DUI BLOG

In the what-not-to-do-if-you're-stopped-for-a-DUI department:

DUI Suspect Gave Officer Miller Lite When Asked for License

Seattle, WA.  June 17 — A drunken man who was stopped by police handed the officer a Miller Lite when asked for his license, police said.

Shortly before 9 p.m. June 8, police were called about a DUI suspect near the 7-Eleven at 18012 West Valley Highway in Kent. A caller said the driver was erratic as he pulled into the parking lot, and police said three people watched Medina urinating next to his blue Chevrolet car.

"Upon arrival I observed a subject matching the description exit the store holding a plastic sack that contained a can of Miller (Lite)," Detective Matt Lorette wrote in a probable cause document. "The subject denied driving the vehicle and was having difficulty walking."

Medina denied driving the Chevy and tried to walk away, though he had trouble doing so.

"I asked him for his driver's license and he handed me the can of Miller Lite," Lorette wrote.

Lorette eventually gave his identification card, and once he was put in handcuffs police said he was upset.

"Omar became combative and said he was an assassin for the US Government," Lorette wrote. "While at the jail I advised him of his rights which he said he did not understand (and) said he did not respect my authority/organization."

Police said Medina then refused to take a breath test and repeated his earlier statements about being a killer…

This would not be my recommended approach to a DUI investigation…
 

Albert Einstein once famously said, "The definition of insanity is doing the same thing over and over again…and expecting different results".

Contrary to the deceptive statistics publicized by MADD (see "A Closer Look at DUI Fatality Statistics"), the number of deaths caused by drunk driving has not decreased significantly with the imposition of increasingly harsh penalties. And so new laws are passed further lowering legal limits and raising penalties…and the next year even more Draconian laws….ad infinitum.

The simple fact is that most DUI-caused deaths are caused by a relatively small group of "problem drinkers". These individuals are typically characterized by recidivism (repeat offenses), unusually high blood-alcohol levels — and alcoholism. And alcoholics are simply not deterred by criminal sanctions, any more than drug addicts are. By now, most experts recognize that alcoholism is a disease, not a choice. And you don't treat a disease with incarceration. If you throw an alcoholic in jail for six months, on the day he walks out he will likely go to the first bar he finds and resume drinking. What has been accomplished? 

We recognize incapacity due to disease for such crimes as murder: the plea/verdict is "not guilty by reason of insanity". The defendant is not simply set free, but is hospitalized for treatment of the disease. Why not treatment for drunk drivers who suffer from the disease of alcoholism?

Would you prefer to have a chronic drunk driver off the roads for a few months — or treated for his addiction?
 

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same. You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds law enforcement's attempts to estimate blood alcohol levels when driving based upon breath/blood tests an hour later.

Further, each of us has a different physiological response — tolerance — to alcohol. An example of this human diversity can be seen in racial differences toward alcohol. The body of scientific literature seems to clearly indicate a racial — i.e., genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, "Alcohol Metabolism in American Indians and Whites", 294 New England Journal of Medicine 9 (1976); Holzbacher, "Elimination of Ethanol in Humans", 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., "Ethanol Metabolism in Various Racial Groups", 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:

…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, "Ethnic Differences in Alcohol Sensitivity", 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure.If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups.

The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction. To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., "Alcohol Sensitivity and Ethnic Background", 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese. The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….

Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels by measuring breath, and the use of mathematical formulas and legal presumptions based upon uniform metabolism to estimate earlier levels when driving. Note: In most states, the law presumes that (1) a person with .08% blood-alcohol level is under the influence, and (2) the blood-alcohol level when tested is the same as when driving (up to 2 or 3 hours, depending upon the state.

But then, as Dickens wrote long ago, "The law is a ass".
 

In just another example of law enforcement's one-size-fits-all approach to drunk driving cases, Dr. Lance L. Gooberman, M.D., offers the following comments:
 

The National Highway Traffic Safety Administration, based upon studies done in 1977 and 1983, determined that standardized field sobriety tests were unreliable in those over age 60. This is reflected in the National Highway Traffic Safety Administration manual from 1991. In 2006 it was changed to age 65, however, this was not based upon any additional data.

A recent British study indicates that the breakpoint for reliability on field sobriety tests is the age of 40.   Dixon, Clark and Tiplady, Evaluation of a Road Side Impairment Test Device Using Alcohol, 41 Accident Analysis and Prevention, 412-418 (2009). This is more consistent from a medical perspective. Therefore, field sobriety tests cannot be relied upon in people greater than 40 years of age.
 

For further examples of the "one-size-fits-all" road to conviction, particularly with blood and breath alcohol analysis, see my earlier post Guilty…of Not Being Average?  
 

Most of you out there probably thought that citizens accused of drunk driving were afforded the same constitutional rights as citizens accused of any other crime. Included in this, presumably, is the right to have a fair and impartial judge hearing your case.

Wrong. The "DUI Exception to the Constitution" applies to judges as well.

Consider the following excerpt from a website entitled "The Court’s Role in Reducing the Incidence of Impaired Driving: A Resource for General Jurisdiction Court Judges". The site is maintained by The National Center for State Courts near Washington, D.C., which provides seminars, conferences, research and educational materials for judges nationwide.

"What is the role of the courts in DUI Cases?"

In DWI cases, courts can have a much broader role than in many other types of cases. Through its interaction with law enforcement, prosecutors, defense attorneys, defendants, the public, and the press, the court establishes a tone toward DWI cases in the community. This is evident when the court addresses a defendant at sentencing to stress the severity of a DWI offense, invites school groups to attend DWI trials or dockets, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases. Judges, through their roles on the bench and in their personal lives, are leaders in the community and the attitudes they express are critical to shape public attitude toward DWI prevention and enforcement. (Emphasis added.)

Hmm…So the judge’s role in DUI cases is "broader" than for other offense — to "establish a tone toward DUI cases in the community", to "shape public attitude toward DWI prevention and enforcement", and to help the police and prosecutors to get more convictions. I guess high conviction rates, Draconian sentences and turning a blind eye to constitutional violations helps establish that tone.

After over 40 years of practice, I can still remember when judges were supposed to be fair and impartial — even in drunk driving cases.
 

It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings than most. It may surprise you, however, to learn that alcoholics will generally have higher blood-alcohol readings BECAUSE they are alcoholics….. That’s right. It’s because the physiology of alcoholics is different in some important respects.

One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. "Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. "Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination", 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, "Why Breathalyzers Don’t Measure Alcohol"), alcoholics will usually have higher blood-alcohol readings.
 

A couple of days ago I commented on the just-released recommendations by the National Transportation Safety Board for a new drunk driving blood-alcohol limit of .05%.  Following are a few of the reactions….

Feds Float Lower DWI Limit; Some Say It Will Reduce Fatalities; Others Say It's a Money-Grab

Newsday, New York.  May 14 — One drink for a 120 pound woman, two drinks for a 160 pound man.

That's all it would take to be considered legally drunk under a new federal recommendation to lower the driving while intoxicated blood-alcohol limit from .08 percent to .05 percent. It's another step in what the National Transportation Safety Board calls "Reaching Zero," a long-term effort to reduce the number of drunken driving-related fatalities.

"It is an aggressive approach," said Jared Altman, a Montrose-based defense attorney. "One would be surprised at how little you can drink and hit the .08 limit now."

Reaction to the NTSB's recommendation on Tuesday ranged from full support from road safety advocacy groups to a cautious wait-and-see approach from others.

White Plains-based attorney Richard Portale said changing the definition of "intoxicated" every few years is disingenuous. He said he'd be more willing to support the law if it merely set a limit for driving and did not try to redefine intoxication, but said he believes it's ultimately a "money-grab" by the government. Several studies have found that towns and cities enjoy a boom in court fees and related fines when blood-alcohol limits are lowered.

"They're dying for money. They don't get enough of our tax money, so now they want to change our DWI laws to generate more revenue," Portale said…

If lawmakers act on the NTSB's recommendation and lower the legal limit for drivers, it would mark the second time in a decade that the limit was lowered. New York lowered the legal limit from .10 to .08 in 2003, two years after president Bill Clinton signed a law that would withhold federal aid to states that did not lower limits to that number…

A 2000 study by Boston University's Social and Behavioral Sciences Department found that states that had dropped BAC limits to .08 percent saw a 6 percent decline in alcohol-related deaths. But a 2002 study by Connecticut's Office of Legislative Research found there was "no statistical difference" between the rate of fatalities between states with a .10 blood alcohol limit and states with a .08 limit.

Mothers Against Drunk Driving on Tuesday thanked the NTSB "for bring the American public's attention to the fact that drinking and driving continues to be a major problem on our highways … and that additional steps have to be taken to save the unnecessary loss of life and injuries that occur as a result of these crashes."…
 

They've finally done it.  The National Transportation Safety Board today recommended lowering the blood-alcohol level for drunk driving to .05%.  

Washington, D.C.  May 14 — A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.

The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving…

The NTSB investigates transportation accidents and advocates on safety issues. It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress.

But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide. States set their own BAC standards….

In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication.

But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004…

Based upon this recommendation — and, as in the past, some pressure on the states to withhold federal highway funds if the new DUI standard is not adopted — it is likely that we will all see the.05% level enacted as law over the next few years.

The article mentioned an earlier blood-alcohol level of .15% in some states.  Let me offer a more accurate history to give context to today's federal action…. 

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, many years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean?  They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents"; at the same time, the National Safety Council set up a "Committee on Tests for Intoxication".

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not. That’s right: .15%. And that recommendation lasted for 22 years. But prosecutors and certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed by Candy Lightner (later to quit the organization in disgust and become a spokesperson for the liquor industry). Soon after, legislation began appearing in many states that created a second crime: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.

Since then, there has been continued pressure on federal agencies and state legislatures to drop the blood-alcohol level to .05% — resulting in today's announcement by the NTSB.

What is the next step in MADD's march toward a new era of Prohibition?  Well, that should be obvious: .01% — exactly as is currently used across the country on drivers under the age of 21.  

Not coincidentally, these .01% so-called "zero tolerance" laws were also championed by MADD and imposed on all of the states by the feds with the threat of withholding highway funds.

(Thanks to Matthew S. Kensky and "Joe" for the article.)
 

It is an unfortunate fact that law and politics repeatedly trump science when it comes to prosecuting citizens accused of drunk driving…

In People v. Bransford, to cite one notable example, the California Supreme Court was confronted with a defendant who was challenging his conviction for driving with over .08% blood in his blood on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath.

He was also prevented by the trial judge from offering further evidence from expert witnesses that this 2100:1 ratio was only an average – and that the actual ratio varied widely from person to person, and within one person from moment to moment. If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been convicted…but innocent.

The Supreme Court of California affirmed the conviction, however, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood ”as measured on the breath”. In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood– but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence that this doesn’t accurately reflect the amount of alcohol actually in the blood!

An amazing decision.

More interesting, perhaps, is the language in the Court’s opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

"It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges." People v. Bransford, 8 Cal.4th 894 (1994).

In other words, preventing an accused from defending himself with scientific truth serves justice by making it easier to get convictions!

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. Recognizing the truth, she wrote in a separate opinion:  "The majority has on its own created the new crime of driving with alcohol in one’s breath."
 

On April 17, 2013, the United States Supreme Court issued its long-awaited decision in the case of Missouri vs. McNeely.  

The DUI case involved the right of police officers to forcefully take a blood sample from a driver without his consent or a search warrant.  The Court ruled that absent any exigent circumstances, such a taking of blood constituted a violation of the 4th Amendment's right to be free from unreasonable searches of the person.  Natural dissipation of alcohol from the system (present in every case) did not constitute such an exigency.  

I am flattered and greatly honored that in his written opinion Chief Justice Roberts cited my book, Drunk Driving Defense (7th edition), as recognized legal authority in the field.