Archive for November, 2005

The Scarlet Letter Revisited

Monday, November 21st, 2005

Here we go again…..

Commentary: Perfect place for rap sheet:Back of a car

Palm Beach Post, Nov. 20.  What a great idea! Let's criminalize state license plates.

I'm referring to the creative bill filed this month by State Sen. Mike Fasano, R-New Port Richey, that would require convicted drunken drivers to change their license plates to pink ones with the first three characters being DUI….The bill would also allow police officers to "stop any vehicle that bears a DUI plate without probable cause to check the driver."

Unfortunately, Fasano's bill doesn't go further, failing to come up with the requirement for pink blinking lights around the plate for night driving and with color schemes for other crimes that might require the use of a car.

What color license plate should a convicted burglar be forced to use?

Not green. Green should be saved for the bank robbers, who nearly always require a getaway vehicle.

You can also argue that men accused of soliciting prostitutes from their vehicles should also get their own license plate, as a convenience to both future girlfriends and undercover decoy officers. Maybe these drivers wouldn't get their own color, but their license plates could be wrapped in latex and begin with the letters JOHN.

Although that may lead to other drivers to think that the driver is just emphasizing his love for a particular Bible verse….

The choice of pink for drunken drivers is bound to lead to confusion among other drivers who would associate the color with breast cancer awareness and ultimately lead to them to wonder if the driver's drinking problem may be health-related….

The American Civil Liberties Union, understandably, is opposed to this motorized version of Hester Prynne's scarlet letter A. The civil liberties group thinks it will only cause undue ridicule and harassment to drivers who have already been punished for their actions.

All that may be needed is a compromise: To allow the DUI drivers to customize their specialty plate by permitting them to pair it up with another existing specialty plate, and to pick their own vanity number-letter combination to go along with the DUI letters on the plate.

So you might have a drunken driver with a plate that's only half pink, with the other half being Save the Manatees or University of Florida, and the plate reading DUI R U or EZ 2B DUI or maybe even DUI UV U.

There appear to be a few sane folks left.


Police Using Pre-Written DUI Reports

Thursday, November 17th, 2005

An increasing number of police officers are using pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest.

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff's deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It's the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it's there whether the suspect's blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn't smell right," said DUI defense attorney Stu Hyman. "It's a sad state of affairs when somebody hasn't even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn't it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff's office has computer DUI templates. The deputy testified, "I've been told people use them. I just choose not to."

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time. (Years ago, I used to get a court order for copies of an arresting officer's DUI reports for the previous 30 days; when the reports became an embarrassment, the Orange County (California) D.A.'s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.)


Are “Field Sobriety Tests” Valid?

Wednesday, November 16th, 2005

Has the media finally stopped buying into the propaganda from MADD and begun independently investigating the truth? Following a recent story in the Washington Post critical of Washington DC’s "zero tolerance" laws, now comes another another Post story openly questioning the validity of "field sobriety tests" — a validity which I’ve repeatedly challenged on this blog (see, for example, "Field Sobriety Tests: Designed for Failure").

DUI Hokeypokey

Police, Lawyers And Scientists Engage in a Clumsy Dance Over the Merits Of Roadside Sobriety Tests

November 15. Stand up! Heels together. Toes out. Hands at your sides. Raise the leg of your choice right in front of you, six inches off the ground, leg straight, toe pointed. Keep your eyes on your raised toe and begin counting aloud from 1,001 until I say stop. Do you understand? Begin. One thousand one. One thousand two . . Keep going

Some dark night on the side of the road, police lights flashing in your peripheral vision, your freedom may depend on how well you do this. Did you sway? Raise your arms for balance? How about hop? Or put your foot down? If you did any two, a police officer will conclude with 65 percent accuracy, as stipulated in the prevailing science of inebriation diagnostics, that you may be too drunk to drive.

And if you bent your leg, stared straight ahead instead of at your foot or began before I said so, you may be in trouble. Police officers are taught that people under the influence of alcohol don’t follow directions well. If you made it through 30 seconds ramrod straight, congratulations! You may not be drunk. This is the one-leg stand — OLS in cop-speak. It is one of the three scientifically researched standardized field sobriety tests, blessed by the National Highway Traffic Safety Administration, that officers call "the holy grail" and give on the side of the road to help them decide whether to make a drunk driving arrest….

The one-leg stand has its skeptics and its court challenges, and plenty of them, but, according to NHTSA, the test is "easily performed by most unimpaired people." Oh, really? On a recent sunny afternoon in Dupont Circle, Franklin Urena, 32, a waiter at Chevy’s, couldn’t do it. "I have flat feet," he explained as he started hopping at the count of 1,021. His friend, Henry Van Dyke, 50, didn’t make it past the count of 1,003. "Maybe if I had a glass of wine I could do better because I wouldn’t be so self-conscious," he said. "I have no coordination."

Christine Ju, Elisa Catalano and Justin Sullivan, all in their early thirties, balanced well but didn’t follow directions. "What an absurd test," sniffed Catalano, a yoga teacher. In a completely unscientific test of 14 random people, five passed, seven failed and two were judgment calls — one because he counted quickly in Italian and the other because it was unclear whether her wobbles would count as a sway….

So hundreds of thousands of drivers have been arrested — no doubt many deservedly so — on the basis of a 30-year-old study [by Marcelline Burns] that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol…..

Some forensic psychologists and, understandably, a slew of DWI defense attorneys have been assiduously picking apart Burns’s research on the standardized field sobriety tests for years….Troll the Internet, and you will quickly find disparaging reports with titles like "Field Sobriety Tests: Designed for Failure"…. But she is unmoved. "We’re now 30 years past the development of the test. They’re widely used by police officers. Why would they use them if they don’t help them make a proper decision?" she said. "These defense attorneys write all this stuff, but never once do they suggest an optional test. What do they want the officer to do? Toss a coin?"

Not at all, says Spurgeon Cole, a forensic scientist and consultant in Georgia who has been her chief nemesis in court and expert witness for the defense for years. But maybe videotapes in patrol cars, he argues, would help remove some of the subjectivity. "We have no idea how well a sober person can perform on the SFST [field tests]. How does age or gender affect performance? How does fatigue or practice affect performance?" he has written. "Without answers to these basic questions, the SFST remain in the same category as tarot cards."

Cole did his own study, administering the tests to 21 of his students at Clemson University in South Carolina — none of whom had had a drop of alcohol — and then showing the videotape of their performance to a group of officers. They officers reported they’d arrest nearly half the students. "And these people had absolutely zero to drink," Cole said in an interview. "These tests are absolutely worthless."

(Thanks to George Bianchi of Seattle.)


Nystagmus: A Fraudulent Field Sobriety Test?

Tuesday, November 15th, 2005

The critical part of any drunk driving investigation is the administration of the "field sobriety tests" (FSTs).  These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see "Field Sobriety Tests: Designed for Failure?").  Although there are many different tests (finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three "standardized" FSTs.  The most recently developed of these is horizontal gaze nystagmus (HGN), commonly known as the "eye test".  It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature.

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  (See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".)

A recent scientific study has now investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

Deliberate fraud.  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.




Booker, 144(3) Science and Justice 133-139 (2004).


The Hidden Dangers of “One for the Road”

Saturday, November 12th, 2005

In previous posts, I’ve explained many of the reasons why breathalyzers are inaccurate and unreliable.  See, for example, “Breathalyzers — and Why They Don’t Work”;  ”Warning: Breathalyzer in Use”;  ”Convicting the ‘Average’ DUI Suspect”;    “Why Breathalyzers Don’t Measure Alcohol”;  “Driving Under the Influence of… Gasoline?;  ”How to Fool the Breathalyzer”.  (These and many other sources of error are explained more fully in Chapter 6 of my book, Drunk Driving Defense, 5th edition.) 

One of the most common sources of error in breath alcohol analysis is simply testing the subject too early — while his or her body is still absorbing the alcohol.

Let’s take a common example.  At a restaurant Sarah shares a bottle of wine with a friend.  She nurses one glass over a one-hour dinner.  Nearing the end, another glass is poured from the bottle and she finishes this.  The two friends then order an after-dinner drink.  Noting the time, Sarah quickly finishes the drink and leaves.  She is stopped by the police one block from the restaurant.  After questioning and field sobriety tests, she is taken to a police station and tested on a breathalyzer.  The machine shows her blood alcohol concentration (BAC) to be .09% — over the legal limit.  She is booked for DUI and jailed.

Sarah’s true BAC, however, was much lower.  If a blood sample had been taken instead of a breath test, the results would have shown only .05% — well under the legal limit. 

Absorption of alcohol continues for anywhere from 45 minutes to two hours after drinking or even longer.  Peak absorption normally occurs within an hour; this can range from as little as 15 minutes to as much as two-and-a-half hours.  The presence of food in the stomach can delay this to as much as four hours, with two hours being common.

During this absorptive phase, the distribution of alcohol throughout the body is not uniform; uniformity of distribution — called equilibrium – will not occur until absoprtion is complete.  In other words, some parts of the body will have a higher blood alcohol concentration (BAC) than others.  One aspect of this non-uniformity is that the BAC in arterial blood will be higher than in veinous blood (laws generally require blood samples to be veinous).  During peak absorption arterial BAC can be as much as 60 percent higher than veinous.

This becomes very relevant to breath alcohol analysis because the alveolar sacs in the lungs are bathed by arterial blood, not veinous:  The diffusion of alcohol through the sacs and into the lung air will reflect the BAC of the body’s arterial blood.  Therefore, the breath sample obtained by the machine will be reflective of pulmonary BAC — which, during absorption, will be considerably higher than veinous BAC (and higher than the BAC in other parts of the body).

After extensive research, one of the most noted experts in the field of blood alcohol analysis has concluded:

Breath testing is not a reliable means of estimating a subject’s blood alcohol concentration during absorption…..

There is a significant likelihood that a given subject will be in the absorptive state when tested under field conditons.  Because of large differences in arterial BAC and veinous BAC during absorption, breath test results consistently overestimate the result that would be obtained from a blood test — by as much as 100% or more.  In order to have some idea of the reliability of a given breath test result, it is essential to determine by some objective means whether the subject is in the absorptive or post-absorptive state.  In the absence of such information, an appropriate value for the uncertainty associated with the absorptive state should be applied to all breath test results. 

Simpson, “Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State”, 33(6) Clinical Chemistry 753 (1987).

The most recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma, agrees with Simpson: “When a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain.”