DUI BLOG

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.”

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 subect 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.

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.

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.

However, a more concrete sign of the judiciary’s increasing bias in favor of the prosecution can be found by visiting a website entitled DUI: A National Online Resource Library for the Judiciary on Impaired Driving. The site is sponsored and maintained by the National Association of State Judicial Educators, under a contract from the National Highway Traffic Safety Administration. The organization conducts training seminars for judges nationwide, distributes written materials and provides resources on the website.

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.

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

MAN EATS UNDERWEAR TO BEAT BREATHALYZER

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.

As with the odor of alcohol on the breath, few police reports will fail to include an observation by the arresting officer that the arrestee exhibited “slurred speech”. (See my earlier post, “Alcohol on the Breath: Evidence of DUI?”). The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and we tend to “hear” what we expect to hear. And hearing it supplies the officer with corroboration of his suspicions.

Even assuming the honesty of the officer that the defendant’s speech was slurred, there is little evidence that this is symptomatic of intoxication. Impairment of speech is, for example, a common — and sober — reaction to the stress, fear and nervousness that a police investigation would be expected to engender; fatigue is another well-known cause. However, consider the following excerpt from Discover magazine:

“Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people’s alcohol levels by the way they talk.

“Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes….

“He thinks his research could encourage police to be more wary of making snap judgments: Mild drinkers might come under needless suspicion…” Saunders, “News of Science, Medicine and Technology: Straight Talk”, 21(1) Discover (Oct. 2000).

If you use asthma inhalers and are ever arrested for DUI, you should perhaps think twice about taking a breath test.

Most inhalers operate primarily by injecting a mist containing a substantial quantity of alcohol into the lungs. As an example, one of the most commonly used inhalers, Primatene Mist, contains 34 percent alcohol. This alcohol does not pass into the blood stream, but remains in the alveolar lining of the lungs — from where it will be exhaled into the breath machine.

The problem is that “breathalyzers” are designed to assume that the breath sample contains alcohol which has been swallowed and then metabolized by the body before being diffused into the lungs. As I mentioned in an earlier post (“Breathalyzers — and Why They Don’t Work”), they are further designed to assume that there are 2100 units of alcohol in the blood for every unit measured on the breath. So the breathalyzer’s computer mistakenly multiplies the alcohol measured from the asthma inhaler 2100 times. In other words, a very tiny amount of alcohol in the lungs from the inhaler mist can have a very large effect on the machine’s reading.

Just to make things worse, scientists have found that some asthma inhalers can cause high readings on breath machines due, apparently, to the propellent gasses used in the aerosols, in particular, chlorofluorocarbons. See “Using Asthma Inhalers Can Give False Positive Results in Breath Tests”, 324 British Medical Journal 756 (March, 2002). As I mentioned in another earlier post (“Why Breathalyzers Don’t Measure Alcohol”), one of the many design defects in breath machines is that they are non-specific — that is, they will falsely report thousands of different chemical compounds as being alcohol.

One of my earlier posts, “Immaculate Intoxication”, created considerable interest on the internet. Few of us realize that alcohol is actually produced within our bodies, independent of any drinking — a relatively common phenomenon scientists refer to as the “autobrewery syndrome”. A common cause is fermentation created by the presence of yeast and glucose in the system.

Internally-produced alcohol can be caused by other things as well. If an individual was taking antacids such as Tums or Rolaids, for example, he may have created a situation in which his body was manufacturing alcohol internally. Scientific literature indicates that antacids change the gastric acidity in the stomach — which can lead to alcohol production by resident bacteria…. and elevated blood-alcohol readings in a DUI investigation. See “Effects of Cimetidine Treatments on Ethanol Formation in the Human Stomach”, 19(6) Scandinavian Journal of Gastroenterology 853 (1984); and “Effects of Antacids on Alcohol’s Reaction”, 5(5) Alcoholism 28 (1985).

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving? Interestingly, however, the findings do not necessarily support popular opinion….

On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. “Marijuana and Alcohol: A Driver Performance Study”, California Office of Traffic Safety Project No. 087902 (Sept. 1986).

Contradicting these conclusions, however, are two federal studies.

The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana influence was noted. “The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I”, DOT-HS-806-414.

A more recent report entitled “Marijuana and Actual Performance”, DOT-HS-808-078, noted that “THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving”.

The study concluded that: “…An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside “sobriety” tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC…”.

The researchers found that it “appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample”.

Note: “THC” stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuna may not impair driving ability at all, and (2) the blood “evidence” only measures an inactive substance which may have been there for days.

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

“No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight….” (Emphasis added) State v. Fogarty, 607 A.2d 624 (N.J. 1992).

This “no win” scenario is fairly typical of what I have referred to in earlier posts as “the DUI exception to the Constitution”.