonyak.

Theft charge dismissed

Chris Perri

One of my young clients was caught stealing from a local department store.  Despite the evidence against her, she was approved for a pretrial diversion program, and the charges were dismissed today.  As long as she succeeds in performing the conditions of the program (community service and avoiding further trouble with the law), she will be able to expunge the arrest two years from the date of the offense. For young clients, expunctions are extremely important, as they allow clients to deny that their arrest occurred when prospective employers or educational institutions question them about their criminal histories.