A couple of days ago, my friend and colleague Mirriam Seddiq posted a very flattering piece on me on the Not Guilty blog.  Thank you, Mirriam. This is one of the many good things that have come about because of my presence on the Internet.

The same day that Mirriam’s entry came out I also learned that someone has created a Twitter account using my name, my photograph, and my biographical information. This is one of the bad things. My response: You don’t have your own name and your own information you might want to use?  I understand someone trying to impersonate Chad Ocho Cinco or some other famous person.  But me?  Really?

I was alerted to my alter ego on Twitter by someone who had either been offended or annoyed by something this other Jamison Koehler tweeted.  She checked out my website and saw that the two personalities did not seem to match.  So she emailed me.  Thank you.  It had been going on for over a month by the time I found out about it, with the fake Jamison Koehler now having 10 times as many followers as the real Jamison Koehler. Who knows how long it might have gone on had she not alerted me.

The tweets from this other Jamison Koehler aren’t offensive.  They are just inane.  The most recent Tweet, posted 6 hours ago, was: “Really like the Wormhole!  Great coffee and Fritz Pastry donuts and muffins!  I mean . . . c’mon.” Or:  “Hii twitterworld!  i’ve been gone for a way to loooooooooong time!  ;( but.  i’m back!”

I have passed along this news to Twitter with the hope that they will take action to delete the other account.  It strikes me that the imposter must be committing some criminal offense, such as identity theft.  I also think I must have grounds for a civil lawsuit.  In the meantime, I remain puzzled over a person who seems to have no identity of his or her own and who, despite the lack of anything to say, still seems to feel compelled to say it.

Potentially related to this is another piece of news, both good and bad.  Yesterday, in an unusual demonstration of affection and support for a fellow blogger, over 15 bloggers spoke out on behalf of Scott Greenfield by posting an entry with his name in the title.  This was the good news.  The bad news is why.  Since I don’t want to publicize this any more by repeating the reasons here, I’ll defer to Mark Bennett’s entry on the same subject. As Bennett says, “The more the merrier.” It’s also comforting to be in such good company.

If that is the good and that is the bad, what is the ugly?   That’s the easy part.  The ugly has to be Gideon of A Public Defender.  The guy looks like he should be dating the woman from Grant Wood’s American Gothic.

Over the last couple of weeks, I have covered potential legal challenges along every step of an arrest for driving while intoxicated (DWI), driving under the influence (DUI), or operating while impaired (OWI) in Washington, D.C.

Specifically, I have discussed potential challenges to the police officer’s initial stop of the vehicle and the officer’s decision to ask the driver to step out of the car. I have dealt with potential challenges to each of the three tests included in the standardized field sobriety test (SFST) used in D.C.:  the horizontal gaze nystagmus test, the walk-and-turn, and the one-leg stand.  I have also covered the definitions of drinking and driving, the statutory limits for blood alcohol content, potential penalties arising from a first or subsequent conviction, and potential diversion programs for first-time offenders.

Today’s entry focuses on what is normally the last phase of the investigation in Washington, D.C.:  the administration of an Intoxilyzer 5000EN breathalyzer test.  The challenges can be used at either a pre-trial motion to suppress the evidence or at trial.

What is the Breathalyzer Test?

Police use three different chemical tests to measure blood alcohol content: the urine test, the blood test, and the breath test.  Blood tests are the most invasive and also the most accurate.  Both blood and urine tests can also be used to measure the content and amount of drugs in a person’s system.

The test used most frequently in Washington, D.C. is a breathalyzer; specifically, the Intoxilyzer 5000EN.  The subject provides a sample breath into a tube.  The Intoxilyzer then uses infrared spectroscopy to determine the chemical contents of that breath based on the way the molecules of the chemicals absorb light.

Challenges to the Breathalyzer Test

As discussed in greater detail in earlier posts, the first way to prevent breath test results from being admitted into evidence against your client is to challenge the legality of the underlying police conduct leading up to the administration of the test.  The Fourth Amendment protects against unreasonable seizures.  If the court finds that the police officer did not have reasonable suspicion or probable cause for any step of the process, beginning with the stop itself, the court should rule any evidence gathered subsequent to that illegal conduct inadmissible.

Another area for potential challenge would be the way the test was administered.  The Intoxilyzer 5000EN is a complicated piece of equipment.  Any mistakes in administering the test could severely compromise the test results.

For example, the presence of alcohol in the subject’s mouth is widely recognized as the leading cause of error in breath testing.  Because the test is supposed to measure the level of ethyl alcohol in the subject’s lungs, the presence of alcohol in the subject’s mouth can lead to a misleadingly high result.  Burping or regurgitating prior to the test will introduce ethyl alcohol into the subject’s mouth, thereby skewing the results.  As a result, the person who administers the test is supposed to keep the subject under continuous observation for at least 20 minutes prior to administering the test.   How realistic is to assume that the tester will not use this time to fill out paperwork or perform routine administrative chores?

In addition, most people have been socialized to hide bodily functions such as burping.  It is therefore possible that the subject could burp or regurgitate or otherwise reintroduce ethyl alcohol from the stomach to the mouth without the police officer being aware of it.  Chewing gum, smoke, dentures, liver or other health problems in the subject can also skew the test results.

Another area for potential challenge would focus on the functioning of the equipment itself.  Again, the Intoxilyzer 5000EN is an expensive and complicated piece of equipment requiring careful calibration and maintenance.  Any failure by the police department to maintain the equipment in proper working order would compromise any test results.  Defense counsel should request maintenance records prior to trial.  Any failure to perform the semi-annual calibration of the equipment, to perform the weekly simulator test and/or to repair the equipment when anomalous results with the simulator are obtained would be grounds for challenge.

Even assuming the equipment was properly calibrated and administered, defense counsel can still challenge the test results themselves.  For example, while a blood test directly measures blood alcohol content, the breathalyzer serves as a surrogate measure.  The test measures the concentration of ethyl alcohol and ethanol in a person’s breath.  The system then seeks to extrapolate back to what the person’s blood alcohol concentration must be based on that breath sample.

As Peter Gerstenzang of Gerstenzang, O’Hern, Hickey & Gerstenzang has explained it, all breath test equipment assumes that the concentration of alcohol present in the person’s blood equals the concentration of alcohol in 2100 millimeters of air.  As a result, because the limited breath sample needs to be multipled many times in order to approximate alcohol content in the blood, any potential errors in the sampling will be magnified many times in the result.

The Intoxilyzer 5000EN also assumes that the subject has a body temperature of 98.6 degrees Fahrenheit.  However, a person’s body temperature can fluctuate by several degrees over the course of a normal day.  A person’s body temperature can also be affected by other factors, such as fever from an illness.  Any fluctuation could significantly skew the breathalyzer results to show a misleadingly high blood alcohol content.  For example, a rise in temperature of only 2 degrees Fahrenheit could result in a 10% increase in apparent blood alcohol content.

Test results can also be skewed by the subject’s breathing patterns just prior to the sample.  Three deep breaths before the sample breath can reduce test results by 4%.  Holding one’s breath for 15 seconds before exhalation can increase the result by 12% for a minimum exhalation and 6% for a maximum exhalation.

Finally, as with any witness, the credibility of the arresting officer’s testimony can always be challenged.  Some officers have a tendency to exaggerate in their observations of the subject’s conduct.  Observations of staggering and extremely slurred speech, for example, can be juxtaposed with the finding of a relatively low blood alcohol concentration in the subject.  Conversely, tests results suggesting a very high blood alcohol concentration can be compared with observations of a fairly sober-acting defendant.

Ever since I set up this website a couple of months ago, I have had many offers – for a fee, of course – to improve the site’s ranking on Google.  I have always been a neophyte when it comes to matters involving the Internet.  I also have to admit that, prior to launching the website, I had never even heard of the term “search engine optimization.”

I was initially intrigued by the offers.  While there are many things I don’t understand about the Internet, I do know that the higher your site ranks on Google, the more hits you will receive.  More hits should lead to more contacts.  And more contacts should lead to more clients.

What could these Internet people do for me at a minimum of $140 per month? All of them mentioned revamping the website with the right phrases and so forth to make it more Google friendly, but I was uncomfortable with that.  My website guy, Tyler Suchman of Dennison+Wolfe, had already done a great job of setting up the site.  I didn’t want anyone tinkering with what Tyler had done.

Apparently there are also some other things that these companies can do to improve your website’s Google ranking.

A couple of weeks ago, I found a comment on one of my blog posts discussing DUI and DWI.  The commenter didn’t leave a name, but he/she did link back to the website of another D.C. attorney. I don’t know the lawyer personally but I know of him.  He is a very highly respected criminal and DUI defense attorney in D.C.

The comment wasn’t particularly helpful but, out of professional courtesy, I went ahead and approved it.  Comments are, after all, a good thing.  They show that people are actually reading and thinking about your site. Or so I thought.

A day later, also posted in the early morning hours, there was another comment from the same law office.  I was flattered that this lawyer — or at least someone in his office — was apparently following my website.  I approved the comment but, again, it didn’t really offer anything new or original.  For example, my post was directed at the billboards recently put up by a colleague to advertise his new divorce practice in Texas.  The comment suggested, in effect, that you should put the billboards where people can see them.

I asked Tyler about it – we had gotten together for beers while he was in town – and he just laughed.  You have to understand:  Tyler is very relaxed.  He is also very patient with my ignorance.  He explained to me the concept of “Google juice.”  Each site has some Google juice – or authority — depending on a number of factors.  Google likes juice. If you go onto another site and link a comment back to your own site, that site has leaked a little Google juice – conferred authority, so to speak– to your site.

Was this bad?  Is it a zero-sum game?  No big deal, Tyler said.  But if you’re concerned about it, you can leave the comment.  Just delete the URL address that links the comment back to the other site.

A day or two later, the same person commented again on yet another DUI/DWI entry.  Like the other comments, it was posted at 2:30 in the morning.  Unlike the other comments, however, this comment seemed to miss the point I was making in the original entry.  Instead of adding to my entry, it seemed to be correcting me.  It also misstated the law.

Now I was annoyed.  What lawyer likes to be challenged on an area of the law in which the lawyer considers him/herself to be knowledgeable?

The post also confirmed what I had already suspected:  It was not the D.C. lawyer who was making these comments. This particular lawyer has been practicing criminal law in D.C. for close to 20 years, and he would be far too knowledgeable to make this mistake.  Nor would the D.C. lawyer make general statements about “many states.”  The D.C. lawyer would talk about D.C law.

Instead, someone was clearly posting the comments on his behalf.  Maybe it was an associate or a law student working for his office.  More probably, it was one of those Internet companies that had contacted me, working to improve my colleague’s Google rankings by postings comments linked back to this site all over the Internet.

I guess I will not be using the services of any of these Google-ranking companies.  As always, comments are welcome.

The home office where the world's 2117th-ranked legal blog is written.

I read a New Yorker article a couple of years ago in which the author was tracking sales of his new book on Amazon.com.  While I can’t recall the author’s name or the title of the book, I remember that the book was ranked at well over 1 million on the list of Amazon.com’s best-selling books.  The author became obsessed with improving his book’s ranking.  He found that he could raise his ranking by at least a couple of thousand places every time he ordered a new copy of the book from Amazon.

A week ago, following the advice of a colleague, I listed this blog on the directory for Justia.com, a legal reference and referral service. Like the author of the New Yorker article, I have been obsessively tracking my blog’s ranking on that site ever since.

The directory lists well over 5,000 different legal blogs, categorized both by practice area and by state.  Criminal defense accounts for 368 of those blogs, second only to injury and accident law at 442. While Justia does not reveal the criteria it uses to rank the blogs, I would imagine it uses some combination of longevity (how long the site has been up), depth of content (how many and how detailed the postings are), and popularity (how much traffic the blog receives).

Number 2 on the criminal law list (#3 overall) is a blog called “Sex Offender Issues” that has had almost 700,000 visitors since February 2007.  Number 3 on the list (#6 overall), the “Mortgage Fraud Blog,”  has been posting since October 1999.  Both blogs have added multiple entries within the last couple of days, often several entries in a single day.

The view from the home office where the world's 2117th- ranked legal blog is written.

So where is the Koehler Law blog on this list?  When I first checked four or five days ago, the blog was ranked 171 of the criminal law blogs and 1801 overall.   I posted an entry or two and waited a couple of days.  Two days ago, we had dropped to 189 on the criminal list and 1915 overall.   I made another entry yesterday and found that the free-fall was continuing today.  We are now ranked 212 out of the 368 criminal law blogs and 2117 out of over 5,000 of the blogs overall.

In other words, I have found that the more I post, the lower my rankings go.  This leads me to conclude that the Justia people must be actually reading the blogs to determine the rankings.  It would also explain why the “Best Defense” blog, which has been defunct since January, is ranked at 24 of the criminal law blogs and 163 overall.

My wife and I went to see the movie Julie & Julia a couple of months ago, and I was reminded recently of the scene in which the young woman starts her blog.  After posting for a couple of weeks, Julie asks plaintively whether or not anyone has in fact been reading what she has written.  To which she gets a quick response from her mother, criticizing her for wasting time on the blog.

Clearly, Julie did not know about Google Analytics.

The first thing I do every morning when I get out of bed is to turn on my computer and check Google Analytics.  I’m sure the novelty will fade.  But right now, given all the effort I have put into setting up the website and blog, I want to find out who has been on my website.  Google Analytics is very addicting.

I can’t tell you how it works technically, but, for those of you who are not familiar with the application, I can tell you what it does for you.

First of all, it tells you how many people have been on your site the previous day.  I’ve detected a slight drop in traffic over the weekends.  I also noticed a tremendous spike on the day I announced the opening of my firm on the ABA listserv Solosez.  A lot of my fellow lawyers on the listserv must have been checking me out.

Second, it tells you how many pages an average person will visit on coming to the site.  Is the content interesting or useful enough to keep the person once he or she is there?  Does the person want to read further?

Third, it will tell you how many “unique” visitors you have – that is, people visiting the site for the first time.  I guess unique visitors are good.  I wouldn’t want it to be only my brother reading the blog (although he is certainly my most frequent commenter.)    But I would also hope for loyalty, which Google Analytics also measures; that is, people returning to the site.

Fourth, it tells you “bounce rate.”  I had to look this one up, and I’m still not sure I completely understand what this means.  According to Google, bounce rate is the percentage of single page visits or visitors in which the person left the site from the entrance (or landing) page.  In other words, did people come in, take one look and then leave?  Google advises to use this metric to measure visit quality.  A high bounce rate generally indicates that site entrance pages aren’t relevant to your visitors.

Fifth, it tells you how people are accessing the site.  Are they coming in through a Google search?  That’s good.  It shows that my search engine optimization (SEO) is high; namely, that my site pops up on an early page when relevant search terms are entered into Google or Yahoo.  Are visitors being referred to my site through one of the free legal referral systems I have joined?  That’s helpful.  I get a lot of traffic through Avvo.  That’s good.  I don’t seem to get any visitors at all through LinkedIn.  That’s not so good.

I do try to use the right terms to maximize my site’s SEO.  If I want to attract people interested in DUI or DWI, as I understand it, I need to keep using those terms.  But I don’t do what I have noticed some other sites doing.  One of my competitors, for example, prefaces everything with DUI DC this and DUI DC that.  Maybe that explains why he consistently appears on the first page of a Google search for DUI and DC and why I am — last I looked — on page 25.  But, I am told, like a good wine, SEO improves with age.  Google rewards you for sticking with it.

Sixth, if visitors used Google to access the site, I can tell what key words they typed in to locate my site.  This is probably the most helpful piece of information.  I’ve noticed, for example, that a lot of visitors to my site have been interested in the firearms pages, particularly the page on carrying a pistol without a license (CPWL), and to a lesser extent the pages dealing with drug offenses.  I get less traffic than I had hoped for on some of the other offenses, such as DUI and assault.  Okay then.  I know that people are still committing those offenses in D.C.  I just need to beef up those sections.  And I need to make sure that the information I provide on firearms will be relevant to the people interested in those areas.

I was a little bit concerned about attracting the wrong type of traffic when I posted the Sexual Assault page, so I deliberately avoided using any words describing genitalia, even though the words are sometimes included in the elements of the crime.  But no issue has arisen there. The sexual assault page is equally ignored.

So.  What does this mean?  It means that, for those of you who are reading this, I may not know who you are.  But I do know how you access the site, which pages you visit, how long you stay on each page, and what language you speak.  Thank you for visiting the site.  I hope you have found information that is interesting or helpful to you.  I hope you will return.

And, yes, hello to my brother.  Like Julie with her mother, I can be confident that at least he will be reading this.