DUI BLOG

For those mad mothers out there worried that someone somewhere may be eluding justice, here’s a recent Kansas City news story about the power of faith….

Stan Willcutt is a 40-year-old construction worker with the ailments of a man twice his age. Bad ankles. Bad knees. A back so screwed-up that he recently threw out a disk just because he sneezed. Willcutt has been buried in ditches during two construction accidents. He’s been dropped on his head, leaving one eye permanently wacky. And lord knows what happened to his teeth, because he doesn’t have any upper choppers, which makes his speech sort of slurred.

Still, he’s got to make a living, so he continues to work in heavy construction, digging sewers, but he goes to a chiropractor a couple of times a week to have his back worked on. On April 7, he was returning from one of those appointments, driving down Douglas Street, when he felt a sneeze coming on. He tensed up his back, preparing for the damage that might be imminent, and then let go a big kerchoo.

The force of it wasn’t enough to throw out his back, but it was so painful that he swerved his car, and his front-left tire clipped the center median. After correcting his car, Willcutt realized that his collision with the curb had caused a flat tire. So he pulled over, jacked up the car and started to put on the spare. That’s when Lee’s Summit police showed up.

Officers told Willcutt that they’d received a report of a drunk driver who had swerved and hit the street’s median. Willcutt explained what had happened and said he hadn’t had a drink all day. In fact, Willcutt says, after he was popped for a DUI 20 years ago, he stopped drinking entirely.

Willcutt told police he’d ingested neither alcohol nor drugs, but the officers asked him to take a field sobriety test anyway. Willcutt says he told the officers that, with his bad knees and back, there’d be no way he could stand steadily on one foot or walk in a tight, straight line. And just as Willcutt predicted, according to officer Matthew Miller’s report, Willcutt performed poorly on the test — and displayed slurred speech.

At that point, Willcutt could see that his explanations were having no effect on the police officers, so he requested a breathalyzer test. His police report indicates exactly what he predicted it would: His blood-alcohol content measured 0.00 percent. Still, the officers arrested Willcutt and took him to jail, where he gave a urine sample.

The sample was tested for amphetamines. The result was negative. It was tested for barbiturates. Also negative. Benzodiazepines. Negative. Cannabinoids. Negative. Cocaine. Negative. Ethanol. Negative. Methadone. Negative. Opiates. Negative. Phencyclidine. Negative. Propoxyphene. Negative….

(But) if there’s one thing Lee’s Summit city prosecutor Rachel Brown has faith in, it’s that her office will get its man. Brown has so much faith in the Lee’s Summit police, she says that a 0.00 breathalyzer and a negative urine test aren’t going to keep her from prosecuting Willcutt — who, with his ancient prior, could be looking at a real penalty. Now that’s faith in your police force.

(Thanks to Jay Norton of Olathe, Kansas.)

Breathalyzers don’t actually measure alcohol.

That’s right.  What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will “see” all of those chemicals as alcohol — and report a falsely high “blood-alcohol” concentration (BAC).

Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed “blood-alcohol” reading.

Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific — that is, they are not capable of detecting and measuring a specific compound.  More important for government work, they are relatively cheap.  Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use only one or three less-costly filters.  Result:  these machines can only detect and measure a broad range of compounds containing the methyl group — and they then simply assume that the unknown compound within this group is ethyl alcohol.

If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the breath-alcohol level.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered.  “Trace Composition of Human Respiratory Gas”, 30 Archives of Environmental Health 290.  In another study invoviing 28 subjects, researchers found that the “combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin”.  “Characterization of Human Expired Air”, 15 Journal of Chromatographic Sciences 240.  And Canadian scientists have discovered over 200 such compounds.  “The Diagnostic Potential of Breath Analysis”, 21(1) Clinical Chemistry 5.

What are these compounds?  Are there any on my breath?  Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is “seen” as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1. And there are many other so-called “interferents”. See, for example, “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the breathalyzer as “alcohol” — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if you’ve painted a room or been around gasoline in the last day or two, don’t breath into a breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.

Another recent example of motivating officers to make more DUI arrests (valid or otherwise), this from a Placer County (California) Sheriff’s news bulletin:

Four Placer County Sheriffs received awards from Mothers Against Drunk Driving at the organization’s annual statewide awards ceremony on April 9 at the Grand Sheraton in Sacramento. Last month, the local MADD chapter recognized the same deputies at a luncheon in Sacramento. The four deputies, Glen McNama, James Concannon, Robert Griggs and Douglas Bostian accounted for more than 120 arrests in 2004. McNama is a five-time winner. Griggs accounted for 10 percent of the sheriff’s department total DUI arrests.

Again, no requirement of convictions — just arrests. These awards are career-boosters, of course, but making lots of DUI arrests can also be very lucrative: since most arrests are made on the evening shifts, officers usually get overtime pay to appear in court during the day to testify. Note: good arrests usually result in guilty pleas, not requiring the officer’s presence in court; bad arrests more often go to trial — resulting in more overtime pay. So….

My last post was about the financial incentives for making more DUI arrests. The following recent (July 13) news story reflects the career benefits:

County Sheriff’s Deputy Inducted into DUI Club

A Neshoba County sheriff’s deputy has been inducted into the Mississippi 100 DUI Club. Deputy Sheriff Vince Carter was recognized along with 37 other officers across the state at a luncheon sponsored by the Mississippi Department of Public Safety in Jackson

The officers were honored for writing 100 DUI citations or more during 2004

A Louisville native, Carter has been employed at the sheriff’s office for about six years where he has written more than 700 DUI citations.

This is the second time he has received the statewide induction

"It’s a great feeling to know that I’ve been inducted twice into the club," Carter said.

I guess I’d feel better about this story if the standard wasn’t 100 citations, but rather 100 convictions……

In past posts, I’ve commented upon the increasing profits made by government and industry from the escalating "war on DUI" (see, for example, "DUI Roadblocks for Fun and Profit" and "DUI Ignition Interlocks: Dangerous but Profitable"). These profits call into question the underlying reasons for the allocation of police resources and the fairness of penalties imposed for this offense. Consider a news story appearing yesterday:

Albuquerque Makes a Million from DUI

Drunk-driving is generating a million a year in profit for the city of Albuquerque, New Mexico.

Drunk driving does not pay in Albuquerque, New Mexico — unless you’re the city treasurer. Last year, Albuquerque generated a million dollars in profit from its drunk driving enforcement program, doubling the take from 2003.

New Mexico DWI penalties are stiff. A driver caught for the first time with a .08 blood alcohol level must pay a $500 fine. But that’s just the beginning. The crime also carries a six-month license revocation where the offender can only legally drive a vehicle that has an ignition interlock installed. This device is designed to allow only a sober individual to operate the car.

That’s where the fees kick in. The interlock runs $960 per year and there’s a $45 "interlock fee." That, plus a $100 license fee, a $65 crime lab fee, a $75 community fee, a $200 alcohol screening fee, a $20 corrections fee. All this adds up to $1615 in extra fees combined with the fine for a total of $2115, a number which does not include the cost of increased insurance, treatment, lost wages, towing and storage, court costs and attorney fees.

The city hits the jackpot with anyone foolish enough to become a repeat offender, where the direct fines rise as high as $5000 and the city confiscates and sells the offender’s automobile. Apparently, repeat offenders are not rare. In 2003, Albuquerque seized an average of 125 vehicles every month. It auctioned between 40 and 50 cars monthly, returning only 40 a month to innocent owners.

(Thanks to Richard Diamond.)

It has become an increasingly common practice for police to receive anonymous phone calls about “drunk drivers” on the road. These “tips” are typically relayed by the police dispatcher to an officer in the field as a call to investigate a “suspected drunk driver”; the officer is rarely told that the basis of the information is an anonymous caller with no corroboration or reliability. The officer then pulls the car over, fully expecting to encounter an intoxicated person behind the wheel. And, as the psychologists tell us, we tend to see what we expect to see.

Consider the following from the website of the New Hampshire State Police:

The New Hampshire State Police is committed to keeping our Roadways and Communities safe. We welcome any tips from the public regarding illegal activity. If you have seen any Drug activity, Drunk Driving, or other crimes such as Domestic Violence we want to hear from you! Any amount of information will be investigated immediately:DWI & DUI Tips: (Driving While Intoxicated) Call us at 1-800-NAB-ADWI

“Any amount of information” apparently means regardless of the nature or source. And “will be investigated immediately” obviously means that, based upon the anonymous tip, the car will be pulled over and the driver interrogated and tested.

Some courts still adhere to the constitutional standards that a tip must be reliable before it can be the basis for a warrantless stop and search (a field sobriety test may be considered a search, and a field breath test definitely is).  In the alternative, the officer must be able to independently observe indications of impaired driving before he can stop the driver.

In an increasing number of states, however, those standards, like so many other “DUI exceptions to the Constitution”, have fallen by the wayside in recent years. Even in those states where the courts continue to apply the Bill of Rights, the prosecution is commonly able to justify the stop because the officer will testify that once he identified the reported car on the road, he followed it and observed it to “weave”. This is an old, well-worn standby used to justify stopping any vehicle, as all cars weave to some degree if followed for any period of time.

Now consider the wonderful possibilities — such as this news story from today’s Casper Star-Tribune:

SHERIDAN, Wyo. (AP) – Mayor Dave Kinskey passed a sobriety test after a phoned-in tip that said he may have been driving under the influence of alcohol. After he was pulled over Saturday night and passed the field sobriety test, Kinskey had his attorney drive him to a hospital, where he had a blood-alcohol test at his own expense. The test showed that his blood-alcohol level was 0.02 percent, according to Police Chief Mike Card…. City Councilwoman Kathy Kennedy said she was with Kinskey at a motorcycle rally Saturday and saw him drink two beers over two hours. ‘’To me this is just a smear campaign to try to get at him due to politics. I think it is pretty bad when an off-duty city employee calls in to smear the mayor by saying he was intoxicated when he wasn’t,'’ Kennedy said.

What if you were the driver and the caller was your ex-spouse? And you were not a mayor?

As I’ve indicated in earlier posts, breath machines which largely determine guilt or innocence in DUI cases are far from the reliable devices that law enforcement would have us believe. One of many examples of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested.

This has been confirmed in a number of scientific studies. In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.

The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. “How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses”, 22(4) Medical Science and the Law 275. For another study with similar findings, see “Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing”, 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington Medical School has gone farther and concluded:

By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%.” 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the test result contradicts their judgement that the person they arrested is intoxicated, it won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they yell at him, “Keep breathing! Breathe harder! Harder!” As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs — where the air is richest in alcohol. With the higher alcohol concentration, the machine will give a much higher — but inaccurate — reading.