Archive for November, 2004

Warning: Breathalyzer in Use

Tuesday, November 16th, 2004

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 Unknown Variable in a DUI Case: The Officer

Monday, November 15th, 2004

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."


DUI: A “Crime of Violence”? The Supreme Court Gets it Right

Sunday, November 14th, 2004

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".


How to “Drive” Under the Influence While Sleeping

Friday, November 12th, 2004

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?


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…..


Convicting the “Average” DUI Suspect

Thursday, November 11th, 2004

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.