DUI BLOG

The following is from a presiding justice’s dissenting opinion in a Pennsylvania appellate decision affirming a DUI conviction:

I must vigorously dissent from the well-written opinion of the majority, as it seems we are coming perilously close to turning a blind eye to questionable conduct by our police officers. While I acknowledge that our police officers are charged with the awesome and sometimes onerous responsibility of protecting the public, I cannot sanction the whisperings of the majority that that protection comes at the deprivation of the constitutional rights of citizenship. We do not want a police state, and it seems we are on the precipice of becoming one, in the name of DUI. I suggest that the Court, and the police, can ill afford to sanction this type of conduct.

(Emphasis added.) Fortunately, the Pennsylvania Supreme Court reversed this lower court ruling a few days ago and, in so doing, agreed with the dissenting justice’s comments. Comes the dawn?

(Thanks to Fred Slone and Troy McKinney.)

In most DUI investigations, the main evidence in determining whether there is probable cause to arrest is a battery of "field sobriety tests". Of course, if the officer administers the test incorrectly (as is commonly the case), the results are invalid — and an innocent person may be arrested.

So what is the correct way to give the tests and interpret them?

It’s all laid out online (pdf) in the 165-page DWI Detection and Standardized Field Sobriety Testing Student Manual (2004 edition), published by the National Highway Traffic Safety Administration (USDOT) and widely used for training by law enforcement agencies nationwide. Read it and understand why few officers do it right.

(Thanks to Doug Hazelton.)

For those of you who have concluded that DUI laws cannot get any more Draconian:

It’s Now Easier To Buy A Shotgun In NC Than A Keg Of Beer

RALEIGH, NC. August 23 — In the state’s continuing war against the consumption of alcohol, North Carolina Governor Mike Easley signed a new law on Monday that will not only make it harder to buy kegs of beer, but will also diminish the legal rights of defendants to challenge illegally or incorrectly obtained evidence by the state in regards to driving under the influence charges.

The new law also makes it a crime to have any alcohol in the system of anyone under 21 years of age and allows police officers to demand a chemical test of citizens under 21, whether or not they are driving a vehicle… In addition, the new laws will allow police officers to charge drivers operating a vehicle with a DUI offense even if they are on private property and even if the business is closed. Previously, only those drivers that were on "public" roadways or areas open to the public fell under the domain of DUI laws.

Furthermore, the new laws also allows police officers to introduce tests from field breathalyzers as evidence, as opposed to the more accurate machine breathalyzer tests that are usually done at police headquarters or police stations. In the past, those more accurate automated tests were usually used as evidence in DUI cases instead of the field breathalyzer units…

Apparently, accuracy of blood alcohol evidence is no longer a priority — nor is the Constitution. And in the "Kegs don’t kill people, people kill people" department:

Strangely enough, in North Carolina, an 18 year old citizen may purchase a shotgun or long rifle without a permit, but under the new law that takes effect in December, no one — not even those over 21 — in North Carolina will be able to buy a keg of beer without a permit…

Can Prohibition be far behind? (Thanks to Dr. David J. Hanson and David R. Teddy, Esq.)

Many of my posts have been about the incaccuracy of breath machines used in DUI cases (for example, “How Breathalyzers Work — and Why They Don’t”.) But just how accurate do they have to be? What’s so special about measuring alcohol?

Well, consider the amazingly tiny amount of alcohol these small machines are trying to measure, and the need for extreme precision becomes apparent — a precision which simply cannot be found in these police-operated devices.

Let’s assume that a breathalyzer reading is .10%. This means that the suspect’s blood contained .10 grams of alcohol in 100 milliliters (cubic centimeters) of blood, or .001 grams per cubic centimeter of blood. A typical breath machine such as an Intoxilyzer 5000 captures 50 cubic centimeters of the suspect’s blood. Applying Henry’s Law, this means that the equivalent of 1/40th of a cubic centimeter of blood is represented by this breath sample. Since a cubic centimeter contains 20 drops, we can say that 1/40th of a cubic centimeter contains half a drop.

Assuming a .10% reading, then, the machine is attempting to measure five one-hundredths of one percent of a drop of alcohol — an amount invisible to the naked eye!

To express this graphically, imagine a 55-gallon drum filled with water. This represents about the same capacity as 210 liters of breath — the volume used by law in determining breath-blood analysis. Then imagine taking an eyedropper with only one-tenth of a gram of alcohol in it, and adding this tiny amount into the drum. Now imagine trying to measure the amount of alcohol in the 55-gallon drum. Now try it with a machine maintained, calibrated and operated by cops…..a machine that may not even be warranted by its manufacturer to measure alcohol (see “Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?”).

The government calls this “proof beyond a reasonable doubt”.

Yet another DUI officer conducting "field research" (see "Hypocrisy and the War on Drunk Driving"):

Florida Police DUI Instructor Arrested for Drunk Driving

Plantation. South Florida Sun-Sentinal — A veteran officer and police academy DUI instructor was driving drunk, naked from the waist down, and speeding on Florida’s Turnpike at 90 mph when she was pulled over by an Orange County Sheriff’s deputy on the night of Dec. 9, according to a Plantation Police Internal Affairs report released this week. She had a large open bottle of Southern Comfort in her car, which her attorney later argued was used to train police recruits…

(Thanks to Willam C. Head of Atlanta.)

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are guilty. It does not matter, of course, whether you are a man or a women: the laws do not discriminate. Maybe they should…

Researchers at the University School of Medicine in Trieste, Italy, found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less than men. To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much; with weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists’ conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, "High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism", 322(2) New England Journal of Medicine 95 (1990).

Yet another study has found that women have lower partition ratios of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person’s breath. But the what we really want to know is the amount of alcohol in the person’s blood. So how do we get that? Simple: a small computer in the Breathalyzer multiplies the amount of alcohol it detects in the breath sample by 2100 times. This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath. (Note: that’s an average — but it varies from person to person.)

According to the study, women have a significantly lower partition ratio. Jones, "Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma", Analytical Toxicology 193 (July/August 1983). And the lower the ratio, the higher the reading — even though the true BAC does not vary. Example: a woman with a true BAC of .06% and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09% — above the legal limit.

Put another way, the breath machine will show an average man accused of drunk driving to be innocent — but a woman with the same blood alcohol level to be guilty.

And then there’s the problem of birth control….

Scientists in Canada have found that "women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S." Papple, "The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman, 15(1) Canadian Society of Forensic Science Journal 17 (1982). That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one hour later.

Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases. So what? Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don’t really measure alcohol, rather they measure any compound which contains the "methyl group" in its molecular structure. And acetaldehyde is one of these compounds. Result: a higher "blood alcohol" reading on the breathalyzer. Jeavons and Zeiner, "Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans", 8(4) Alcoholism: Clinical and Experimental Research 352 (1984).

It’s always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same. (See "Convicting the ‘Average’ DUI Suspect".)

I’ve commented in past posts ("How to Make a Million in the DUI Business", "DUI Roadblocks for Fun and Profit") about the increasing reliance of local governments on DUI arrests to raise revenue — and the resulting pressure on police to make those arrests (valid or otherwise). Consider this recent news story from Auburn, New York:

New York: DUI Program Desperate for Cash

Cayuga County, New York’s anti-drunk driving program generated $250,000 in profit in 2001 and funded expenditures for extra radar guns, equipment for the sheriff’s department and police salaries. This year, however, arrests are down by a third over 2005, and the program is struggling to maintain the same level of revenue generation. There have been 98 arrests through May this year compared to 135 in the same period last year. The lack of arrests has caused budget problems…

Somehow, I expect DUI arrests to increase dramatically in Cayuga County. Justice versus profit…. Tough call.

The current media feeding frenzy with Mr. Gibson continues, until the next celebrity fall-from-grace comes along…

After having given several interviews to the media, it is apparent to me that the reporters were primarily focused on the sensational aspects of the case rather than the relevant facts. So let me just try to cut through it:

1. Ignoring the celebrity status of the arrestee and the outrageous comments, this is basically a garden variety DUI: a dead-average blood alcohol concentration (.12%), no accident, no priors (a 20-year-old Toronto DUI was dismissed) — in other words, the average client who walks through my firm’s door. Nothing special…so far.

2. The usual sentence in Malibu Court for a first-offense DUI with a normal-range blood-alcohol level, with no accident and no priors or other “enhancements” (factors which trigger additional penalties) is a fine, 3-month DUI school, license suspension and probation; community service is a possibility. In other words, no jail.

3. No, Mr. Gibson is not required to appear at his September arraignment; his attorney can appear for him.

4. No, this case will never go to trial. Mr. Gibson has repeatedly given indications of his intentions, and has retained a celebrity damage-control attorney rather than a DUI specialist.

5. As I indicated in a post a couple of days ago, the sexist and anti-semitic remarks are deplorable but not illegal: he should not be thrown in jail simply because of his comments.

6. The celebrity status should, of course, be a non-factor in the likely event of sentencing: Mr. Gibson should receive no favorable treatment, nor should he be “made an example of”. I am quite familiar with Malibu Court, and fully expect the judge there will treat him as any other defendant.

So the police and prosecutors have shown Mr. Gibson no special treatment? I didn’t say that:

1. After booking Mr. Gibson and releasing him, the L.A. County Sheriff’s Department gave him a ride to the impound yard to recover his vehicle. In representing thousands of DUI clients over the years, I have never had a client encounter such consideration and hospitality.

2. The Sheriffs advised the media that Mr. Gibson had been required to post bail of $5000; the L.A. County District Attorney’s Office later admitted that he was released on his own recognizance (that is, no bail). While it is not unusual for a first-offense DUI arrestee to be released “O.R.”, it is unusual for the Sheriffs to claim otherwise.

3. In my firm’s experience, it takes a few weeks for a complaint to be filed by the D.A., but in Mr. Gibson’s case it was done in a few days.

All of which is rather petty. However…The fact is that there are a couple of more disturbing factors:

4. The arresting officer’s initial report was apparently later “cleaned up”: the arresting deputy was ordered to re-write it with the more outrageous comments and conduct excised. This is not standard operating procedure for the Sheriffs or any other law enforcement agency.

5. Mr. Gibson was allegedly travelling at over 80 mph in a 45 mph zone when pulled over. This is not good…

I mentioned “enhancements” which can increase penalties in DUI cases. One of those is the “speed enhancement”, which consists of driving at least 30 mph over the limit on a highway or 20 mph on a street. Consequences? If proven or admitted, the enhancement carries an automatic 60-day jail sentence.

Clearly, Mr. Gibson qualifies for this enhancement. And just as clearly, the D.A. did not file that enhancement with the criminal complaint. Why not?

To clarify: the D.A. has the authority to file any charges he deems fit, including any enhancements. If he chooses for whatever reason not to file a charge or an enhancement, then legally it does not exist and Mr. Gibson cannot be punished for it.

So Mr. Gibson got special treatment from the L.A. District Attorney?

Maybe. On the other hand, it may well be a strategic move. Sometimes, a prosecutor will purposely not file an enhancement if he wants to “motivate” a defendant and his attorney to plead guilty as charged rather than go to trial. Since the D.A. is free to amend the criminal complaint at any time up to trial by adding the enhancement, it hangs above the defendant’s head like the “Sword of Damocles”: go to trial and we amend the complaint and you face an added 60 days in jail. On the other hand, you can accomplish the same thing by filing the enhancement and then later offering to strike it in exchange for a plea; it looks better for the D.A., though, if it doesn’t appear to the media like he’s giving up anything.

So you can come to your own conclusions. End of interview….

A ”misdemeanor”, such as petty theft or DUI, is punishable by up to one year in county jail; a “felony”, such as murder or rape, is punishable by imprisonment in state prison for one year or more.  To elevate DUI to felony status normally requires either serious injury or death or a history of prior convictions.  In the latest stage of MADD’s War on Drunk Driving, however, that appears to be changing:

Drink, Drive and Pay

McHenry County, Illinois.  Aug. 1 -  As of this year, it is easier to be charged with felony drunken driving than ever before.

In one change in the DUI laws, now even a first-time drunken-driving arrest can result in a felony charge in certain situations, and some defense attorneys think it is targeting the wrong people.

If someone is arrested for drunken driving and does not have valid insurance or a valid driver’s license, he or she can face a felony charge, said prosecutors and Illinois secretary of state representatives…

Under Illinois’ new DUI law, then, a first offender with a .08% blood alcohol level who has neglected to renew his car insurance, for example, can be sent to prison for a year or longer — along with his fellow murderers, rapists and drug dealers.

The MADDness continues.

(Thanks to Jeanne Pruett.)

I gave an interview a couple of days ago to a reporter from a national news magazine.  He wanted to know, among other things, whether Mr. Gibson would get favorable treatment, whether he should be made an example of, and what kind of a jail sentence would probably be given; the issue of guilt was, apparently, not of interest.

I responded that the judges in Malibu Court were relatively fair and, unlike many others, would give him neither favorable treatment nor would they "make an example" of him.  Then what kind of a jail sentence would he likely get, the reporter wanted to know.  Well, that can’t be predicted with certainty, but in my experience a first offender in Malibu with a .12% blood-alcohol and no prior conviction (Mr. Gibson’s arrest in Toronto was 20 years ago and, in any event, was dismissed) would probably not get any jail time; he would basically get a fine, DUI school, suspended license and probation.  Certainly, his apologies and voluntary submission to rehabilitation would weigh in his favor.

But what about the anti-semitic remark? the reported continued. And the sexist statement?

I was a bit taken aback by those queries.  Of what possible relevance are ignorant remarks to the issue of whether a suspect has .12% blood alcohol in his system?  I asked him what he meant.

Well, he replied, won’t there be some jail time for saying things like that?

I was slightly depressed for awhile after that interview.  But then, I thought, maybe this reporter wasn’t really expressing the prevailing view in this country.  Then this morning I read a news story on CNN’s website:

DA Considers Gibson DUI Charges

LOS ANGELES, August 1 (AP) — Sheriff’s Department officials sent prosecutors their drunken-driving case against Mel Gibson, including an official report that verifies the actor made anti-Semitic and sexist remarks, a law enforcement official said Monday…

The Sheriff’s Department, spokesman Steve Whitmore said, was "convinced because of our investigation and because of his own self-illuminating statement that he will be convicted of driving under the influence."

So not only should he do jail time for making a bigoted remark, but such a "self-illuminating statement" ensures a conviction?  Now, Mr. Gibson may well be guilty based upon the evidence, but when did we start convicting people and throwing them in jail for being prejudiced?  And who among us can truly say we are without prejudice?