DUI BLOG

A few days ago I wrote a post entitled "Do Police Have Quotas?". The very next day, the following story appeared in the Boulder (Colorado) Daily Camera:

People arrested by Boulder police on suspicion of drinking and driving are being told in county court that the police department may have a "quota" for such arrests. The disclosure by prosecutors ‘ required by law when the government has evidence that can help the defense ‘ evolved last week after a Boulder police officer testified about his quota during a drunken-driving trial….

Boulder police Chief Mark Beckner denied the department’s use of quotas, but said it does have "performance standards" officers are expected to meet. Those may include striving for numbers of arrests in areas the community demands, he said….

At least one grant the department receives relies on generating a certain amount of DUI arrests. The Law Enforcement Assistance Fund ‘ a state grant funded by drunken driving conviction fees ‘ has doled out more than half a million dollars to Boulder police since 1984 to help in DUI enforcement….The fund’s application lists increasing DUI arrest rates as a goal to be met by departments awarded money.

"An agency could have their contact terminated if it doesn’t reach its goals, but we look at all the goals," said Mairi Nelson, spokeswoman for the Colorado Department of Transportation, which allocates the grant money. Those goals also include performing a number of DUI saturation patrols and checkpoints and participation in statewide campaigns that crack down on the crime, Nelson said.

Boulder police spokeswoman Julie Brooks said the department fell short of its grant goal of 1,000 arrests set for 2004 by fewer than 100 arrests. Boulder defense attorney Mark Langston said the mention of quotas makes any lawyer pause and question why their client was arrested…. Chief Beckner said defense attorneys will "try to use anything to their advantage", and he defended the department’s use of officer standards.

Those tricky defense attorneys and their technicalities! (Thanks to Jeanne Pruettt, President of Responsibility in DUI Laws, Inc.)

In a post a couple of days ago, I discussed the necessity of adding an anticoagulant to blood samples taken in DUI cases to avoid an elevated blood alcohol result due to clotting. I also mentioned in that post that if a preservative were not also added to the sample, fermentation can take place. That prompted a number of queries about fermentation in blood alcohol analysis….

Blood is an organic substance and, like any organic substance, will decompose because of enzymes and bacterial action. One of the results of decomposition is that alcohol is created in the blood. In a blood sample originally containing no alcohol, decomposition and resulting fermentation can cause a reading far above the legal limit, depending upon the stage of decay. To stop or at least slow down this process, a preservative (usually sodium fluoride) is added to the sample; it should also be refrigerated until analyzed by the crime lab.

The amount of preservative, of course, must be sufficient, and it must be actively mixed into the blood sample. While it is common among law enforcement agencies to use 20mg of sodium fluoride, many experts view this as insufficient. See, for example, Dick and Stone, “Alcohol Loss Arising from Microbial Contamination of Drivers’ Blood Specimens”, 34 Forensic Science International 17 (1987). Further, although labs often take a week or more before receiving and analyzing blood samples, normal levels of sodium fluoride will render the sample stable for only about two days. Kaye, “The Collection and Handling of the Blood Alcohol Specimen”, 74 American Journal of Clinical Pathology 743 (1980).

To complicate things further, not all microorganisms are affected by sodium fluoride. As researchers have discovered, one such microbe that is commonly found in the human body is Candida albicans:

It has been shown that several microorganisms occasionally found in blood specimens are capable of producing ethyl alcohol. Although (one study) found that sodium fluoride effectively inhibited alcohol production from a variety of microorganisms, one – Candida albicans — appeared to be unaffected by the addition of sodium fluoride. C. albicans is commonly found in man, usually in the oral cavity and digestive tract, and less commonly in the vaginal tract of women…. The legal ramifications of this are obvious. If an oganism common to man is capable of producing ethyl alcohol in stored blood, the question arises: Are the results of alcohol analysis reflective of an individual’s level of intoxication or of possible fermentation?

Change and Kollman, “The Effect of Temperature on the Formation of Ethanol by Candida albicans”, 34(1) Journal of Forensic Sciences 105 (1989). The conclusions of these researchers have been confirmed by other scientists. See, e.g., Blume and Lakatua, “The Effect of Microbial Contamination of the Blood Sample on the Determination of Ethanol Levels in Serum”, 60 American Journal of Clinical Pathology 700.

So, for those wondering, “If I’m arrested for DUI, should I take a breath test or a blood test?”, the answer is….neither is reliable. Coagulation and fermentation are just two of many problems inherent in blood analysis for alcohol. For an example of another, see “How do I know the Blood They Tested as Mine?”. But I’ve written many posts about the unreliability of breath testing as well, such as: “Breathalyzers — and Why They Don’t Work”; “Why Breathalyzers Don’t Measure Alcohol”; “The Mouth Alcohol Problem”; and “How to Fool the Breathalyzer”.

Take your choice…..The results will probably be “close enough for government work”.

A couple of days ago I wrote a post entitled "Using Computers to Prove a Driver Didn’t Refuse Testing". I mentioned the growing problem of officers who claim that an arrestee "refused" to take breath tests, thereby triggering increased penalties — and avoiding unwanted low breath test results. I then discussed how some bright DUI attorneys were getting information from the breathalyzers’ memory banks to show that the officer in question had a disproportionately high percentage of arrestees who "refused". I also mentioned that, embarrassing as this has proven to the prosecution, "we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report".

However, I didn’t consider the much simpler solution of just turning the memory off. Three days later (April 11, 2005), the following article appeared in The Barre Montpelier Times Argus:

MONTPELIER ‘ The Vermont Supreme Court has ruled that a data printout from breathalyzer machines is sufficient to prosecute drunken driving charges. The decision overrules a state Board of Health decision that said police would need a more direct reading from the memory function of the 66 Datamaster machines used by the Vermont State Police and other law enforcement agencies across the state.

The board had overruled Vermont Health Commissioner Paul Jarris, who had ordered that the memory function be turned off on the machines. Defense attorneys have contended data stored on the machine’s memory provides the most dependable information as to whether a machine was working properly at the time the breath tests were taken. However, the health department claimed that the cost of processing the information was too high and sought permission from the state’s highest court to again turn the machines memory function off….

The health department in 1999 started to receive many requests from defense attorneys who discovered that information from the memory function could prove to be valuable in court….

Better to destroy evidence than turn it over to the accused.

DUI attorneys have long contended that many police agencies impose quotas on their officers for drunk driving arrests.  And police agencies have long contended that this is simply not true.  Imposing quotas, of course, has a coercive effect on officers to make arrests — even if those arrested are innocent.

Consider the following article from yesterday’s (April 11, 2005) edition of the Atlanta Journal-Constitution:

An Atlanta police officer reprimanded for not making an arrest for a week in one of the city’s most crime-ridden areas is accusing the Police Department of using a quota system to beef up arrest numbers, a charge department officials deny.

Officer Andrew Cerul filed a grievance with the local chapter of the International Brotherhood of Police Officers in late March after he was transferred from day watch to evening watch. Cerul contends the transfer was made because he did not make an arrest during the week of March 13-19

Cerul, who did make traffic stops, was one of six Zone 3 officers written up for not making an arrest that week. Three of the officers were later excused because they were either in training all week or working the desk. Cerul and the others officially received “verbal counseling.”…

(Police documents) indicate a quota system exists in the Atlanta Police Department, according to Jon Calloway, Cerul’s union representative

“They [police officials] didn’t deny that the quota system existed,” Calloway said. “They said it was reasonable to expect an officer to make an arrest. I would hate to be the person on the last day who gets stopped by an officer needing an arrest

Calloway said residents have long suspected police of using quotas. “But this is the first time we have ever had a smoking gun. A document that we can touch and feel and say that it is going on,” he said. Police officials say there is no quota system….

Other big-city police departments have come under fire for allegedly imposing quotas.

In Baltimore last month, 27 officers with lower arrest rates were transferred to different departments within the Baltimore Police Department for failing to meet “minimum performance standards.” The action outraged City Council members and prompted Maryland legislators to consider a bill that would prevent a police officer from being punished, transferred or demoted for failing to meet a quota

In January, police officers in West Hartford, Conn., railed against a new department policy requiring the traffic division to step up enforcement.

Officers in Falls Church, Va., were required to write an average of three tickets, or make three arrests, during every 12-hour shift. By the end of the year, officers faced three months of probation if they failed to have a combined total of 400 tickets or arrests….

(Thanks to William C. Head, Esq., of Atlanta.)

When a blood sample is taken from a DUI suspect for later analysis, it is usually done in one of two ways. The suspect may have the blood drawn at the police station by a technician, using a prepared kit containing a vial, or it may be taken by a nurse at a medical facility. In either event, it is critical that the vial in which the blood is contained is sterile and contains two things: a preservative and an anticoagulant.

The preservative, in conjunction with refrigeration, is to prevent the blood from fermenting — and thereby producing alcohol in the vial. The anticoagulant is to prevent the blood from coagulating, or clotting.

Why are we concerned about coagulation of the blood? Blood is made up of a mixture of solid particles supended in a liquid. The solid particles consist of red blood cells, white blood cells and clotting platelets; the liquid portion is called serum or plasma. (The percentage by volume of the solid particles to the liquid is called the hematocrit of the blood: a hematocrit of .47, for example, would indicate that the individual’s blood consists of 47 percent solid particles (cells and platelets) and 53 percent plasma.) When blood clots, the liquid portion (plasma) separates from the solid portion (blood cells and clotting platelets). This will be seen in the sample vial as a red clump at the bottom (cells) with a yellowish liquid on top (plasma). When this sample is tested at the laboratory, usually days later, it is the plasma that is tested for alcohol content; the clotted cells at the bottom are not included.

So what? Well, alcohol is attracted to water — that is, it is soluble in water. And since plasma is a liquid and contains water, and alcohol is attracted to water, the plasma in the blood sample will contain a higher percentage of alcohol than in the whole blood sample. The higher the percentage of plasma in the sample being tested, the higher will be the blood alcohol concentration (BAC). Put another way, if two subjects have the same BAC in their bodies but the blood sample from one has clotted and so has a higher percentage of plasma, that person’s “sample” will show a higher BAC.

Unfortunately, it is not uncommon for blood samples collected by police agencies or hospital personnel to contain no anticoagulant, or to contain insufficient amounts of the chemical. (And, of course, we have the emerging practice of just letting the police officer himself perform the blood draw and sample preservation out on the highway.) An additional problem is that the kits used by technicians usually contain a vial already containing a preservative (commonly sodium fluoride) and an anticoagulant (commonly potassium oxalate) in powder form at the bottom. However, when the blood is added to the vial, the technician does not shake it — and the chemicals are not mixed with the blood. Result: coagulation — and a falsely high blood alcohol result.

In all states today there are sanctions for refusing to submit to chemical testing for blood alcohol concentration (BAC).  In some states, the sanction is an administrative one: the license will be suspended, usually for a longer period of time than for having a .08% blood alcohol level — even if the driver is later found to be not guilty of DUI.  In other states, the fact of refusing will increase the jail sentence if convicted of the underlying DUI.  In still others, refusing constitutes a separate crime in its own right.  In most states, the consequences will be a combination of these.

Because these consequences can be severe, some police officers are more than happy to find that a suspect has “refused” to cooperate in testing — particularly if the officer is not confident that the test results might show less than .08% BAC.  This is even more true today, since many officers have found that they can “have their cake and eat it, too”:  if the arrestee refuses to cooperate, officers will hold him down and forcefully withdraw blood — and, with the blood results, charge the individual with both .08% and refusing to submit to testing.

Predictably, police are increasingly motivated to find a “refusal” — followed, often, by a forced blood draw.  And in an increasing number of cases, there was no real “refusal”.  But, of course, it is the officer’s word against the defendant’s….Or is it?

The usual procedure in a refusal case is for the officer to set up the breath machine for a test; if the suspect refuses to blow into it, the officer enters the fact into the machine and the information is displayed — and stored in the machine’s memory. Exactly what kinds of information are stored within the memory is controlled by the machine’s software.  Depending upon the program for the particular machine, it may store data concerning past tests, error messages, diagnostic tests, calibration checks, etc. 

Being of necessity a resourceful lot, some defense attorneys have noticed that if they obtain records from a breathalyzer’s computer of past tests, certain officers seem to have a higher percentage of refusals than other officers – often much higher.  Over an extended period of time, for example, the printout may show that drivers arrested by Officer Jones refuse to take a breath test 15% of the time, that the average for all officers is 26% – while those arrested by Officer Smith “refuse” 80% of the time. 

Juries tend to be interested in little things like this.  Consequently, we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report.  (Note: It is virtually impossible to obtain all of an officer’s DUI reports and compare them to the reports of all other officers.)

What if an individual drinks from a punch bowl at a party — not knowing that the punch has been secretly “spiked” by a prankster — and is later pulled over for DUI?  What if another person takes a medication prescribed by his doctor — without being told that it will cause impairment — and is subsequently arrested for driving under the influence of drugs?

Are these people guilty of DUI — or can they assert the legal defense of involuntary intoxication?

A no-brainer, right?  After all, a person should not be punished for something that was not their fault — that they weren’t even aware of. 

Not surprisingly, however, the courts in their infinite wisdom have taken contradictory approaches to these situations.  Some take the position that DUI is a “strict liability” offense, and so any mental element such as intent or even knowledge is irrelevant.  See, for example, State v. Pistole, 476 N.E.2d 366.  Others permit the involuntary intoxication defense only where the intoxication was caused by use of force or threat of force from a third party.  A few recognize the defense on the grounds that some mens rea (mental culpability) must exist in any crime.  See, for example, State v. Wallace, 439 N.E.2d 851.  And at least one likens a claim of involuntary intoxication to an insanity defense:  Did the defendant know the difference between right and wrong?  See Commonwealth of Pennsylvania v. Smith, 831 A. 2d 636. 

In those states which permit the defense, however, the prosecution need not prove that the intoxication was voluntary:  The defendant has the burden of proving by a preponderance of the evidence that it was involuntary — that is, he must prove his own innocence or stand convicted.

The erratic driving observed by a police officer which caused him to stop the vehicle for investigation of DUI is often caused by innocent behavior.  Driving distractions such as using cell phones, lighting cigarettes, eating food or changing CDs can cause such symptoms of drunk driving as ”swerving” or “drifting” — along with the officer’s incorrect conclusion that the driver is intoxicated.

The fact is, however, that this distractive behavior can be more dangerous than intoxication.

For years government agencies have warned against the use of cell phones while driving.  The National Safety Council and the Transport Research Laboratory (United Kingdom), for example, have used driving simulators to test reaction times and driving performance, and the American Automobile Association has gathered statistics on drivers involved in serious motor vehicle accidents.  See Stutts, et al., The Role of Driver Distraction on Traffic Crashes, AAA Foundation for Traffic Safety (2001).

A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003).  Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them.

Results?  Drivers conversing on a cell phone were involved in more rear-end collisions, and their reactions were 8% slower relative to normal baseline; it also took them 15% longer to return to normal speed.  By contrast, drivers who were legally drunk (at or above .08% blood-alcohol) showed no higher accident rates than normal, nor did they exhibit significant variation from normal baselines for reaction times or return to normal speeds.

The conclusion of the researchers:  Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers.

(Thanks to Steve Oberman, Esq., of Knoxville, Tennessee.)

Is it possible to be an accomplice to drunk driving – that is, to be convicted of “aiding and abetting” a person who was driving under the influence of alcohol?

In one case in Maine, two men were drinking together in a bar.  When they left, the owner of the car had his friend drive since the friend was less intoxicated.  The two were stopped by the police, and the owner/passenger was taken to a police station — where he refused to take a breath test because he said he had not been driving.  He was subsequently charged with operating or attempting to operate a motor vehicle under the influence.  At trial, the jury found him guilty as both a principal and an accomplice. 

On appeal, the court held that the accomplice statute applied to drunk driving offenses, and that the evidence was sufficient for a jury to find both the intent and the solicitation necessary for accomplice liability.  The defendant, said the court, had the specific intent to enlist his accomplice/friend in driving under the influence.  State v. Stratton, 591 A.2d 246 (Me. 1991). 

How far can this go?  Can you be guilty of letting a friend drive while intoxicated? The majority rule in American courts today is that any passenger, including the owner, can be held criminally liable as an aider/abettor in the commission of the offense of DUI.  Nor is there any requirement that the accomplice be a passenger or owner of the vehicle.  In Guzman v. State, 586 S.E.2d 59 (Ga. App. 2003), for example, the defendant was convicted of two counts of vehicular homicide when he allowed a 14-year-old to drive his bother and a friend in Guzman’s vehicle after having given beer to the boys.  Mr. Guzman’s criminal intent was inferred by his conduct in giving the driver alcohol and the car keys, then standing silently by as the 14-year-old got behind the wheel and drive away.

Query:  Assuming the validity of an accomplice theory, could not the accomplice’s own intoxication degate the specific intent required to be an accomplice?

A few months ago I posted a story, "How Not to Beat the Breathalyzer", about a gentleman from Alberta, Canada, who was arrested for DUI and had a novel idea on how to fool the breathalyzer: While in the back seat of the police car, he simply ate his own underpants so they would absorb the alcohol in his stomach. It didn’t work. I don’t know what they’re drinking up there, but another of our northern neighbors just arrested for drunk driving came up with yet another theory for beating the machine. From the Ottawa Sun (March 30):

TORONTO — An accused drunk driver tried but failed to foil a police breathalyzer after stuffing his mouth full of feces…. Arrested Sunday after his Ford pickup was pulled over on a highway just outside of Barrie, the 59-year-old driver was loaded into a cruiser and taken to a police station for testing…. After arriving at the station, (Sergeant James Buchanan) said the man grabbed a handful of his own waste "and placed it in his mouth, attempting to trick the breathalyzer machine." It didn’t work, Buchanan said.