Archive for January, 2005

Punishment vs Treatment in DUI Cases

Tuesday, January 11th, 2005

Contrary to the deceptive statistics publicized by MADD (see "A Closer Look at DUI Fatality Statistics"), the number of deaths caused by drunk driving has not decreased significantly since the beginning of increasingly harsh penalties years ago. And so new laws are passed further lowering legal limits and raising penalties….ad infinitum.

The simple fact is that most DUI-related deaths are caused by a relatively small group of "problem drinkers". These individuals are typically characterized by recidivism (repeat offenses), unusually high blood-alcohol levels — and alcoholism. And they are simply not deterred by criminal sanctions. By now, most experts recognize that alcoholism is a disease, not a choice. And you don't treat a disease with incarceration. If you throw an alcoholic in jail for six months, on the day he walks out he will likely go to the first bar he finds and resume drinking. What has been accomplished? Apparently, a small number of more enlightened judges are beginning to come to the same conclusions. Consider the following Los Angeles Times article (involving a judge sitting in one of my home courts):

"Every Friday, the second floor of Harbor Justice Center in Newport Beach echoes with the curious sound of applause, breaking the somber silence that otherwise pervades these hallways when DUI hearings are in full swing….

"Positive reinforcement is a central tenet of Orange County's DUI court, which opened in October. It is one of only two courts of its kind in California but is one of a growing number nationwide. They're designed to reduce recidivism among drunk drivers by providing encouragement and strict supervision to help treat addiction rather than imposing jail sentences or fines…. "

"This is a major change in direction for courts," (Judge Carleton P.) Biggs said. "People are starting to realize our traditional approaches don't work'. I wouldn't be surprised in years to come to see this approach taken a lot more"…."

We recognize incapacity due to disease for such crimes as murder: the plea/verdict is "not guilty by reason of insanity". The defendant is not simply set free, but is hospitalized for treatment of the disease. Why not treatment for drunk drivers who suffer from the disease of alcoholism? Would you prefer to have a chronic drunk driver off the roads for six months — or cured of the condition?


“First They Came for the Drunks…”

Sunday, January 9th, 2005

I mentioned in an earlier post ("Are Police Watching Your Home? ") that police agencies, urged on by the the President’s Commission Against Drunk Driving, have begun to assign officers to stakeout the homes of individuals on probation for DUI — sometimes for days — waiting for them to violate their probation by driving.

Aside from the obvious objections, of course, the larger concern is that if police can watch the homes of those with DUI records today, what legally is to stop them from watching your home tommorrow? Do we really want police staking out our homes, waiting for us to make a mistake? Commenting upon this, Scott Henson has reported on his weblog the efforts of the federally-funded Center for Transportation Analysis to require cars to be equipped so they will not start without first inserting a valid driver’s license in an ignition interlock device. This is but one of many ideas proposed to deal with drunk drivers.

What is of greater interest, however, is the CTA representative’s explanation of how Americans’ "historical" concerns about invasion of privacy and Big Brother can be overcome — by initially demonstrating the technology on unsympathetic targets who "have fewer privacy ‘rights’ ":

"American society historically resists excessive government intervention and Big Brother programs that threaten to invade privacy," Hu says. "One of the biggest challenges to implementing electronic driver’s licenses will be to secure widespread public acceptance and community support." Hu thinks that the U.S. public will be more likely to accept this technology if it is first demonstrated on high-risk drivers. "Targeting a demonstration project at drivers who might have fewer privacy ‘rights,’ such as convicted DUI offenders, might reduce public concern about invasion of privacy," she says."

[Note: the quotes around the word "rights" have not been added.] As Mr. Henson paraphrased: "First they came for the drunks, but I was not a drunk so I did not speak up….."


Are Police Watching Your Home?

Wednesday, January 5th, 2005

We've all read about oppressive governments, about how the police shadow its citizens, even staking out their homes to watch for any suspect activities.

What if you were to learn that this is being done in the United States today — and it is being encouraged by the federal government? Not possible, you say? Not in this country? The following endorsement of the practice is taken verbatum from the official website of the President's National Commission Against Drunk Driving:

"Persistent drinking drivers have not responded to the threat of legal sanctions or to prevention activities. In order to help curb the traffic safety problem posed by this group of drivers each state should develop a comprehensive system with key features aimed at deterring the persistent drinking driver….

"Special enforcement campaigns, such as developing a "Hot List" of repeat DUI offenders or the "Stakeout" of people who have lost their license due to a DUI conviction should help to detect future violations and reduce impaired driving…..A few states have implemented "stakeout" programs to check if DUI offenders are driving. Police watch the homes of the offenders, usually at times when they would be leaving and returning from work. If they are caught driving, they are arrested. Publicizing these campaigns may increase the perceived likelihood of apprehension and result in better compliance with the law."

Local police agencies are apparently taking the Presidential Commission up on this. The following is from an April 5, 2004, Associated Press story about LAPD entitled "Cops Stake Out Homes of Drunken Drivers":

"Disturbed by soaring drunken driving accidents, police officers are now staking out the homes of habitual DUI motorists to catch them violating conditions of their probation.

"A task force of five San Fernando Valley officers who wait for hours, sometimes days, outside homes have made 18 arrests for probation violations since the novel tactic began in December, officials said. The program is being expanded citywide this week."

I suppose there are a number of reactions to this. One, certainly, is, "Whatever it takes to get them off the road". Another might be, "Is this really an efficient allocation of limited police resources?" A third, hopefully: "But where does it stop? If for DUI today, for what tommorrow? Do we really want the police watching our homes, waiting for us to make a mistake?"


Tuberculosis, AIDS and Breathalyzers

Monday, January 3rd, 2005

If you are arrested for drunk driving, you will probably be transported to a police station and taken to a room where there is a breath machine sitting on a table. There may already be another arrestee sitting at the table, blowing into the machine. When he is finished, the officer will (hopefully) replace the mouthpiece on the tube connected to the machine, hand it to you and say "Blow in here, and keep blowing until I tell you to stop, then wait and do it again". Afterwards, you may find yourself thinking, "I wonder how many people have used that machine today?" And the uncomfortable thought may follow, "I wonder if any of them had tuberculosis?…or AIDS?" If you are in a metropolitan area, maybe a dozen or more suspects breathed into that machine before you; in the previous month, hundreds. And none of them were screened for communicable disease.

ITEM….From the Minnesota Department of Health's Facts on AIDS: A Law Enforcement Guide: "Use disposable breathalyzer masks on drunk driving suspects (HIV has been found in the saliva of some HIV-infected patients)…These precautions are also intended to reduce one's risk of becoming exposed to other infectious agents including hepatitis."

Assuming that the police do replace the mask/mouthpiece before each test, what about the breath tube? The mouthpiece is connected to a heated tube which carries the breath sample from the mouthpiece into the machine's sample chamber. If microbes can reside in a mouthpiece, they can certainly reside in the connecting tube. And the tube cannot be changed.

ITEM….From the manufacturer of BreathScan, a portable and disposable breath testing device: "The BreathScan tester can be used once and then disposed of, minimizing contamination associated with repeated use of non-disposable units (no AIDS cross-transmission)…." (emphasis added)

Now ask yourself: If arrested, would you blow into the Breathalyzer? p.s. And while you're sitting there at the table, where do you think all of those tuberculosis germs went when the other guy's breath sample was flushed from the breathalyzer out into the room?


Breath Fresheners and Breathalyzers

Sunday, January 2nd, 2005

So you’re driving along and suddenly there are flashing red lights in your rear view mirror. You recall that glass of wine with dinner: not nearly enough to be over .08%, of course, but enough to cause an odor of alcohol on the breath. As you pull over, you grab the breath freshener and quickly spray it into your mouth. The officer asks you to step out of the car, holds out a portable breath testing device and asks you to blow into it. A moment later you are being handcuffed.

What happened? One of the many problems with breath machines is that they cannot tell the difference between alcohol coming from the lungs and alcohol which is already in the mouth or throat. This problem is referred to as "mouth alcohol", and is particularly troublesome because, believing it to be alcohol from the lungs, the breath machines will incorrectly multiply the detected alcohol by 2100 times (see my earlier post, Breathalyzers — and Why They Don’t Work).

One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.

This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled "Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic", published in the July 1985 issue of The Police Chief (page 70). Seven individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes. The results indicated an average reading of .43% blood-alcohol concentration — indicating a level that, if accurate, approach lethal proportions. After three minutes, the average level was still .20%, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11% — well over the legal limit.

In another study, reported in 8(22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81% — far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes.

Message: Don’t spray and drive.