DUI BLOG

A few weeks ago I posted a story about Mothers Against Drunk Driving assisting Delaware law enforcement in manning DUI sobriety checkpoints (and, in Tennessee, even setting up their own roadblocks).  The practice appears to be spreading.  The following is from a recent San Diego County Sheriff news release:

SANTEE.  The Santee Sheriff’s Traffic Division is turning up the heat on drunk drivers this weekend.  Those who choose to drink and drive may find themselves cooling off in a jail cell.

In cooperation with Mothers Against Drunk Drivers (MADD), the Santee Sheriff’s deputies will be conducting a DUI sobriety checkpoint on Friday, September 13th, at an undisclosed location within the city limits….

Sheriff’s deputies, senior volunteers, reserves and representatives of MADD staff DUI Sobriety Checkpoints.

When did you start “cooling off in a jail cell” for drinking and driving (which is not illegal)?  And when did MADD begin staffing roadblocks? 

I’ve posted in the past about the ineffectiveness (and unconstitutionality) of DUI roadblocks.  So how effective are these Sherrif/MADD joint efforts?  Well, the same news release reports that the  preceding effort resulted in 1169 drivers encountered at the roadblock, of which 556 were waived through, 613 were stopped, 50 were asked to step out for further investigation….and only 1 was arrested for DUI. 

However, local government coffers were fattened with 27 citations and 10 impounded vehicles — an apparently growing reason behind roadblocks supposedly set up to find drunk drivers.

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

I’ve commented in recent posts about the spreading practice of cops forcefully jamming syringes into DUI suspects on the sides of our highways.  Now consider a devious legal maneuver to justify the practice in the following news story:

DUI Suspect Appeals Police Use Of Forced Blood Test

PALM BAY, Fla. Sept 23 – A man accused of driving drunk in Brevard County is appealing police use of a forced blood test. Tony Isley refused a breathalyzer test during a traffic stop in Palm Bay. So police got a search warrant on the spot to take a sample of his blood.

Currently, the only forced blood tests happen when there’s a crash with injuries. Prosecutors said there was nothing in current law that would not allow forced blood tests, even if officers had to restrain the suspect. "The alcohol is actually the property being used to commit the DUI," said prosecutor Samantha Barrett.

If the appeals court upholds the method, it could be used all over Florida. Currently Indiana, Missouri and Texas use it, and the method has withstood appeals.

For those of you who think it’s devious DUI defense lawyers who think up the "technicalities" and "loopholes", how about a search warrant to seize blood as "property" used to commit a crime?  And what kind of rubber-stamp "search warrant" is issued by radio or phone in minutes to any cop on a highway who wants one?

My recent post “How Can you Defend Drunk Drivers?” received considerable response, most of it surprisingly positive.  I’d like to add a thought from DUI defense attorney Walter Fey of Reno, Nevada:

…you will become a target for those who have no voice other than the one they use to utter shrill insults and condemnations.  Goes with the suit.  

I have found that one argument that really shuts them down, or at least calms them and permits a more reasoned discussion of what I do, is this:  I am responsible for putting more abusers of drugs and alcohol into treatment programs than anyone they may know or be acquainted with. Win or lose, one of my first steps is to recommend or order rehabilitation as a condition of my representation.  Ask the attacker how many folks he got to go to AA this week–see if they have any answer.

Of course, things could always be worse, as evidenced by the following recent news article from the Los Angeles Times:

MOSCOW.  A Canadian lawyer for jailed oil tycoon Mikhail Khodorkovsky was expelled from Russia on Friday after a post-midnight visit to his hotel by plainclothes police….

Prosecutors also said Friday that they had moved to disbar at least eight of Khodorkovsky’s Russian lawyers for what they called foot-dragging in representing the 42-year-old businessman in his appeal….

Law enforcement officers descended on the luxury hotel room of Robert Amsterdam shortly after 1:00am and ordered him to leave the country within 24 hours.

Imagine if MADD had chapters in Russia….

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol:  they actually measure the presence of the methyl group in compounds.  One of those compounds is ethyl alcohol (aka ethanol), and the machine simply assumes that the detected compound is ethyl alcohol. 

Problem:  there are thousands of compounds containing the methyl group — of which over one hundred have been found on the human breath.  Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days.  And I’ve recently posted that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the methyl group. 

However, you do not need to be a diabetic to have high levels of acetone:  scientific research has established that acetone can exist in perfectly normal individuals at  levels sufficient to cause false high breath-alcohol test readings.  "Excretion of Low-Molecular Weight Volatile Substances in Human Breath:  Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985). 

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone.  Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actaully caused by alcohol or other compounds).   "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3  Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that "mouth alcohol" and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.) 

How reliable are breathalyzers?  "Close enough for government work".  As I’ve recently posted, there seems to be a growing trend toward letting officers draw blood themselves at the scene of arrest.  Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….

In most cases, whether a driver was intoxicated or not is largely a matter of the officer’s word (particularly if there is no corroborating breath or blood test because, according to the officer, the driver "refused" to cooperate). For whatever reason (quotas, politics, performance evaluations, etc.), setting up a DUI arrest is a fairly simple matter; few will take the accused’s word over that of an officer. Doesn’t happen? Let’s take a look at the last few days….

Edmonton, Ont., Sept. 21 — New details emerged Tuesday in a Royal Canadian Mounted Police inquiry into an Edmonton Police Service attempt to arrest a newspaper columnist over articles that criticized the police.

On November 18, 2004, several officers were involved in a stake-out of the Overtime Bar in a failed attempt to arrest Edmonton Sun writer Kerry Diotte and police oversight commission chairman Martin Ignasiak. Yesterday’s disciplinary hearing focused on the head of the traffic section, Sergeant Bill Newton, who is charged with abusing his authority.

According to testimony….Newton ordered Sergeant Randy Schreiner to access confidential police databases to gather information on Diotte. The database produced a descriptions and details of Diotte’s automobile and home. Diotte has no history of drunk-driving.

Using the database information, Newton ordered officers to be on the lookout for Diotte’s BMW convertible during a "Target All Drunk Drivers" operation meeting on November 18. Sergeant Glen Hayden then informed Newton that he had seen Diotte at the Overtime Bar on two occasions. Around 6pm that evening, Hayden went to the Overtime, saw Diotte’s BMW and called in undercover surveillance from two officers who were part of a squad designed to target a list of 100 "aggressive drivers."

The undercover officers identified Diotte and Ignasiak inside the bar as "Target One" and "Target Two" according to witnesses. Around 8:45pm an "informant" at the bar called officer Darren Smith, who placed a lookout bulletin on Diotte. Diotte, whom witnesses say was not drunk, took a cab home.

Hayden drove to Diotte’s home to verify whether he was there or not. "It was true that we found that vehicle in a bar lot and the potential for serious harm or death was there," Hayden testified, maintaining that he did nothing wrong. An Edmonton Police disciplinary hearing has dropped charges against Hayden.

Thank God that can’t happen here in the United States…

Middletown, Conn, Sept. 15. The mayor of Middletown was arrested for drunken driving, by her own police department…. Thornton was taken into custody last night, near her home on Timber Ridge Road. A Middletown police officer says he saw the mayor driving on Westfield Street in an erratic manner, weaving from side to side, crossing the center line, and failing to stop at a stop sign. That Middletown officer says the mayor was given a sobriety test at the scene, and she failed it. The mayor was also given a breathalyzer test, but officers had to take her to Portland, to the police department there, because the equipment at Middletown was not working.

Middletown, Conn, Sept. 21 — A Superior Court judge dismissed drunken driving charges against Mayor Domenique Thornton Wednesday after blood-alcohol tests showed she was not under the influence of alcohol when she was stopped by police last week. Thornton was taken into custody on Sept. 14. Police said she had been driving erratically, had an odor of alcohol on her breath, and failed a field sobriety test. But a breath test put her blood-alcohol level at .018, well below the state’s legal limit of .08, and a urine test confirmed those results.

Middletown, Conn, Sept 22: ……Sebastian Giuliano, the mayor?s Republican contender in the upcoming election, said democratic elected officials "should have known better" when they called the arrest an "abuse of police powers" and "dirty politics." Giuliano excused the mayor?s comments against the police department as "an emotional response," but he added: "It?s unfortunate that she attacked her own police department."

MADD Director Janice Heggie Margolis defended the police Wednesday. Margolis said Mothers Against Drunk Driving fully supports Off. Glenn Morron, who made the arrest. Morron received a MADD award in 2001, she said, for "officers who go above and beyond the call of duty" in apprehending drunk drivers. Margolis cautioned that even small doses of alcohol, such as the mayor?s one glass of wine, may affect driving safety.

(Thanks to Richard Diamond and William Maze.)

In previous posts I’ve commented upon the ineffectiveness of DUI roadblocks. Yet, MADD continues to demand more and more of these wastes of law enforcement resources. Now this story:

Statistics spark debate on whether DUI checkpoints work

STOCKTON, Sept. 18 — Recently released federal data has prompted a beverage industry group to declare checkpoints ineffective and to push for more resources to be spent on patrols to prevent people from drinking and driving.

The National Highway Traffic and Safety Administration in August released data on alcohol-related deaths in 2003 and 2004. Last year saw a decline in fatalities, and most of the drop occurred in states that don’t use sobriety checkpoints. That led the American Beverage Institute, a Washington, D.C.-based restaurant industry group, to proclaim checkpoints as an ineffective method in preventing alcohol fatalities.

"There were 411 fewer deaths in 2004, 394 of which were in nonroadblock states," said John Doyle, executive director of ABI. "It’s a startling finding when you look at it through that filter."

California is one of 39 states that use checkpoints to prevent and catch drunken drivers. It also had 14 more fatalities in 2004 than 2003. All 11 states that don’t use checkpoints — among them Oregon and Washington — reported a decrease in alcohol-related deaths….

"Checkpoints are successful, because they get the word out," said Officer Bill Sivley, a spokesman for Stockton CHP, adding that officers often give out informational pamphlets to motorists. "We will never know how many people were deterred from drinking and driving because of them."

Let’s see….DUI roadblocks don’t work — they may even increase fatalities — but we should have more of them because they "get the word out"?

First off, I don’t defend drunk drivers:  I defend citizens who have been accused of being drunk drivers.  And no, that is not a technicality — at least not in this country.  Not yet.

But it always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly when it’s DUI.  Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist in this rush to judgment, of being nefarious and somehow unethical.  Certainly, every defense attorney tires of the ubiquitous cocktail party question:  “How can you defend guilty people?” 

The answer to that question is complex, involving issues of possible innocence, inaccurate or false evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest. 

One of the better answers, however, was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.  To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, someone you love will be arrested and charged with a criminal  offense.  That person may or may not be innocent, but on that day you will pray that he or she is defended against the overwhelming forces of the government by a lone attorney.

If that doesn’t do it, read To Kill a Mockingbird one more time.

A few weeks ago, I posted about a practice apparently originating in Utah but spreading to other states: police officers using hypodermic needles to draw blood from DUI suspects — often on the highway. As the following local news story indicates, the practice continues to gain momentum:

Texas Police Will Take Blood By Force in DUI Cases

After completing a training course, Dalworthington Gardens police officers have been certified to draw blood from any motorist whom they suspect of driving under the influence of alcohol.

The small North Texas city joins three counties — Montague, Archer and Clay — which have recently adopted similar policies. These jurisdictions are seeking to make drunk driving convictions less vulnerable to court challenge as mounting evidence shows breathalyzer machines can be inaccurate…

Section 724.017 of the Texas code requires that, "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer….’qualified technician’ does not include emergency medical services personnel." Dalworthington Gardens believes their twenty-hour course meets this standard.

The Texas law permitting only physicians, technicians, chemists or nurses to draw blood seems fairly clear. But then, of course, we’re dealing with the "DUI Exception" here…. Incidentally, did you catch that one little phrase in the story? The one about "mounting evidence shows breathalyzer machines can be inaccurate"?…..(When I read that, I had a flashback to the scene from Casablanca where the police captain, pocketing his winnings, says to the Nazi officer, "I am shocked, shocked, that gambling is going on at Rick’s Place!".)

The Drug Enforcement Administration is apparently experiencing some nostalgia for the good old days of Prohibition, as evidenced by the following from their official Just Think Twice website:

A word about prohibition: lots of you hear the argument that alcohol prohibition failed—so why are drugs still illegal? Prohibition did work. Alcohol consumption was reduced by almost 60% and incidents of liver cirrhosis and deaths from this disease dropped dramatically (Scientific American, 1996, by David Musto). Today, alcohol consumption is over three times greater than during the Prohibition years. Alcohol use is legal, except for kids under 21, and it causes major problems, especially in drunk driving accidents.

MADD is not alone….

(Thanks to Scott Henson of Austin, Texas.)

In a classic illustration of how the legal system works in DUI cases, the Montana Supreme Court just ruled that results of handheld breath devices used by officers in the field are admissible in evidence — after years of ruling that they were unreliable and inadmissible:

In a 5-2 vote the Montana Supreme Court decided Tuesday to allow a preliminary breath test for alcohol consumption to be used as evidence.

The case of State of Montana versus David Damon involved a DUI stop in 2002 in which a preliminary breath test (PBT) was conducted on Damon…The case was appealed by Damon who argued the District Court “abused its discretion” in concluding the PBT was reliable…

This was not the first time the PBT has come up before the Montana Supreme Court. Throughout the written opinion three cases are cited. In all three cases the court found against the PBT, specifically that the State did not provide enough evidence to prove the “statistical reliability” of the PBT….

Montana Supreme Court Justice Patricia O. Cotter wrote an 11 page dissent.
Citing previous court rulings, Cotter expressed her view.

“I am at a loss to understand why we feel so constrained to buck the well-reasoned national trend and admit these results as substantive evidence of guilt. Nothing has changed … to deem these machines magically more trustworthy than they were just a few months ago, or to justify this about-face in our jurisprudence,” Cotter wrote in conclusion of her remarks.

If rules get in the way of convictions, change them….