Archive for August, 2005

A Fading Constitution

Tuesday, August 30th, 2005

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.)


The Diabetic “DUI”

Friday, August 26th, 2005

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. 


The Disappearing Evidence in DUI Cases

Wednesday, August 24th, 2005

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".


Latest Weapon in the War on Drunk Driving

Monday, August 22nd, 2005

The title of a recent DUIblog post asked the question "How Far Will They Go?"  A recent news release (, site no longer active) 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.)


The More Things Change….

Friday, August 19th, 2005

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”.