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What if we are wrong about DUI impairment?  Everyone knows that drinking too much alcohol can impair a person’s ability to drive.  The argument centers over when alcohol impairs your ability to drive.

The jury instructions for a DUI say that a person is under the influence of alcohol when they drink any amount of alcohol that impairs their ability to think and act with ordinary care.

Under the BAC over 0.08 laws, the jury may presume that a person is under the influence when they have a blood alcohol content of over 0.08 g/dl.  But is that right.

Is the amount of alcohol in your bloodstream directly related to how impaired you are?  My guess is that it is not.  Further is the effect of a particular level of alcohol the same in everyone?  Obviously it is not.  Psychologists will tell you that people who drink often develop a tolerance to alcohol.  They have to drink more to achieve the desired results.  Just by that very fact aren’t they telling us that the amount of alcohol to impair a person can change?

Also, anecdotally, a person who drinks probably has experienced the feeling of “drinking themselves sober.”  How would it be possible to lessen the affects of alcohol by drinking more, that seems paradoxical.

I suspect that the real reason that we experience these exceptions to the rule that once a person has a blood alcohol over 0.08 they are impaired is because, impairment is probably more related to the change in alcohol concentration in the blood rather than the level.  That would explain how a persons first drink comes with a buzz (when of course their blood alcohol could never be a 0.08 after one drink).

Why do we set the ‘drunk level’ at 0.08, when it is likely that measure is not adequate to describe the level of a persons impairment?  The government will tell you that it is because they are concerned about public safety they feel it is a good short cut or substitute for the truth.

But is it?

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.

Boom goes the dynamite (wait, strike that ..)

The Horizontal Gaze Nystagmus test (or HGN) is a DUI Field Sobriety Test used by police officers in Illinois to detect alcohol impairment.  Personally, as a defense attorney I hate the test because essentially the officer looks at someone’s eyes and tells us what he saw (with no opportunity for us to review what he saw) our only attack lay in the performance of the test and the tests accuracy.

Generally NHTSA guidelines guess that this test is about 77% accurate for detecting BAC (blood alcohol content) above 0.10.  It’s not, of course, but in this world of made up BS created from the clear blue sky, that’s what juries are told around the country.

Well, there may be a shift in the FORCE (Star Wars TM).  I represensented three clients in a row who the officer said scored 6 out of 6 clues for the HGN.  Only problem:  Their BACs were 0.74, 0.06, and 0.54 respectively.  Now I know that I can use that information against the officer who did those tests, but the real question is:  is there anyway to gather that information about other  police officers who perform the tests routinely?

I think that criminal defense attorneys should be able to subpoena past police reports to see how many UNDER 0.08 BAC DUIs they wrote scored 6 out of 6 on the HGN test.  It may be time to do some legal experiments.  I have always thought that more science should be introduced into the law.  Would an officer be pulled off the road if he or she consistently scores poorly in this regard.  Well, I guess only time will tell.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.


P.S.  I really think we will be looking back on this particular field sobriety test and laughing about how our courts ever allowed it.

Nancy Grace reprimanded by the courts

Next time your grandma gets finished watching the Laurence Welk Show, puts on her bifocals, and flips on Nancy Grace for her “evening news” it might be worth watching for a few minutes (or until Nancy starts frothing at the mouth).  I’m not saying it will be easy. In fact, I know it will hurt.

Nancy Grace is a horrible person. She demonstrates that to the entire world on T.V. and Twitter.  She’s horrible because she ignores your presumption of innocence.  She’s a troll for thinking everybody ever charged anywhere is guilty.  She’s an idiot for not caring about science or reason, especially when it comes to things like narcotics and the war on drugs.

How, then, can Nancy be so popular?  Not because of the psychotic-looking, thousand-yard-stare she takes on when she’s getting ready to get worked up.  It’s clearly not because of her “long” career as an “ethical” prosecutor.  Is it because of Dancing With The Stars? Nah. She couldn’t move her hooves well enough to beat Rikki Lake.

She’s popular because she follows the same tried-and-true, pathetic formula that will make anybody  in the world of criminal justice popular: She panders to victims.  When you pander to victims, and do it well, the public will love you. Even if you victimize the victims in the process.

She certainly didn’t invent victim pandering. Long before your grandma started watching her show, politicians had perfected the art.  Want to get elected? Say you’re tough on crime. Want to beat the guy who’s already saying he’s tough on crime? Say you’re tougher on crime, and you’ll listen to the poor victims that nobody is ever wanting to help.  Want to be a lawmaker that’s popular with the constituents? Pass a law- any law- that somehow deals with giving the “victims” a better voice. Or a bigger voice. Or stronger voice in “the system.”  Even if the law really does nothing.

It doesn’t matter how bullshit the law or claims of toughness on crime may be.  It happens in because it works.

That’s why little, scared, old people love Nancy. She’s looking out for the meek, voiceless victims.

What Nancy does, better than any of the other victim panderers, though, is demonstrate how absurd victim pandering is, and just how blindly the sheep will follow anybody masquerading as a victim advocate.

Imagine a poor, defenseless little baby. You know, one so young she can’t walk, can’t talk and can’t even fire the brain synapses enough to form a bad thought.  Hell, let’s pretend it’s even your baby. Now pretend somebody tried to kill your baby by putting it in the clothes dryer.

Pretty morbid, no? Horrible, yes? Not very funny, right?

Here’s how champion of victim’s rights, and national media celebrity Nancy Grace chose to describe that poor kid to the world:

That’s right. She just joked about a little kid- a victim- being stuffed in a dryer and put on permanent press.  The result? 139 of her twitter followers shared it, and 52 marked it as a favorite tweet. Who the hell would do that?

Don’t ask me. I think it’s despicable.  Nancy obviously doesn’t, though.  “Dryer Baby” was only one, in a long line, of her crass characterizations of the people she claims to protect. Let’s never forget “Box of Babies”

Or anymore of her horrid, victim-preying descriptions.

Therein lies the most pathetic, non-nonsensical part of victim pandering. That’s the idea that, if you can convince people to believe you will cater to victims, nobody will care about any of the details-  Even if you’re mocking victims and their tragedies in the process of pretending to protect them.  Nancy Grace does it every night, and your grandma loves it.  That’s the Nancy Grace effect.

 Matt Haiduk is a criminal defense lawyer in Illinois. He doesn’t like Nancy Grace… even a little bit.
Screenshot from 2014-11-03 18:42:08

Please read and enjoy this filing in South Carolina as much as I do.  Stick with it until the end. It’s not easy, but please do.  This “legal scholar” lays out the most compelling argument against gay marriage: that he would be forced to “assume a life of protester and wedding crasher” preventing him from keeping the sabbath holy (and, thereby infringing on his free exercise of religion).  You can start at about paragraph 17 if you just want the funny (although, skip 18 which just says “etc.,”).

3:13-cv-02351 #83 by Equality Case Files

Urban dictionary

Mockingbird Marketing should be ashamed.

People can think lawyers are scumbags all they want. Certainly, some of my colleagues are dirtbags.  As a whole, though, I think lawyers are cut from the same cloth as the general public- 95% of lawyers are more worried about running an ethical practice than they are making as much money as possible.

I wish I could say that for legal marketing agencies. If you’re unaware, there is no shortage of vultures constantly calling and emailing law firms in hopes of gaining marketing contracts.  They’ll sell everything- from writing and creating ads, putting you up a web page, and even ghost-writing blog posts for a generous monthly fee.

If you want a sample of some of the boring, ridiculous, or generally ineffective drivel they post, just do a google search for “lawyer blog.” If the first few links are worth reading, keep clicking. It won’t take long.

Some of them are even willing to put the unsuspecting lawyer’s money into programs that blatantly violate (and eventually get their client’s web presence banned or penalized) google’s terms of service policy.

When you’re a lawyer, if somebody else is publishing words on your account, you better make damn sure you know what they’re doing. Because, as Popehat famously writes, especially in the law, “when you outsource your marketing, you outsource your reputation and ethics.”

A few months back I started to follow the blog of Mockingbird Marketing.  Even though, obviously, I try to avoid these people, the blog had some interesting information.  Despite his obsessive (but, seemingly justified) attacks on Findlaw he seemed to be trying to do things the “right way.”  At least that’s how his “Mockingbird Marketing 10 Commandments” made it sound. Number 5 was refreshing:

5.  White Hat to a Fault

Don’t engage in unethical marketing – we are in business for the long term, as are our clients.


As the Bishop, and reformed pimp, Don “Magic” Juan has remarked, though, “The game is to be sold, not told.”  Mockingbird Marketing’s “Commandant #5″ is a much sales bullshit as… probably the rest of his commandments.  Last weekend he posted something called, “I Lied to Get”  He is an admitted liar.

The short version is that he schemed up some ridiculous story about a band in London needing the domain name, and had some sort of straw purchaser email the owner with a sob story.  You can read her (the original owner’s) version to get the important details.

Various comments on the Mockingbird Marketing site are defensive of the deceptive tactic.  They echo his original response to the allegations of unethical marketing in that, “it’s all business.”  In a strict business sense, that’s true.  If this was a dispute between Coke and Pepsi, the tactic would likely be a good one.

Despite what the general public thinks, however, attorneys have to live to a heightened standard that leaves no room for this sort of dishonesty.

That’s where there is no escaping the Popehat quote. When you outsource your marketing to Mockingbird, you’re outsourcing your ethics to an agency founded on lies about a band in London.  You go ahead and do that. I don’t want any part of it.


Matt Haiduk is a criminal defense lawyer who practices in the greater Chicago metro area.


I apologize for not posting a lot lately.  The jury brought in a guilty verdict on a DUI case, and that always has me thinking:  Why did they do that?  I become a little introspective.  The City of McHenry has an officer who has been on the force for 16 years, 13 of those on the night (DUI) shift.  He is trained to train people how to do field sobriety tests.  My client did well on the tests but the jury still found him guilty.

Under Illinois law a person is under the influence if their ability to think and act with ordinary care has been affected by consumption of any amount of alcohol.

It’s funny to listen to attorneys during trials because prosecutors will emphasize the words ANY AMOUNT of alcohol, and defense attorneys will emphasize ORDINARY CARE.  Very predictable.

However, in cases that have no chemical testing and no admission to being intoxicated, it should be very difficult for the state to prevail because of the burden of proving the case rests on them.  But, sometimes they win anyways.  Attorneys will think about losses 10 times more than they do wins.

In cases that have very light evidence of intoxication, I believe that there is a bias against the defendant.  Here’s what I mean:  the jury is more likely to consider the arrest as some evidence against the defendant where the evidence is thin.  That thoughts of “Well the police officer was there, and I wasn’t” creep into their minds.  They may forget that the burden is on the state to show that the defendant is guilty beyond a reasonable doubt.

Law Dude, Ray Flavin, represents drivers that have been charged with DUI in McHenry County Illinois. His law offices are located across the street from the McHenry County Courthouse in Woodstock.