DUI BLOG

Ok, this old news story isn’t about DUI, but it sure reminds me of the breathalyzer tests I’ve encountered in some of my cases:

There’s Still One Born Every Minute

RADNOR, Pa (UPI) – The police department here recently was told by a Bucks County judge that a Xerox machine cannot be used as a lie detector.

Detectives bent on obtaining a confession pretended an office copier was a lie detector after a suspect agreed to undergo a polygraph test.  Prior to interrogation, the sleuths placed a typewritten card in the machine reading: “He’s lying”.

The suspect was seated near the copier.  A metal colander was fastened to his head and wires ran from the colander to the Xerox machine.  Each time investigators received answers they did not fancy, they pushed the copy button.

Out came the message:  “He’s lying”.

Convinced that the machine was infallible, the suspect finally confessed.

Judge Ira Garb threw the case out of court.  “It’s the kind of comic relief we need around here once in awhile”, the judge laughed.

(Thanks to the father of George Bianchi.)

As indicated in previous posts, there are three parts of the nystagmus test.  But it is the angle of onset segment which is most critical – primarily because the “distinct” nystagmus and “smooth pursuit” in the other two tests are fairly subjective, while an angle has a certain mathematical nicety to it.

However, the officer’s ability to estimate this angle is critical.  The nystagmus test is premised upon a formula that requires the angle of onset to be subtracted from 50 to obtain a very rough estimation of blood-alcohol concentration (BAC).  An angle of 45 degrees from center, for example, may indicate a possible .05% blood-alcohol concentration; anything before that — for example, 43 degrees indicating .07% — results in a “failure”.  Clearly, if the officer is mistaken in his “guesstimate” by only 5 degrees, a true 47 degree (.03% BAC) ”pass” becomes an observed 42 degree (.08% BAC) “fail”.

So how does the officer measure the angle of onset with precision?

He doesn’t.  At best, he is giving a very rough estimate.  Recognizing the importance of the officer’s skill in estimating angles of onset, the National Highway Traffic Safety Administration recommends that officers use an angle-measuring template and practice with four or five subjects: “Check yourself monthly with the device to be sure that your accuracy has been sustained.”

The simple fact is that no officer actually does this; the last time he used a protractor to estimate angles was in the police academy.  The most common method actually used is to assume that the 45-degree angle from the eye intersects the held object at the suspect’s shoulder: if nystagmus is observed before the pencil or finger reaches a line projecting straight out from the edge of the shoulder, the suspect “fails”.  Very simple.  Of course, the fatal flaw to this method (other than now requiring two estimations) is that we all have different shoulder widths.

In an interesting crime lab study reported in 25 Journal of the Forensic Society 476, 12 police officers measured the angle of onset of nystagmus in 129 actual cases where DUI suspects had been arrested but had not yet been tested by blood, breath or urine.  The officers used a special protractor to help them accurately measure the anlge of onset.  Result?  Even with the aid of a protractor, they consistently over-estimated the angle at low BAC levels and underestimated it at high BACs.  The researchers from the police crime lab concluded that nystagmus cannot be used to accurately predict blood alcohol concentration.

I mentioned in the previous post that few officers understand the nystagmus test, administer it correctly, or score it objectively. Further problems with using the nystagmus test in DUI investigations have been summarized by a noted expert in the area, Dr. L. F. Dell’Osso, Professor of Neurology at Case Western Reserve University School of Medicine and Director of the Ocular Motor Neurophysiology Laboratory at the Veteran’s Administration Medical Center in Cleveland:

Using nystagmus as an indicator of alcohol intoxication is an unfortunate choice, since many normal individuals have physiologic end-point nystagmus…Without a neuro-opthalmologist or someone knowledgeable about sophisticated methods of eye movement recordings, it is difficult to determine whether the nystagmus is pathologic. It is unreasonable that such difficult judgments have been placed in the hands of minimally trained officers. Dell’Osso, "Nystagmus, Saccadic Intrusions, Oscillations and Oscillopsia", 147 Current Neuro-Opthalmology 147.

See also an interesting article by Umeda and Sakata entitled "Alcohol and the Oculomotor System", 87 Annals of Otology Rhinology 69, wherein scientists concluded that gaze nystagmus was one of the least sensitive eye measurements of alcohol intoxication. The nystagmus which officers are trained to believe indicates intoxication is naturally present in some individuals without the presence of alcohol. It can also be caused by many other factors, as the Supreme Court of Kansas has noted after a review of the scientific literature:

Nystagmus can be caused by problems in an individual’s inner ear…. Physiological problems such as certain kinds of diseases can result in gaze nystagmus….Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. State v. Witte, 836 P.2d 1110.

Obviously, drinking coffee and smoking cigarettes are not unusual. And note that most DUI arrests occur late at night — just when eyestrain and eye muscle fatigue are most expected. More on nystagmus to come….

You may have heard of the "eye test" in DUI investigations.  This is the nystagmus field sobriety test or, more accurately (there are 47 different kinds of nystagmus),  the horizontal gaze nystagmus test.  It is one of the most commonly used field sobriety tests, as it is one of three which make up the federally-approved "standardized battery" of tests, or SFSTs.

The test is essentially a measurement of the movement of the eye.  Simply stated, "nystagmus" refers to a distinctive involuntary jerking of the eyes; horizontal gaze nystagmus is a pendular (back and forth) movement.  This type of nystagmus is commonly measured by the officer in three three different ways, each time using an object such as a pencil, penlight or finger placed a foot or so in front of the suspect’s nose and moving it slowly to the left and then to the right.

The first part of the test is to determine the angle of onset of nystagmus — that is, the angle at which the moving eye begins the jerking motion.  The suspect looks straight ahead and, without moving his head, moves his eyes slowly to the right or left.  The officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins.  If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05%.

The second part of the test is to note whether the jerking becomes more "distinct" when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at the outside of the eye.

The third part is to determine whether there is a lack of smooth pursuit: rather than following a moving object smoothly from the beginning, the eye jumps or "tugs".

Under federal standards, the officer is supposed to use an objective scoring criteria for each of the three tests, and the total score determines whether the supect passed or failed. 

In reality, few officers understand the test, administer it correctly, or use objective scoring.  Many simply report that they "detected the presence of nystagmus", and subjectively count that as a failure.  It is, however, the characteristics of nystagmus, not the simple presence,  which is relevant to determining possible impairment.  And, unfortunately, many things cause nystagmus and some of us have it under normal conditions.

More on nystagmus next week….

Let’s assume that you are being prosecuted and the key evidence against you comes from a machine.  The prosecutor wants to use the test results from that machine in trial to prove your guilt.  Your attorney asks for information about how the machine works, including the critical computer code, to determine if it is accurate and reliable.  The prosecutor refuses, saying the information is a protected trade secret.  Your attorney says you have a constitutionally protected right to a fair trial — including the right to inspect the evidence against you, the right to confront your “accuser”. 

Should your attorney be entitled to the information?  Consider a recent article in the Orlando Sentinel:

SANFORD — In the past five months, Seminole County judges have thrown out hundreds of breath-alcohol tests that show drivers were legally drunk.

The reason: The state won’t disclose how the test machines work — not because it doesn’t want to, but because it doesn’t have the information, and the manufacturer won’t give it up….

All four Seminole County criminal judges now use the same standard: If a DUI defendant asks for a key piece of information about how the machine works — its software source code — and the state can’t provide it, the breath test is rejected….

Seminole judges are all following the lead of Seminole County Judge Donald Marblestone, who in January ruled, though the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

“Florida cannot contract away the statutory rights of its citizens,” the judge wrote.

Judges in other counties have said the opposite. The state can’t turn over something it does not possess, and the manufacturer shouldn’t have to turn over trade secrets, they’ve said….

The demand for the machine’s source code has popped up in Orange County but with less-dramatic results. Some judges have ordered the state to turn it over, but others have not, said Michael Saunders, the county court bureau chief for State Attorney Lawson Lamar.

Trade secrets vs fair trial: If you were the judge, what would you do?

….to own an official breath alcohol testing instrument!

No, we’re not talking about one of those little portable jobs you can buy down at Sharper Image.  These are the real deals, the actual law enforcement devices used at police stations – legally admissible in court.

What?  You thought the manufacturers had agreements with police agencies not to sell these things to private citizens — particularly not to defense attorneys?  Well, yes, but then we live in the era of….eBay. 

There are a half-dozen or so makes and models commonly used across the country and periodically one comes up for auction.  Where do they come from?  Who knows.  But they’re not cheap:  they can cost $1500 or more, depending upon the model — compared to new prices of $5000 and up; an Intoximeter EC/IR (ElectroChemical/InfraRed) sold on eBay a couple of days ago for $2100.  Try entering “breathalyzer”, “intoximeter”, “intoxilyzer” and/or “datamaster” in eBay’s search box.

With an hour or two of self-study, you too can calibrate and operate one of these things — just like your local police….and hopefully with more accuracy.

From WOWT-TV news in Omaha:

DUI Penalties Increase Repeat offenders targeted

Repeat drunken drivers will be subject to tougher penalties under a bill passed by Nebraska lawmakers.

The measure passed Friday will increase the maximum penalty for a second-offense DUI from 90 days in jail to up to five years in prison. The higher penalty will only apply if the repeat offender has a blood alcohol content at least twice the legal limit….

To put things in perspective, the same Class IIIA felony 5-year maximum is also imposed in Nebraska for intentional child abuse, sexual assault of a child under the age of 14, and homicide caused by willful reckless driving. These folks are targeting the right drivers — high BAC recidivists — but with the wrong medicine. Just continually increasing the punishment has never worked with severe alcoholics and never will. (See my earlier post, "Punishment vs Treatment in DUI Cases".) This latest wisdom from Nebraska’s politicians brings to mind an oft-repeated definition of insanity: Doing the same thing over and over and expecting a different result.

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In the United States, however, the presumption of innocence has always been a fundamental part of our rights as a free people. This basic protection against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. U.S., 156 U.S. 432 (1895).

So what happened to this presumption of innocence in a drunk driving case? Is this yet another example of “The DUI exception to the Constitution”?

Let’s take a look at how our DUI laws have slowly eroded this fundamental right….

Let’s assume you’ve been arrested for drunk driving, and a breathalyzer gives a reading of .09% blood-alcohol concentration (BAC). You will probably be charged with two crimes: (1) driving under the influence of alcohol, and (2) driving with over .08% BAC.

Let’s look at the .08% charge first. The .08% offense depends entirely upon the results of the breath machine (often called a “Breathalyzer”, although there are many makes and models). These machines are notorously unreliable for any number of reasons. But a funny thing happens when your attorney tries to bring out those reasons for the jury. He tries to point out, for example, that the Breathalyzer computes the results by presuming that the defendant has a partition ratio of 2100:1 (the ratio of alcohol in the breath to the alcohol in the blood) — but that this is only an average: in fact, the defendant’s ratio is much lower, so the .09% reading should actually be .07%. However, the judge stops him: the law presumes that all men are average — even if they are not.

The Supreme Court of California has specifically ruled that such scientific truth is irrelevant. People v. Bransford, 884 P.2d 70 (1994). The Court justified its ruling in a rather frank — and amazing — justification:

It (.08%) will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.

In other words, ignoring scientific facts makes it easier — and cheaper — to convict.

What about the officer who gave the breath test? Surely, we can question his experience and the way he administered the breath test. And this raises a prosecutrial favorite: the “Official Duty Presumption”. The California Evidence Code (sec. 664) puts it very simply: It is presumed that official duty has been regularly performed. Period. That’s it: Since it was the officer’s official duty to give the test, the law presumes he was qualified and did it correctly — and the burden is on the defendant to prove he didn’t.

Interesting twist on the presumption of innocence, huh? Well, so much for the .08% charge. At least the defendant is presumed innocent of the DUI charge, right?

Wrong. The laws of most states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is legally presumed to be under the influence of alcohol. That’s right: the defendant is presumed guilty. As with the others, this is called a “rebuttable presumption” — that is, the defendant can try to rebut this presumption with other evidence. Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

Ok, but the law says it’s illegal to have .08% BAC when driving — not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove what the BAC was at the time of driving?

Easy: the law presumes the BAC is the same. Let’s take a look at California’s fairly typical law:

In any prosecution…it is a rebuttable presumption that the person had 0.08 percent 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 or more, by weight, of alcohol in his or her breath at the time of the performance of a chemical test within thre hours of the driving.

Well, now, that’s really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with scientific certainty, that the BAC will NOT be the same three hours after the test — and yet the law says it is.

So much for the “presumption of innocence” in a DUI case….

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI.

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own unique approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will be charged with a refusal as well.