Archive for November, 2004

Taking Blood by Force

Monday, November 22nd, 2004

A citizen arrested for DUI usually has the right to choose between taking a breath test or a blood test. There is, of course, a third choice: refuse to take either. The individual can do this, but there are consequences: he will face an increased jail sentence or a longer driver's license suspension — or, in most states, both. The problem is that some police just won't take "no" for an answer.

An increasing practice among law enforcement agencies is to simply ignore this third choice and forcefully take blood from the arrestee (although some states have banned this practice). By doing this, they can "have their cake and eat it, too": blood is obtained for testing– and the suspect still suffers the heavier sentencing for having refused. So, just how much "force" will the courts permit?

Or looking at this from the legal view, drawing blood is considered a Search of the person and, therefore, must be "reasonable" under the Fourth Amendment to the U.S. Constitution. Which still leaves the question: What is "reasonable" force?

The United States Supreme Court addressed this issue in Rochin v. California (342 U.S. 165), where a drug suspect was unconscious and the police forced open his mouth and pumped his stomach to get drugs. Such conduct is not permissible, the Court said, if it "shocks the conscience". This vague "shocks the conscience" standard — if it is a standard — was later applied by the Supreme Court in a drunk driving case: The blood, the Court said, must be taken under "humane and medically acceptable" circumstances. Schmerber v. California (384 U.S. 757). [As anyone who has watched certain videotapes knows, California seems to have recurring problems with heavy-handed police.]

Humane and medically acceptable circumstances…..Shocks the conscience…..

Well, let's take a look at what police and courts in California have decided this all means. In Carleton v. Superior Court (216 Cal.Rptr. 890), the California Court of Appeals was confronted with a case where the arrested citizen was pinned down by six police officers, a needle jammed into him and blood forceably withdrawn. The Court saw nothing wrong with this:

"Although this degree of force may approach the brink of excessiveness, it was not excessive. Carleton's self-induced brief physical restraint before and during the withdrawal of a blood sample is not conscience shocking."

One wonders what it would take to go over that "brink"…..

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Why Breathalyzers Don’t Measure Alcohol

Saturday, November 20th, 2004

That’s right: Breathalyzers don’t actually measure alcohol. What they actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will "see" all of those chemicals as alcohol — and report a falsely high "blood-alcohol" concentration (BAC).

Most breath machines used in DUI cases by law enforcement today employ a technology called "infrared spectroscopy". The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small "sample chamber" inside the machine. Then beams of infrared energy are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this energy; the more of the chemical compound in the breath sample, the more energy is absorbed. The more energy that is absorbed, the less infrared energy that reaches sensors at the other end of the sample chamber. And the less energy that is detected by the sensors, the higher the "blood-alcohol" reading.

Problem: the machine is designed to simply assume that the chemical compound absorbing the energy is alcohol. If a person has any of these other compounds on his breath, called "interferents" by the engineers, he will get a falsely high BAC test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the blood-alcohol level.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered. "Trace Composition of Human Respiratory Gas", 30 Archives of Environmental Health 290. In another study invoviing 28 subjects, researchers found that teh "combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin". "Characterization of Human Expired Air", 15 Journal of Chromatographic Sciences 240. And Camnadian scientists have discovered over 200 such compounds. "The Diagnostic Potential of Breath Analysis", 21(1) Clinical Chemistry 5.

What are these compounds? Are there any on my breath?

Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is "seen" as alcohol by Breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, "The Likelihood of Acetone Interference in Breath Alcohol Measurements", 3 Alcohol, Drugs and Driving 1. And there are many other so-called "interferents". See, for example, "Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246.

If you are a smoker, your Breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the Breathalyzer as "alcohol" — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the "half-life" of the compound. So if you’ve painted a room or siphoned some gasoline in the last day or two, don’t breath into a Breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethanol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath.

These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.

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Bush an “Inadmissible Person” to Canada

Friday, November 19th, 2004

How serious is a DUI conviction? Well, among other things, it can get you barred from entering some countries, including our neighbor to the north….. as President Bush discovered.

Under Canada’s laws (Section 19(2)(a.1) of the Immigration Act), anyone who has been convicted of drunk driving is a member of an "Inadmissible Class" and his entry into the country would be a criminal and deportable offense. Period. This is a lifetime ban: President Bush’s 1976 conviction in Kennebunkport, Maine, would render him personna non grata. Same for Vice-President Cheney’s two DUIs in Wyoming.

However, Canadian law permits a person with a DUI on his record to be admitted into Canada if he has been successfully "rehabilitated". This requires applying for, and being granted, a "Minister’s Permit of Rehabilitation" from the government — but not until five years after all of the terms of the sentence have been completed (if there is a three-year probation, as is common, then it will take at least eight years). The government reviews the application, along with accompanying evidence, and applies a "rehab checklist" in deciding whether the individual has truly rehabilitated himself and should be permited to enter the country. This checklist includes evidence of genuine remorse, acceptance of responsibility, change in lifestyle, and stability in employment and family life.

As for President Bush’s little problem, the Canadian government decided to bypass all of this and simply granted him a special "pardon" permitting this unrehabilitated drunk driver into the country….for a limited period of time.

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The DUI Exception?

Thursday, November 18th, 2004

I have referred in many of my posts to a “DUI exception to the Constitution”, and have had numerous queries as to just what exactly this exception is.

There is, of course, no such “exception”. The term is one I have used for many years to characterize the increasing tendency in DUI cases to ignore the United States Constitution. It is easy for politically-sensitive legislators and judges to give in to the pressures of groups like Mothers Against Drunk Driving (MADD), particularly when there is no one to stand up for those whose rights are being violated. But the price is paid not only by the accused, but by all of us: it is the Constitution itself that is eroded. And the nature of our legal system is one of “precedent”: if it is permissible to ignore the Constitution in a DUI case today, then the precedent exists to ignore it in all cases tommorrow.

At some point I began using the term as the title of a lecture I’ve given to various groups of lawyers and laymen on the increasing danger to our Constitutional rights from the political pressures of well-intentioned but ignorant groups like MADD. The lectures have since been reproduced on a number of websites. For an example, see the transcript on Atlanta attorney William C. Head’s website.

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Believing You Have Constitutional Rights in a DUI Case Can be Dangerous

Wednesday, November 17th, 2004

You’ve just been arrested for DUI. And, like in the movies, the officer reads you the "Miranda" rights: "You have the right to remain silent", he tells you, "You have the right to an attorney" And then the very next thing he’s asking if you’ll take a breath or blood test.

Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those Breathalyzers accurate? Would a blood test be better? Well, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide wheher to take a test or not, and which one I should take.

So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. "Are you refusing to take a test?" he asks darkly. "I just want to talk to my attorney," you reply. "Your funeral," the officer says. Now what did he mean by that?

What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as "consciousness of guilt".

Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common: "officer-induced confusion". Three apparently contradictory things are communicated to the (very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you. What would the normal person conclude? Well, let’s take a closer look at the laws involved here.

First, the "implied consent" law says a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to "remain silent", or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known "double standard").

As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, "You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two". (As we say, "the DUI exception to the Constitution".)

What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test. Most states, however, will not let you change your mind. As one appellate court bluntly put it, "One offer plus one rejection equals one refusal and one suspension". Dunlop v. DMV (156 Cal.App.3d 279).

Translation: tough luck all around. Granted it’s all very confusing, and even the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.

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