DUI BLOG

This isn’t about DUI specifically, but about the failure of the criminal justice system generally.

Some of us may recall in the not-too-distant past such things as the right to competent counsel and the right to speedy trial.  For others, you may be interested in something called the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….and to have the assistance of counsel for his defense.

The Sixth Amendment was one of ten amendments to the Constitution which constituted something called the Bill of Rights.  Although of some historical significance, this document is rarely used today……

8 years in a Louisiana jail, but he never went to trial

By Laura Parker, USA Today, Mon Aug 29, 6:34 AM ET

When he was charged with murder in 1996, James Thomas, an impoverished day laborer in Baton Rouge, became like many other criminal defendants: With no money to hire a lawyer, he had to rely on the government to provide him with one.

He then spent the next 8½ years in jail, waiting for his case to go to trial. It never did.

Last spring, a Louisiana state appeals court ruled that prosecutors had waited too long to try him, and it threw the charge out. By then, Thomas was 34, his alibi witness for the night of the murder had died of kidney disease, and his case had become a symbol of the increasing problems within the nation’s public defender system….

More than 40 years after the U.S. Supreme Court ruled that every person charged with a crime is entitled to legal representation – provided by the government, if necessary – the promise is an empty one for many low-income defendants.

Tens of thousands of poor people go to jail every year without ever talking to a lawyer, the National Legal Aid & Defender Association in Washington, D.C., found in a nationwide survey this spring of indigent legal services. The survey found that such programs across the nation are short on lawyers, investigators and other staff, and that they frequently fail to investigate the charges against the client, hire necessary experts and make appropriate motions in court.

One of the worst examples the association found was the case of another Louisiana man, Johnny Lee Bell. He was convicted of second-degree murder and sentenced to life in prison without the possibility of parole last year after meeting with a public defender for what Bell says was just 11 minutes before trial….

(Thanks to Jeff Voll of Los Angeles.)

Contrary to popular belief, police officers have no inherent skill and little training in detecting levels of intoxication. In fact, they are psychologically predisposed in a drunk driving investigation to “see” what they expect to see, disregarding any alternative explanations.

Let’s take a look at one of those possibilities…..As everyone knows, diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation — in other words, the classic symptoms of alcohol intoxication. The diabetic will look and act like a drunk driver to the officer, and will certainly fail any DUI “field sobriety tests”. As one expert has observed:

Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways…Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver. “Hypoglycemia: Driving Under the Influence”, 8(1) Medical and Toxicological Information Review Sept. 2003.

But, of course, a Breathalyzer will clear him, right?

Wrong. Ignoring for the moment the inherent inaccuracy and unreliability of these machines, most suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the “methyl group” in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is “probably” alcohol.

Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is acetone. And a well-documented by-product of hypoglycemia is the production of acetones in the breath. In other words, the Breathalyzer will read significant levels of alcohol on a diabetic’s breath where there may be little or none. See, for example, Brick, “Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study”, 9(1) Alcohol, Drugs and Driving (1993).

But this rarely happens, right? Fact: roughly one in seven sober drivers on the road suffers from diabetes. 

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations….

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test, of course: it’s usually the only physical evidence — and the only evidence of any kind of driving with over .08% blood alcohol. (It’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher.) Evidence just doesn’t get more important than that.

So, naturally, the police are careful to preserve the breath sample, right? There may later be some question of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that the results were from the defendant’s test.

The fact is, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant�s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.

So why isn’t the evidence saved in DUI cases today? The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).  [emphasis added]

What? These two conditions are not obvious in a DUI case? Let’s take another look at the Supreme Court’s test:

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be exculpatory?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no legal access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him – but it would probably be so much later that it would not be relevant or even admissible in court.

Certainly, the New Hampshire Supreme Court later rejected the U.S. Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied. 

Another example of  “the DUI exception to the Constitution”.

The title of a recent DUIblog post asked the question “How Far Will They Go?“  A recent news release provides one answer:

New Patented Technology will Eradicate Impaired Driving

Akron, OH.  August 18, 2005 — Elaine Futrell, envisioneer and co-patent holder, explained that by virtue of the system’s unique design, The Gauntlet SystemTM will detect any type of impairment (alcohol, illegal drugs, prescription drugs, and sleep deprivation) in individuals and also knows when a person is not one of the vehicles’ authorized drivers, stopping both from being able to start the vehicle.

According to Futrell, “The Gauntlet SystemTM was designed using proprietary Impairment Detection TechnologyTM (IDT) which is based upon the medically accepted principal that impaired individuals have diminished reaction times. The Gauntlet SystemTM utilizes electronic functions already installed in all vehicles, such as turn signals, wipers, lights, brakes, interior lights, or seat belts, and requires the vehicle operator to perform what amounts to a road side sobriety test before being able to start their vehicle.”

Futrell goes on to say, “Vehicle operators must perform 5 or 6 functions – in sequence and within a calculated amount of time – before their vehicle will start”…

At Gauntlet Technology Systems’ urging, New Mexico earlier this year enacted legislation broadening the definition of an ignition interlock device to include new technology like The Gauntlet System. New Mexico also introduced and passed legislation mandating an ignition interlock device for ALL offenders, not just repeat offenders.

“The technology to fully address impaired driving and eradicate this epidemic is finally here. The market for this type of technology increased ten-fold with the passage of that legislation,” states Futrell. Futrell has already been in contact with numerous other states wanting to follow New Mexico’s example.   [Emphasis added]

Finally, the answer to the drunk driving sourge: Make us all perform field sobriety tests before we can start our cars.  Good idea — if you aren’t relatively young and well-coordinated, with quick reactions, good memory, not in a hurry and don’t get flustered taking tests.  And if you haven’t borrowed the car. Or rented it. Or the gizmo doesn’t malfunction.  Or….

(Thanks to Patrick Barone of Birmingham, Michigan.)

Many of my posts in the past have mentioned the “DUI Exception to the Constitution” and addressed the increasing tendency of courts and legislatures to ignore the Bill of Rights in DUI cases and to restrict a defendant in defending himself before a jury.  My recent posts about the presumptions of guilt are examples. 

Although we haven’t gotten there yet, perhaps we can learn from history — particularly from the famous trial of William Penn, as recounted in Earl Warren’s fine book A Republic, If You Can Keep It:

Penn was a leader of the Quakers in London. The sect was not recognized by the government and was forbidden to meet in any building for the purpose of worship. In 1670 William Penn held a worship service in a quiet street which was attended by a peaceful group of fellow Quakers. Penn and another Quaker, William Mead, were arrested on a charge of disturbing the King’s peace and summoned to stand trial. As the two men entered the courtroom, a bailiff ordered them to place their hats, which they had removed, back on their heads. When they complied, they were called forward and held in contempt of court for being in the courtroom with their hats on.

That was only the beginning. Penn demanded to know under which law they were charged. The court refused to supply that information and instead referred vaguely to the common law. When Penn protested that he was entitled to a specific indictment, he was removed from the presence of the judge and jury and confined in an enclosed corner of the room known as the bale-dock. From there, he could neither confront the witnesses who accused him of preaching to the Quakers nor ask them questions about their charges against him.

Several witnesses testified that Penn had preached to a gathering which included Mead, but one showed some hesitancy as to whether Mead had been present. The judge turned to Mead and questioned him directly. In essence, he was asking Mead if he were guilty. Mead invoked the common-law privilege against self-incrimination which provoked hostile comment from the judge. The court then sent Mead to join Penn in the bale-dock out of the sight of the jury and witnesses. After the testimony the court instructed the jury to find the defendants guilty as charged. Penn tried to protest, but was silenced and again sent out of the courtroom.

The jury, for its part, proved sympathetic to the two defendants, and refused the judge’s command to find the defendants guilty. The judge was furious and sent them away to reconsider.* When they returned with the same verdict, the court criticized the jury’s leader, one Bushnell, and demanded “a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco….We will have a verdict by the help of God or you will starve for it.”

[* Note: Actually the jury found them guilty of “speaking on Gracechurch Street” and nothing else. Starling was infuriated because the act about which the jury found the accuseds guilty was not a crime.]

Three more times the jury went out and returned with the same verdict. Finally, they refused to go out any more. The judge fined each of them forty marks and ordered them imprisoned until the fine was paid. Penn and Mead went to prison anyway for obeying the bailiff’s order that they put on their hats. Later a writ of habeas corpus won freedom for the jurors while Penn and Mead left jail to come to America.

As the old saying goes, “The more things change, the more they stay the same”.

The recent news about a Virginia judge throwing out DUI cases has focused public attention on presumptions of law — specifically, the presumption of innocence. What is less appreciated are the recurring presumptions of fact in those same DUI cases — legal presumptions that simply ignore accepted scientific fact.  

One of the greatest sources of error in breath-alcohol testing, for example, is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect  with a true blood-alcohol level of .08 but a breath-to-blood ratio of, say, 1:1700 would have a .10 reading on an “accurate” breath testing instrument.

Put simply, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio—that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called “retrograde extrapolation”, or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by “extrapolating” backward—that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing. But this requires two assumptions: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than still absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant was eliminating and that he eliminated at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the nystagmus test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.”  The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails.  And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased—despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality, and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased—and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children—the average in the United States.

So why does the state presume facts that are clearly untrue?  Simple.  It is convenient: it makes prosecution and conviction much easier.

I’ve received a flood of queries concerning my previous post about the courageous Virginia judge’s ruling that the presumption of guilt in DUI cases is unconstitutional.  Perhaps the following examples, which I’ve used in past lectures, will help clear up the confusion about the presumption of innocence and the burden of proof…

Imagine the following scenarios from three separate criminal trials:

1.  Burglary.  Police find fingerprints at the scene of the crime.  The prosecution introduces evidence that they match the defendant’s fingerprints.  The judge then instructs the jury that, based entirely upon that evidence, the defendant is presumed to be guilty and that they must convict him — unless he can prove his innocence.

2.  Forgery.  The prosecution offers evidence that the forged handwriting is that of the defendant.  The judge instructs the jury that he is presumed by law to be guilty — unless he can prove he is not.

3.  Drunk driving.  The prosecution produces evidence of a breathalyzer test that the defendant’s blood-alcohol level was over .08%.  The judge instructs the jury that they must convict him (of both driving under the influence and driving over .08%) — unless he can prove he is innocent.

In the first two cases, the convictions would immediately be reversed on appeal — and the judge probably castigated for both shifting the burden of proof from the government to the defendant and violating his presumption of innocence. The Virginia judge is simply saying that the third case should be no different.

As regular readers know, I’ve railed in past posts about the “DUI Exception to the Constitution” — the willingness of legislatures and judges to ignore the Bill of Rights in drunk driving cases.  Examples of this are the presumptions of guilt that apply in all 50 states, as I pointed out in a post entitled “Whatever Happened to the Presumption of Innocence?”.

In yesterday’s news is a story about a judge who has apparently had enough and has decided to start following the Constitution in DUI cases:

Va. Judge Disputes Constitutionality Of DUI Law

District Court Judge Dismissing DUI Cases

Fairfaxe, Virginia – A Fairfax County judge is dismissing cases against drivers charged with driving under the influence of alcohol.

District Court Judge Ian O’Flaherty said the law prosecutors use to convict drunken drivers is unconstitutional.

A Virginia state trooper sent News4 an e-mail saying police are upset about the dismissals. Fairfax County Commonwealth’s Attorney Robert Horan confirmed that the judge is ruling against prosecutors, making it harder to get drunken drivers off the road.

The judge is challenging one of the powers police and prosecutors rely on for arrests and convictions: the results of breath tests given to suspected drunken drivers. Virginia law says that anyone with a blood alcohol content level of 0.08 percent or more is presumed to be driving under the influence of alcohol. It is then up to the driver to rebut the presumption or prove he or she wasn’t drunk.

O’Flaherty began dismissing DUI charges two weeks ago, ruling that the law is unconstitutional because the burden of proof in all cases rests with the prosecutor and this law puts the burden on the defense.

It is interesting that the prosecutor’s main objection to the rulings was that it was ”making it harder to get drunk drivers off the road” — not that the judge was legally wrong.

To explain a bit further the basis for the judge’s ruling, the following is excerpted from my earlier post ”Whatever Happened to the Presumption of Innocence?“:

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In America, 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)….

Let’s assume you have been arrested for drunk driving, and a Breathalyzer gave a reading of .09% blood-alcohol concentration (BAC). You will be charged with two crimes: (1) driving under the influence of alcohol (DUI), and (2) driving with over .08% BAC. Let’s look at the .08% charge first…..

[Discussion of legal presumptions that the machine is accurate and that the officer administered the test correctly.]

…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. This is called a “rebuttable presumption” — that is, the defendant can try to rebut this presumption with other evidence (what 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 again facilitates conviction by presuming that the BAC was the same, so long as the test was taken within three hours of 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…..

A few days ago I posted a news story about MADD assisting police at DUI “sobriety checkpoints”.  What I didn’t realize is that MADD apparently goes even further — setting up their own roadblocks! The following news story from a couple of years ago reports on one such roadblock:

CLINTON PROSECUTOR AT ODDS WITH MADD

A prosecutor in Clinton, Tennessee, says the president of the local chapter of Mothers Against Drunk Driving has been irresponsible.

Anderson County District Attorney General Jim Ramsey said a MADD roadblock June 28th caused a two-vehicle accident.

Further, he said the MADD chapter has interfered in criminal cases and been involved in publicity stunts.

MADD chapter president Susan Ford said the group stays within the policies and guidelines of the organization. She said she feels like the group has community support.

Presumably, MADD is not authorized to stop vehicles on the highways — in which case, why aren’t any of the mad mothers arrested and prosecuted?  They clearly pose a threat to public safety (and just as clearly are politically very powerful).

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

In a post some time ago, I wrote that the ultimate goals of Mothers Against Drunk Driving lay well beyond lowering DUI levels to .08%, .05% and ultimately to .01%.  The ultimate goal is, simply, resurrecting the failed experiment of prohibition.

The first step, of course, would be a gradual shift of focus away from drinking and driving to one of just drinking.  And the logical starting point would be the more politically-acceptable target of underage drinking.

I mentioned in the post that in 1999, MADD’s National Board of Directors unanimously voted to change the organization’s mission statement to include the prevention of underage drinking. Not underage drinking and driving — just drinking.  Thus, this huge (annual revenues over $49 million) and politically powerful organization formally shifted its focus away from “drunk driving” and towards the broader “problem” of drinking.

Where does this lead us?  How about laws that authorize the police to stop American citizens under 21 on the streets or even in their homes and force them to submit to breath tests or face arrest?  Exaggeration?  Even paranoia?  Consider the following news release:

DETROIT, August 8 - In a case with far-reaching implications for young adults and minors throughout the state, the American Civil Liberties Union of Michigan filed a federal lawsuit today challenging a state law that allows police to force pedestrians under the age of 21 to take a Breathalyzer test without first obtaining a search warrant.

“It is time to stop the widespread practice in this state of punishing young people who are walking down the street for refusing to submit to a Breathalyzer test,” said Kary Moss, Executive Director of the ACLU of Michigan. “The Constitution is clear – no search warrant, no Breathalyzer. Police cannot force pedestrians to submit to an unconstitutional search.”

Michigan is the only state in the country to make it illegal for young adults and minors who are not driving to refuse a Breathalyzer test when the police do not have a search warrant.

The lawsuit has been filed on behalf of two Saginaw Countywomen who were forced by Thomas Township police to submit to breath tests although they had not been drinking, as well on behalf of and two Mount Pleasant men forced to do the same by an interagency police task force that refers to itself as the “Party Patrol.”

Katie Platte was 19 years old when she went to a small party in Thomas Township in July 2004 in honor of a high school classmate who had enlisted in the Marines and was leaving for Iraq. In spite of the fact that Platte was not drinking any alcoholic beverages, the Township police told her and others at the party that if they refused to take a breath test they would go to jail.

“I wasn’t drinking or causing a problem,” said Platte, now an honors student at Saginaw Valley State University. “You’re supposed to be innocent until proven guilty, but in this case young people are assumed guilty until they prove they’re innocent by having to take a Breathalyzer test.”

According to Platte, the police in Thomas Township are known to frequently break up parties attended by young adults and force everyone at the party under the age of 21 to submit to Breathalyzer tests. University police officers recently raided an apartment in the building where she lives and forced all of those under the age of 21 to submit to Breathalyzer tests without a warrant, even though they were not driving or under arrest.

A second plaintiff, Ashley Berden, was 18 when she attended a party at a friend’s house to celebrate her graduation from Swan Valley High School. After she left the party, Thomas Township police officers arrived and found her purse, which she had forgotten. The police came to Berden’s house at 4:00 a.m., woke up her family and demanded that she take a Breathalyzer test. The police did not have a warrant and informed Berden that she would be violating the law if she refused the test. The test registered a .00 percent blood-alcohol level, indicating that Berden had not been drinking.

To paraphrase a German priest’s pre-WWII quote in a past post, “First they came for those under 21, but I was not under 21 so I did not speak up….”