Archive for September, 2005

DUI License Suspensions: Guilty Until Proven Innocent

Wednesday, September 7th, 2005

So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .11%, the officer confiscated your driver’s license and handed you an official document  notifying you that it was immediately suspended.

What happened? you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who either (1) has a .08% breath reading, (2) takes a blood test (which will be analyzed later), or (3) refuses to take any test. This means immediately: the license is grabbed at the police station and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is investigator, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?

Well, at first MADD and politicians interested in reelection decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol). They justified this by saying that a license was a privilege, not a right — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson  (402 U.S. 535) the Court acknowledged that the right to drive is initially a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away from a citizen without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)  And MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no highway funds

Do these APS hearings in DUI cases provide due process? In other words, how fair are they? 

Let’s take California’s APS hearings. They are conducted by a hearing officer. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s….well, the same guy. That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to any evidence offered by the defendant/licensee — and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings (although having a good attorney can reduce these odds to 70% or so).

That’s called "due process" in a drunk driving case.


Stretching the Language of DUI Laws

Monday, September 5th, 2005

It has long been a basic tenet of law that the language of criminal statutes must be reasonably interpreted, and if there is any ambiguity in that language the statute must be interpreted in favor of the defendant.  As the United States Supreme Court has clearly stated:

First, as we have recently reaffirmed, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”….This principle is founded on two policies that have long been part of our tradition. First, “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.”…Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.  (cites)  Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.  [Emphasis added.]  U.S. v. Bass, 404 U.S. 336 (1971).

Except, apparently, in drunk driving cases.  In yet another example of what I have repeatedly referred to as “the DUI exception to the Constitution”, police, prosecutors and judges continue stretching the language of drunk driving statutes to ludicrous extremes in their effort to encompass as many citizens in the DUI dragnet as possible.

Most states have statutes with language essentially similar to that of California:

It is unlawful for any person who is under the influence of any alcoholic beverage or drug…to drive a vehicle.

The meaning of “drive” would seem fairly clear to any reasonable person.  Yet, I have reported cases where citizens have been convicted of pushing the vehicle after running out of gas, of sitting in a parked car with the engine off, and even of sleeping in a parked vehicle.  In each case, judges have broadly interpeted the language of the DUI statute in favor of the prosecution.

Similarly, the word “vehicle” would seem fairly clear.  Yet, I have posted about cases where citizens were convicted of drunk driving on bicycles, lawn mowers, wheelchairs – and, yes, even horses.

Somehow, the words of Lewis Carroll keep coming to mind:

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”


How You Breath Into the Breathalyzer Affects the Results

Thursday, September 1st, 2005

As I’ve indicated with numerous examples in earlier posts, these breath machines which determine guilt or innocence in drunk driving cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example 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 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 breath alcohol test contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at him, “Breathe harder! Harder! Keep breathing until I tell you to stop!” 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, which will be richest in alcohol — giving a higher (but inaccurate) reading.