Archive for October, 2004

DUI and the Disappearing Right to a Jury Trial

Sunday, October 31st, 2004

Ok, the cop said I looked bad on the field sobriety tests, but I know I’m not guilty: I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Well….Not necessarily. This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental to the framers of our Constitution that they included it in the Bill of Rights? Sixth Amendment. It makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

How did the government get around this fundamental right? Well, once again they started whittling away by playing around with words. (As the Red Queen said in “Alice in Wonderland, “A word means precisely what I say it means”.)

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in “serious” criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for one-half year was not enough to justify giving a citizen a right to trial by his peers. The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York 399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — AND a bunch of other stuff: fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury? No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”

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“Xeroxed” DUI Symptoms

Saturday, October 30th, 2004

As any experienced DUI attorney knows, many police officers are considerably less than honest in their written DUI reports and in their testimony. One of the practices where this is most readily apparent is the use of what I’ve called "Xeroxed Symptoms". This is the tendency to "observe" exactly the same "symptoms" in every person the officer arrests for drunk driving.

With Officer Jones, for example, the suspect fumbles with his wallet when getting his driver’s license, leans against the car for support, and misses "R" in the alphabet recitation — in every case. Officer Smith, on the other hand, seems to only encounter citizens who weave on the highway, admit to having three martinis, and in the walk-and-turn test lose their balance on the third step back. If a criminal defendant did this, we would call it "signature" evidence. When a DUI officer does it, we call it "coincidence".

The phenomenon is so common that I described it in the original edition of my book, "Drunk Driving Defense", published 25 years ago (now in its 5th edition). "To determine whether xeroxed symptoms exist", I wrote, "counsel should include in his discovery motion a request for all reports made out by the officer in other DUI cases during a given period of time — for example, for 15 of the officer’s working days before and after the arrest". In later editions, I commented on the increasing use of computers by DUI officers to create reports — and on the tendency to "patch" text from one report into another.

These claims have, of course, been loudly and indignantly denied by prosecutors and law enforcement.

Well, imagine my surprise when a fellow DUI attorney, Cole Casey, forwarded a news article from the San Francisco Chronicle (October 13, 2004) a few days ago with the headlines "Suspicious Reports Ensnare Officers". The sub-headlines further declared, "False, repetitive statements filed in dozens of cases": "Seven times in the past three years, veteran Pittsburg (California) police officer James Hartley reported remarkably similar behavior by drunk driving suspects as they tried to walk a straight line." "Hartley wrote in his reports that each suspect "stumbled after the second step" but kept walking, then "flung" his arm or leg out for balance before turning around, staring at the officer and asking, "Now what?".

It wasn’t a coincidence. Hartley and Officer Javier Slagado — Officer of the Year in 2001 — admit filing dozens of falsified reports. "While it’s not clear whether the two men discussed the practice, authorities said they used old arrest reports as templates — often with few changes — rather than writing reports from scratch on drug and alcohol cases. "In some cases, prosecutors said, entire paragraphs appeared verbatim from one report to the next. Much of the redundant information involved field sobriety tests used to establish cause for an arrest and a blood or urine test…."

So what does an officer get for filing false reports, felonious perjury, and sending dozens of possibly innocent citizens to jail? Six months of watching TV at home for each.

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GERD, Acid Reflux and False Breathalyzer Results

Friday, October 29th, 2004

Bryan is presently facing criminal charges for driving under the influence of alcohol. Except that he wasn’t under the influence of alcohol. He had one drink after work and was stopped at a DUI sobriety checkpoint on the way home. The officer smelled the alcohol on his breath and asked Bryan to step out of the car to take some field sobriety tests. He did fairly well on the tests but, to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .09%. Bryan was arrested for DUI, handcuffed and taken to jail; his license was immediately confiscated and he was served with a notice of automatic suspension. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Bryan have only consumed one beer but registered .09% on the machine — at least four times higher than would be expected?

Well, to begin with, breath machines (commonly referred to as "Breathalyzers", although there are many competing makes and models) are notoriously inaccurate and unreliable. Calibration, maintenance, repair and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being "non-specific" for alcohol — that is, they don’t actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as "alcohol". Another recurring problem is "mouth alcohol".

What is "mouth alcohol" — and how could this have caused Bran’s false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Bryan’s mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Bryan is facing DUI charges.

So what was alcohol doing in Bryan’s mouth or throat?

Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Bryan had "one for the road" just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Bryan may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus. But what actually happened was that Bryan suffers from a very common condition: GERD, or "gastroesophageal reflux disease". This causes "acid reflux", often experienced as heartburn.

Acid reflux is commonly caused by a "hiatal hernia" – damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Bryan is now ordered to breathe into the machine’s mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Bryan’s case, an "innocent" reading of perhaps .02% became a "guilty" .09%. And Bryan lost his driver’s license….and now has to try to prove his innocence in court.

Prove his innocence? Aren?t we presumed innocent in America? Here we have the notorious "DUI exception to the Constitution" again. Strangely, Bryan is not presumed to be innocent as we all thought: almost all state laws legally presume a person is under the influence of alcohol if if the machine’s reading is .08% or higher.

Yes, we have a system where citizens are convicted by a machine….A very fallible machine.

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Do Breathalyzers Discriminate Against Women?

Thursday, October 28th, 2004

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are guilty. It does not matter, of course, whether you are a man or a women: the laws do not discriminate.

Maybe they should…

Researchers at the University School of Medicine in Trieste, Italy, found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less than men. To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much; with weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists’ conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, "High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism", 322(2) New England Journal of Medicine 95 (1990).

Yet another study has found that women have lower "partition ratios" of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person’s breath. But the what we really want to know is the amount of alcohol in the person’s blood. So how do we get that? Simple: a small computer in the Breathalyzer multiplies the amount of alcohol it detects in the breath sample by 2100 times.

This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath. (Note: that’s an average — but it varies from person to person.) According to the study, women have a significantly lower partition ratio. Jones, "Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma", Analytical Toxicology 193 (July/August 1983). And the lower the ratio, the higher the reading — even though the true BAC does not vary. Example: a woman with a true BAC of .06% and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09% — above the legal limit. Put another way, the breath machine will show an average man accused of drunk driving to be innocent — but a woman with the same blood alcohol level to be guilty.

And then there’s the problem of birth control….

Scientists in Canada have found that "women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S." Papple, "The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman, 15(1) Canadian Society of Forensic Science Journal 17 (1982). That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one hour later. Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases.

So what?

Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don’t really measure alcohol, rather they measure any compound which contains the "methyl group" in its molecular structure. And acetaldehyde is one of these compounds. Result: a higher "blood alcohol" reading on the Breathalyzer. Jeavons and Zeiner, "Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans", 8(4) Alcoholism: Clinical and Experimental Research 352 (1984). It’s always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same.

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“How do I know the blood they tested was mine?”

Wednesday, October 27th, 2004

Let me tell you about one of our DUI cases that ended up on the front pages of the Los Angeles Times last year. My law firm had a young client, I'll call him "Steve", who had been arrested for drunk driving by the Los Angeles Police Department and a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him.

Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing blood of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything was in order. Steve still insisted he was not driving under the influence of alcohol.

The only other possibility was a faulty "chain of custody". In other words, LAPD lab got the vial mixed up and tested someone else's blood. Kind of like the work they did in the O.J. Simpson case. So we had the sample blood-typed to see if it was that of another arrestee. Result: type "O"– the same as Steve's. But, then, that's the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory that specialized in DNA testing. A month or so later the report came in: the blood tested by LAPD was conclusively not Steve's.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. Predictably, LAPD tried to point the finger at someone else: "Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confidant that the lab did not make a mistake.

One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD's jail intake facility in Van Nuys." So how could this have happened? The truth is that it probably happens far more commonly that we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then sealed. Procedures then require that a "chain of custody" be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else's vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage.

At any stage of this chain of custody, of course, things can go wrong with the vial or the records. It may be a week or so before the vial is finally analyzed. This is usually done using gas chromatograph instruments, and the vial is one of many analyzed in large "batches". A "batch" is a group of vials, perhaps 40 or more of them, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial afer another.

Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won't be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

"How do I know the blood they tested was mine?" Simple, if you can get a portion of the sample from the crime lab and have an extra $1200 laying around. Otherwise, I guess you'll never know….

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