DUI BLOG

In the previous post I talked about the dangers of ignoring the erosion of constitutional rights in DUI cases. I ended by paraphrasing a vaguely remembered quote from the past, "First they came for the drunks, but I was not a drunk so I did not speak up…". After receiving a surprising number of inquiries concerning the actual quote, I was able to locate it:

First they came for the communists, and I did not speak out– because I was not a communist;

Then they came for the socialists, and I did not speak out– because I was not a socialist;

Then they came for the trade unionists, and I did not speak out– because I was not a trade unionist;

Then they came for the Jews, and I did not speak out– because I was not a Jew;

Then they came for me– and there was no one left to speak out for me. -Pastor Martin Niemöller, Germany, 1945

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care.

The importance of what is happening in DUI law and procedures can be summarized in one word: precedent. We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.

The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation". The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $47 million) are so vocal in elections and in legislatures.

There are few advocates for the accused or the Constitution during election campaigns. This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention a few examples:

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so). So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI.

Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of tax evasion or any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconsitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?

To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up….."

I have mentioned in numerous posts that a primary problem with blood alcohol analysis is that the no two individuals are alike in their physiology and metabolism of alcohol (see, for example, "Convicting the Average Person", "Racial Differences in the Metabolism of Alcohol" and "High Blood Alcohol — or a Zinc Deficiency?"). Further, many external factors can influence attempts to measure blood alcohol levels (see, for example, "Under the Influence of….Gasoline?", "Asthma Inhalers Can Cause High Breathalyzer Results" and "Driving Under the Influence of….Paint?").

One of many other factors that render attempts to estimate an individual’s blood alcohol concentration at a given point in time is smoking. A scientific study has found that cigarette smoking can influence absorption by the body of alcohol — and thus, among other things, attempts to estimate earlier blood alcohol levels when driving based upon tested levels. Johnson et al., "Cigarette Smoking and Rate of Gastric Emptying: Effect on Alcohol Absorption", 302 British Medical Journal 20 (1991).

The researchers reported testing blood samples of a group of smokers for blood alcohol levels both after smoking and after prolonged abstinence. The result was that "areas under the venous blood alcohol concentration-time curves between zero and 30 minutes and 60 minutes and the peak blood alcohol concentrations were significantly less during the smoking period compared with the non-smoking period". Gastric emptying was also found to be slower during the smoking evaluation.

The scientists concluded that the effect of smoking on alcohol absorption has "considerable social and medicolegal relevance", and that the ingestion of nicotine should be taken into when dealing with alcohol metabolism.

Phil Price, a good friend and nationally known DUI attorney in Montgomery, Alabama, conducted an interesting series of tests with one of the most commonly used breath testing machines, an Intoxilyer 5000. Without consuming any alcoholic beverages, he submitted himself to repeated breath testing — after eating various types of food. His findings were startling.

After consuming almost any type of bread product — white loaf bread, donuts, pretzels, pastries, etc. — Price consistently registered blood-alcohol readings on the machine. These levels were commonly around .03%, but rose as high as .05% (enough, in conjunction with a drink or two, to reach illegal levels). Further, the Intoxilyzer’s slope detector (an electrical circuit designed to detect alcohol from the mouth rather than from the lungs) failed to indicate the presence of any "mouth alcohol". He reported this in an article entitled "Intoxilyzer: A Bread Testing Device?", 15(4) Drinking/Driving Law Letter 52 (1996).

Reacting to the use of this article by defense attorneys in their state, the Washington State Toxicology Laboratory conducted their own studies to refute the findings — this time with the machine used in Washington, a DataMaster. Unfortunately, their research only confimed Price’s experience.

As reported in Logan and Distefano, "Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test", 22 Journal of Analytical Toxicology 18 (1998), a variety of breads and soft drinks were tested and found to contain no alcohol. Alcohol-free subjects then ingested these products and provided breath samples into a DataMaster. The researchers’ conclusions:

We found that, particularly at low concentrations but as high as 0.046g/210L, mouth alcohol rather than expiratory breath alcohol may be reported as apparent true breath alcohol…

In other words, alcohol-free subjects who consumed bread or soft drinks were causing the machines to read up to .05% blood alcohol concentrations (readings are rounded off to closest 1/100th percentile). Furthermore, the slope detection system failed to screen the effects of mouth alcohol from alcohol coming from the lungs:

It is evident from these results that the slope detector feature was unable to distinguish mouth-alcohol concentrations at these very low levels.

What caused bread to register on breath machines as alcohol? The theory of the state lab’s experts:

Most baked products with listed contents indicating they contained yeast did in fact have some alcohol present. Alcohol is produced by the fermentation process in yeasts by their action on simple sugars used in preparing the dough….Although most of the alcohol in the dough is lost during the baking process, some is evidently retained in the matrix of the bread…

Parenthetically, there exists additional scientific literature reporting intoxication in animals eating dough and sourdough. Suter, "Presumed Ethanol Intoxication in Sheep Dogs Fed Uncooked Pizza Dough", 69(1) Australian Veterinary Journal 20 (1990); Thrall, et al., "Ethanol Toxicosis Secondary to Sourdough Ingestion in a Dog", 184(12) Journal of American Veterinary Medical Association 1513 (1984). The effects of bread on breathalyzers is not just an interesting anecdote.

The significance of these findings should be apparent. First, bread dough tends to stick between the teeth and remain there for extended periods of time to be breathed into a breathalyzer; it also absorbs alcohol while there. Second, although it is not illegal to drive with a .04% blood alcohol level, adding one or two drinks to the bread reading could raise that above the illegal .08% level.

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same. You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds attempts to estimate blood alcohol levels when driving based upon breath/blood tests an hour later.

Further, each of us has a different physiological response — tolerance — to alcohol. An example of this human diversity can be seen in racial differences toward alcohol. The body of scientific literature seems to clearly indicate a racial — i.e., genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, "Alcohol Metabolism in American Indians and Whites", 294 New England Journal of Medicine 9 (1976); Holzbacher, "Elimination of Ethanol in Humans", 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., "Ethanol Metabolism in Various Racial Groups", 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:

…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, "Ethnic Differences in Alcohol Sensitivity", 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure.If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups.

The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction. To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., "Alcohol Sensitivity and Ethnic Background", 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese. The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….

Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels by measuring breath, and the use of mathematical formulas and legal presumptions based upon uniform metabolism to estimate earlier levels when driving. Note: In most states, the law presumes that (1) a person with .08% blood-alcohol level is under the influence, and (2) the blood-alcohol level when tested is the same as when driving (up to 2 or 3 hours, depending upon the state). But then, as Dickens wrote long ago, "The law is a ass".

As discussed in previous posts, forensic alcohol analysis (the measurement of blood alcohol levels for use as evidence) is based upon the premise that the subject is an "average person" — a premise that simply does not exist in the vast majority of cases. An example of this is the individual who has a higher percentage of body fat than normal. Alcohol is distributed throughout the body according to the water content of blood and tissues. It is not, however, soluble in fat. Thus, if the tested subject has a high percentage of fatty tissue in his body, there will be a lower "volume of distribution" — that is, a smaller percentage of body mass absorbing the alcohol. See Hawkins and Kalant, "The Metabolism of Ethanol and Its Metabolic Effects", 24 Pharmacological Review 67 (1972).

So what does all of this mean in a DUI case? Well, it is not illegal to have a blood alcohol concentration (BAC) of .08% or higher at the police station where the breath test takes place — only at the time of driving. Therefore, it often becomes necessary to estimate the earlier BAC based upon known factors (weight, sex) and assumed factors (rates of absorption and elimination of alcohol in the fictional "average person"); this process is called retrograde extrapolation.

The formula used for this process of estimating blood alcohol levels in the "average person" is called the Widmark factor. However, although the formula takes into account body weight, it does not consider what percentage of that weight is fatty tissue; it simply assumes that it falls within a relatively normal range (called a "body mass index"). Since the formula varies inversely with the volume of distribution, the elimination of alcohol from the body will be quicker in a fat person — thus further skewing an already inaccurate attempt at guessing what the suspect’s BAC was when at the wheel. Woman, parenthetically, will usually experience a faster rate of elimination since the "average woman" has a higher percentage of body fat than the "average man".

Some time ago I commented on the increasingly rough tactics used by police to incapacitate a nonconsenting DUI suspect while a nurse or blood technician draws a blood sample. More recently, I discussed the approach now being used in Utah: doing away with the doctor, nurse or medical technician and simply letting the officer stick a needle into the suspect himself out on the highway. (It takes little imagination to envision the scene: the struggling suspect thrown across the dirty hood of his car, his hands cuffed behind his back, the officer with a baton in one hand and a hypodermic needle in the other….)

I’ve received a number of inquiries from attorneys concerning that post, advising me that their own states are now planning to emulate Utah’s new cost-effective approach and asking for any ideas on how to challenge it. Frankly, I would much rather cross-examine a cop on the witness stand about his medical training, experience and technique than I would a doctor, nurse or medical tech. But it should never get that far……

In 1966, the United States Supreme Court in Schmerber v. California was confronted with the issue of whether drawing blood from a DUI suspect over his objection constituted a violation of the Fourth Amendment. In that case, the suspect had been taken to a hospital for a blood draw; the suspect refused to consent to the test, but did not resist as a physician withdrew a sample. The Court affirmed the conviction, holding that a nonconsensual draw without a warrant was constitutionally permissible under the circumstances. But in doing so, the Court clearly distinguished the circumstances which made it permissible:

…Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment ‘ for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain….

The Court ended its opinion with the following admonition:

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 348 U.S. 771

‘Seems clear to me…..

In a previous DUIBlog post, I discussed the autobrewery syndrome — that is, the phenomenon of internally produced alcohol (see "Immaculate Intoxication"). I mentioned in that post a number of studies which have confirmed that the human body can reach elevated levels of blood alcohol without actually consuming any alcoholic beverages. Scientific literature also indicates that because antacids change the gastric acidity in the stomach, they can create conditions favoring the production of alcohol by resident bacteria — and, consequently, elevated blood alcohol levels. Bode, et al., "Effects of Cimetidine Treatment on Ethanol Formation in the Human Stomach", 19(6) Scandinavian Journal of Gastroenterology 853 (1984); Ericson, "Effects of Antacids on Alcohol’s Reaction" 5(5) Alcoholism 28 (1985). High blood alcohol…..or too many Rolaids?(Note: Even if proved in court, the law does not distinguish between internally-produced blood alcohol levels and those caused by drinking. It is the physiological condition, not the conduct, knowledge or intent, which constitutes the crime. Query, however: Would internally-produced alcohol constitute an actus reus defense — that is, the legal defense that the condition was involuntary?)

I mentioned in my previous post that the single greatest flaw in so-called "breathalyzers" is that they are designed to assume that all humans are physiologically identical. This is, of course, a false assumption, and I have mentioned examples in other posts of erroneous breath analysis attributable to human variability.

In the coming days, I will take a look at some further examples. Let’s take a look at one…..

Scientific research appears to indicate that in some cases a high blood alcohol level may not be indicative of alcohol consumption, but rather may be caused by a deficiency of zinc. In a study conducted at the University of North Dakota and reported in 46 American Journal of Clinical Nutrition 688 (1987), researchers experimented with the physiological effects of diets that had varied amounts of zinc.

They discovered that the metabolism of alcohol was dramatically affected by zinc intake. For example, they found that for those subjects on a low zinc diet, blood alcohol concentrations (BACs) increased rapidly within 15 minutes of consumption of measured amounts of alcohol: roughly twice as much alcohol was present in their blood at this time as was present in those subjects on normal zinc diets. Furthermore, greater amounts of alcohol remained in the blood for a longer period of time when there was a zinc deficiency — that is, elimination rates were decreased.

Thus, it appears that an individual with an insufficient amount of zinc in his diet will have higher peak BAC levels, and the alcohol will remain in his blood for a longer period of time. Among other things, this would render invalid any attempts at retrograde extrapolation — that is, estimating earlier BAC levels when driving based upon presumed rates of absorption and elimination. The human body is highly variable and, for that reason alone, police breathalyzers will never be able to provide reliable blood alcohol analysis.