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The 19th Annual Aggressive Defense of the Accused Impaired Driver

AACJ Spring Seminar 2006

April 28-29

Westward Look Resort, Tucson AZ

Seminar Co-chairs: Stephen Paul Barnard and Michael J. Bloom

Once again a year of many changes. Legislators, in an election year miss no opportunity to align with law enforcement and "get tough" on DUI with significant new bills that infringe upon the rights of all Arizona citizens. DPS, now in charge of regulating themselves in the area of chemical testing, has proposed changes to make it easier to obtain convictions. The Police continue to be unregulated blood collectors with tacit approval of the courts. The Supreme Court has announced as one of its goals, the expedited processing of DUI cases. This has resulted in recommended changes to the criminal rules that some courts are already implementing. The consequence of these changes amounts to an all-out assault on our most prized constitutional protections. The right to confrontation as well as the right to present a defense are in dire jeopardy. As a Defense Attorney you are the last hope for one accused of a criminal offense allegedly involving the use of alcohol and or drugs and driving. It is now more important than ever for the Defense Bar to be prepared to face these new, police biased areas of law. This seminar will be the one of most in depth and useful ever presented on the subject by AACJ with some of the best lawyers in the country. This is the one not to be missed.

Friday, April 28
Time	Session Name	Speaker(s)
7:30 - 8:15	Registration and Continental Breakfast
8:15 - 8:30	OPENING REMARKS	Stephen Paul Barnard, Michael J. Bloom
8:30 - 10:30	SYSTEM OVERLOAD: The Election Year Barrage	Kathleen Carey, Dave Derickson
	2006 New Case Review	Michael J. Bloom
	Confronting the Supreme Mandate: Rule Recommendations from the Supreme Court's DUI Processing Committee	W. Clifford Girard
	Confronting the Supreme Mandate: Rule Recommendations from the Supreme Court's DUI Processing Committee	W. Clifford Girard
	Can We Stop the Phlebo Cop? Update on Pending Litigation	Matthew Green
10:30 - 10:45	Break
10:45 - 11:30	THE FST VALIDATION MYTH	Steve Oberman
11:30 - 12:00	HGN Is it Magic?	Stephen Paul Barnard
12:00 - 1:15	Lunch...on your own...
1:15 - 2:15	CONFRONTING THE LAB Dirty Little Secrets	Janine Arvizu
2:15 - 3:00	TAKING ON A BLOOD CASE And you thought Breath Testing was Bad	Michael J. Bloom, Chester Flaxmayer
3:00 - 3:15	Break
3:15 - 4:15	INTOXILYZER 8000 New Test, New Problems	James Nesci, Daniel Furlong
4:15 - 5:30	PICKING A JURY Insights from Coast to Coast	Steve Jones, James Nesci, Darren Kavinoky
5:30 - 7:00	COCKTAIL RECEPTION Meet the faculty

Saturday, April 29
Time	Session Name	Speaker(s)
7:30 - 8:15	Continental Breakfast
8:15 - 9:00	OPENING WITH AN ARGUMENT	Natalee Segal, Robyn Varcoe
9:00 - 10:00	FROM STOP TO ARREST Crossing the State's Key Witnesses	Edward Loss, Christopher McBride
10:00 - 10:15	Break
10:15 - 11:15	POWER POINTS WITH POWERPOINT	Steve Oberman
11:15 - 12:15	THE ART OF CLOSING Powerful analogies, Snippets, & Stories	Steve Jones

Speakers and session times are subject to change. The final agenda will be at the seminar registration table.

Total CLE hours: 11.25

Westward Look Resort

Set high in the foothills overlooking Tucson and warmed by an abundance of desert sunshine, Westward Look Resort is a rejuvenating resort environment inspired by the beauty of its pristine natural surroundings.

Deadline for the AACJ Hotel Group Rate is Friday, April 7.
AACJ Group Rate: $109 (single/double occupancy)
Hotel Reservations: (800) 722-2500
Hotel Address: 245 E Ina Rd. Tucson, AZ 85704
www.westwardlook.com
DUI Seminar Registration Form 2006

Deadline for Standard Registration is Friday, April 14.

Speakers

JANINE S. ARVIZU (Special Guest)

is a chemist and laboratory quality expert with more than 20 years of technical and program management experience in laboratory operations and management, quality assurance, and interdisciplinary program management. She has developed and managed organizational and programmatic quality programs and has extensive experience in the assessment of laboratory operations and analytical programs. She is a Certified Quality Auditor and Trained ISO Lead Auditor. Janine is Senior Technical Consultant, Consolidated Technical Services, Inc. She consults in laboratory assessment, quality assurance, and independent reviews. She was Program Manager for the Navy's program that evaluated 70 testing laboratories and provided independent technical reviews and quality assessments of major project plans and laboratory results using on-site audits, reviews of quality documentation and blind proficiency testing.

STEPHEN PAUL BARNARD

He limits his practice to the defense of vehicular crimes with emphases on DUI. He has tried over 800 cases involving Driving Under the Influence of alcohol or drugs (as a defense attorney), including second degree murder by vehicle. He is a member of NDAA, NACDL; National College DUI Defense; ATLA; and ABA. He is on the Board for AACJ and headed the DUI committee. An AV rated lawyer, he was chief counsel on 28 published, precedent setting DUI cases in Arizona. These cases helped establish the right to counsel prior to taking a chemical test; the right to strike judges in lower courts; and the enforcement of the right to obtain independent evidence in DUI cases. He has been at the forefront of several monumental challenges to the use of pseudo scientific evidence in DUI cases, from the use of blood testing without regulation State v Cammack, to the RBT IV challenges, State v. Sanchez. He has presented at seminars for the State Bar of Arizona, Pima County Bar Association, Arizona State University, Maricopa County Public Defender, Maricopa County Bar Association, the 2nd and 3rd DUI Judicial Conferences, The Arizona Defense Bar (Civil) and is the Co-founder of the AACJ Aggressive Defense seminar.

MICHAEL J. BLOOM

is in private practice with emphasis on litigation and criminal defense, including DUI and vehicular offenses. He has handled numerous high profile vehicular homicide offenses in southern Arizona. (State v. Marissa Rodriguez; State v. John Rosengren). In 1994, he was the Trial Lawyer of the Year for the American Trial Lawyers for Public Justice as a result of his work in uncovering the acknowledged policy of the Tucson Police Department to interrogate suspects in violation of their request for counsel. See, Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992). He has participated in numerous challenges to the manner in which DUI's are investigated in Arizona, including the challenge to the RBT, resulting in the invalidation of 14,000 breath test results. See also, State v. Fields, 196 Ariz. 580, 2 P.3d 670 (Div. 2 1999). He has participated in 3rd and 4th DUI Judicial Conferences, seminars for the State Bar, Pima County Bar, Arizona State Alumni Association and AACJ. He is a former Board member and co-founder of the AACJ Aggressive Defense seminar.

KATHLEEN N. CAREY

is a private attorney formerly with Maricopa County Public Defender. She represented indigent clients charged with felonies and later was assigned to the Vehicular Unit office where she focused on DUI and vehicular crimes. She was the MCPD's Legislative Relations Coordinator focusing on legislation impacting indigent defense; particularly criminalization, statutory lawmaking and public policy issues. She received her J.D. from Arizona State University as a Willard H. Pedrick Scholar (1999). After successfully obtaining a statutory amendment to expand the committee to include a statewide indigent defense representative, she was the first APDA appointee by the House Speaker to the Arizona Sex Offender Guidelines Committee. She frequently testifies before legislative committees and has worked with federal legislators on criminal justice issues. She is a member of the Arizona State Bar, AACJ (Legislative and DUI Committees and the statewide Derendal Task Force to preserve the inviolate right to jury trials in Arizona), National College for DUI Defense, and NACDL (State Legislative Network Member).

DAVID DERICKSON

His practice concentrates in Criminal Defense, Commercial Litigation; Professional Malpractice. He is a graduate of University of Arizona (J.D.1969). He is a member of The American Bar Association; Maricopa County Bar Association; State Bar of Arizona; Association of Trial Lawyers of America; Arizona Trial Lawyers Association; Charter Member of AACJ. He is a former Maricopa County Superior Court Judge, 1979-1983; Presiding Judge, Criminal Divisions, 1982-1983; Maricopa County Superior Court Judge Pro Tem, 1983-present; Consultant to the Profession on Litigation Matters; Legislative Liaison AACJ; 1995 President of AACJ; Government Relations, AACJ, 1995-1997; Board of Governors, 1989-1997; Chief Justice designate to Supreme Court Indigent Defense Committee (1993); Member, Arizona State Criminal Code Curriculum Implementation Committee (1993); Member, Arizona State Legislature Parity Review Committee (1993); Member, Arizona State Hospital Advisory Board (Governor appointee, 1998).

CHESTER FLAXMAYER

for seven years was the chief criminalist for the DPS breath testing program, specializing in the area of forensic breath and blood alcohol. He has been an expert witness more than 400 times in cases including State v. White (subtractive retrograde) State v. Alday State v. Harrison (reliability of silica gel), State v. Cannon ( HGN unable to corroborate breath test), and State v. Sanchez , (unreliability of the RBT-IV). He is a DHS/factory certified instructor for the Intoxilyzer 5000 and has trained operators, quality assurance specialists, instructors and analysts. He taught the principles and specifics of retrograde extrapolation to officers, attorneys and other criminalists. He heads Forensic Alcohol & Technology to provide his services on a statewide basis.

DANIEL FURLONG

in private practice in Prescott, earning his J.D. degree from Arizona State University, 1981. He was on Yavapai County indigent defense rotation list and held a part-time public defendant contract with Yavapai County - 1990-2005, with primary responsibilities for the Justice Courts. He took the first deposition of a DPS crime lab employee who, when confronted with his own fax correspondence, reluctantly changed his testimony and admitted the crime lab was deleting failed intoxilyzer calibrations, leading to the ADAMS data dump litigation. He and Marc Hammond were instrumental in convincing the Yavapai County Attorney and Sheriff to reconnect the Intoxilyzer 8000s to COBRA even though he had used COBRA and testimony of Mr. Flaxmayer to suppress breath tests on the Intoxilyzer 5000. He is involved in Intoxilyzer 8000 computer source code motions with Curtis Rau. Author - Arizona DUI Drivers License Flowchart; co-author - Arizona Misdemeanor DUI Consequences with James Lerch.

W. CLIFFORD GIRARD

is in private practice in Phoenix concentrating in the Defense of the Accused Impaired Driver. He is a contract attorney for the Phoenix Public Defender Contract Administration Office. Graduate of the University of Arizona Law School (1969), member of AACJ, State Bar of Arizona, U.S. Dist Court and Ninth Circuit Court of Appeals. He has been involved in the science and technology of the Intoxilyzer 5000 breath test device. He has been counsel on motions directed to the functionality and tolerance limitations of that machine including the now infamous (to prosecutors) "Air Blank" motions. He is an outspoken critic of the procedures and practices of the Phoenix Crime Lab, and has written motions, memorandum and papers on the IR 5000 and Phoenix Crime Lab used by Defense Attorneys though out the State. He was lead counsel on the now famous State v. Meza case where crime lab shenanigans and "data dumping" were exposed, leading to the dismissal or compromise of 100's of cases. He heads a "watch dog" committee that challenges new attempts to compromise Due Process in DUI cases.

Speakers

MATTHEW GREEN

is a sole practitioner in Tucson, dedicated to criminal defense, with an emphasis on DUI defense. He worked for Maricopa County Public Defender, Pima County Public Defender, and City of Tucson Public Defender. In 2003, he litigated the first comprehensive challenge to police officer blood draws in Arizona. He managed the "officer phlebotomy" litigation for the Maricopa County Public Defender, and was the first attorney in Arizona to successfully argue for suppression and dismissal in cop blood draw cases. Two of the cases he litigated are pending review by the Arizona Supreme Court, and he continues to aggressively challenge officer phlebotomy at the trial and appellate levels.

STEVE JONES (Special Guest)

has successfully defended over 500 OUI cases. He is the managing partner of Jones & Milligan. He has appeared on the Today Show, MSNBC, Inside Edition and the Discovery Channel. For 6 years, he has chaired the Massachusetts CLE seminars on Drunk Driving and lectured nationally for both the National College for DUI Defense and NACDL. He lectures on courtroom testimony at the FBI Academy. His practice is concentrated in the defense of individuals charged with Operating under the Influence (OUI, DUI, DWI) and related matters. He was elected Regent of the National College for DUI Defense in 2003.

DARREN T. KAVINOKY

has been practicing law in Los Angeles since 1994, and has emphasized DUI / DWI defense. He is a member of many professional and legal organizations including the National College of DUI Defense (NCDD), California DUI Defenders, a Life Member in NACDL, Association of Trial Lawyers of America, Los Angeles County Criminal Courts Bar Association, Ventura County Criminal Defense Bar Association, Los Angeles County Bar Association, and a Certified Instructor in NHTSA Standardized Field Sobriety Testing. Darren has been a featured guest on Larry King Live, The Today Show, Celebrity Justice, and several local news channels, where he has provided commentary on many DUI / DWI and legal issues. He was named a "Super Lawyer Rising Star" in the September 2005 issue of Los Angeles Magazine and his lawyer profile was recently in Newsweek.

EDWARD A. LOSS III

From 1972 to 1980 he was Chief of Staff to tobacco heiress Doris Duke as CEO of The Yankee Creek Ranch in Colorado; Greenfield Plantation and American Gear and Pinion in South Carolina. Ed enjoys a national reputation as a DUI practitioner and has completed over 750 hours nationwide of advanced training pertaining exclusively to DUI. He is a Class I Operator of the Intoxilyzer 5000 and GCI Field Collection Device and is certified as a Horizontal Gaze Nystagmus / Field Sobriety Test Instructor. Ed is a 1983 graduate of the DePaul University College of Law He is a Sustaining Member and faculty member of the National College for DUI Defense; a member of the DUI Committee of AACJ, The NACDL and a founding member of the Phoenix based Committee for Constitutional Enforcement of DUI Laws which first uncovered the factual basis for the Henches litigation. Ed was associate counsel in the case of State v. Hentges resulting in the suppression of over 1,300 breath test results on April 18, 2000.

CHRISTOPHER G. MCBRIDE

A native Arizonan, was born and raised in Detroit. Chris survived eight years in the sensitivity incubator known as the playground of St. Matthew's school on Detroit's then lovely east side. He still denies any knowledge of the tragic Sister Devota "incident" but now more fondly recalls the years he spent in the fourth grade and other isolation wards governed by the good nuns. Chris further honed his interpersonal skills while working in a number of Detroit's cultural institutions including various Chrysler plants, Zeibart shops, gas stations, bowling alleys and gin mills. His first published paper, "A Sociological Analysis of Cultural and Interpersonal Interactions on Detroit's East Side", subtitled "Hey, A******", remains unpublished and out of print. Although now an administrator in the Phoenix Public Defender's Office, Chris remains fluent in the patois of the urban thug and local courts still call upon his translation services in dealing with the especially obtuse. He frequently blithers on DUI issues and remains active in an advisory capacity to the Grammar Patrol.

JAMES NESCI

is a graduate of the University of Arizona College of Law and is in private practice in Tucson. He is a veteran of the U.S. Navy. In 2000 Mr. Nesci became a Sustaining Member of the National College for DUI Defense and in 2001 he was officially Board Certified by the NCDD. His practice is devoted entirely to criminal defense. Mr. 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 RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 3,000 cases and the removal of the RBT-IV from the streets of Arizona. Mr. Nesci has lectured at several national seminars including the National College for DUI Defense, the NACDL, New York State Bar Association and the Nevada Bar Association. He has taught seminars on the subjects of cross-examination, trial tactics, field sobriety testing, blood alcohol calculations, and breath testing. He is a frequent guest of the John C. Scott radio program on KTKT 990 A.M. in Tucson. The Tucson Weekly has named Mr. Nesci "King of the DUI Defense" (December 19, 2002).

STEVE OBERMAN ( Special Guest)

Board certified by the National College for Dui Defense Steve has been practicing in the field of criminal defense, with an emphasis on DUI defense since 1980. Author of DUI: The Crime & Consequences in Tennessee. He is a frequent contributor to NACDL's The Champion. He is an adjunct professor at the University of Tennessee Law School and has received prestigious awards for his faculty contributions. An ("av") rated lawyer, he has been chair or co-chair of the NACDL DUI Committee since 1995. He is a graduate of the DUI and Traffic Safety Faculty Development Workshop, developed by NHTSA. He is periodically designated as Special Judge for the DUI division of the Sessions Court in Knox County, Tennessee. He was the only criminal defense lawyer selected by the Administrative Office of the Tennessee Supreme Court to serve on a special committee to educate Tennessee judges about DUI laws. He is a popular speaker at national seminars including the National College for DUI Defense, the American Bar Association, the NACDL, the TACDL, the FACDL, the Idaho Criminal Defense Lawyers, and for a Court Clerk Meeting in Cambridge, England. Steve has successfully represented nearly two thousand clients charged with DUI.

NATALEE SEGAL

Undergrad: Occidental College LA, 1992; ASU Law School, 1995 was with the Phoenix. City Prosecutors Office, 1996-1998. She formed the firm of Ballecer and Segal in 1998. Her practice includes all areas of criminal law (adult and juvenile) with emphases on DUI. She has a trial and appeals contract with the City of Phoenix. Natalee has argued several cases in Court of Appeals (Div. 1) and got a case to the Arizona Supreme Court in February with Laurie Herman. She also sits as a pro-tem in superior court.

ROBYN VARCOE

is a sole practioner in Phoenix whose practice focuses primarily on criminal defense. She has co-authored articles for The Champion (National Association of Criminal Defense Lawyers). She is co-editor of The Defender, the quarterly magazine of Arizona Attorneys for Criminal Justice and has authored articles for the publication as well.

RANDALL CALLENDER

Special thanks for his tireless efforts in promotion of this event.