DUI BLOG

When a citizen is booked for drunk driving, his driver’s license is confiscated by the officer and a notice of immediate suspension from the state’s Department of Motor Vehicles is handed to him. The officer is judge, jury and executioner; there is no presumption of innocence. The only remedy available to the citizen is to request an administrative hearing before the state’s DMV — the very agency which is trying to suspend the license. (See my earlier post, “Due Process and the Automatic License Suspension”.)

Periodically, however, some conscientious judge decides that maybe due process (which is just a legal word for “fairness”) before the DMV isn’t all that it should be:

FORT LAUDERDALE, FL. February 25 – Marcie Wyrobeck graduated from the Philadelphia College of Art and worked in sales and for an arts and crafts store. She had no formal legal training. Yet, for nearly a decade, she was a state hearing officer who decided the appeals of people whose drivers licenses were suspended in drunken-driving cases. When a difficult legal question came up in one of those hearings, Wyrobeck said she and other Department of Highway Safety and Motor Vehicles hearing officers – some with only high school educations – routinely asked the agency’s lawyers for advice about how to rule. Now a judge in Broward County has ruled that allowing hearing officers like Wyrobeck to consult on legal issues with the department’s own attorneys violates the fundamental constitutional rights of defendants in drunken-driving cases. “How can the specter of actual conflict, much less the appearance of conflict, not raise its ugly head?” said Broward County Circuit Judge J. Leonard Fleet in his ruling late last year. Wyrobeck, who now consults for DUI defense lawyers, said the conflict is obvious: “It’s like being the judge and the prosecutor at the same time.”

Shoot, here in California it’s not like the judge is the prosecutor: the judge is the prosecutor. That’s right, the “prosecutor” at a DUI suspension hearing is a high school graduate and DMV employee who sits as the judge and decides whether his employer or the citizen wins. This individual, who has never read the Evidence Code, will make objections to the citizen’s evidence — and then rule on his own objection (and they don’t call anyone for legal advice). Want to cross-examine the officer? You have to subpoena him yourself — and pay his salary. Does the hearing officer have a conscience? Too many decisions against the DMV and he’s reassigned to more mundane duties.

Due process.

Circadian rhythm is the term used to describe the cyclical phenomenon commonly known as “the body’s internal clock”. The human body experiences regular physiological changes over a period of roughly 24 hours (some researchers claim a 25-hour period): body temperature, sleep, hormonal and mineral levels, physical coordination, emotional state, mental acuity, etc.

Various studies have concluded that a part of this rhythmic change involves the capacity of the body to absorb alcohol. One study, for example, compared subjects consuming alcohol at 10:00am and 10:00pm, and found that the morning consumption resulted in earlier and higher peak concentrations of blood-alcohol. Lakatua, et al., “Observations on the Pharmacokinetics of Ethanol”, Ann. Rev. Chronopharmacology 297 (1985).

One of the top blood-alcohol testing experts in the field, Professor Kurt Dubowski of the University of Oklahoma, has confirmed that the time of day when an alcoholic drink is consumed may affect both the absorption rate and the peak concentration time (time and quantity). Dubowski, “Absorption, Distribution and Elimination of Alcohol”, 10 J. Stud. Alcohol 98 (1985).

Obviously, the recognized effects of circadian rhythm add yet another variable to any attempts to estimate blood-alcohol levels when driving based upon blood-alcohol levels when tested. (See my earlier post, “Rising Blood-Alcohol Levels in DUI Cases”.)

As I mentioned in an earlier post, “Why Breathalyzers Don’t Measure Alcohol”, breath machines are actually designed to report the presence of any compound containing the methyl group in its molecular structure, not just alcohol. They cannot distinguish the difference between alcohol and, say, acetaldehyde.

Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol moving from the blood into the lungs has been found to metabolize there as well — and, thus, to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs varies from person to person. However, scientists have found one interesting fact: acetaldehyde concentrations in the lungs of smokers are greater than for non-smokers — far greater. Translated: smokers are more likely to have falsely high readings on a Breathalyzer. “Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking”, 100 Journal of Laboratory Clinical Medicine 908.

End result: because breathalyzers can’t tell the difference between alcohol and acetaldehyde, a higher blood-alcohol reading. And if you are a smoker, a much higher reading. (Note: Some manufacturers of breath machines, such as the Intoxilyzer 5000, began offering an option some time ago: an “acetaldehyde detector”. Few law enforcement agencies have chosen to purchase the option.)

The next time you have a couple of drinks and think about throwing down a preventive aspirin or two, consider that research has determined this might elevate your blood-alcohol level above the legal limit:

Aspirin increases blood alcohol concentrations in
humans after ingestion of ethanol

Gastric first-pass metabolism of ethanol is an important determinant of blood alcohol concentrations. We studied five healthy volunteers after ingestion of ethanol (0.3 g/kg of body weight) and found that blood alcohol concentrations in the fed state (ie, 1 hour after a standard breakfast) were significantly higher when the subjects received 1 g of aspirin 1 hour before ingestion of ethanol than without the drug. In vitro, aspirin clearly decreased the activity of gastric alcohol dehydrogenase in human subjects…Thus, aspirin may increase the bioavailability of ingested ethanol in humans, possibly by reducing ethanol oxidation by gastric alcohol dehydrogenase.

Abstract from R. Roine, R. T. Gentry, R. Hernandez-Munoz, E. Baraona and C. S. Lieber, “Aspirin Increases Blood Alcohol Concentrations in Humans After Ingestion of Alcohol”,   264 (1) Journal of the American Medical Association (November 14, 1990). 

(Thanks to Chuck Laroue.)

Bryan is presently facing criminal charges for driving under the influence of alcohol. Except that he wasn’t under the influence of alcohol.

Bryan had one drink after work and was stopped at a DUI sobriety checkpoint on the way home. The officer smelled the alcohol on his breath and asked Bryan to step out of the car to take some field sobriety tests. He did fairly well on the tests but, just to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .12%.

Bryan was arrested for DUI, handcuffed and taken to jail; his license was immediately confiscated and he was served with a notice of automatic suspension. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Bryan have only consumed one beer but registered .12% on the machine?

Well, to begin with, breath machines (commonly referred to as “Breathalyzers”, although there are many competing makes and models) are notoriously inaccurate and unreliable (see “How Breathalyzers Work — and Why They Don’t”). Calibration, maintenance, malfunctions and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being non-specific for alcohol — that is, they don’t actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as “alcohol” (see “Why Brethalyzers Don’t Measure Alcohol”.)

Yet another recurring problem is mouth alcohol. What is “mouth alcohol” — and how could this have caused Bryan’s false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines — see “Convicting the Average Person”).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Bryan’s mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Bryan is facing DUI charges.

So what was alcohol doing in Bryan’s mouth or throat? Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Bryan had “one for the road” just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Bryan may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus.

But what actually happened was that Bryan suffers from a very common condition: GERD, or gastroesophageal reflux disease. This causes acid reflux, often experienced as heartburn. Acid reflux is sometimes caused by a hiatal hernia – damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Bryan is now ordered to breathe into the machine’s mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Bryan’s case, an “innocent” reading of perhaps .02% became a “guilty” .12%.

Result: Bryan lost his driver’s license….and now has to try to prove his innocence in court. Prove his innocence? Aren’t we presumed innocent in America? Here we have the notorious “DUI exception to the Constitution” again. Strangely, Bryan is not presumed to be innocent as we all thought: almost all state laws legally presume a person is under the influence of alcohol if if the machine’s reading is .08% or higher.

Yes, we have a system where citizens are convicted by a machine….A very fallible machine.

This isn’t about DUI, but about our failing criminal justice system generally — and the rare willingness of one court to recognize it. 

In November 1987, Joni Goldyn opened checking and savings accounts with the Nevada Federal Credit Union, which promptly gave her a $500 line of credit and a check guarantee card.  Goldyn used up the funds in her account and most of the line of credit, but continued writing checks which were accepted by merchants.  The credit union continued covering her checks, as the check guarantee card obligated it to. As the credit union’s collection officer testified at trial: “If a member uses a check guarantee card with the check, the bank is liable, and we do have to honor those checks.”  Goldyn was convicted by a jury of five counts of writing bad checks. Because of her prior record, the judge gave her five life sentences.

On appeal, the Nevada Supreme Court unanimously affirmed the conviction and sentence.  After twelve years in prison, she was released and placed on lifetime parole.  She filed a writ of habeus corpus with the federal court, again arguing the obvious:  the checks were good because they were covered by her line of credit.  If the credit union was obligated to cover them, she argued, then they can sue her but she can’t have written bad checks.

A few days ago, the U.S. Court of Appeals (9th Circuit) granted the writ and reversed the conviction.  In its published opinion (Goldyn v. Hayes, No. 04-17338; February 1, 2006), the Court abandoned the unwritten never-speak-ill-of-another-judge rule:

No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law.  And no rational judicial system would have upheld her conviction.  We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute…

Had the Nevada courts and prosecutor’s office taken more seriously their “obligation to serve the cause of justice,” United States v. Agurs (cite), Goldyn would not have spent twelve years behind bars for conduct that is not a crime.

The Court added:

Because we are granting Goldyn’s habeas petition for the reasons expressed above, we do not consider her numerous other claims, some of which raise similarly significant issues that cast further doubt on the state’s commitment to the pursuit of justice in this case.

(Thanks to Manny Daskal of Eureka, CA.)

In “Why Breathalyzers Don’t Measure Alcohol”, I mentioned one of the many reliability problems breath machines have: they falsely report any of thousands of chemical compounds as “alcohol”. 

Scientific studies have clearly proven this defect, a problem referred to as non-specificity. “Driving Under the Influence of…Gasoline?” presented a practical example of one such compound. But is gasoline the only chemical product that has been proven to falsely register as alcohol on these machines?

Far from it. See, for example, “The Response of the Intoxilyzer 4011AS to a Number of Possible Interfering Substances”, 35(4) Journal of Forensic Sciences 797, where researchers found numerous common substances which were falsely reported by breathalyzers as alcohol — including methyl ethyl ketone, which is used in lacquers, paint removers, cements, adhesives, celluloid and cleaning fluids. Another compound, toluene, also caused false high readings and is commonly used in paints, lacquers, varnishes and glues. Another is isopropanol, commonly known as rubbing alcohol. Fumes from these chemicals can be inhaled or absorbed through the skin.

In an interesting scientific study, researchers performed tests on a professional painter who was exposed to lacquer fumes under controlled conditions. In the first test, he sprayed paint in a room for 20 minutes, wearing a protective mask; his blood and breath were then tested. Although the blood test showed no presence of alcohol, a breath machine (Intoxilyzer 5000) indicated a reading of .075% blood-alcohol concentration –very close to the legal limit of .08%. “Lacquer Fumes and the Intoxilyzer”, 12 Journal of Analytical Toxicology 168.

Yet another scientific study discovered that diethyl ether, found in some plastics and automotive products, can be inhaled and detected by breathalyzers as “alcohol”. “Diethyl Ether Interference with Infrared Breath Analysis”, 16 Journal of Analytical Toxicology (1992).

The researchers concluded that “the possibility of interference with an alcohol reading by ether or by other substances may therefore render prosecution more difficult if not impossible.”

Folks who have read my post “Why Breathalyzers Don’t Measure Alcohol” seem quite surprised to find out these DUI machines are not as reliable as MADD and law enforcement agencies would have us believe.

In fact, the manufacturers of these things refuse to even warrant them to do what they’re supposed to: accurately measure blood-alcohol levels (see “Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?”).

So how reliable are these “breathalyzers” that determine a person’s guilt or innocence in DUI cases? And just what DO they measure if not alcohol?

Well, thousands of different chemical compounds, according to scientists — anything that contains the methyl group in its molecular structure. Gasoline for one.

Consider an article appearing on the front page of the Spokane Spokesman-Review (August 24, 1988), in which a person sitting in jail awaiting trial for DUI claimed that he had nothing to drink. He said he had run out of gas and had been siphoning gasoline from a container into his tank before being stopped by the officer and arrested. In siphoning, he had sucked on the hose to get it started and accidentally swallowed a small amount of the gasoline. He claimed that this must have caused the later high breathalyzer reading. The individual finally talked the sheriff into a demonstration to prove his story.

Taken from his cell after one week of incarceration, he swallowed a cup of unleaded gasoline and then blew into the breath machine (an Intoximeter 3000). The results? After 5 minutes, the reading was .00%…..after 10 minutes, .04%……after 20 minutes, the Intoximeter registered .31%…..and after one hour, the reading was .28%. Even after three hours, the person still blew a .24% on the machine — three times the legal limit! (A quick call from the sheriff to a local gasoline distributor confirmed that gasoline contains no alcohol.)

This was not a freak occurrence. The results have been scientifically verified in a study conducted by CMI, Inc., the manufacturer of a competing breath machine, the Intoxilyzer 5000, and reported in 8(3) Drinking/Driving Law Letter 6. CMI technicians mixed a simulator solution of 800 micrograms of gasoline with 500 milliliters of distilled water, then introduced it into their own machine. The solution produced readings of .619%, .631% and .635% — or about eight times the legal limit for “alcohol” levels.

You don’t have to drink gasoline to get a reading on the breathalyzer. Breathing the fumes will do it. Like the next time you’re filling up at a gas pump…

With more than a little federal coercion, all states have now passed laws making it a criminal offense to drive with .08% alcohol  in your blood. And most people suspected of violating that law are given breath tests to determine their blood-alcohol concentration (BAC). The breathalyzer will take a small sample of the suspect’s breath and estimate how much alcohol is in it — and, then, estimate how much may be in the blood. And what that machine says is pretty much the end of it. There will be no second tests. There will be no cross-examination of the machine.

Just how accurate and reliable are these machines that we have permitted them to become judge and jury?

To begin with, scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01% in the reading. That means that if everything is working perfectly (an unlikely scenario), a .10% breathalyzer test result can be anywhere from .09% to .11%. This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal.Rptr. 366 (California) and Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska);  in State v. Boehmer, 613 P.2d 916 (Hawaii), the courts have recognized an even larger .0165% inherent error).

What does that tell us about the accuracy of these breathalyzers? Well, let’s again take a test result of .10%. Taking inherent error into consideration — and assuming the machine was working perfectly, the officer administers the test correctly, and the suspect’s physiology is normal and perfectly average — the true BAC could be anywhere from .09% to .11%. In other words, the true BAC can be 10% in either direction — or, put another way, anywhere within a 20% margin of error.

These machines have a 20% margin of error?

That’s right. A person accused of driving with over .08% BAC can be convicted by a machine which, if everything else is perfect, has a built-in 20% margin of error. Would you be comfortable with an airline pilot who worked with a 20% range of error? A brain surgeon?  A bank teller?  How about the evidence in a criminal case where guilt must be proven beyond a reasonable doubt?

But it gets worse….

Most states have standards for breath testing. Although some states only provide for a single breath test, most require that two breath tests be given — and the results must be within a given range.  In North Carolina, for example, there must be two test results within any group of three which fall within .02% of one another; if they are .10, .07 and .13, for example, the officer must start over.  In California, the officer can continue giving tests for as long as it takes until he gets two consecutive results within .02%; results of .15, .10 and .12, for example, would be a valid result.

Think about that for a moment.  Let’s take that California example.  The officer gets a .10% reading on a test.  What must the result of the next test  to be acceptable?  Well, it can be .08, .09, .10, .11 or .12 — that is, anywhere between .08% and .12%.

In other words, the acceptable range of error is 40%!  And based entirely upon this, a defendant can be convicted of driving with over .08% blood-alcohol — and legally presumed guilty of the separate offense of driving under the influence.

In a country where the legal standard is “proof beyond a reasonable doubt”, the legal standard in drunk driving cases is “proof within a 40% range of error”.

Close enough for government work. 

I’ve commented about police and prosecutors constantly stretching the language of drunk driving laws to ensnare more citizens — for example, including wheelchairs, bicycles, lawn mowers and even horses within the definition of a “vehicle”. Are skateboards next? Where does it end? With more laws, apparently:

Horses, Bikes May Be DUI-Free

Pierre, South Dakota – Intoxicated South Dakotans should be able to ride horses or bikes home from bars without fear of being arrested for drunken driving, legislators decided Wednesday. The House Transportation Committee voted 10-1 for a bill to exempt horses and bikes from the statutory definition of vehicles, sending HB1190 to the House floor…

(Thanks to Jeanne Pruett.)