DUI BLOG

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same.

You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds attempts to estimate blood alcohol levels when driving based upon breath/blood tests an hour later. Further, each of us has a different physiological response — tolerance — to alcohol.

An example of this human diversity can be seen in racial differences toward alcohol. The body of scientific literature seems to clearly indicate a racial — i.e., genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, “Alcohol Metabolism in American Indians and Whites”, 294 New England Journal of Medicine 9 (1976); Holzbacher, “Elimination of Ethanol in Humans”, 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., “Ethanol Metabolism in Various Racial Groups”, 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:

…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, “Ethnic Differences in Alcohol Sensitivity”, 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure.

If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups. The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction.

To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., “Alcohol Sensitivity and Ethnic Background”, 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese.

The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….

Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels by measuring breath, legal presumptions of intoxication based on blood-alcohol levels, and mathematical formulas and presumptions based upon uniform metabolism to estimate earlier levels when driving.

The problem with the intelligent discussion of legal and scientific issues when it comes to drunk driving is that there is none.  Any “discussion” is riddled with ignorance and emotion.

Let’s take an example from a few days ago:

DUI Cases May Hinge on Ruling

Columbus, Ohio.  A new ruling from Ohio’s Supreme Court could affect hundreds of drunk driving cases. The decision concerns where and how a suspect’s blood alcohol level is tested.

“It changed the playing field,” said Dan Huston of the Ohio Prosecuting Attorneys’ Association. “This was a system, a process in place and that system was essentially gutted by the Supreme Court in this particular case”.

The controversy is about blood taken and tested by hospitals in the most serious drunk driving accidents. Most hospitals are drawing the blood for medical testing. Their results – including blood alcohol levels – have long been used by prosecutors in court cases.  But most hospitals do not have state certification to test blood alcohol for law enforcement purposes.  So the court said those results are not admissible…

The ruling means dozens of cases already in the system are in jeopardy.

“These folks stand to walk away from these charges,” Huston said describing the worst case scenario. “More likely, there will be more pleas and reductions in sentence because a chunk of evidence will be lost”.

For now, prosecutors and law enforcement are taking extra steps to ensure they get admissible blood samples. But ultimately, the Ohio General Assembly may address the new legal loophole by changing the law to specify that hospital test results are acceptable for court cases.

Another damned “legal loophole”, right?  And now the whole “system” is “gutted”.  Or did the media maybe once again fail to investigate the facts?

The superficial fact is that the hospitals in question were simply not certified to analyze blood for alcohol.  But the real question should be: Will a blood sample analysis for alcohol concentration by a hospital give the same result as an analysis by a crime lab?

The answer: No.  The hospital analysis will show a falsely higher result.

From my book Drunk Driving Defense, 6th edition“:

Blood samples obtained in drunk driving cases are generally — but not always — analyzed as whole blood (sometimes called “legal blood”).  If the sample is analyzed for medical purposes, however, the test will probably be done with serum (often referred to as “medical blood”).  Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum.  A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called “supernatant” which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood?  In a study entitled “Distribution of Ethanol: Plasma to Whole Blood Ratios” (Hodgson and Shajani, 18 Forensic Science Journal 73, 1985), scientists attempted to determine the answer to this very question.  The conclusion:  Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant were about 5 percent higher….

For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, “Blood Alcohol Testing in the Clinical laboratories: Problems and Suggested Remedies”, 39(3) Clinical Chemistry 377 (1993).

 Another “legal loophole”….

Judging by the email, my post a couple of days ago “warning” about “MACED” (Mothers Against Caffeine-Enhanced Driving) was taken seriously by some. It was a spoof, folks. Social satire. Strictly tongue-in-cheek. (The news story is accurate, however: There really is a “Caffeine Awareness Council” and apparently there really are local governments eager to save us from “caffeine intoxication and dependency.”)

Me? I’m going to sit down with another cup of coffee and try to understand why so many people are constantly driven to save me from myself.

I have written repeatedly in the past about the prevailing presumption of guilt that prevails in drunk driving cases (see “Whatever Happended to the Presumption of Innocence?”). One example of this is the automatic driver’s license suspension (see “Due Process and Automatic License Suspensions”), where among other things the arresting officer acts as judge, jury and executioner in arresting the suspect, seizing his license and issuing a formal notice of suspension. (Note: this occurs even if a blood rather than breath test is given, so there will be no test result from the lab for days; it is presumed that the driver is guilty — over .08% — and it is also presumed that there will eventually be evidence to show it.)

The following news story simply reflects the latest in a long list of examples of “The DUI Exception to the Constitution“:

California Institutes New Penalties for Drunk Drivers

Sacramento, Calif. — Drivers committing a repeat drunk-driving offense in California have their vehicles seized under existing state law, but it doesn’t happen until after they are convicted. Under a new law to take effect Sunday, drivers in California can lose their cars upon arrest — before they are convicted — if they have committed a drunk driving offense in the previous decade…. The new rules are intended to teach drunk drivers a strict lesson after an offense occurs and to deter impaired motorists from getting behind the wheel.

I wonder what it teaches those who are innocent — who have not been given a chance to defend themselves? Or do the police now never make mistakes? And when did we start punishing folks first, then later mumbling “Sorry” if they’re found not guilty?

Well, it looks like the folks who brought us Prohibition and MADD are at it again:

City of Shaker Heights, Ohio ( Jan 17, 2006 ) — Following a health trend that appears to be brewing up all over the nation, Mayor Judith Rawson has signed a proclamation for the City of Shaker Heights that addresses the issues regarding caffeine intoxication and dependency.

In the proclamation the Mayor is “calling upon all Shaker Heights citizens, public and private institutions, business and schools to increase awareness and understanding of the consequences of caffeine consumption.”…

City of Shaker Heights is one of several cities across the country recognizing this annual event. This will be the third year for this event which is sponsored by the Caffeine Awareness Alliance, a non-profit organization.  Marina Kushner, founder, states, “Each year more and more people are waking up to the real truth about the dangers of this ubiquitous drug. We are delighted that the mayor has recognized that this is not a laughing matter.”

Can MACED (Mothers Against Caffeine-Enhanced Driving) be far behind? 

(Thanks to Jeanne M. Pruett.)

In the continuing “war on drunk driving” and its damage to the Constitution, what new weapons will be tried? One, certainly, would be randomly pulling drivers over for no reason and forcing them to take breath tests. Sound far-etched? They’ve been doing it in Victoria, Australia, for years:

In response to the magnitude of the alcohol affected driving problem in Victoria in 1977, the Government of the day introduced random interception and testing of drivers for the presence of alcohol without the intercepting police being required to have any previous knowledge of any alcohol affect on that driver. This was the birth of Random Breath Testing as we now know it. The original objective of this legislation was to identify and prosecute all drivers found to have a B.A.C. over .05% and remove them from our roadways….

An investigation in 1987 throughout Australia on R.B.T. by Prof Ross Homel and others found that the apparent effectiveness of R.B.T. was due to its preventative capacities rather than the detection of offenders for which it was originally designed (Homel, Caseldine and Kearns, 1988). It is now accepted in Victoria that the true objective of R.B.T. is “to create a perception amongst the driving public that if they drink then drive, their apprehension is inevitable”. Whether that threat is real or otherwise is not the point, the key is whether the public believes it to be….

But this is America, you say. We have the Fourth Amendment, which prevents police from stopping you without probable cause to believe you have commited a crime. Then why do we have DUI roadblocks? Because the U.S. Supreme Court ruled 5-4 in Michigan v. Sitz that stops without warrant or suspicion was “justified” by the severity of the drunk driving problem (also known as “The DUI Exception to the Constitution”).

When MADD discovers random breath testing (followed inevitably by politicians falling over themselves passing laws to accommodate them), do you really think the Court will take a different view?

(Interestingly, the Irish are considering random breath testing, but the proposed law is considered unlikely to pass because it appears to be a violation of their constitution’s proportionality provision: laws cannot be “excessively powerful in proportion to the objectives they are meant to achieve”. Not a bad concept for this country — but it would mean the end of DUI roadblocks, among many other things.)

(Thanks to Richard Diamond for the Australia information.)

Many of you are aware of the latest craze in the War on Drunk Driving: anonymous phone calls to the police whereby you can report your ex-wife is driving drunk (see my earlier post, “How to Get Your ex-Spouse: The Anonymous Tip”). All such calls, we are assured in public service announcements, will be investigated — that is, your ex-wife will be pulled over and subjected to field sobriety tests.

So how is this new investigative tool working out?

“Drunk Busters” Hotline Got 280 Calls, Leading to No Arrest

New Mexico, January 14. It has been around three weeks, but the DrunkBusters hotline hasn’t yet helped catch a single drunk driver.

State police said Friday evening that 280 people have called the hotline, 1-877-DWI-HALT, to report suspected drunk drivers. But all those calls have led to no arrests ‘ despite the fact that around 18,000 people were arrested for DWI in 2005, the state’s DWI Czar Rachel O’Connor said in December.

Funny, it worked finding witches in Salem….

(Thanks to Jeanne M. Pruitt of RIDL.)

The latest weapon in the War on Drunk Driving:

‘DUI Wolf-Pack’ Releases Results of Hunt

Pinellas County, Florida. January 15 - Deputies with the Pinellas County Sheriff’s Department “DUI Wolf-Pack” released results from the weekend’s “You Drink and Drive, You Lose” campaign.

Deputies from the Sheriff’s Office Traffic Enforcement Unit, and K-9 Unit, were looking for alcohol and drug impaired drivers…

You drink and drive, you lose….a leg.

Farmington Attorney Arrested; Blood-Alcohol Level 0.02

FARMINGTON, N.M. (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…

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.”

Mr. Titus happens to be a criminal defense attorney who defends clients charged with DUI in Farmington.  The police would never abuse their authority, of course; no doubt entirely a coincidence and DUI arrests for .02% are commonplace.

The DUI dragnet continues to widen as police, prosecutors and judges try to find newer and more novel ways to get drunk driving convictions:

Judge orders jail time for ‘pocket bike’ DWI

Patterson, NJ. A Wayne man was sentenced Friday to jail time and hefty fines for taking a drunken spin on his nephew’s “pocket bike” – a miniature motorcycle that sits less than a foot off the ground. But George Kaiser’s lawyer, Joseph Afflitto Jr., said he will file an appeal, arguing that the little bike “is nothing more than a toy” and should not be considered a motor vehicle…. Kaiser had purchased the bike in 2004 for his 13-year-old nephew. The $150 gift is less than 3 feet long, and Kaiser asserted that it doesn’t exceed 20 mph… In his written opinion, Caposela pointed to cases from other states where drivers who drove golf carts drunk were subject to DWI penalties.

Not to mention bicycles, lawn mowers, wheelchairs, scooters and even horses.