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guns-300x225In yesterday’s paper there was an article about a shooting in Mt. Rainier National Park.  There was a tragedy in the park.  A young man, believed to be Benjamin Colton Barnes,  had severe mental problems – possibly PTSD from service in Iraq.  He shot several people near Seattle on New year’s Eve.  He may also have been involved in another shooting incident that night.  On New Year’s Day Barnes he fled to Mt. Rainier National Park.

Park police had a checkpoint set up to make sure people had chains because of the snowy conditions in the park.  Someone blew through that checkpoint.  One of the rangers followed that person.  Another ranger, Margaret Anderson, set up a roadblock to stop the person who ran the checkpoint.  As she was getting out of a vehicle she was shot and killed.  Police believe Barnes was the shooter.  Barnes was later found dead in the Park.  The cause of death is believed to be hypothermia – he was  found in a snowy stream in a T-shirt and jeans.

Before Barnes was found dead, rangers had rounded up all of the park visitors and evacuated them.  They were afraid for their safety.  Afraid that Barnes would try to kidnap or harm some of them.

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Defense Attorney: John Scott Webb, Esq.

Offense: Gross Sexual Assault, Class A, 32 Counts; Unlawful Sexual Contact, Class C, 33 Counts

Maximum Sentence: 30 years with respect to each Class A Count; 5 Years with respect to each Class C Count; (a total of 1,125 years)

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Defense Attorney: John Scott Webb, Esq.

Offense: Operating Under the Influence (OUI, DUI, DWI)

Maximum Sentence: 364 days in jail

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Defense Attorney: John Scott Webb, Esq.

Offense: Operating Under the Influence (OUI, DUI, DWI)

Maximum Sentence: 364 days in jail

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Defense Attorney: John Scott Webb, Esq.

Offense: Operating Under the Influence (OUI, DUI, DWI)

Maximum Sentence: 364 days in jail (minimum 90 day license suspension, $500.00 fine)

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So what does the Supreme Court’s decision in Bullcoming v. New Mexico mean for the country at large? The answer is that no longer can scientific evidence be introduced into a case as if it were non-testimonial evidence. Testing and subsequent analysis of forensic evidence, far from being rote, requires a level of scientific expertise that, on occasion, may come into question. It is therefore imperative that whoever performs testing on any manner of sample must be made available for testimony so that the accuracy and reliability of the conclusions may be fully investigated. Although this doesn’t pose much of a problem for us here in Maine, many larger states may find themselves in a predicament now that highly technical and crucial forensic evidence can not be presented to the court as though it was generated by some nameless pencil-pusher.

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no-drink-drive-220x300I cannot tell you the number of people I talk to who say, “Well, the breath test says I blew over .08, so there is nothing I can do, right?” Wrong! What most people do not understand is that breath tests do not measure your blood alcohol level. Breath tests estimate your blood-alcohol level. They do that by using a lot of assumptions that assume everyone is the same. Do you really think everyone is the same? Hint: the answer is “no.”

This is Part I of a series of blogs about the assumptions that form the basis of breath testing, and why those assumptions are flawed. A breath test can be off, way off. While they are right much of the time, they are unfortunately wrong at the wrong times. As a result, innocent people are convicted of DUI.

I will start with explaining how breath testing is supposed to work. After that I will talk about the problems that occur. If there is something particular any reader would like me to comment on about breath testing, please let me know.

The Supreme Court recently ruled in Bullcoming v. New Mexico in favor of the Petitioner. The details of this otherwise mundane DWI/DUI case are as follows: Bullcoming, when initially pulled over on the night of the bad incident, refused to take a breath alcohol test. As a result, a blood alcohol test was ordered, which later was introduced as evidence.

The rub, however, is that the results of the blood alcohol test were presented as a business record, meaning that someone other than the forensic investigator which analyzed the blood sample could testify to its accuracy and veracity. Bullcoming argued that the evidence was instead testimonial, and that the Confrontation Clause would therefore be applicable. Although the New Mexico Supreme Court did indeed agree that the blood analysis was testimonial evidence, it ruled that it was admissible without the testimony of the forensic analyst who tested the sample. This ruling was reversed when brought before the Supreme Court, who voted 5-4 in favor of Bullcoming. Congratulations to my friend and colleague Justin McShane, Esq. (@JustinMcShane) who was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Next week: What does this mean for us?

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