Archive for July, 2005

How to Get Your ex-Spouse: The Anonymous Tip

Monday, July 11th, 2005

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?


Can You Change the Breath Test Results by How You Breathe?

Tuesday, July 5th, 2005

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.