Archive for February, 2006

U.S. Court of Appeals Slams Nevada Courts, Prosecutors

Friday, February 10th, 2006

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.)


Painting Can Cause High Breathalyzer Results

Tuesday, February 7th, 2006

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.”


High Breathalyzer Readings from Pumping Gas?

Sunday, February 5th, 2006

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…


How Accurate Are Breathalyzers?

Thursday, February 2nd, 2006

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. 


New Law: A Horse is not a Vehicle

Wednesday, February 1st, 2006

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.)