DUI BLOG

In an earlier post I discussed one of many "DUI exceptions to the Constitution" — being punished twice for the same DUI offense. Due to federal "carrot-and-stick" pressures, the states today impose an immediate suspension of the driver's license if a driver is arrested for DUI and either tests .08% or higher or refuses to be tested. The two proceedings and penalties are separate and unrelated: if the charges are dropped in criminal court, for example, the license will remain suspended (and conversely, if the license suspension is reversed in an administrative hearing, the criminal court may nevertheless impose another suspension).

The courts initially had some trouble with this double jeopardy/punishment problem (some found it to be a violation of the Constitution), but eventually sidestepped it by simply playing with words: the immediate suspension is not a "punishment" but rather an "administrative sanction". But now along comes some North Dakota legislator with a frightening idea: if a citizen is not guilty of DUI, why should his license be suspended? From the Bismarck Tribune (Feb. 25, 2005):

North Dakotans who aren't successfully prosecuted for drunk driving should have any license suspension wiped from their record, says a state senator who believes Transportation Department officials treat some drivers unjustly.

"If you're not convicted, a jury of six peers says you're not guilty, guess what? Your license is still gone", said Senator Tom Trenbeath, R-Cavalier…. It got its first hearing in the Transportation Committee on Friday, where it drew opposition from parents and the state Department of Transportation, which handles license suspensions for DUI.

If a prosecutor decides on a plea bargain, or a jury feels sorry for someone, a drunken driver could have the slate wiped clean, agency official Keith Magnusson said. "There are people who don't like the administrative process", Magnusson said. "The reason they don't like it is because it works." A person suspected of drunk driving faces both the loss of his or her driver's license, and possible criminal prosecution by the local state's attorney….

Sen. Stanley Lyson, R-Williston, a sponsor of the bill and a former Williams County sheriff, said it is unfair to punish someone who is not convicted of DUI. "Remember this, we live in a country of laws, and if the law says you're not guilty, you're not guilty", Lyson said.

There is apparently little support for the bill and it is not expected to pass. But then, as someone once said, "If the Bill of Rights was introduced into Congess today, it would not make it out of committee".

I have commented repeatedly in the past about the inaccuracy and unreliability of breath-testing devices used in DUI investigations. This is due to a wide range of factors: inherent design defects (see, for example, my previous post "Why Breathalyzers Don’t Measure Alcohol"); ineffective calibration and maintenance of the machines; improper administration of the test; radio frequncy interference; and, most importantly, physiological variability in humans.

The main problem with breath machines is that they are designed to assume all human beings are the same (see "Convicting the ‘Average’ DUI Suspect"). In fact, we are all very different from one another in ways that are critical to such testing — and we are ourselves physiologically different from one moment to the next. Each of us, for example, is inherently different in our partition ratio — the ratio of alcohol in our breath compared to alcohol in our blood — and this ratio differs within ourselves from hour to hour (see "Breathalyzers — and Why They Don’t Work").This is critical, as the breathalyzer will automatically compute the amount of alcohol in the blood based upon the measured alcohol on the breath — using a uniform ratio that (falsely) assumes we are all the same.

Another human variable is the existence of such conditions as diabetes (see "Diabetes and the Counterfeit DUI"), acid reflux ("GERD, Acid Reflux and False Breathalyzer Results")…. and anemia. A person suffering from anemia has a low red blood cell count, perhaps half as much as would be normal. Put simply, when there are fewer red blood cells, the body will increase the amount of plasma to fill the void. Red and white blood cells are solid; plasma is liquid. Alcohol is attracted to liquid in the body, not muscle, bone, or other solids. It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer. The male-female average hematocrit is 45% (men average 47%, women 42%), but the range varies for men from 42 to 52%, and for woman from 37 to 47%. The machine, of course, assumes that all suspects have a hematocrit of 45%.

The effect of an individual’s hematocrit on breath analysis can be mathematically computed. The partition ratio of alcohol in blood to alcohol in breath uniformly used in breath testing is 2100:1. If the suspect’s hematocrit is, say, 54%, the breath test result could be computed by multiplying it by 45/54. Assuming a breath test result of .11%, for example, the true blood-alcohol concentration could be determined by the formula .11 x 45/54 = .09%. In other words, a person with a true BAC of .09% but a hematocrit of 54% would test on an otherwise "accurate" machine as .11%. Just because he/she is anemic — or simply varies from the statistical norm.

I gave a lecture to a national organization of attorneys last week in which I was asked, among other things, to anticipate the future course of DUI laws in the United States. Bearing in mind the words of Adlai Stevenson ("We can chart our future clearly and wisely only when we know the path which has led to the present"), I predicted the following…..

DUI Laws

The Past: The original laws simply outlawed driving while impaired.

With the arrival of primitive breathalyzers, and the counsel of the American Medical Association, impairment was presumed with a blood-alcohol concentration (BAC) of .15%. Over the years this was dropped to .10%, then .08%, and finally the laws were added making the BAC — not impairment — the offense. There are now bills before state legislatures to drop it to .05%. So-called "zero tolerance" made it a crime for drivers under 21 to have even .01% BAC.

The Trend: From focusing on actual impairment, to facilitating arrests and convictions by focusing on artifical BAC levels — and, finally, to the mere presence of alcohol. The emphasis has shifted from addressing the danger (impaired drivers) to facilitating arrests and convictions.

The Future: The "zero tolerance" laws will be applied to drivers of all ages. Criminal liability will be expanded to include attempted drunk driving (regardless of lack of specific intent), as well as vicarious liability: accomplices ("aiding and abetting"), conspiracy and so-called "Dram Shop Act" liability (providing a drink to someone who may drive).

Evidence

The Past: Originally, the arresting officer gave his opinion of impairment based upon his observations of driving and symptoms, as well as field sobriety tests. The emphasis shifted to increasingly sophisticated breathalyzers and to blood tests administered by nurses or technicians. However, portable and handheld breath testing devices have more recently been used at the scene to determine probable cause to arrest; the later test on a more sophisticated breathalyzer at the station continues to be used as evidence in court. Some courts are beginning to accept the portable units into evidence.

The Trend: An increasing emphasis on money and expediency rather than accuracy and reliability.

The Future: Evidentiary breathalyzers will be replaced with simpler, cheaper (and less accurate) handheld units at the scene of arrest. Blood samples will be obtained by the officer with his syringe at the scene. Saliva tests may gain acceptance.

Constitutional Rights

The Past: There has been a parade of adverse Supreme Court decisions and a steady erosion of constitutional rights in drunk driving cases — what I have called "The DUI Exception to the Constitution". These have included approval of sobriety roadblocks (Sitz v. Michigan); double jeopardy (immediate license suspensions followed by criminal prosecutions); right to counsel; self-incrimination (Neville v. South Dakota); presumptions of innocence (if .08%, then presumed under the influence; if test taken within 3 hours of driving, BAC presumed to be same as when driving); confrontation; jury trial (Blanton v. North Las Vegas); etc.

The Trend: From the protection of the citizen from police violations, to the protection of the police from legal interference.

The Future: Increasing loss of constitutional protection — notably, the complete loss of the right to a jury trial. With the clear focus on cost and expediency, DUI cases will be handled in an administrative setting as license suspensions currently are: the two procedures will simply be consolidated, although criminal penalties will remain. There may be no judge, but only an administrative hearing officer.

Federal Presence

The Past: DUI laws have always been a state-prescribed crime. With the prompting of special interest groups like MADD (Mothers Against Drunk Driving) and the desire of politicians to curry favor with voters, this has gradually changed. Using a "carrot and stick" approach with highway funds, the federal government has forced states to change their laws and penalties in such ways as: "per se" laws; .08% BAC; "zero tolerance" for drivers under 21; automatic license suspensions; standardized field sobriety tests; federally approved lists of breath testing machines.

The Trend: The federalizing of a traditionally state offense.

The Future: With the use of the Constitution’s Commerce Clause, DUI laws and penalties will become "federalized". However, without the ability (or inclination) to arrest and prosecute these crimes in the federal courts, the states will be left to continue processing them in their own courts or administrative hearings.

The New Prohibition

The Past: The Eighteenth Amendment to the Constitution was primarily a woman’s movement that ended as a failed experiment. Since then….The BAC levels for DUI have steadily dropped from .15% to .08%, and there are efforts to reduce it further. Drivers under 21 already face .01% — alcohol prohibition as to driving.

The Trend: In 1999, MADD (primarily a woman’s movement) formally changed its mission statement from drunk driving to include "the problem of underage drinking" (not underage drinking and driving). The "problem" of drinking at all is on the horizon.

The Future: The movement will again fail, this time without obtaining a constitutional amendment. This country needs alcohol and drugs too much.

Most of us are vaguely aware that when we are arrested and taken into custody we must be advised of certain constitutional rights, including the right to counsel. This is based upon the Fifth and Sixth Amendments to the United States Constitution; the Supreme Court has specifically applied this 5th Amendment right to misdemeanor traffic offenses in Berkemer v. McCarty.

In a DUI case, the citizen is arrested, handcuffed and thrown into the cruiser to be taken to the police station where he will be asked to submit to breath or blood testing. Some states view this as a "critical stage" where the individual should have the right to call an attorney for advice well before he decides which test to take, if any. Consider a February 16, 2005, news story from Montana:

HELENA — Police and prosecutors railed against a bill Wednesday that would allow someone arrested for drunken driving to call an attorney before taking a blood-alcohol test, calling it another loophole for offenders that would hinder investigations.

Opponents called the measure by Rep. Rick Maedje, R-Fortine, vague and inappropriate given the Legislature's work to toughen drunken driving laws this session…. Maedje said his bill wasn't so much about drunken driving, but an attempt at protecting constitutional rights."Constitutional protection is not a loophole," he told the House Judiciary Committee. "Miranda (rights) should start immediately after someone is asked to incriminate themselves."

The bill would allow those arrested for DUI to contact an attorney "as soon as possible under the circumstances" and prohibits law enforcement from seizing their driver's license until that time. Their license could be taken if they refuse to take the test after that time, or if they don't contact an attorney. No one spoke in support of the bill….

A bill to recognize our right to speak with an attorney. And no one spoke in support of it.

OK, this one isn’t about DUI specifically, but…. As we all know, the genius of our political system is that it is based upon the separation of powers, a structure designed to provide checks and balances by each of the three arms of government against the other two. In its collective wisdom, however, the Delaware House of Representatives is considering a Bill to change all of that nonsense. In response to a Delaware Supreme Court decision striking down a statute, the Bill (which has already been passed out of a number of committees) provides:

(I)n recognition that the Delaware Constitution vests authority and sole responsibility for lawmaking in the General Assembly, the General Assembly asserts its right and prerogative to be the ultimate arbiter of the intent, meaning, and construction of its laws and to vigorously defend them; therefore, the members of the General Assembly declare that the decision of the Delaware Supreme Court in the case of Evans v. State, 2004 WL 2743546 (Del. Supr.), is null and void.

Having declared the Supreme Court’s decision "null and void", the legislators then continued their rearrangement of government by telling the courts how to decide cases in the future:

Construction and Interpretation of Laws: Delaware judicial officers may not create or amend statutes, nor second-guess the soundness of public policy or wisdom of the General Assembly in passing statutes, nor may they interpret or construe statutes and other law when the text is clear and unambiguous.

Take that, judicial branch! (Thanks to Rod Kennedy of Albuquerque.)

The promotions and accolades heaped on officers by groups like MADD for maintaining high DUI "body counts" has created a growing phenomenon: the over-zealous "SuperCop". As an example, consider the following news story about one of these SuperCops — and one of his victims who is currently suing him in federal court:

To the Palm Beach County chapters of the Traffic Safety Council and Mothers Against Drunk Driving, North Palm Beach police officer Salvatore Mattino is a crackerjack cop. So much so that they've given him awards for the prolific number of drunken driving arrests he has made."I'm always arresting people, you know, I just can't be… you know, chilled," Mattino told a superior officer 11 months ago, according to an internal affairs report.

 That attitude troubles some of Mattino's fellow officers, not to mention the motorists ' a good number of them never prosecuted ' whom he has busted. Indeed, during one of Mattino's DUI arrests 13 months ago, a fellow North Palm Beach police officer had a heated argument with him over what he said was a bogus DUI bust, and threatened to arrest Mattino if he went through with it. Mattino made the arrest anyway. A few days later, according to the report, a sergeant in the department asked Mattino about the incident, explaining, "I'm tired of officers complaining about you and your DUI arrests."

Now Mattino's ardent pursuit of drunken drivers has put him and the village of North Palm Beach on the receiving end of a federal lawsuit filed in December, claiming that the village and the officer have systematically made bad DUI arrests and maliciously prosecuted them.

The citizen bringing the federal action, Elliot Schecter, was pulled over by Mattino for speeding:

Mattino asked Schecter, 35, to submit to a series of roadside sobriety tests, which Mattino said he performed badly. Schecter was then arrested and taken to the Palm Beach County Jail. Once there, he agreed to a breath test. The result: 0.00 ' no sign of alcohol. That might have ended Schecter's long night, except Mattino then asked him to give a urine sample. He eventually tested negative for drugs. The state attorney's office later dropped the case…..

Schecter wasn't the only legally sober motorist to be given a roadside sobriety test by Mattino, then taken to jail, only to pass the breath and urine tests. (Attorney Val) Rodriguez says he's found at least 10 others out of 71 DUI arrests by Mattino between November 2001 and May 2004, including five drivers he jailed who blew a 0.00 on the breath test….

"Sal Mattino's car stops were very questionable," said Ira Peskowitz, a former colleague who now works as a Palm Beach County sheriff's deputy. "He's a good person. But just because you're a good person doesn't make you a good tactical police officer."

In August, Peskowitz sued North Palm Beach, the village's former police chief and a captain in the department. In his suit, Peskowitz complained about the propriety of some of Mattino's arrests. He also alleged improper actions by other officers and contended the department retaliated by suspending him and in effect forcing him to resign last year. The case is pending.

Be assured, North Palm Beach is not the only place where "body counts", quotas and MADD awards encourage questionable or blatantly false DUI arrests. (Thanks to William C. Head of Atlanta.)

From the Bangor (Maine) Daily News, the latest thinking in the continuing "War on Drunk Driving":

AUGUSTA: In hopes of reducing death and injury from drunken driving in Maine, legislators are considering confiscating the hunting and fishing licenses of those convicted of operating a motor vehicle under the influence of alcohol or drugs. The proposed bill, LD 82, would suspend hunting and fishing licenses concurrent with a driver’s license revocation as a result of OUI. Repeat offenders with three drunken driving convictions would face a lifetime ban on hunting and fishing in Maine.

Confiscation of dog tags, construction permits and marriage licenses is on the drawing board. (With thanks to attorney Wayne R. Foote of Bangor).

I’ve posted a number of comments recently about the favored treatment received by police, prosecutors and judges when arrested for DUI — usually, a quiet dismissal of charges. When publicity sometimes precludes this option, the individual may have to answer the charges. But go to jail? Never. Consider a recent story about a Tampa, Florida, prosecutor who was charged with DUI as a felony:

Pinellas DUI prosecutor pleads to own drunk driving charge

TAMPA, Fla. Associated Press – A Pinellas County prosecutor known for being tough on drunk drivers will serve probation and lecture school children on the dangers of drinking and driving to settle her own DUI case.

Lydia Dempsey Wardell was arrested in November after she drove the wrong way on a street and was involved in a minor accident. Her two young sons were in the car with her, and police measured her blood alcohol at nearly three times the legal limit for drunk driving.Wardell was sentenced Wednesday after a plea agreement which reduced the drunk driving and culpable negligence charges against her to misdemeanors.

Wardell will serve 18 months probation, and complete other tasks such as spending time on a sheriff’s road crew picking up trash and at least 10 hours of speaking to children. Officials said her punishment is similar to those imposed on other first-time DUI offenders….

"Similar to those imposed on other first-time DUI offenders"? Are they serious? Here we have a person arrested for drunk driving with two children in the car, after an accident, and with a blood-alcohol of about .23% (incidentally, a common indicator of an alcoholic). In most states, an accident will usually increase the jail sentence; a sky-high breath test nearly triple the legal limit definitely will; and exposing kids to all of this is called "child endangerment" and may result in felony charges, as apparently happened here — punishable by state prison. All-in-all, this person gets a very long stretch in jail.

Ms. Wardell, with her reputation for "being tough on drunk drivers", had the felony reduced to a misdemeanor and was only asked to pick up some trash and talk to kids for a few hours. That is known in the trade as a "Santa Claus deal". But then these are reserved for police, prosecutors and judges — those, that is, who are unlucky enough to be arrested by an honest cop in the first place.

Some time ago in a post entitled "Breath Fresheners and Breathalyzers" I commented that one of many problems with breathalyzers was that they cannot distinguish alcohol coming from the blood by way of the lungs from alcohol in the mouth or throat. As a result, any use of breath fresheners or mouthwash will cause falsely high readings on the machines:

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.

I failed to consider the possibility of a Listerine cocktail. For those doubting the strength of mouthwash, consider the following story from CNN:

ADRIAN, Michigan (AP) — A woman arrested after failing a sobriety test and telling police she drank three glasses of Listerine has pleaded guilty to drunken driving. Carol Ries, 50, was pulled over after she rear-ended another vehicle at a red light on January 9. She passed one breathalyzer test, but failed another that used different equipment. Police found a bottle of Listerine in her car, and she told them she had drunk three glasses earlier in the day. Her blood alcohol level was more than three times the legal limit, police said. According to Listerine manufacturer Pfizer Inc.'s Web site, original formula Listerine contains 26.9 percent alcohol, while other varieties contain 21.6 percent alcohol.

The focus of the story is on the novelty of drinking Listerine. But note that Ms. Ries "passed one breathalyzer test, but failed another". The first breathalyzer indicated a blood-alcohol concentration below the legal limit of .08%, while the second indicated a BAC of .30% — over three times the legal limit. Do you still believe these machines are accurate? If so, which one — if either? See my earlier posts, such as "Breathalyzers — and Why They Don't Work" and "Why Breathalyzers Don't Measure Alcohol".

There are few things as frustrating to many judges as having to let a time-consuming jury take away their power to decide the case. And nothing so frustrating to any prosecutor than 12 citizens standing between him and a conviction. As I mentioned a few days ago in "Arizona Denies Right to Jury Trial in DUI Cases", the Arizona Supreme Court recently ruled that defendants charged with certain misdemeanors — primarily DUI — are not constitutionally entitled to a jury trial.

The problem is that there is a statute in Arizona which specifically entitles the defendant to a jury trial in DUI cases. But judges and prosecutors have now joined forces in an attempt to deny the citizens of Arizona their legal right to a jury trial if charged with drunk driving. As reported in The Arizona Republic (February 7, 2005):

Prosecutors and municipal court judges in Arizona are now pushing to eliminate the right to a jury trial for misdemeanor drunk-driving charges in the wake of an Arizona Supreme Court decision….

The opinion was published Jan. 14 , and since then, prosecutors in Gilbert, Mesa, and Bullhead City have already asked that DUI jury trials be canceled, and municipal court judges and magistrates in Phoenix and Tucson have already canceled some, pending hearings or a clarification from a higher court. The prosecutors are certain they’ll prevail and defense attorneys fear they will. The main obstacle is a state statute that explicitly grants jury trials in DUI cases. At question now is whether that statute is rendered moot….

In response to [an earlier court decision], the Arizona legislature amended the DUI laws, saying in statute 28-1381 (f) that "the defendant may request a trial by jury and that the request, if made, shall be granted."….

Jury trials are expensive and use up time and court resources. "Sometimes we prepare for a jury trial and at the last minute the defendant wants to plead before the court," said Mary Stringer, Magistrate in the Bullhead City Court. "So we have all the jurors on stand-by and the logistics of it are very often time consuming."

Prosecutors don’t care for misdemeanor jury trials either, because they take more time to prepare than bench trials — and because they’re more likely to end in acquittal.

Costly….Time-consuming….More likely to result in acquittal. Of course, we could just eliminate trials altogether, and have the person arrested immediately sentenced, resulting in even greater savings of money, time — and those irritating acquittals.