DUI BLOG

Have you ever noticed those "Warning: Microwave in Use" signs in restaurants? It’s for folks who have heart pacemakers: There is a risk that the electromagnetic interference (EMI) from the microwave will interfere with the electronic circuitry in the customer’s pacemaker and cause it to malfunction. This phenomenon, often called radio frequency interference (RFI), can be a recurring problem with any instrument containing electronic circuitry.

Now try to think of some place in your neighborhood that is chock full of electronic gizmos constantly transmitting RFI 24 hours a day. How about a police station? Powerful dispatch radio transmitters, radio transmitters in squad cars in the parking lot, walkie-talkies in every officer’s belt, cell phones, computer cathode ray tubes, microwave relays, electronic door locks, microwave ovens, fluorescent lighting — a veritable jungle of RFI. Now let’s put a Breathalyzer smack in the middle of this police station. An instrument filled with sensitive electronic circuitry that has to analyze tiny amounts of alcohol in breath to an accuracy of one tenth of a percent…..

Just a theory of some DUI defense attorney? Consider a report from the National Bureau of Standards, under contract with the National Highway Traffic Safety Administration to conduct accuracy testing on breath machines (referred to in the report as "Evidential Breath Testing" devices, or "EBTs"):

The Washington D.C. Metropolitan Police Department reported to NHTSA that EBTs were found to display erroneous BAC [blood-alcohol content] readings in the presence of electromagnetic fields from radio transmission…. Representatives of NHTSA and NBS were given a demonstration by police officers who routinely conduct breath testing using an EBT in a mobile van. One police officer operated his handheld radio within 1 foot of the EBT and demonstrated that the electromagnetic field could severely affect the analysis of alcohol samples.

The National Bureau of Standards subsequently conducted the testing and subsequently reported that

These results show that EMI is a potential problem with many of the EBT units currently in use….The states may have to take interim measures to determine the extent of their individual problems with EMI affecting EBTs.

The reaction by the federal government to this report was, perhaps, predictable. Afraid that it would undermine public confidence in law enforcement methods, the government classified the document and then buried it. However, it was later resurrected by a Minneapolis DUI law firm’s Freedom of Information Act lawsuit. Most manufacturers of breath machines today quietly offer an "RFI detector" as an option in their products. Unfortunately, these "detectors" are unreliable and, in any event, are rarely purchased by law enforcement agencies.

Note: all 50 states now make it a crime to drive with a blood-alcohol level of .08% or higher. In most cases, the only evidence of this comes from the breath machine. The breath cannot be re-analyzed. The machine cannot be cross-examined.

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself. A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer’s observations and conduct in the field:

"The officer’s age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

"The officer’s personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

"Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate’often by a wide margin’the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

"Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement’particularly in municipal departments’were found to lack this specialized training. "Specialization in duty assignment can also enhance alcohol-related enforcement.

Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties. "Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests. "Weather conditions also affect alcohol-related arrests.

There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

"The suspect’s attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

"The suspect’s race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed’the overwhelming majority of whom were white’reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

"Suspect’s age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

"Suspect’s sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

It is difficult for members of the public to recognize and appreciate the degree to which a double standard exists in the drunk driving field. The laws are increasingly unrealistic, procedures unfair, evidence unreliable and constitutional protections largely ignored.

An example of this was recently demonstrated in a United States Supreme Court decision (Leocal v. Ashcroft, No. 03-583; November 9, 2004). The Court was faced with the appeal of Josue Leocal, a lawful permanent resident of 20 years, who pleaded guilty to DUI with injury. As a result, the Immigration and Naturalization Service (INS) commenced proceedings to have him deported as an alien convicted of an "aggravated felony".

The INS regulations defined an aggravated felony as "a crime of violence", which in turn is defined as "an offense that has as an element the use…of physical force against the person or property of another." An Immigration Judge ordered the deportation, and the Board of Immigration Appeals upheld the order. Leocal went to the U.S. Court of Appeals, which promptly denied his petition for review.

Fortunately, the Supreme Court reversed the deportation order. In a rare unanimous decision, the Court stated the obvious: DUI is simply not a crime of violence, even if someone is injured in its commission. A deportable "crime of violence", the Court said, required "a higher mens rea [mental state] than the merely accidental or negligent conduct involved in a DUI offense." In other words, the requirement of "the use of physical force against" a person necessarily involves the intent to use that force. Put yet another way: How can you be accidentally violent?

The point here, of course, is that everyone right up to the Supreme Court of the United States was perfectly willing to twist the clear wording of the law when the politically unpopular crime of drunk driving was involved. At every level, the nations’s agencies and courts pretended that a crime clearly involving no intent was, in fact, a crime involving the intentional commission of a violent act against someone. As we see so often in DUI cases, the Red Queen was right: "A word means exactly what I say it means".

The DUI laws make it unlawful to drive (or, in some states, "operate") a vehicle while under the influence of alcohol (or over .08% blood-alcohol). That seems pretty clear: driving…vehicle…under the influence. Not really very complicated, is it? No, unless you’re an officer, a prosecutor or a MADD lobbyist trying to stretch the language of these laws to fashion a larger net.

How about that little word "driving", for example? Now just what does that really mean? Well, it means driving. Engine on, moving, steering, shifting, braking… that kind of thing, right?

Wrong.

Let’s take a look at a few examples of how law enforcement, prosecutors and courts have increasingly expanded that seemingly simple word to widen the DUI dragnet — by doing violence to the clear language and intent of the law.

- Engine off, car being pushed or towed….Let’s consider a case where the engine was off, but it was in motion — say, being towed? And the defendant was behind the wheel, steering: Is that driving?Yes, say some courts: "While a person is being towed, the person assumes responsibility for steering and braking the vehicle in a safe manner." State v. Dean (Oregon, 733 P.2d 105). Well, ok, maybe it’s not a huge stretch to include a towed car within the term "driving". At least it’s moving.

- Engine on, but vehicle parked….What if the car isn’t moving? What if the individual is just sitting behind the wheel of his car, parked but with the engine on, say, to keep the heater working?Many courts will require some movement of the vehicle, but others consider this "driving" or "operating".

- Engine on, but vehicle inoperable….An Ohio court had no trouble finding "driving" where the defendant was behind the wheel of her car, engine on — but stuck in the mud with two blown tires. City of Columbus v. Seabolt (607 N.E.2d 61).

- Engine off, vehicle parked….How about if the engine is off? If you’re just sitting behind the wheel of a parked car? More disagreement among the courts. The Colorado Supreme Court found "driving" where the defendant was behind the wheel of a car in a private parking lot, engine off — but the lights on. MVD vs.Warman (763 P.2d 558).

- Engine off, and vehicle inoperable….What if the car has a mechanical problem or is out of gas? If the car won’t start, how can it be driven? Not a problem, according to some courts anxious to sustain convictions.

Well, heck, next thing they’ll be arresting folks in their cars for "sleeping under the influence". Actually, hard as it may be to believe, they’ve been doing just that for quite awhile. There are plenty of appellate cases affirming DUI convictions where the defendant was asleep or unconscious in his car. – Engine on, "driver" asleep or unconscious….That’s "driving", say a number of courts. See, for example, Matter of Clayton (Idaho, 748 P.2d 401). Even in those cases where the engine was left on in cold weather so the heater could work.

Well, surely no one can say a person is driving if he is asleep AND the engine is off? – Engine off, "driver" asleep or unconscious….Amazingly, there is no shortage of courts willing to extend the crime of driving under the influence to individuals who are found asleep or unconscious in cars whose engines are turned off. In State v. Lawrence (849 S.W.2d 761), for example, a Tennessee court held that a defendant asleep on the driver’s side with the keys in his pocket was in sufficient physical control of the car to satisfy the statute. And in State v. Peterson (Mont. 769 P.2d 1221), a DUI conviction was sustained where the "driver" was found slumped onto the middle of the front seat; the car was off the roadway and the keys were in his pocket.

Don’t we want to encourage folks who think they may have had too much to drink to pull over and sleep it off? Why would we want to discourage this by arresting them? And what’s going on here with the word game? What does NOT constitute "driving"? Why are some courts so willing to support police and prosecutors from going far beyond the clear wording and intent of the laws?

The answer may be found in a Minnesota case, in which a conviction was sustained where the defendant was found in his pickup, engine off and with his head resting on the steering wheel. "The real purpose of the statute", the court wrote, " is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles." State v. Juncewski (Minn., 308 N.W.2d 316)

Funny, I thought the "real purpose" of laws was to punish people who actually committed the crime — not just to send people to jail who came close. If the "real purpose" of the law is as stated by the Court, why didn’t the legislature just prohibit citizens "who have been drinking intoxicating liquor from getting into their vehicles"? Of course, then the guy working on his engine would get arrested for "getting into" his vehicle. And the guy changing a tire. And…..

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .08 but a breath-to-blood ratio of, say, 1:1700 would have a .10 reading on an “accurate” breath testing instrument.

Put simply, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio’that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called “retrograde extrapolation”, or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by “extrapolating” backward’that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing. But this requires two assumptions: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the “nystagmus'’ test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.” The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased’despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased’and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children’the average in the United States.

So why does the state presume facts that are clearly untrue? Simple. It is convenient: it makes prosecution and conviction much easier.

Can alcohol be created by the human body itself — without any drinking? Apparently so.

In an interesting scientific article, two physicians at Union Memorial Hospital in Baltimore reported that they detected the odor of beer in three of their patients. This was in an isolated hospital setting; there was no access to alcoholic beverages. The doctors had urine samples taken and analyzed by gas chromatography. Result? All three showed the presence of alcohol in their systems. Two of these were then tested for actual blood-alcohol concentration (BAC). One showed a BAC of .043%. The other was .121% — or 1 1/2 times the legal limit for DUI!

"The presence of alcohol in human specimens containing glucose and yeast should come as no surprise," the two physicians wrote. "Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase…

"The Japanese report the "auto brewery syndrome" in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness." Mullholland and Townsend, "Bladder Beer – A New Clinical Observation", 95 Transactions of the American Clinical Climatological Association 34 (1983).

In other words, the body is manufacturing alcohol by itself — in some cases, enough to become legally intoxicated. This has been confirmed by other studies. Swedish researchers, for example, have found that:

"Increasing evidence has emerged to show that endogenous ethanol does exist, the the concentrations seen have large inter-individual variations. Our results show a markedly skewed distribution of values…The reason for the wide inter-individuaal variation in healthy abstaining individuals is hard to explain." Jones et al., "Determination of Endogenous Ethanol in Blood and Breath By Gas Chromatography, 18 Pharmacology, Biochemistry and Behavior 267 (1983).

How many folks, with "immaculately conceived" alcohol in their systems, have been arrested and convicted for DUI? These people were innocent, right?

Wrong. In the rush to convict drunk drivers (and with federal pushing), 49 states have now passed so-called "per se" laws: driving with a BAC of .08% or more. Neither intent, negligence or even knowledge is required. The crime consists of simply having the alcohol in your body.

Even if you’ve had nothing to drink.

Police and prosecutors are constantly trying to stretch DUI laws to ensnare more citizens. One of the more creative ways is to simply re-define the language in those laws. For example, it is a criminal offense to drive a vehicle under the influence of alcohol. Well, what does “vehicle” mean? A car or truck, right?

As the Red Queen in “Alice in Wonderland” said, “A word means exactly what I say it means”…..

Let’s look at a few examples of some of the more successful “interpretations”. The appellate courts of this great nation have sustained DUI convictions for driving a tractor, (N. Carolina: State v. Green, 110 S.E.2d 805), a moped (New Mexico: 24 P.2d 365), and even a snowmobile (Michigan: 475 N.W.2d 717). So where does it all stop?

Well, on May 6, 1999, the Associated Press reported the arrest of a gentleman in Arkadelphia, Arkansas, for DUI — on a lawnmower.

An Ohio appellate court, in its judicial wisdom, sustained a conviction for drunk driving on a bicycle (531 N.E.2d 775). A bicycle, the court said, was a “vehicle” — at least, for the purposes of the DUI statute.

Well, next thing you know they’re going to start arresting people on horseback….

San Francisco police arrested one Tyrone McDonald and charged him with “driving” (a horse) under the influence of alcohol. McDonald had become intoxicated and stolen a horse from a nearby racetrack, which he promptly rode into the path of an oncoming truck. He was arrested for grand theft, cruelty to animals and drunk driving.

Not to be outdone, police in Mercer County, Pennsylvania, arrested a man for riding a horse while intoxicated. The trial judge, cleverly realizing that the term “vehicle” in the drunk driving statute did not really mean “horse”, threw the charges out. The prosecution, apparently unable to see the judge’s logic, appealed all the way to the Supreme Court. Fortunately, sanity again prevailed and the lower court’s decision was affirmed. One justice on the Court, however, insisted that a horse was, in fact, a vehicle and wrote a dissenting opinion in which he (no joke) wrote the following poem:

“A horse is a horse, of course, of course, but the Vehicle Code does not divorce its application from, perforce, a steed as my colleagues said. ‘It’s not vague’, I’ll say until I’m hoarse, and whether a car, a truck or hors, this law applies with equal force, and I’d reverse instead.”

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two AFTER driving. So how does the prosecution prove what the BAC was when the defendant was driving? It’s a problem.

You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called "retrograde extrapolation" — a fancy name for trying to guess backwards. The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables.

In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, "Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

"It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded." 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a Breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the BAC was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do? Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true? Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law: "It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving". Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the "burden of proof" — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the "presumption of innocence"? Details, details.

The important thing here is that we get these drunk drivers off the road, isn’t it?

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as "Where are you going? What time is it? Have you been drinking? What? When? Where? How much?" Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before I told him to? How many steps out? How did he turn? How many steps back? Which, if any, of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

And the other three or four drunk driving field tests…

In the "horizontal gaze nystagmus" ("Follow my pen with your eyes without moving your head") test, was there "smooth pursuit" of the right eyeball? What did it look like? How many times was it given? Did "onset" of nystagmus occur before 45 degrees? At what degree? Was I able to see the white of the eye at the extreme range of the eye? Was there "distinct nystagmus" at this extreme? And what about all these observations in the left eye?

And maybe two or three other field sobriety tests.

And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two samples? And so on….

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation — and in dozens of other investigations. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath. How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a "DUI arrest report". This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the "gun hand" be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems….

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe? And this is just one test. And what about the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall three or four months later in trial everything that happened? He can’t just read from the report: He has to testify to what he knows — that is, to what he independently remembers happened. But here the law permits him an "out": He can "refresh his recollection" by reading the report after he is asked a question. Then he can testify with a newly "refreshed" memory — in reality, to what he wrote in the report. In most trials, the officer has also "refreshed his recollection" just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s GUILT. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot "refresh his memory" about things that happened but which are not in the report. And there will be little if anything in that report which will give "the other side" of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.

Yes, the death penalty. In a drunk driving case. In these United States. For murder…… No, not involuntary manslaughter. Not vehicular homicide. Murder. And first-degree murder. As in pointing a gun at someone and pulling the trigger. MADD has been so successful in their political pressure campaigns that they’ve actually gotten some courts and legislatures to create a new type of crime: DUI murder.

Wait a minute, you say. I thought you had to INTEND to kill a person before it’s murder. You have to "premeditate" and that kind of thing, right? Well, yes and no. Each state is a little different, of course, but most follow similar laws. And those laws generally break a homicide ("the killing of another human being") into different categories. The first is excusable homicide — where, because of self-defense or other justification, the death is not considered a crime. Next is "manslaughter" — basically, a killing that is not murder. There are usually two kinds of manslaughter: voluntary and involuntary. Voluntary manslaughter is sometimes called a killing in the "heat of passion"; you lacked the time or ability to reflect on the act. Involuntary manslaughter is an unintentional homicide: you didn’t mean to do it, but you caused a death by your negligence or recklessness.

When a drunk driver causes an accident in which someone is killed, he is usually going to be facing involuntary manslaughter charges. Some states use different terms, such as "vehicular manslaughter" or "vehicular homicide". Either way, the death was unintentional, but it was caused by the driver’s negligent or reckless conduct.

And then there’s murder. That’s what you see on TV and read about in the papers: someone plans to kill someone else and, in cold blood, takes his life. But just to complicate things, in most states there are two kinds of murder: first degree and second degree. Murder in the first degree usually requires meaningful premeditation: you thought about it, planned it, carried it out. Second degree murder only requires a mental state known as "malice". What is malice? Well, usually it means the intent to kill someone: you intended to kill that person, but it may have happened so quickly that you never really thought it out. Intent, but no premediation.

So where does DUI fit into all of this?

It seems pretty obvious that it belongs in the "involuntary manslaughter" category — an unintentional accident but with negligence/recklessness. However…. This idea of "malice" is pretty vague. Very vague. Actually, it can pretty much mean whatever you want. Perfect, really, for a group like MADD looking for new ways to "get tough " on drunk drivers.

A prosecutor in California came up with a bright idea a few years ago. He simply ignored the vehicular manslaughter statute and charged a drunk driver with second-degree murder. And, DUI being a pretty unpopular crime, actually managed to convict him. The defendant appealed, saying the prosecution can’t just invent new crimes: he has to charge the offense specified by the legislature. The California Supreme Court disagreed, saying that he could be charged and convicted of murder if he acted with "malice" — that is, if he "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".

Base antisocial motive? What’s that? The Court tried to clarify:

"One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others." People v. Watson, 30 Cal. 3d 290 (1981)

Well, the problem is that the Court was pretty much describing ANY drunk driver. Recognizing that this opened the gates a bit wide, the courts have tried to limit over-zealous prosecutors by requiring a more serious type of malice. They came up with "conscious indifference": A drunk driver can be charged with murder if his state of mind was, "I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed." Still pretty vague. Doesn’t alcohol itself cause indifference? And how do you know what’s in someone’s head when he’s drunk? Well, it turns out that you can now prove malice if you can show that the defendant knew drinking and driving could be dangerous. Of course, everyone knows that, right?

So where does that leave us? Any DUI defendant who knows drunk driving is dangerous can be charged with murder?

Apparently so. In People v. Murray, 275 Cal.Rptr. 498 (1990), the appellate court upheld a DUI murder conviction where the prosecution proved he had attended a DUI education class and told someone he had learned a lot from it. This was enough to show that he was aware that drunk driving was dangerous and so he acted with "malice". And, thus, murder.

With this kind of legal reasoning, it’s only a matter of time before we’re looking at the death penalty in a drunk driving case, right? Well, on April 8, 1997, a jury in Winston-Salem, North Carolina, came back with a first degree murder conviction in a DUI case involving a traffic accident with two deaths. They recommended a sentence of life without the possibility of parole. The prosecutor had asked for the death penalty.