DUI BLOG

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of “administrative suspension”. He is also given a citation to appear in court to face criminal drunk driving charges. These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI) and driving with .08%,  which takes place in the courts.

In other words, even though he only drove once, the individual is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

It gets worse….The driver has already been punished by another state agency (the DMV)for driving over .08% by having his license suspended. If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished again. The sentence may involve jail, fines, DUI schools, community work, probation — and a restricted, suspended or revoked license. How many times can the state prosecute a person for a single crime?

Our Constitution says only once. The Fifth Amendment specifically provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb”. So is this another example of “the DUI exception to the Constitution”?

Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, “the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not.” Sering v. State, 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes – so long as you don’t punish him for both. 

Hmm…

Well, what about punishing the driver by suspending his license when he’s arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that may include another license suspension?

This one caused the judges a bit more trouble. This wasn’t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution….

The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a “punishment” but only a “civil sanction”. Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a “civil sanction” was actually a punishment — and thus double jeopardy — if (1) the “clear focus of (the statute) is on the culpability of the individual”, and (2) the legislature “understood these provisions as serving to deter and punish”. The Court added that “the historical understanding of forfeiture as punishment” weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived  from a more conservative U.S. Supreme Court. In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling: “We believe that Halper’s deviation from long-standing double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is “punitive”, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable”. Hudson v. U.S., 592 U.S. 93 (1997).

Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a “civil sanction”, not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy or multiple punishment. It just looks an awful lot like it.

As Humpty Dumpty said, “When I use a word, it means just what I choose it to mean — neither more nor less.”

In a post a few days ago I discussed a recent study which found that field sobriety tests were largely ineffective in assisting officers estimate whether a suspect had a blood-alcohol level over or under .08%. This confirmed an earlier study at Clemson University, mentioned in an earlier post, “Field Sobriety Tests: Designed for Failure?”, which also found their use by officers to be of little or no value.

The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests. It is his DUI report (and his opinion in that report) which will largely determine what, if any, criminal charges will be filed by the prosecutor; his decision which will or will not result in a suspension of the driver’s license; his testimony at trial which will largely decide the guilt or innocence of the person he arrests.

So just how expert is the average police officer at judging levels of intoxication in a DUI case?

To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol concentration. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication.

The researchers’ conclusion: “The assumption that social drinkers would prove to be accurate judges…was not confirmed.” In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.

The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests.

Results?

When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.

The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).

In the opening of Nathaniel Hawthorne’s classic novel The Scarlet Letter, a young woman who has been convicted of adultery is led through the streets of colonial Salem, a scarlet letter "A" pinned to her chest. The townspeople watch approvingly, gossiping and enjoying her humiliation.

Fast forward to January 1, 2004….Encouraged by Mothers Against Drunk Driving, the Ohio legislature enacted a new law requiring any person convicted of drunk driving to display special bright yellow license plates with bright red numbers and letters on any vehicles they own or drive. 

The law made no exception for other members of the family who drove the vehicles. The wife who drove the kids to a soccer game did so with the scarlet letters branded on the front and back of her car.  

What have become known as "scarlet letter plates" or "shame plates" have created other consequences as well:

Ever since I’ve put the yellow plates on my car I have gotten pulled over on the way to work/school at least a dozen times just for "suspicion", and my car has been damaged by rocks and bricks that have been thrown at my car. I’ve filed police reports for the incidents in which my car was damaged and nothing has been done to resolve the problem. My insurance pays for the damage but I still have a $500 deductible which I’ve had to pay for twice now. I’m tired of people that say I "deserve" it because I have a DUI. I didn’t kill anyone, I didn’t hurt anyone, no cars were hit and nothing was damaged. I don’t deserve to be pulled over today for something that happened months ago. I don’t deserve to have rocks and bricks thrown at my car. I don’t deserve to be publicly humiliated…

The new law initially applied to all individuals convicted of DUI. However, the inclusion of first-time offenders caused widespread criticism and the law was later amended to apply only to multiple offenders and first offenders with blood alcohol levels of .17%  or higher.

Ohio isn’t the only state requiring "shame" plates for those convicted of DUI. Minnesota and Georgia also issue the plates, but ones not as dramatically different as those issued by Ohio.  Urged on by MADD, California, Virginia and other states have considered legislation authorizing them — including Arizona, where a bill requiring fluorescent green plates made it to the floor of the State Senate in 2004.

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two AFTER driving.

So how does the prosecution prove what the BAC was when the defendant was driving?

It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a Breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the BAC was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?

Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the presumption of innocence?

No problem: we already legally presume a person is under the influence if he has a blood-alcohol level of .08% — whether, in fact, he is or not. And he has the burden of proving he was not under the influence.

Let’s not get hung up on details. The important thing here is that we get these drunk drivers off the road, isn’t it?

In recent days I've talked about how DUI roadblocks (or to use the more politically correct term, "sobriety checkpoints") are ineffective and violate the Fourth Amendment but have nevertheless been authorized by the U.S. Supreme Court because the intrusion on citizens' privacy was outweighed by the "grave and legitimate interest in curbing drunken driving". And I pointed out that, inevitably, law enforcement was increasingly abusing the procedure to gather information about citizens, conduct dragnets for non-DUI offenses and raise money for local government.

In the following news story about a weekend "sobriety checkpoint" in North Carolina, notice the emphasis in the opening paragraph on the minimal arrests for DUI — and the real objective as evidenced by the list of total arrests in the last paragraph:

Area law enforcement officers levied charges against drunk driving suspects Friday at a checkpoint at the intersection of North Raleigh Street and Meadowbrook Road.

Rocky Mount police said two vehicles were seized from drivers charged at the checkpoint during a joint effort with area law enforcement agencies….

Arrests resulting from the checkpoint included the following charges: Driving while intoxicated, three; alcoholic beverage control violations, three; driving while license revoked, four; no operator's license, five; fail to carry license, three; seat belt violation, one; expired license plate, three; no insurance, one; unauthorized use of motor vehicle, one; misdemeanor possession of marijuana, one; possession with intent to sell/deliver marijuana (felony), one; felony maintain a vehicle, one; child restraint violation, six; inspection violation, three; careless and reckless driving, two; felony elude, two; fail to stop for lights and siren, one; outstanding warrants, three; commercial motor vehicle regulatory violation, two; resist, obstruct and delay, two.

(Thanks again to Jeanne Pruett.)

The following from WRTA radio in Altoona, PA:

The Blair County DUI Task Force was out in full force over the weekend.  The Pleasant Valley Boulevard checkpoint resulted in the arrest of six drivers suspected of driving under the influence.  One person was arrested for public drunkeness when he walked through the checkpoint. 

(Thanks to Jeanne Pruett, CEO of Responsibility in DUI Laws, Inc.)

Proponents of the so-called “standardized” field sobriety tests (SFST) have long pointed to field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC).  A new study now calls those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery.  SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to  corroborate the accuracy of the SFSTs.  Burns accompanied a small number of San Diego officers conducting actual DUI investigations in the field.  After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol  concentrations (BAC) over or under .08%.   Burns reported a 91% correlation between SFSTs and BAC over-under estimates, thereby validating the battery of tests she had helped create.

A new scientific article now calls Burns’ conclusions into question.  In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1 (May 2005), the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act.  The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects.  For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance.  For another, there was no attempt to isolate the influence of SFST performance from other factors:  officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers  participating in the study were equipped with NHTSA-approved portable breath testing devices”.  In other words, the San Diego officers already had the results of portable breath tests when they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed.  The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time. 

In other words, officers relying upon field sobriety tests were far more likely to overestimate  BACs than underestimate — particularly with those suspects having very low BACs. 

(T)he utility of the SFST depends very much on how intoxicated an individual is.  Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.

In borderline cases involving persons at or under the legal limit, then, officers were very poor at estimating levels over .08% based upon SFSTs.  And it is these cases, of course, that are critical.  Suspects with high BACs are relatively easy to single out without the help of field tests; it is for the closer cases, particularly those who are innocent (below .08%), that the SFSTs are designed.  And it is with these very cases that the tests apparently fail. 

Put another way, accuracy in using field sobriety tests is high when they are not needed — and low when they are. 

From WKYT-TV News in Lexington, Kentucky: 

A Pulaski County man faces charges after police say he was riding his horse drunk.

Somerset police arrested 42-year-old Millard Greg Dwyer Sunday night. A state trooper says Dwyer was riding a horse on Borne Avenue when they jumped in front of his cruiser. The trooper says Dwyer was about to fall off the horse….

Dwyer was charged with operating a vehicle other than a motor vehicle under the influence of intoxicants.

Apparently, a horse in Kentucky is a non-motorized "vehicle".  

In recent posts, I've talked about how DUI roadblocks were ineffective and were increasingly being abused for such purposes as gathering information on citizens. According to a KCRA-TV news story yesterday from Sacramento, DUI roadblocks are now being used mainly to make money for local government:

KCRA Investigates: DUI Checkpoints

Checkpoints Being Used To Enforce Other Laws

SACRAMENTO, Calif. — For years, DUI checkpoints have proven an effective way to catch drunken drivers and prevent others from getting behind the wheel, but what some police agencies are now using those checkpoints for and who is being targeted is sparking a growing controversy. The concern is that police are not only using the checkpoints as a way to enforce other laws but also as a way to make money — especially since cities such as Sacramento make $70 every time they impound a car at a DUI checkpoint, even if that car's driver was not suspected of drinking and driving.

Aturo Torres said he was pulled over at a recent DUI checkpoint on Broadway in Sacramento, his pickup truck was impounded and all of his belongings moved to the curb, and yet, Torres said, he had not had a single drop of alcohol to drink that night.

KCRA 3 Investigates found that what happened to Torres is becoming so common that a growing number of lawmakers and immigrant rights groups are up in arms.

At issue is whether police agencies are misusing taxpayer money by using state DUI grant money as an opportunity to crack down on a host of other laws…. "It's misrepresentation. It's almost a fraudulent use of resources," state Sen. Gilbert Cedillo, D-Los Angeles, said.

KCRA 3 Investigates found that some DUI checkpoints are becoming so large in scale that they involve dozens of officers cracking down on everything from felonies to driving without a license.

Records show that at the Sacramento Police Department's last five DUI checkpoints, officers arrested 22 suspected drunken drivers. But they also wrote 315 citations and impounded 259 vehicles belonging to people arrested for driving without a license or driving on a suspended license…. Sacramento's police chief defends the use of DUI checkpoints beyond the bounds of just cracking down on suspected drunken drivers….

Adding another layer of controversy is that many of those caught in DUI checkpoints are undocumented immigrants. Immigrant rights groups say current law does not allow these people the chance to get a license legally and many can't afford to pay the $1,000 it takes when police impound their cars for not having a license.

Just a reminder: the United States Supreme Court recognized that DUI roadblocks constituted a stop and search without probable cause, in apparent violation of the Fourth Amendment. However, the Court chose to permit the practice — but only because the intrusion on citizens' privacy was outweighed by the "grave and legitimate interest in curbing drunken driving".

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombetta ruled that there is no right to this. (See "Why Do Police Destroy the Evidence in DUI Cases?".) Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example:

(a) ….a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later…

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is commonly checked off — and ignored.) So what can a defendant do if this legal right is violated? Well, the statute clearly says "shall" advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law — the only meaningful one being suppression of the breath test. Wrong. Remember: This is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following:

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested.

Cute, no? The law gives you a "right", and then makes it unenforceable. It is, as we lawyers say, "a right without a remedy". And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test. There are some court decisions, however, which seem to say that interfering with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g., In re Martin, 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In State v. George, 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician.