Archive for August, 2006

Do DUI Laws Discriminate Against Women?

Monday, August 14th, 2006

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".)

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The Bottom Line

Monday, August 7th, 2006

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.

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Mel Gibson…For the Last Time.

Friday, August 4th, 2006

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….

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State Prison for First-Offense DUIs?

Thursday, August 3rd, 2006

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.)

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Mel Gibson Guilty of….What?

Wednesday, August 2nd, 2006

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?

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