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DUI Phoenix: HIPAA in a DUI Case

The goal of this article is to aid in determining whether a DUI Phoenix case contains HIPAA issues as well as address the difficulties of utilizing a HIPAA violation. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is the primary federal law providing privacy protection for a person’s medical information. While there are a couple of cases addressing the application of HIPAA regulations to issues arising in DUI Phoenix and criminal cases, interest has increased since the regulatory compliance date of April 14, 2003.

Hypothetical Case Scenario
Imagine that you have a client that has been charged with a DUI Phoenix with injury after causing a collision that resulted in injuries to both drivers. While being cared for by an EMS your client made incriminating statements regarding the DUI Phoenix and tested positively for alcohol and high levels of benzodiazepines and this information was documented. You explain to your client that their case will be difficult to defend if the prosecutor obtains the report of the EMS or the results of the blood analysis.

Your client would most likely respond that their medical records are private and they would not have signed the release of information form to get treatment if they knew others could access that information freely. You may now decide that it is time to delve into the complex regulations constituting the HIPAA Privacy Rule. You have your client sign a HIPAA compliant release of information form for your information as well as letters revoking any prior authorized releases. You notify both the hospital and the EMS provider that your client explicitly forbids the release of any information.

Does HIPAA Apply?
The first thing that must be determined regarding this DUI Phoenix case is whether the person or institution in possession of the medical information is covered by HIPAA. The HIPAA only governs the activities of “covered entities.” The second threshold question regarding this DUI Phoenix case that must be covered is whether the information at issue constitutes protected health information (PHI) under the regulations of the HIPAA. Covered enteritis are only allowed to release PHI under certain exceptions provided in the HIPAA. PHI includes all individually identifiable health information transmitted or maintained in any form of media, electronic or otherwise including paper records that have never been transmitted electronically.

At this point in the DUI Phoenix scenario it appears as if the statements of the client as well as the diagnostic tests constitute PHI in the possession of covered entities. However, it is not clear whether the vial of sealed blood handed to the arresting officer securing evidence under the state’s implied consent law falls under the Act’s protections. Two recent state court decisions have held that samples of blood obtained solely for law enforcement purposes do not fall under the HIPAA because the samples were not taken for the purpose of obtaining diagnosis, health care or medical advice instead they were used to prosecute a DUI Phoenix.

The blood draws in these cases were not obtained for medical purposes, however, it should be argued that there is no limitation within the definition of “health information” relating to a health care provider’s purpose in obtaining information. Information is PHI as long as the information relates to the mental or physical health condition of the person and was created or received by the health care provider. The chances of establishing that a blood draw constitutes PHI is certainly greater when such samples are taking for medical purposes.

If you are successful in establishing and HIPAA violation in this case the standard response to such violations of the law would be a motion to quash the subpoena and to suppress the improperly obtained evidence in this DUI Phoenix case.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a Phoenix DUI, visit our site.

DUI Attorney in Arizona: The Importance of Strict Scientific Testing

Any DUI attorney in Arizona can tell you about how much the standards for determining drunk driving have changed over the years. Back during the Carter administration, it was common for Georgia state troopers to have motorists blow into their Smokey the Bear hats to guesstimate the drunken intoxication of a driver. While this may sound like an episode of Yogi the Bear, it hardly qualifies as scientifically provable evidence. With such flimsy standards, a DUI attorney in Arizona would have many potential angles to introduce challenge and doubt into the evidence of the prosecution.

There were a wide variety of sobriety tests that existed in the 1970s, and not all of them involved a wide brim hat. Some involved drawing on a sheet of paper. Others involved doing a song and dance and grading for grammar and poise. Around 1975, however, the National Highway Traffic Safety Administration began scientifically measuring the accuracy of various tests in order to prove which were the most sound at providing reliable evidence. Rather than create more accurate tests, they merely had to determine the accuracy of the tests that were already being used that a DUI attorney in Arizona might regularly run into.

The National Highway Safety Administration (NHSA) awarded a contract to the Southern California Research Institute (SCRI) to determine which field tests were most accurate. The studies were conducted by SCRI director Marcelline Burns, a research psychologist who participated in ride-alongs with police officers all over the United States. Burns compiled a list of 16 tests thought to be feasible as potentially reliable sobriety tests. SCRI selected pilot tests and then began testing their validity with control groups in 1977. Six tests were chosen for the study that would decide the rules for which a DUI attorney in Arizona must operate.

After concluding its study, the SCRI recommended the use of 3 of its 6 tests. These included the walk and turn , the one leg stand, and the horizontal gaze nystagmus test. Other tests that had been studied included the finger to nose test, the finger count and the tracing test. The Romberg test, the alphabet test and subtraction tests were used interchangeably. These tests could be used to establish evidence at the scene to compile the freshest data related to the crime of the client of a DUI attorney in Arizona.

The testing was done in a laboratory setting over the course of a year. It involved 238 drinking subjects and 10 police officers. Individuals selected for the tests were all licensed drivers familiar with the effects of alcohol. They were instructed not to eat for 4 hours and then given measured doses of alcohol, but were never told how much alcohol they had been given. Their BAC levels were measured and then subjected to the 6 tests listed above. These are the same tests that might be given today to a client of a DUI attorney in Arizona.

Interestingly enough, the testing revealed that the error rate of the officers involved could have an impending significance. It was found that the officers had an error rate of over 47%. The officers made the decision to arrest 101 people, 47 of which had a BAC under .10 %. This leads to the suggestion that a DUI attorney in Arizona can insert a great amount of doubt into evidence based solely on an officer’s testimony. Without a definitive scientific test that measures the individual’s alcohol level, it is nearly impossible to say that the driver was in fact drunk.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona DUI Attorney, visit our site.

DUI Attorney in Phoenix: Strategies for Disputing the Results of Alcohol Tests

Ask any DUI attorney in Phoenix. All too often, the methods at which they base alcohol tests simply are not scientific. Considering that a breathalyzer is the biggest thing to determine guilt or innocence in a DUI case, it is critical that the information they reveal be 100% correct and dependable in the eyes of a jury. Not only must the science be reliable, but so should the standards of those who conduct it. Many of these lab technicians have a “convict at all costs” mentality, often falsifying results in an effort to sway the jury against the client of a DUI attorney in Phoenix.

The Dangers of Inaccurate Alcohol Testing
Evidence presented as scientifically accurate is most often taken by a jury to be irrefutable. In many cases, scientific evidence outweighs witness credibility, police statements, and other forms of evidence. Once a jury accepts something as a fact, it is hard for the defense to sway them otherwise. When scientific testing loses its accuracy, it loses its courtroom validation. Alcohol tests need to be 100% reliable because of the importance a jury will place on deciding the case. The very fate of suspect may come down to the accuracy of the lab testing.

Simulator and Breath Testing Solutions
Breath testing machines utilize infrared spectroscopy- an infrared beam of known intensity that passes through a sample of the individual’s breath. Any possible alcohol is then absorbed at specific wave lengths. A detector analyzes the beam after the breath sample and compares its final intensity with the level it started out with. If done correctly, the decrease in intensity at “ethanol wavelengths” makes it possible to quantify BAC, though the results still have a small degree of uncertainty that might be contended by a DUI attorney in Phoenix.

The result of any measurement is only an approximation of the quantity actually being measured. When the true value is needed, bias becomes problematic and can give a DUI attorney in Phoenix something to work with in planning a defense. A result is only complete when the bias of an instrument has been determined and the results thereby corrected for that bias. If the prosecution fails to correct for bias, a the defense can more readily challenge the evidence as 100% reliable.

Forensic scientists must know the relevant information as they affect the computations before the trial and must disclose this to both the prosecution and the DUI attorney in Phoenix prior to the trial.

A reference material that includes a substance whose properties are sufficiently well known is calibrated through the machine and tested for accuracy. These known traceable standards are called stimulator solutions. Simulators provide crucial safeguards for accurate breath test results. Challenging the accuracy of a simulator may be another strategy a DUI attorney in Phoenix might use to insert doubt against the prosecution’s arguments.

A DUI attorney in Phoenix does his or her client a great service by seriously examining how samples were collected and how the test was performed. If contaminants, incorrect sample sizes, or inaccurate bias are not taken into account, the prosecution has serious holes it its evidence that can be exploited. By inserting doubt in the core evidence, your client can most likely avoid a guilty conviction.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Phoenix DUI Attorney, visit our site.

Clients of a DUI Lawyer in Phoenix May Be Eligible for Home Detention Programs

Ask any DUI lawyer in Phoenix. House arrest and ankle monitors may soon become an alternative option for convicted drunk driving offenders. While home detention programs are certainly nothing new, as Arizona law has enabled their creation for a number of years and most Valley City courts already have similar programs. It makes sense from more than just the point of view of the client of a DUI lawyer in Phoenix. Faced with already strapped budgets, city officials realize it’s an easy way to cut costs. Like many things, it all comes down to economics.

The Scottsdale City Council is considering the measure, and most think they’ll pass it. If the program is approved, any DUI lawyer in Phoenix will be able to request the program for clients facing jail time. City officials hope to have the program in place by summer. If it doesn’t take effect, the city can expect to pay about $3.5 million over the next year supplying what essentially comes down to “temporary housing” for the clients of some DUI lawyer in Phoenix. In this economy, it seems the city would likely have better ways to spend its money, such as working to fight homelessness, boosting strapped police forces, or fighting off any impending deficits.

Making the clients of a DUI lawyer in Phoenix stay home to do their time simply makes the most economic sense. A home detention program is expected to save $600,000 to $1 million every year. Considering the first day in jail costs a city $192, and every day after that adds $72 on the bill, the city really can’t afford to pass up on this economic opportunity.

Cost savings are essential, but equally important is the strain that it saves law enforcement. There are some serious positive repercussions. One positive advantage is that drunk driving offenders will more likely be able to keep their jobs, and therefore be in a better position to pay back court costs as well as be productive members of society. Jail costs can be considerable. While the inmates are required to pay back a portion, they are in a better position to do so if they are able to keep their job. Typically, courts collect only 50 to 60% of all costs, most likely because the person is no longer employed after spending time in jail.

Most likely, a convicted individual would have to serve their first 15 days in jail. After that, they could serve their time at home.

Home detention, on the other hand, costs about $100 to start up and $10 to $18 per day after that. Part of that cost would be covered by the convicted client of a DUI lawyer in Phoenix.

Certain convicts would be illegible for home detention. People with a history of violence or who pose other potential dangers would most likely have to serve their time in a traditional jail. A client of a DUI Lawyer in Phoenix with a domestic violence conviction would also be barred, as would the unemployed. About half the Scottsdale city’s DUI offenders are likely to participate in the program.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Phoenix DUI lawyer, visit our site.

Tricks a DUI Lawyer in Arizona Can Use to Question a Blood Sample

Upon accepting a new client, a good DUI lawyer in Arizona already anticipates the challenges that can mount of the client subjected him or herself to a breathalyzer. These include mouth alcohol, radio frequency interference, and interfering substances, although the list can go on. If the client took a blood test, however, too many a DUI lawyer in Arizona will just give up hope and accept the test results. It doesn’t have to be that way, as creative approaches can instill doubt into any blood test. Let’s take a look at a few of the strategies.

Collection Materials
A DUI lawyer in Arizona who wishes to dispute such a test should first start by looking at the materials used to collect the blood specimen. In inappropriate materials were used, it can make a big difference that may result in the validation of your client.

Most agencies drawing for blood use some type of partially evacuated blood collection tube, such as the Vacutainer from Becton-Dickenson. These tubes are sold with a variety of additives inside, depending on the type of test for which the sample has been collected. The appropriate tube for such a test contains a mixture of sodium fluoride and potassium oxalate. Usually these tubes are intended for blood glucose approximations and typically have a gray stopper. Stoppers for other tubes have different colors.

If the blood alcohol result of the client of the DUI lawyer in Arizona is derived from a tube designed for a different type of analysis, the result may be inaccurate due to interference with the different chemicals within the tubes, or from the separation of the blood into plasma or serum. Remember, plasma is the blood minus the blood cells. Always check which type of tube is used for collection, as a mistake can be used as leverage by a meticulous DUI lawyer in Arizona.

Also realize that these tubes have a shelf life and an expiration date. After the date is expired, the vacuum depletes, which may result in contaminants from the surrounding air. This results in less than the full amount of blood necessary to conduct a conclusive test, called a “short draw.” This can also happen if the technician pulled the tube off of the needle before it had completely filled, introducing microbe contaminants into the tube. In blood cases, it is critical that a DUI lawyer in Arizona always check the expiration date as well as the appropriate amount of blood for the size of the tube. If it less, the accuracy of the blood ethanol result can be quite readily disputed in a court of law.

Skin Prep and Alcohol Swabs
Prior for drawing blood for alcohol tests, the skin must be wiped with a swab that does not contain alcohol, meaning not only ethanol, but other alcohols such as isopropanol or rubbing alcohol. The swab is important to kill any microbes that might contaminate the sample. It is important that the swab be done in an outward spiral to remove the microbes away from the punctured site. Ask the person who drew the blood sample to demonstrate their technique, as many do so incorrectly in a way that leads to contaminated and incorrect samples. If the swab contained alcohol, it can also contaminate the sample and can give a DUI lawyer in Arizona ample room to insert doubt into the prosecution’s case.

About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about an Arizona DUI lawyer, visit our site.

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