DUI BLOG

The President of MADD was quoted in the Los Angeles Times as saying: “We don’t want cell phones and drowsy driving to become the next hot-button issue for the country, because they don’t even compare with the problem of drunk driving.” The response of the Partnership for Safe Driving, a non-profit organization in Washington, D.C.:

Let’s examine the claim. During the year 2001, the government estimates that 17,448 – or 41 percent – of the deaths on our nation’s highways were “alcohol-related.” In addition, approximately 275,000 – or 16 percent – of the injuries were attributed to alcohol. Since the rate of fatalities is so high, and so much higher than the rate of injuries, let’s take a closer look at that statistic.
Of the 17,448 fatalities, 2,555 occurred in crashes where alcohol was detected but no one was over the legal limit. In these crashes, alcohol may not have been the primary factor in the crash; speed, distraction or fatigue could have been.
That leaves 14,893 deaths that can actually be attributed to alcohol. However, of these, 1,770 were intoxicated pedestrians and cyclists who walked out in front of the vehicles of sober drivers. They had nothing to do with drunk driving. The Partnership questions why these deaths were thrown in with what is normally presented as a drunk driving statistic.
That leaves 13,123 deaths that can be attributed to intoxicated drivers. Of these, a staggering 8,308 were intoxicated drivers who killed themselves in crashes.
That leaves 4,815 deaths in which intoxicated drivers killed someone other than themselves….

How do these figures compare with cell phone use?

To date, the Harvard Center for Risk Analysis has provided the only nationwide estimates of cell phone involvement in fatal and injury-producing crashes. Researchers there report that cell phones are now a factor in approximately 2,600 fatalities annually and 330,000 moderate to critical injuries. But because the data on cell phone use by motorists are still limited, the range of uncertainty is wide. Researchers say that the range for fatalities is 800 to 8,000 annually, and the range for injuries is 100,000 to one million annually….

And fatalities caused by tired and sleepy drivers?

As with cell phone use, the influence of drowsy driving and fatigue on crashes often is not known unless the driver survives the crash and admits to having nodded off. Unlike both alcohol involvement and cell phone use, there is no scientific method even available for determining its presence.
That said, the government estimates conservatively that 1,500 people are killed annually as a result of motorists who fall asleep at the wheel, and another 71,000 are injured annually in such crashes. However, the National Sleep Foundation believes that drowsy driving and fatigue often play a role in crashes that are attributed to other causes. For example, the government lists driver inattention as the primary cause of approximately one million police-reported crashes each year. The sleep foundation points out that drowsy driving and fatigue make such lapses of attention more likely….

MADD’s passionate fixation on drunk driving appears to be blinding it to the importance of other, possibly more significant, causes of traffic fatalities.

Due in no small part to the political influence of MADD and the use of deceptive statistics, federal and state governments continue to focus almost exclusively upon DUI in their efforts to address the loss of lives on the nation’s highways — to the exclusion of such other major causes as distracted drivers (cell phones, eating, reading maps, etc.) and drowsy drivers. While drunk driving continues to be a contributing factor in many traffic fatalities, the focus on this to the exclusion of other significant causes impairs any efforts to reduce the numbers.
Let’s take a look at teenage traffic fatalities as an example. Partnership for Safe Driving, a Washington, D.C.-based non-profit organization “dedicated to eliminating all forms of dangerous driving”, recognized the problem in a recent report:

In response to a rash of high-profile teen crashes ‘ the majority of which have had nothing to do with alcohol ‘ the National Highway Traffic Safety Administration (NHTSA) is teaming up with Recording Artists, Actors and Athletes Against Drunk Driving (RADD) and a long list of other partners for a new educational campaign to deter teenage drinking and increase seatbelt use.

As reported by NHTSA, 3,657 drivers 15 to 20 years old were killed on the roads in 2003, and 308,000 were injured. Approximately 31 percent of teen drivers killed in crashes had been drinking. This means that 69 percent had not.

Data for 2004 are not yet available, but the recent rash of high-profile teen crashes appears to be related, first and foremost, to speeding and drag racing, not alcohol. In addition, a growing number of teen crashes are caused by cell phone use among teen drivers, which is still legal in most states….

Not surprisingly, in 1999 MADD’s National Board of Directors unanimously voted to change the organization’s mission statement to include the prevention of underage drinking. Not underage drinking and driving — just drinking. Is it possible that MADD’s fixation on alcohol is actually impairing efforts to address the more significant causes of traffic fatalities?

While the Partnership for Safe Driving strongly supports campaigns to deter drunk driving, we continue to be thoroughly puzzled by the unwillingness of both the government and private sector to acknowledge that both speeding and distracted driving are much bigger problems for teenagers than drunk driving. Until these problems are addressed, we expect to see no significant decline in teen deaths on the roads.

Let’s say you’ve had too much to drink, and you get into your car, put the key into the ignition and — the car won’t start:  the battery is dead.  About that time, an officer arrives and asks you to step out of the car for some field sobriety tests….

Is it possible to be convicted of attempting to drive under the influence?

The courts are not in agreement on whether there is such an offense as attempted drunk driving.  In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not.  In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later cases.”

Troublesome questions?  The court didn’t explain that cryptic comment, but one that occurs to me is that  attempted DUI becomes a specific intent crime.  So what, you ask? 

Well, there are two kinds of offenses: those requiring only a general intent, and those requiring a specific intent.  Burglary, for example, is a specific intent crime: it requires entry with the intent to commit theft or a felony; without that intent, it is just a trespass.  DUI is a general intent crime: the prosecutor need only prove the act of driving under the influence – not the intent to do it. 

You can, of course, be convicted of attempting to commit a criminal offense.  But it follows that you must intend to commit the offense: attempt requires a specific intent to commit the crime (along with steps toward its commission).  Thus, attempted DUI would become a specific intent crime.

So, while intoxication is not defense where there is only a general intent required, it can be a defense where specific intent must be proven:  intoxication can prevent the person from being able to knowingly and intelligently form the intent to accomplish the criminal act.

In other words, we may have a Catch-22:  If a person is mentally and physically too impaired to drive, doesn’t that fact tend to negate the specific intent required for an attempt to drive intoxicated? 

A “troublesome question”….

One of the dirty little secrets in DUI law enforcement is that breathalyzers are susceptible to error caused by radio frequency interference (RFI), sometimes called electromagnetic interference (EMI). Put simply, any electronic device in the vicinity of the breathalyzer can emit electrical energy which can interfere with the circuitry of the machine, causing false test results. (A common example of the problem can be found in restaurants, where signs saying “Warning: Microwave in Use” alert customers to the danger of radio frequency interference with heart pacemakers.)

The police station where the tests are usually given is, of course, a veritable jungle of devices emitting electromagnetic energy — computers, cell phones, fax machines, police dispatch transmitters, teletypes, AM-FM radios, copy machines, hand-held “walkie-talkies”, radar units, security cameras, microwaves, electronic locks, transmitters in police cars in the parking lot, fluorescent lighting, and so on….And in the middle of all of this sits the breathalyzer.

The problem is not a new one. In 1983, the National Bureau of Standards quietly prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers). Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment. Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency.

The report characterized the potential effect of RFI on the testing of alcohol as “severe”.

Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions. In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobile van showed how handheld radios radically affected the analysis of breath samples.

To avoid a loss of public confidence in breathalyzers, the report was kept confidential — until attorney Don Nichols of Minneapolis successfully filed a legal action under the Freedom of Information Act.

Manufacturers of the various breath testing machines, which had long claimed RFI was simply the invention of defense lawyers, suddenly started offering “RFI detectors” as an option on their products. Predictably, these “detectors” have proven relatively ineffective. First, as repeated tests have demonstrated, there are segments of the frequency band to which the detectors are blind.

Second, the detectors are rarely calibrated correctly, if at all. This type of calibration must be done at the factory, but most law enforcement agencies are unwilling to take their machines out of service. Instead, the detector is “calibrated” by a police officer simply holding a hand-held radio next to the machine; if the detector is activated, it is considered “calibrated”. Of course, this only indicates that the detector worked one time at the one frequency. Further, the “calibration” is rarely done during an actual capture and analysis — that is, during actual operating conditions — and so the all circuits are not tested during all phases of the operation.

The only real guard against false blood alcohol readings due to RFI is to require duplicate analysis — that is, running two separate tests. This does not eliminate RFI, as a constant source of electromagnetic energy can cause duplicate false results, but it reduces the likelihood. Many states now require duplicate breath tests; many others, however, still do not.

Many law enforcement agencies use videotapes to record a DUI suspect’s driving, appearance, demeanor, slurred speech and/or performance on the field sobriety tests. This taping may be done with a camera mounted in the police car, or with one at the police station (if there are no dedicated recorders at the station, experienced defense attorneys often try to obtain tape from the security cameras).

It is common to encounter situations where a suspect was videotaped but the tape was later erased (the legal term for this erasure is spoliation). This is sometimes done accidentally. Unfortunately, it is often done for a more insidious reason: the tape shows that the arrested person may not have been under the influence — his driving was not erratic, his speech not slurred, his balance and coordination on the field sobriety tests not impaired.

There is a string of United States Supreme Court decisions which deals with the consequences of lost and destroyed evidence generally (Brady-Agurs-Trombetta-Youngblood). Roughly, these decisions require any material evidence to be turned over to the defense if it is requested by the defense. Even without a request (the defense may not know about it), evidence must be turned over if it is exculpatory — that is, if it could have played a material defense role. The loss or destruction of exculpatory evidence constitutes a denial of due process. If the evidence was not clearly exculpatory but was still “potentially useful”, it is a denial of due process only if the loss or destruction was done in “bad faith” — that is, intentionally or for the purpose of denying the defendant access to it.

The burden of proof is on the defendant. The Catch-22, of course, is: How do you prove the erased tape was exculpatory if it has been erased? Or that the erasure was “potentially useful”? Or that it was erased in “bad faith”? Because of these usually insurmountable hurdles, some police officers continue to erase videotapes when their content contradict the damning descriptions in their arrest reports.

Easy: Get rid of jurors.
Did you ever wonder why it’s getting so difficult to find citizens willing to serve as jurors? From WSN-TV in Miami (April 14):

FORT LAUDERDALE, Fla. (AP) — A teenager did his civic duty by showing up for jury duty in Fort Lauderdale. But 19-year-old Stacey Forbes is now serving a four-month jail sentence for contempt of court for not disclosing he and his father had arrest records….
Forbes says he had problems reading the jury questionnaire. Tests show he has a seventh-grade reading level. He has been arrested twice in the past year but has never been convicted of a crime.
His judge has rejected a request to reconsider the high school dropout’s sentence.

And a few days later, from AP/AOL News:

LOS ANGELES (April 20) – Call it a rude awakening. A juror was cited for contempt and fined $1,000 by a judge for yawning loudly while awaiting questioning in an attempted murder trial. The fine later was reduced to $100.
The yawn came after the man, identified as Juror No. 2386 in an April 1 court transcript, had been sitting in a courtroom for two days as part of jury selection.
“You yawned rather audibly there. As a matter of fact, it was to the point that it was contemptuous,” Superior Court Judge Craig Veals said.
“I’m sorry, but I’m really bored,” the juror said.
“I’m sorry?” the judge responded.
When the juror repeated his statement, he was admonished by the judge for having a “lousy” attitude.
“Your boredom just cost you $1,000. I’m finding you in contempt,” Veals said. “Are you quite so bored now?”

It may be getting difficult to find jurors, but it’s apparently getting even more difficult to find decent judges. However, judges aren’t the only ones making this civic duty less than a rewarding experience, as this story I posted last month indicates:

LOS ANGELES (March 24) AP – Jurors who acquitted actor Robert Blake of murder – and were later called “incredibly stupid’’ by District Attorney Steve Cooley – want an apology.

“I’m just disgusted,’’ Blake jury foreman Thomas Nicholson said Thursday. “It
appears to me he has no faith in the jury selection. After all, it was his people who helped choose us.’’

On Thursday night, Cooley stood by his comments.
“Bottom line it was the wrong verdict,’’ he said. “Sometimes jurors should be held accountable for their mistakes.’’

Kind of makes you want to run down to the courthouse and volunteer, doesn’t it?

As I discussed in yesterday’s post, the fatalities statistics used by MADD and government agencies to justify DUI checkpoints are flawed. In fact, the statistics can be viewed as indicating quite the opposite.

Well, all right, so checkpoints may not reduce fatalities — but, according to MADD, they certainly result in more DUI arrests.

Wrong again. The simple fact is that checkpoints are largely wastes of police resources and taxpayer money — not to mention unjustified invasions of privacy. In fact, in the United States Supreme Court decision (Michigan v. Sitz) upholding their constitutionality, a dissenting justice pointed out the “the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”. (Emphasis added)

This is confirmed by National Highway Traffic Safety Administration studies, which conclude that “the number of DWI arrests made by the roving patrol program was nearly three times the average number of DWI arrests made by the checkpoint programs”.

Then why do we have DUI roadblocks? Consider a local news story from last week:

PENNDOT GRANTS TOTALLING $1 MILLION FUND SOBRIETY CHECKPOINTS STATEWIDE

Chester County officials said recent recommendations from the national headquarters of Mothers Against Drunk Driving have been implemented by area police departments for years. Among the recommendations are an increased focus on prevention tactics such as sobriety checkpoints.

“We work with MADD and will continue to work with them to reduce the incidents of drunken driving in Pennsylvania,” (DOT spokesperson Jenny) Robinson said….

“I’ve read that police are less than enthusiastic about DUI checkpoints because they don’t make as many arrests,” (MADD official Bryce) Templeton said….

Richard Harkness, superintendent of the Tredyffrin Police Department, said checkpoints keep drivers aware that police are on the lookout for drunken drivers. He said there usually aren’t many DUI arrests at checkpoints, but they help educate the public.

“There should be as many DUI roadblocks as economically feasible,” Harkness said.

So…Roadblocks are invasive, don’t reduce fatalities and don’t produce more arrests — but we should have lots more of them. Why? To educate us.

For many years now, MADD has focused much of its considerable manpower (over 600 chapters), resources (revenues of $48 million a year) and political influence on the proliferation of DUI roadblocks (or, to use the politically correct phrase, “sobriety checkpoints”). To justify this invasion of our privacy, we have been repeatedly assured that “checkpoints” are extremely effective in reducing alcohol-related traffic fatalities — and these assurances have been accompanied by “statistics”. Let’s take a closer look at the statistics….

According to MADD’s own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD’s website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:

Hawaii
Nevada
North Dakota
Rhode Island
South Carolina

According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:

Georgia
Kentucky
Indiana
Iowa
New York

If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.

Let’s take a look at another set of statistics: the effect of the proliferation of checkpoints on the national rate of alcohol-related fatalities. If checkpoints are effective, we would expect to find that alcohol-related fatalities will have declined since their widespread acceptance in recent years .

Again, the statistics do not support this. To use MADD’s own numbers: Since 1982, the number of fatalities nationwide from alcohol-related crashes has declined every year — until about 1993, when it dropped to 17,908. Perhaps coincidentally, this was the year after the United States Supreme Court ruled that sobriety checkpoints were not unconstitutional. In the 10 years since then, sobriety checkpoints have gained widespead acceptance — but the number of fatalities have levelled off, vacilating between 17,908 and 17,013. Far from supporting MADD’s position, one could even argue that this proves sobriety checkpoints have actually halted the steady decline in alcohol-related deaths. This would probably be incorrect — but indicative of how statistics can be used to serve a desired objective.

Incidentally, my favorite example of distorting statistics for self-serving purposes is MADD’s own oft-repeated claim:

Since MADD’s founding in 1980, alcohol-related fatalities have decreased 44 percent (from 30,429 to 17,013) and MADD has helped save almost 300,000 lives.

300,000? Do the math….

I received a number of queries concerning my previous post, “Parking Under the Influence”. And the answer is….Yes, you can be arrested in many states for “sleeping under the influence” in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about the Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might. The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, “What if they woke up at 2:00am…and decided to drive?” What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes “driving”, but they usually involve “operating” or being “in physical control” of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be “operating” or “in physical control” of a vehicle if he is asleep? Well, in their stampede to “get tough” on drunk drivers, many states have stretched their definitions of “driving” to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in “physical control” within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in “actual physical control” of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.

So just how far are we going with all of this DUI craziness?  Well, consider the following news story from WAFF-TV NEWS (Huntsville, Alabama):

DRUNKS ARRESTED FOR PARKING UNDER THE INFLUENCE

Next time you go partying, you may want to think before you drink. That advice from Morgan County Sheriff Greg Bartlett.

“All you got to do is prove they are intoxicated. Most of the time it’s obvious if they are passed out in a vehicle,” said Bartlett.

Some drunk drivers crawl behind the wheel, taking their chances on the highway. The ones caught driving under the influence are given a breath test, then handcuffed and taken to jail. But did you know you don’t have to be driving drunk to get a DUI?

“It’s not for them to decide if they are too drunk to drive. It’s for us to decide,” said Bartlett.

Here’s how the state’s DUI law works. You are out drinking. You decide to leave the bar and get into your car. Even if your car is parked and the keys are in your pocket, an officer can charge you with DUI. The same is true sitting in your own driveway.

“What if they woke up at 2 a.m. and decided to look around. They didn’t see anybody and decided to drive then they still may be under the influence and still hurt somebody,” Bartlett explains….

While not everyone agrees with the state’s law, Bartlett says its better to be safe than sorry.

“We know they can start driving at anytime. You can’t sit there and watch them. It gives the officer a chance to get them off the road.”

Arrested for going to sleep — because you might wake up and decide to drive?  Why not arrest anyone who buys a gun — because they might decide to shoot someone?  Think about that….