Archive for November, 2005

DUI Roadblocks Still Ineffective — and Lucrative

Wednesday, November 9th, 2005

In recent posts I've commented upon the ineffectiveness of roadblocks in apprehending drunk drivers — and the increasing tendency of local governments to use them as a thinly-veiled means for generating revenue from unrelated traffic, registration and equipment citations and towed vehicles.

Three drivers arrested at weekend DUI checkpoint

Stockton, CA, Nov. 7 — Police conducted a DUI checkpoint from 5 p.m. Saturday till 1 a.m. Sunday at Hammer Lane and El Dorado Street.Of the 1,744 vehicles that passed through, three drivers were arrested for driving under the influence, 28 vehicles were towed, and 36 citations were issued, according to the Stockton Police Department.

Final tally: 3 arrests…after stopping 1,744 cars over 8 hours (and pocketing a lot of money from minor violations and impound fees). (Thanks to Jeanne M. Pruett of RIDL.)

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“Zero Tolerance” Not Dead Yet

Tuesday, November 8th, 2005

I recently suggested that the backlash from Washington DC's "zero tolerance" laws (criminalizing driving with any measurable amount of alcohol in your blood) might be a light at the end of the tunnel. Maybe….but it just might be a very long tunnel. Some other recent reactions:

Man arrested with 0.02 blood-alcohol level

Farmington, NM November 4, AP –People can be prosecuted on drunken driving charges with a blood-alcohol content below the state's presumed level of intoxication of 0.08 percent. That's the word from Farmington police and District Attorney Lyndy Bennett….She says the blood-alcohol content is not an absolute. Farmington attorney Victor Titus was arrested this week on a charge of drunken driving after registering a blood-alcohol level of 0.02. The officer says he arrested Titus because the results of a breath test were not consistent with what he described as "observed impairment."

And this opinion piece the next day:

Boston Herald, November 5. It is time to separate fact from fiction about our drunken driving laws. It is time to stop deluding ourselves into believing that stricter penalties are the solution. It is also time to start promulgating laws that attack the core problem… The major problem with our existing laws is that it is legally permissible to have a drink or two or three and drive a car. Juries at drunk driving trials are actually instructed it is not against the law to drink alcohol and drive. It is only when the person is impaired or reaches the magical .08 blood alcohol level that he has committed a crime…. So what is the solution? Perhaps it is time to make it illegal to drink any alcohol and drive a car….

It would appear that MADD's objective of "zero tolerance" and an eventual return to Prohibition is far from dead.

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Florida Judges Order Breathalyzer Code Given to Defendants

Saturday, November 5th, 2005

Contrary to popular opinion, breathalyzers don’t just mechanically or chemically analyze and report the amount of alcohol in a breath sample. The machine is run by an internal computer — a computer which is, of course, controlled by software written by the manufacturer. This software determines everything about the operation of the machine — its setup, capture of breath sample, analysis, and even "interpretation" of the results. For example, the computer will multiply the amount of alcohol it has determined to be in the breath by a factor — usually 2100 — to get the amount in the blood.

This 2100 figure is based upon the partition ratio in the average human; the actual ratio varies widely from one person to another. This variance already lends itself to significant error in results, but what ratio was actually used in the software? Does the software program even comply with the government’s standards for breath analysis?

We don’t know — any more than we know anything else about how this particular machine’s software was designed to analyze and report breath alcohol — unless we have access to the software code. In other words, the amount of alcohol actually in the breath sample is meaningless if the software code causes the machine to analyze and report erroneously. GIGO, as the computer folks say: "Garbage In, Garbage Out". The problem is that manufacturers are unwilling to provide those codes — not even to the police or prosecutors.

Why? Their stock reply is protection of "trade secrets". This is patently ridiculous, of course: Any concerns can be addressed by a court order limiting access to the code to a defense expert witness. In any event, the manufacturer is capable of suing for any unlikely infringements.

The real reason for the secrecy is that manufacturers are afraid of having defects, inaccuracies and/or non-compliance in the code revealed. If a citizen is accused of driving with a blood-alcohol level of .08% of higher, the only real evidence is the machine’s reading. But for years, manufacturers have been successful in keeping those citizens from finding out whether their machines are accurate and reliable. Until recently….

Surprise court ruling threatens to nullify results of DUI tests

Venice, FL. November 4 – In a decision that could throw out the use of alcohol-breath test results in Sarasota County drunken-driving cases, a panel of judges ruled that defendants are entitled to inspect the source code of the breath-testing machine’s software, though the manufacturer has refused to divulge it.

Three Sarasota County judges surprised prosecutors Wednesday when they sided with Venice defense attorney Robert Harrison by giving the state 15 days to produce the machine’s source code for the defense. The catch: the Kentucky-based manufacturer, CMI Inc., has refused to turn over the code — the electronic instructions that drive the machine — calling it a trade secret…

The order, prosecutors say, threatens to nullify breath test results from the Intoxilyzer 5000, which police statewide use to measure whether a driver’s blood-alcohol content exceeds the .08 legal limit. Those results can often be one of the most damning pieces of evidence introduced in a DUI case… Attorneys close to the case expect the state’s attorney to appeal. In the meantime, police will continue to the use the test despite the deadlock over source code….

The ruling isn’t the first of its kind in Florida. Last November, judges in Seminole and Orange counties decided to exclude Intoxilyzer 5000 breath-test results from hundreds of cases. But judges in two other Florida counties have ruled otherwise, upholding prosecutors’ arguments that they can’t turn over something they do not possess and that the code itself is immaterial to the DUI cases. CMI refused to comment Thursday.

"Full information should include the software that runs the instrument," reads the order, signed by county judges David Denkin, Kimberly Bonner and Judy Goldman. "Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains …. nothing more than a ‘mystical machine’ used to establish an accused’s guilt."

The judges ruled that a look at the source code was material to the case, based on photographic evidence that showed visible differences in the arrangement and number of erasable and programmable memory chips inside Intoxylizers now in use throughout Sarasota County. An expert witness testified that without the source code, he would be unable to determine whether any changes or modifications had occurred.

"Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains …. nothing more than a ‘mystical machine’ used to establish an accused’s guilt." Finally.

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Turning a Corner on the MADDness?

Friday, November 4th, 2005

After all of these years, we may finally be turning the corner on years of MADD’s unchallenged zealotry. The recent backlash from Washington DC’s "zero tolerance" policy may have been the beginning — and is apparently fostering a more critical look at the "war on drunk driving". The following commentary, for example, questions the .08% standard as well as the efficacy and motives for DUI roadblocks (see my earlier posts "Roadblocks for Fun and Profit" and "How to Make a Million in the DUI Business"):

Lower DUI threshold more dangerous?

Washington DC, October 30 Kudos to the D.C. Council, which recently voted in favor of a resolution by Carol Schwartz, at-large Republican, to nix the District’s unjust "zero tolerance" policy of allowing police to arrest motorists who register any alcohol at all after stopping them for other offenses…

The larger problem, however, is the fact that since 2000, the federal government has mandated a blanket .08 legal threshold for the entire country. We’ve now had five years of data to measure the effectiveness of the .08 standard, and the data strongly suggest that not only is the standard too low, but the resources we’re expending to enforce it may actually be making our roadways more dangerous.

Here’s how: When President Clinton signed the .08 law in 2000, every state was forced to either comply with the law or give up millions of dollars in federal highway money. Critics at the time pointed to numerous studies showing that motorists aren’t significantly impaired at .08, and that in fact, most drunk driving fatalities occur at .15 or higher. Lowering the national standard from .10 to .08, then, was a bit like lowering the speed limit from 55 to 50 to catch motorists who zip along at 100 miles per hour.

In 1992, the Supreme Court gave its consent to random sobriety checkpoint roadblocks, despite conceding that they are probably a violation of the Fourth Amendment. Writing for the majority, Chief Justice William Rehnquist ruled that the threat to highway safety posed by drunk driving justifies suspending our constitutional protection from illegal search and seizure, as well as our Fifth Amendment right against self-incrimination. Drunk driving activists seized on the ruling and moved to employ roadblocks all over the country.

Critics of roadblocks and .08 predicted that (1) the lower standard would actually cause an increase in drunk driving deaths, as scarce law enforcement resources are diverted toward motorists who don’t pose a real threat to highway safety and away from the "hardcore" drunks that do; and (2) these roadblocks will be set up under the guise of drunk driving, but will in effect become little more than revenue generators, as police use them to issue citations for any number of less serious infractions.

Both predictions have proven true. From 2000 to 2003, drunk-driving deaths began to inch upward again, after two decades of decline…. People with a blood alcohol content (BAC) above .10 account for 77 percent of alcohol-related fatalities (the average drunk driving fatality involves a BAC of .17). In other words, motorists with very high blood alcohol levels account for an increasing percentage of highway fatalities, but a decreasing percentage of arrests.

Of course, the federal government still doesn’t get it. The top bullet point in the NTSB’s press release’s action agenda was to install yet more "frequent and statewide sobriety checkpoints."… Roadblocks have also turned into naked money-generators. A study of five Sacramento roadblocks found 22 suspected DUI arrests, but 315 citations and 215 vehicle confiscations for unrelated offenses. A newspaper account of a North Carolina roadblock reported 45 non-DWI offenses and just 3 suspected DWIs. A study of a recent San Diego roadblock found 1,169 stops, 27 citations, 10 vehicles impounded — and one DUI arrest.

Here in D.C., police have been criticized for keeping a database of personal information collected from all motorists stopped at roadblocks — even those accused of no infraction at all. Many police departments have grown so frustrated with the process that they’ve given up roadblocks altogether, as well as the federal funding that comes with them…

In the larger picture, Congress should revisit its blanket .08 standard. The evidence so far suggests that the lower threshold is not only targeting motorists who aren’t significantly impaired, it may well be making our roads more dangerous.

Finally, signs of politically incorrect intelligence in the media, along with the courage to challenge MADD’s evangelical crusade toward Prohibition.

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$ Million Verdict for Judge’s DUI Arrest

Wednesday, November 2nd, 2005

I’ve read a lot of commentary about the recent million-dollar verdict against a Colorado State Trooper for arresting a judge for DUI — most of it outraged. Let’s take a closer look….

Judge wins $1 million verdict against State Patrol trooper

Denver Post, October 29. A federal jury on Friday awarded a municipal judge from southern Colorado a $1 million verdict against a Colorado State Patrol trooper who arrested the judge on a drunken-driving charge in 2001.

The jury found the trooper did not have probable cause to arrest John S. Wilder for drunken driving and prohibited use of a weapon, and that he violated the judge’s civil rights. Jurors also found that Cpl. Kevin P. Turner was not entitled to qualified immunity.

Wilder, of Monte Vista, said he had offered to settle the lawsuit without a monetary award if arrest procedures were modified, an offer he said was refused…. When Wilder’s blood-alcohol content was tested, it was well below the limit that Colorado law defines as driving while impaired and the charges were dropped. The judge sued….

The initial reaction, of course, will be that this is a classic example of the courts running amuck, that the Trooper was just doing his job and got railroaded because the guy was a judge, that cops will stop arresting drunk drivers if they’re afraid of getting sued. But not so fast….. In this country, it’s a violation of a citizen’s civil rights to be arrested without probable cause to believe that he has committed a crime. So what was the probable cause to arrest the judge?

The case began on a November evening in 2001 when Turner stopped Wilder, a municipal judge in Monte Vista, for speeding. The trooper said Wilder’s breath smelled of alcohol and he had watery, pinkish eyes. The judge admitted he had consumed a glass of wine 10 minutes before being pulled over, according to court documents.

The trooper also saw an open, airline-size bottle of wine in the car, which was legal at the time. The judge told the officer he had a license to carry a concealed weapon and that there was a handgun in the car. Wilder initially refused a roadside sobriety test and was arrested. Because it is a misdemeanor in Colorado to have a gun while drunk, the judge also was charged with prohibited use of a weapon.

So, the Trooper’s evidence that the judge was intoxicated consisted of:

1. Watery, pinkish eyes; 2. Alcohol on the breath; and 3. The judge said he had a glass of wine 10 minutes earlier.

Is this sufficient to reasonably believe that he was inebriated? Of course not. You would expect an older person to have "watery, pinkish eyes", especially late at night. Alcohol on the breath tells us nothing but that there has probably been some consumption of alcohol at an earlier time. The statement about a glass of wine means little, other than explaining the odor of alcohol, and will hardly render someone intoxicated (in any event, the minimal alcohol involved had insufficient time to be absorbed into the blood stream). And, of course, the absence of field sobriety tests is immaterial: the judge not only had every right to decline the test, he probably realized from listening to DUI cases in his courtroom how unreliable these "tests" really are (see my earlier post, "Field Sobriety Tests: Designed for Failure?").

But what about the handgun? Easy: There is no probable cause to arrest if the gun’s possessor is not drunk — and watery eyes with an odor of alcohol is not "drunk". I’d say there was nothing anywhere near probable cause to arrest the judge, and the Trooper darned well knew it — but he also knew he had himself a bonafide trophy judge. I also find it interesting that the judge was not interested in the money: he offered to drop the lawsuit "if arrest procedures were modified". A million bucks seems a bit steep, but maybe some officers will get the message: you are not above the law. And if you don’t want to get sued, don’t arrest people who haven’t committed a crime.

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