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U.S. Supreme Court Rules for Cell Phone Privacy Interests

Posted Friday, June 22, 2018 by Andrew Charles Huff

When the government wants to track an individual’s location through cell phone records over an extended period of time, they need to get a warrant, says the U.S. Supreme Court in a major ruling on privacy.

As most know, anyone can track your whereabouts at any time of the day with cell phone technology. The question answered by the Court today was “what limits should be placed on law enforcement to do this?”

Carpenter v. United States was a 2011 case involving an individual suspected of various crimes around town. Police went to the third-party telephone company and asked to get his transactional records from his cell phone in order to track his whereabouts. This information is data that pings off cell phone towers and then collected by these companies. The information obtained by police led to his conviction.

The 5-4 opinion was written by conservative Chief Justice John Roberts siding with the four most liberal justices. Justice Roberts found that cell phones are now a part of us and play a “pervasive and insistent part of daily life,” Roberts wrote. Information obtained from these records is still accessible to police, but with a warrant.

The ruling is a major victory for advocates of increased privacy rights who argued more protections were needed when it comes to the government obtaining information from a third party such as a cell phone company.

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Traffic Ticket by Radar

Posted Thursday, June 21, 2018 by Andrew Charles Huff

Radar guns or Speed Measuring Devices work by sending and receiving radio signals. They work by directing a radio signal towards a vehicle, then receiving the same signal as it bounces off the vehicle. Using what is known as the Doppler Effect, the device can calculate the speed of the vehicle based on changes in the value of the returning signal.

Law enforcement agencies have also begun moving towards Light Detection and Ranging (LIDAR) technology, which operates in much the same way as radar, but using lasers instead of radio waves.

Regardless of which technology the agency uses, these devices are sensitive tools of measurement that require regular calibration and adjustment. Radar guns, for example, require the use of a tuning fork to make sure that the device is producing accurate readings. Manufacturers of the devices recommend calibration before every use, but states may require testing and calibration much less frequently.

One of the ways we challenge speed through radar is to review the calibration records for the device that measured your speed and offer it into evidence in court. If the device wasn’t calibrated within the required timeframe or wasn’t calibrated correctly, this could be grounds for dismissal. Occasionally, an officer may believe they can calibrate the radar gun without using the tuning fork. However, If this wasn’t done, it could be additional grounds for a dismissal.

Officers must also go through approved and certified training programs before operating these devices, so a lack of training or experience could also affect the case.

If you know for a fact that you weren’t speeding or you simply don’t want it on your record, call me and let’s discuss your case. Most likely, I will be able to keep your ticket off your record and protect those insurance rates.

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More Problems with the Draeger Alcotest 9510 Breath Machine

Posted Wednesday, June 20, 2018 by Andrew Charles Huff

Washington state’s new breath test machine the Draeger Alcotest 9510 uses two sensors to measure alcohol content in a breath sample: An infrared beam that measures how much light goes through the breath, and a fuel cell that measures the electrical current of the sample. The results should be about the same and within a small margin of error – usually within a thousandth of a decimal point. If the results are too far apart, the test will be rejected.

However, reports have found that under some conditions the breath machine can return an inflated reading – a result that could also push a person over the legal limit. One reason is the apparent lack of adjustment made by the machine of a person’s breath temperature. Breath temperature can fluctuate throughout the day, but can also wildly change the results of an alcohol breath test. Without correction, a single digit over a normal breath temperature of 34 degrees centigrade can inflate the results by six percent – enough to push a person over the limit.

The Washington State Patrol still claims the machine should correct the breath temperature to prevent false results. According to the WSP, the quadratic formula corrects warmer breath downward. But the code doesn’t explain how the corrections are made and the corrections may be insufficient if the formula is faulty.

Issues with the code notwithstanding, Washington chose not to install a component to measure breath temperature, according to testimony in a 2015 hearing, and later confirmed by Draeger. The Washington State Patrol said they “tested and approved the instrument that best fit our business needs,” and believes the device can produce accurate results without the breath temperature sensor.

The code is also meant to check to ensure the device is operating within a certain temperature range set by Draeger, because the device can produce incorrect results if it’s too hot or too cold. But the report said a check meant to measure the ambient temperature was disabled in the state configuration.

When asked, a Washington State Patrol spokesperson would not say if the breathalyzer was configured to allow breath tests outside its operational temperature range, saying only that the device “has been tested and validated in various ambient temperatures.”

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It’s the Source Code, Stupid!

Posted Thursday, June 14, 2018 by Andrew Charles Huff

The source code behind a police breathalyzer widely used in multiple states – and millions of drunk driving arrests – is under fire. It’s the latest case of technology and the real world colliding – one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer’s manufacturer.

About 10 years ago when Washington state began the process of replacing its aging fleet of breath machines, our state requested bids and the only bidder was Draeger, a German medical technology maker. Specifically, they won the right to sell their flagship device, the Alcotest 9510, across the state.

But those of us on the defense bar have long believed this machine is faulty. In fact, a preliminary report found flaws capable of producing incorrect breath test results and therefore we believe these findings cast doubt on countless DUI cases.The Draeger company has so far refused to release requested information on their machines, stating the company is protecting its source code and intellectual property, not muzzling research. And these issues in Washington are the latest in several legal battles where this machine has faced scrutiny about the technology used to secure convictions.

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Terry Stop? What’s a Terry Stop?

Posted Thursday, June 14, 2018 by Andrew Charles Huff

Most people know that as a general rule, a police officer cannot search you or your vehicle without probable cause, according to article I, section 7 of the Washington State Constitution. But there are exceptions to this warrant requirement. In fact, Washington recognizes at least six narrow exceptions to this warrant requirement. They are Consent, Exigent Circumstances, Searches Incident to a Valid Arrest, Inventory Searches, Plain View Searches, and…the Terry investigative stop.

A Terry stop is quite common and an officer must have a reasonable and articulable suspicion of either criminal activity such as Driving Under the Influence or a traffic violation. This stop allows an officer to briefly detain, for limited questioning, a person for the above reasons. For example, when police are unable to locate a person suspected of a past crime, this ability to briefly stop that person, ask questions, or check identification helps law enforcement do their job.

Therefore, this minimally intrusive Terry stop allows an officer to make an intermediate response to a situation for which he or she lacks probable cause to arrest but which calls for further investigation.

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