Archive for August, 2005

Scientific vs Legal Presumptions in DUI Cases

Tuesday, August 16th, 2005

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.


DUI Laws Unconstitutional (cont’d)

Saturday, August 13th, 2005

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.


Judge Throwing Out DUI Cases: Unconstitutional

Friday, August 12th, 2005

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

Fairfax, 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…..


MADD Sobriety Checkpoints?

Thursday, August 11th, 2005

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:


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.)


The Road to Prohibition

Wednesday, August 10th, 2005

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….”