DUI BLOG

As readers of this blog know, I’ve railed long and hard about the inaccuracy and unreliability of breath testing machines — and the unquestioning reverence in which they are held. Now consider this latest news story:

Holding Breath Tests Accountable

Houston, October 26. One night last December, a Houston man drove away from a downtown bar and had an accident. After taking a breath test, he joined 98,000 other Texans charged that year with driving while intoxicated.

The case’s outcome was far from routine, however.

In September, a judge threw out the charge after a defense lawyer raised questions about not only the scientific integrity of the machine that gauges sobriety, but about the state’s breath-alcohol testing program, too.

Those questions ? sparked by the discovery that Texas disregards the manufacturer’s guidelines for operating the machine ? potentially could affect thousands of cases throughout the state as authorities and defense lawyers debate the credibility of breath tests.

Attorney Troy McKinney argued in a Harris County court last month that the program lacks adequate quality controls for calibrating breath-test devices, which compute a DWI suspect’s breath-alcohol level….

McKinney became suspicious after looking at the Intoxilyzer 5000, the machine used throughout Texas in a DWI program overseen by the state Department of Public Safety. He said records indicated the machine in his client’s case was operated with its voltage meter registering a current outside that recommended by the manufacturer, CMI Inc. of Owensboro, Ky.

Questioned about the discrepancy in a hearing without the jury present, HPD breath test training chief Rick Viser, who also performs maintenance on the machines, testified that DPS guidelines on an acceptable voltage range for the Intoxilyzer differ from the manufacturer’s ? although he could not say exactly how.

Viser, who has a bachelor of science degree in biology from Prairie View A&M University, declined to speak with the Chronicle for this story. He took on more responsibilities in the HPD breath test program after the October 2003 ouster of Pauline Louie, who retired after being suspended as head of the crime lab’s toxicology division, which tests blood and urine for alcohol and drugs.

Do you really believe that massive failures to properly maintain, calibrate and administer breath tests are limited to Texas?

As I have discussed at length in earlier posts, the eventual goal of Mothers Against Drunk Driving has long been the restablishment of Prohibition — and, until then, "zero tolerance" (no measurable alcohol) for anyone driving a vehicle. This was reflected in the press release for their recent 2005 "Nationwide Labor Day Crackdown on Drunk Driving", announcing the slogan, "You Drink, You Drive, You Lose" (not "You Drink Too Much, You Drive, You Lose").

In the face of the national attention — and ridicule — which Washington DC’s zero tolerance laws have attracted, however, MADD appears to be back-pedaling. Patrick O’Connor, president of Northern Virginia’s MADD chapter, responded to the apparent backlash:

"MADD’s position is that you should drink responsibly and if you feel you’re impaired, you should not drive," he said. "It’s not MADD’s position that if you have a glass of wine you shouldn’t get into a car."

Contrast this with previous statements from the national presidents of MADD:

"Forget limits on BAC. It’s just not acceptable to drink and drive, period." – Wendy Hamilton, immediate past President of MADD. "Lowering the legal [arrest] standard will be a deterrent for light drinkers as well as heavy drinkers. There is no safe blood alcohol level, and for that reason, responsible drinking and driving means no drinking and driving." – Katherine Prescott, past President of MADD "If you choose to drink, you should never drive. We will not tolerate drinking and driving — period." – Karolyn Nunnallee, past President of MADD

Police and prosecutors, in their zeal to raise drunk driving arrest and conviction rates, are continually looking for new and creative ways to interpret the laws.  The law requires that the person was actually driving — and so sitting in a parked car or even sleeping becomes "driving".  The law requires evidence that the accused drove a vehicle — so bicycles, wheelchairs, lawnmowers, and even horses become "vehicles".  Sadly, many courts have gone along with these deceits.

The law also requires that the person be over .08% under the influence when he is driving – not an hour later when tested at the police station.  The problem is that it takes on average roughly an hour for the body to reach peak absorption of alcohol after consumption.  So, for example, if a suspect has "one for the road", the drink will not be fully absorbed into his blood for an hour or so:  He may have had a blood-alcohol concentration (BAC) of .06% at the time he was pulled over, but .09% an hour later when tested on the machine.  (Another recurring problem is the driver who has a drink or two after driving.)

The laws of most states requires the taking of the test to be within two or three hours (depending on the state) after driving to be admissible.  It does not, however, change the law:  the prosecution must still show what the BAC was at the time of driving.  This is usually done through rebuttable presumptions and/or retrograde extrapolation — a fancy term for estimating earlier BAC levels based upon average rates of absorption and elimination.

As they have done in other areas of DUI litigation, however, prosecutors like to see how far they can go.  Result:  Convictions for having BACs over .08% at the time of testing, with no evidence of BAC when driving.  Every once in awhile, though, a court decides that enough is enough:

State Supreme Court Overturns DUI Conviction

Lexington (AP) — A Kentucky Supreme Court ruling now gives drunk drivers room to question blood-alcohol tests that are narrowly above the legal limit.

Friday the court unanimously overturned the ruling of a Lexington man, who was convicted of driving under the infuence.  Nelson Lopez was charged with a DUI on October 11th, 2002, and blew a 0.08 blood-alcohol level about an hour after his arrest.

The court says county prosecutors wrongly argued that it didn’t matter what his blood-alcohol level was when he was driving, as long as Lopez’s level measured above the legal limit of 0.08 within two hours of his leaving the car….

Why does it take the Supreme Court to explain to prosecutors that driving under the influence means driving under the influence?  And whatever happened to prosecutors whose concern was justice rather than winning convictions?

(All of which reminds me of an old joke when I was a deputy D.A.:  "Anyone can convict a guilty person: It takes skill to convict an innocent one".)

The latest in the continuing saga of Washington’s “zero tolerance” drunk driving laws:

D.C. Council Votes to Ease No-Tolerance DUI Law

Business Needs Cited; Mayor Faults Proposal

Washington Post, October 19 The D.C. Council voted yesterday to relax the city’s “zero tolerance” drunken driving law, which allows drivers to be prosecuted for minimal amounts of alcohol in the bloodstream.

D.C. law gives police the authority to arrest drivers with blood alcohol levels above .01 but below .08, the level at which a driver is considered legally intoxicated in the District.

The council voted 9 to 3 for emergency legislation under which drivers with less than .05 blood alcohol would be presumed to be not intoxicated. Mayor Anthony A. Williams (D), who called the bill “hastily written,'’ has 10 days to decide whether to veto it.

Council members introduced the measure after news reports highlighted cases in which drivers were arrested after drinking as little as a glass of wine. Members said they were worried about a drop-off in business for District bars and restaurants and concerned that the city’s law was becoming a national joke….

Members said they are concerned that the story was making headlines across the country and portraying the District as the last refuge of Prohibition….

“D.C. is once again open for business,” said council member Carol Schwartz (R-At Large), principal author of the legislation. She said visitors “can come in and have a glass of wine and not be harassed or intimidated.”

Again, I find it interesting (but not surprising) that there was little or no concern about the injustice of arresting and prosecuting obviously sober people for “drunk driving”. The reasons for the change in law are clear from the headlines: “Business Needs Cited”.

The recent reaction to the flap about Washington D.C.’s "zero tolerance" laws has prompted a flurry of public protest, political back-pedaling — and the predictably rigid police response:

Council Hastens To Revise DUI Law

Washington Post, October 15   D.C. Council members, swamped with irate calls and threats to boycott D.C. bars and restaurants, introduced emergency legislation yesterday that would override the police department’s controversial and little-known zero-tolerance policy for drinking and driving.

Council member Jack Evans (D-Ward 2), who represents Georgetown, said he has been bombarded with calls from restaurants, bars and constituents asking, "What kind of lunacy is this?"

  
D.C. Chief Defends Officers’ Judgments in DUI Arrests

Washington Post, October 14   D.C. Police Chief Charles H. Ramsey yesterday defended officers who arrest drivers with blood alcohol levels below the legal limit, and amid growing criticism of the department’s "zero tolerance" policy, he insisted that officers continue to be able to use their discretion.

One officer who has made such arrests, Dennis Fair, said D.C. law gave him the authority to arrest drivers with as little as a .01 blood alcohol level. "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C," Fair said in an interview. "We have zero tolerance."…

Ramsey said he does not use the term "zero tolerance."

After 35 years of prosecuting and defending, I still have difficulty understanding the law enforcement mentality. 

I’ve written about the increasing trend of cash-strapped local governments to treat drunk driving cases as a revenue-producing machine. The danger, of course, is that more pressure is put on law enforcement to make more DUI arrests — valid or not. This recent news story from Illinois is another clear example:

Drinking, Driving Could Cost More

With major capital projects on the horizon, Hoffman Estates may turn to drunken drivers for additional revenue, following the lead of communities such as Arlington Heights, Buffalo Grove, Hanover Park and Rolling Meadows.

Beginning next year, drunken drivers may have to cough up an additional $500 if they get pinched on village streets. With DUI arrests in Hoffman Estates fluctuating between 300 and 500 annually over the last four years, the village could garner an extra $150,000 to $250,000. That’s on top of a $100 per DUI arrest fee that the state remits annually to local arresting agencies across Illinois.In Arlington Heights, Buffalo Grove and other communities, the DUI surcharge is tacked on as an impound fee. Following a DUI arrest, the driver must first hand over $500 before getting the vehicle back.

But because of the numerous fees faced by those charged with DUI, the law has its critics. Donald Ramsell, a Wheaton attorney who specializes in defending DUI cases, said the new law is not only unfair, but also illegal. "The whole thing is a joke. First off, they hold the car hostage for $500," he said. "Secondly, if the person who is arrested, in many cases, challenges the fee, the police chief is the one who conducts an independent review of whether or not the arrest was lawful. How independent is that?"

"After legal fees of anywhere between $5,000 and $10,000, court-mandated counseling fees of $1,000 to $2,000, other miscellaneous fees of $2,500, a state DUI technology surcharge and court costs and fees of $3,500, a first-time offender can easily pay $15,000 to $20,000 after getting being arrested for DUI", Ramsell said.

"It’s an unfair hardship," Ramsell said. "But people arrested for DUIs aren’t too popular in the eyes of the public. I think more and more communities are going to be paying the bills with DUI arrests."Citing it as a possible source of general fund revenues, Hoffman Estates Village Manager Jim Norris introduced the DUI surcharge last week. The Village Board will likely discuss it next month. The village, which is currently reviewing its 2006 budget, is seeking new revenue streams as officials consider a growing list of capital expenses including neglected road improvements, a new police station and the relocation of at least one fire station. The tab for all three is about $32 million. (Emphasis added.)

Need more money? Make more arrests….Drunk driving: The "new revenue stream".

Following up on yesterday’s post about Washington D.C.’s "zero tolerance" law:

Critics Say District’s DUI Policy Goes Too Far

Jailing Drivers for 1 Drink Called Wasting Resources

Washington Post, October 13. Officials with organizations that lobby for safe roads and tough drunken driving laws yesterday criticized the District’s zero-tolerance policy toward drinking and driving, saying that they’d never heard of it and that limited police resources should be devoted to those more obviously drunk.

Even D.C. Council member Carol Schwartz (R-At Large), who has sponsored legislation to lower the legal limit for drunken driving, said she was not aware that police officers are arresting drivers who have as little as .01 percent blood alcohol content — less than from drinking a glass of wine or beer — in their systems. Nor did she think that such a policy was a good idea….

But never underestimate the religious zeal of police and prosecutors:

Elizabeth Wingo, chief of the criminal section in the D.C. Attorney General’s Office, said her office prosecutes cases regardless of blood alcohol level, as long as there is sufficient evidence of impairment "We have zero tolerance for drunk driving. It doesn’t matter what your blood alcohol level is," Wingo said. "If you blow .02 and officers can tell you’re impaired, you’ll be arrested for DUI."

(I can still remember when, as a prosecutor so many years ago, my legal duty was to seek justice — not to defend the police regardless of the truth.)

In past posts I’ve commented on MADD’s apparent shift from drunk driving prevention to resurrecting the failed experiment of Prohibition.  This has been seen in their successful political pressure resulting in lowering of blood-alcohol levels from .10% to .08%, then in some situations to .05%, and finally to .01% for drivers under 21.  This was more recently followed by MADD’s formal rewording of their ”mission statement” – from a focus on drunk driving to underage drinking. 

The next logical step in the march toward Prohibition, of course, is to outlaw driving by adults with any alcohol at all in their system — regardless of any impairment or danger to the public…..

Single Glass of Wine Immerses Driver in Legal Battle

Washington Post, October 12    Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

As D.C. police officer Dennis Fair, who arrested Bolton on May 15, put it in an interview recently: “If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance. . . . Anything above .01, we can arrest.”

Neither the police department nor the attorney general’s office keeps detailed records of how many people with low blood alcohol levels are arrested. But last year, according to police records, 321 people were arrested for driving under the influence with blood alcohol levels below the legal limit of .08. In 2003, 409 people were arrested….

On the department’s Web site, D.C. police explain it this way: “Technically, according to the D.C. Code, the District of Columbia has a zero tolerance for driving under the influence. If a person 21 years of age or older has a blood alcohol concentration of .02 percent [to] .04 percent and extremely bad driving, this person can be placed under arrest for Driving Under the Influence of an alcoholic beverage.”

At low levels of alcohol, an arrest comes down to an officer’s discretion, said D.C. police Inspector Patrick Burke, former head of the traffic division….

How can a person be “under the influence” with only .03% blood-alcohol?  When did forgetting to turn on your headlights constitute “extremely bad driving”?  And since when does the existence of a crime depend upon an “officer’s discretion”?

And what is MADD’s next step?

How do you get more convictions in DUI cases?  Easy: just tell judges to find more people guilty…..

Conviction rates for DWI increase statewide

CHARLOTTE, The Associated Press – Statewide convictions for driving while intoxicated have jumped in the year since a newspaper series spotlighted the acquittal of thousands of defendants who tested over the state’s blood alcohol limit.

The August 2004 series by The Charlotte Observer showed North Carolina judges acquitted more than a third of defendants who went to trial after testing over the state-mandated limit of 0.08 percent

Since then, the statewide conviction rate has risen from 63 percent to 71 percent, The Observer reported Tuesday.

The paper’s reporting last year prompted Beverly Lake Jr., chief justice of the state Supreme Court, to send a memo to the state’s chief District Court judges instructing them not to make prosecutors’ burden of proof in DWI cases more difficult than the law requires….

"When the chief justice says .08 means you’re guilty … that’ll make the judges think twice about acquitting somebody," (attorney George) Laughrun said….

In Wake County, the DWI trial conviction rate nearly tripled from 17 percent to 50 percent, The Observer said.  In Mecklenburg County, the lineup of judges hearing DWI cases changed. The judge with the county’s lowest conviction rate, Jerome Leonard, stopped hearing cases….

Cheryl Jones, head of the Charlotte region’s Mothers Against Drunk Driving chapter, said the changes are "amazing."  "It is going to make our roads safer because a number of people who are convicted will get the message," she said.

As any attorney will tell you, ordering judges "not to make prosecutors’ burden of proof in DWI cases more difficult than the law requires" is not-so-subtle legalese for "Convict more defendants".  (How do you make the burden more difficult than proof beyond a reasonable doubt?)

It looks like the judiciary has decided to ignore irritating "technicalities" like the presumption of innocence and proof beyond a reasonable doubt, not to mention the accuracy and reliability of evidence in individual cases, and simply adopt the police strategy of using quotas.  And if a judge’s DUI conviction rate isn’t up to production standards, he doesn’t preside over any more cases.  Kind of like an assembly line.

Your independent judiciary at work.

Getting convictions in the ongoing "War on Drunk Driving" depends upon the public’s faith in blood-alcohol evidence — particularly in the so-called "breathalyzers". And over the 35 years or so that I’ve prosecuted and then defended, prosecutors have always represented them to juries as deadly accurate and fail-safe — no matter what make or model the breath machine. State of the art.

Yet, I’ve noticed an interesting phenomenon….. The manufacturers keep changing them.

A whole lot of years ago, when I was dealing with the grandaddy of the "modern" breath machines, the Breathalyzer 900, these devices were presented to juries as ushering in a new age of highly accurate breath-alcohol analysis. And which scientific laboratory developed and manufactured these scientific wonders? Smith and Wesson. Yes, the manufacturer of that marvel of science, the six-shooter. And, of course, there were endless problems with these machines, so Smith and Wesson modified it and offered the model 900A. Which continued to have problems, so S&W developed the Breathalyzer 900B — followed by the new, improved, "state of the art" and now truly foolproof Breathalyzer 1000. Which turned out to be less reliable than the 900. Of course, this led to the model 1100, followed by the absolutely-no-fooling-state-of-the-art Breathalyzer 2000. Which eventually led to Smith and Wesson finally throwing up their hands and selling out to a German company, Draeger. (Incidentally, the old Breathalyzer 900s are still being used by some police departments today.)

Meanwhile, other corporations had smelled the government money. A new player, Omicron Systems, came out with a machine to compete with the Breathalyzer: the Intoxilyzer. Omicron then sold out to CMI, Inc., which produced the Intoxilyzer 4011 — offered as a vast improvement over the Breathalyzers. This model, like the Breathalyzer, was followed by a series of modifications and improvements (models 4011A, 4011AR, 4011AS, et al.) and, of course, finally by ditching the machine for their new, ultimate machine: the Intoxilyzer 5000. Truly state of the art. Except it wasn’t. So back to the drawing board — and the latest model, the Intoxilyzer 8000. Which, jurors are again assured, is completely reliable and deadly accurate — until the next improved version.