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Blood Tests Found Unreliable in 11 Felony DUI Cases

Major problems at the Scottsdale, Arizona Crime Lab will help to clear at least eleven people charged with felony DUI and possibly hundreds more charged with misdemeanor DUI. Several defense attorneys put in approximately 1,500 hours of work (largely pro-bono) to expose inaccurate results of blood tests and poor scientific procedures at the Scottsdale Crime Lab.

Last Thursday, August 21st, Judge Jerry Bernstein of the Maricopa County Superior Court suppressed blood alcohol results in eleven felony drunk driving cases. Judge Bernstein took seventeen days of testimony from highly-educated and experienced defense expert witnesses and also from Scottsdale and State Crime Lab technicians.

At the heart of the issue was the malfunctioning Scottsdale Crime Lab’s headspace gas chromatograph which is used to test blood in DUI cases for alcohol. Gas chromatography is a well-respected and highly technical means of estimating the amount of alcohol in human blood in DUI cases. The problem in Scottsdale, as it is in many police crime labs, is protocol and an “us and them” mentality. Police crime labs generally are not interested in finding the truth–they are interested in providing evidence, as shaky as it may be, for prosecution of DUI cases. Scottsdale seems to be no exception.

For months, unusual results had been coming out of the Scottsdale Crime Lab–along with suspiciously simple explanations for the problematic results. Scottsdale officials would often blame unreliable and confusing results on a “loose cap” on a headspace vial or on a clerical error.

Problems included vials being mis-labeled (which leads to one subject’s results being attributed to another subject’s case), then it was an unspecified “mechanical error” which caused problems, or a later excuse was a “communication error.” None of these things, however, could have caused the errant results according to the defense team.

A software “patch” was installed by the equipment manufacturer to resolve the issues. Yet the “patch” did not solve the underlying problems for the equipment. It was determined by the manufacturer that the remedy only solved the “symptoms” (i.e. mis-labeled vials) and not the underlying cause of the problems.

Yet, the problems noted above were not the only problems with the gas chromatograph. There were certain blatant problems with the chromatographic peaks which were not caught by the crime lab’s quality assurance protocol and were only found by defense attorneys.

The bombshell, however, was that while Scottsdale Crime Lab Personnel were testifying that all was well with the lab procedures and equipment, the Arizona Republic, a Phoenix-based news organization, discovered emails through a public records request, which showed a very different story.

The emails revealed that members of the crime lab had little or no confidence in some of their co-workers and in the personnel from the gas chromatograph manufacturer. While testifying that all was well within the confines of the crime lab, they referred to the gas chromatograph as “the problem instrument,” and the “malfunctioning instrument.” The emails also made clear that they were interested in “resolving the issue quickly” so that the crime lab personnel and prosecutors wouldn’t “. . . have to face defense attorney’s challenges in Court . . .”.

Judge Bernstein wrote in his August 21st ruling “The Court is given pause that these emails about concerns that the Scottsdale Crime Lab was having with the instrument occurred during the pendency of the evidentiary hearing. During her testimony, Ms. Valdez (of the Scottsdale Crime Lab) never revealed any of these concerns that she revealed to Perkin Elmer (the manufacturer).”

Ultimately, the Court suppressed the results, and found that “Given the errors or problems, and the refusal to determine the why or basis for them, significant questions arise as to the reliability and confidence in this gas chromatography instrument.”

Although the suppression of the blood test results does not assure that the eleven accused will go free, it is a major victory for the defense and greatly increases their chances of a Not Guilty verdict. The eleven still face “traditional” DUI charges based on impairment. Moreover, hundreds of people charged with misdemeanor DUI will look to the local Scottsdale Court where their cases are being tried to do the right thing and to apply the Maricopa County Superior Court ruling to their cases as they originated in the same lab and under the same circumstances. “It potentially affects all of them. If you’re using the same equipment, doing things the same way and the results aren’t reliable, then why wouldn’t you expect unreliable results?” Asked one of the defense attorneys, Joseph P. St. Louis.

The local Scottsdale Prosecutor’s Office has vowed to fight the application of the ruling to their local cases. The Maricopa County Attorney’s Office plans to appeal to Division One of the Arizona Court of Appeals.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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