Archive for December, 2004

DUI, Field Sobriety Tests and “Circadian Rhythm”

Thursday, December 30th, 2004

Most drunk driving arrests take place at night, often after midnight. One reason for this is that many police officers engage in "cherry picking" — that is, the illegal practice of staking out bars and restaurants from about 10:00am to "closing time", pulling cars over on some pretext as patrons leave and drive away. It is during this period of time that the individual’s circadian rhythm is taking effect. The circadian rhythm is that 24-hour biological alarm clock in each of our bodies, most noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning. It is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not. Specifically, British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555. The researchers concluded that "the differences we have found…must be attributable to circadian change and susceptibility of the body to its effect."


Urinalysis: Unreliable for Blood-Alcohol

Tuesday, December 28th, 2004

In many states, a suspect’s blood-alcohol concentration can be determined with urinalysis. This is consistently the least accurate of the three available methods of analysis. The reasons for this are basically two.First, the test is completely dependent on the subject voiding his bladder and then waiting 20 minutes for fresh urine to be secreted into the bladder for a more representative sample. And it is virtually impossible for an individual to completely void his bladder: There will usually be about 10cc of old urine left. This urine will combine with approximately 20cc of fresh urine produced during the wait, resulting in a sample that is one-third old urine — a sample that will contain alcohol from many hours before the subject was driving.

Second, urine often contains a yeast called Candida albicans. This organism has an interesting characteristic: it manufactures alcohol in the urine (caused by the interaction with glucose). This "immaculate conception" of alcohol in the bladder has been confirmed by numerous scientific studies. See, for example, "Bladder Beer — A New Clinical Observation", 95 Transactions of the American Clinical Climatological Association 34. To make things more interesting, Candida albicans is also unaffected by preservatives added by the police to urine specimens. In other words, alcohol will continue to be produced inside the evidence vial for days until it is finally analyzed at the crime lab.


High Blood Alcohol?….or a Zinc Deficiency?

Monday, December 27th, 2004

So you only had two beers, but the breathlyzer read .11%. What happened? Well, for starters, breath machines are generally inaccurate and unreliable. Then again, maybe you had a dietary deficiency. Scientific research appears to indicate that a high blood-alcohol level may not reflect alcohol consumption, but rather a deficiency of zinc in the blood.

In a study conducted at the University of North Dakota, researchers discovered that the metabolism of alcohol was dramatically affected by zinc intake. 46 American Journal of Clinical Nutrition 688. For example, they found that for those subjects on a low zinc diet, blood-alcohol levels increased rapidly within 15 minutes of consumption of measured amounts of alcohol: roughly twice as much alcohol was present in their blood as was present in those subjects on normal zinc diets. Further, greater amounts of alcohol remained in the blood for longer periods of time when there was a zinc deficiency.

Interestingly, it has been discovered that individuals who regularly consume large amounts of alcohol develop zinc deficiencies. This deficiency will, of course, cause the higher alcohol concentration and slower elimination. In other words, it is the problem drinker who is most likely to have abnormal absorption and elimination of alcohol — and abnormal blood-alcohol test results.


How to Lose a DUI Trial Before it Begins

Wednesday, December 22nd, 2004

Simple: Have a prosecutor on the bench.

The public perception of judges is that they are largely fair and impartial. Unfortunately, this is becoming ever less true — at least, in the politically sensitive area of DUI litigation.

To begin with, the reality is that an increasingly high percentage of judges are former prosecutors; very few are public defenders or defense attorneys. In fact, a growing number of attorneys become prosecutors to obtain the "qualifications" for later election or political appointment to the bench. Not surprisingly, the rulings of these judges too often reflect their prosecutorial orientation.

Backgrounds aside, is the judiciary objective in DUI cases? Well, again there is the political reality: the failure to "get tough" on DUI defendants tends to result in negative comments from MADD, prosecutors and police agencies come re-election time — maybe even in an endorsement of the latest prosecutor who wants the judge's position.

Let's take a look at some of these online "resources" for training judges how to handle DUI cases and trials…..

For starters, there's an article from the American Prosecutors Research Institute, entitled Overcoming Impaired Driving Defenses. The article "identifies the most common defenses used in DUI cases and provides specific strategies for overcoming these claims." So why are judges being taught how to "overcome" an accused citizen's defense in a DUI trial?

Another online article is Handling Impaired Driving Cases. According to the prefatory comments, this material covers "common aspects of impaired driving cases", including "anticipating defense issues". The introduction to the article describes various blood-alcohol problems in DUI cases and then observes that "Prosecutors can easily skewer defenses like those…" The article then presents specific "claims" often raised by the defense — and the "reality" refuting those obviously false claims.

Why do judges need to "anticipate" legal issues which may be raised by a defendant? What about legal issues raised by the prosecution? And what is meant by "anticipating defense issues"? Clearly, judges are being taught (by prosecutors) what decisions to make — before ever hearing the evidence.

Another article on the judicial website, Admissibility of Horizontal Gaze Nystagmus, explains to judges "why it is the most reliable field sobriety test for detecting alcohol impairment" — again, before any testimony from the police or evidence from the defense. Yet another, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, teaches judges that "field testing found the SFST battery to be extremely accurate in discriminating between BACs above and below 0.10 percent", apparently making defense cross-examination irrelevant. Then there's the Annual Traffic Seminar: "In this two-day seminar, judges learn about the use of the Intoxilyzer 5000 and laying a foundation for police officer testimony…"

All of this, of course, makes due process and criminal justice much more….expedient. With judges already pre-instructed by the prosecution, there is no real need for things like testimony or evidence in a DUI trial. Or for a trial.


How Not to Beat the Breathalyzer

Tuesday, December 21st, 2004

Item from the Red Deer (Alberta, Canada) Advocate:


STETTLER — An 18-year old Stettler man tried to eat his underwear in the hope that the cotton fabric would absorb alcohol before he took a breathalyzer test, provincial court heard this week.

David Zurfluh was subsequently acquitted of a charge of impaired driving because he blew .08, the legal limit. But the testimony broke up people in Judge David MacNaughton’s provincial court here Thursday afternoon.

Mr. Zurfluh was collared by RCMP Const. Bill Robinson after he ran from his vehicle, which had been seen weaving down the highway. While sitting in the back of the patrol car, Mr. Zurfluh tried to eat his shorts, Const. Robinson told the court.

Mr. Zurfluh said he ripped the crotch out of his shorts, stuffed the fabric in his mouth and then spit it out. A class of law students from William E. Hay Composite High, in court as observers, was removed by the teacher when testimony enlivened the proceedings.

The Grade 11 and 12 students had difficulty maintaining composure. "People were leaving the courtroom with tears in their eyes, trying not to laugh," said RCMP Const. Peter McFarlane.