Archive for October, 2006

Dial-a-Drunk: DUI Vigilantes Are Watching You

Monday, October 30th, 2006

As I’ve mentioned in the past, MADD and local police have increasingly encouraged citizens to inform on anyone they think might be a drunk driver (see "How to Get Your ex-Spouse: the Anonymous Tip"). The latest development is to encourage them to report drivers who may not appear intoxicated but nevertheless have specific "signs":

Detecting Drunk Drivers

Oct. 22, AOL. According to the DWI detection guide put out by the U.S. Department of Transportation and its National Highway Traffic Safety Administration (NHTSA), there are many common, telltale signs that can help identify a drunk driver. Police departments and state patrols around the country use this guide to identify and stop potential drunk drivers before they cause accidents…

Some of these "signs" are spelled out, for example:

Speed and braking problems. Braking smoothly becomes a more difficult task for impaired drivers, so look for general problems with stopping, like jerkiness or stopping in too short or long of a distance than needed. Maintaining speed also becomes more challenging for drunk drivers, so also look for drivers that accelerate or decelerate quickly for no apparent reason, or drivers that are going more than ten miles per hour under the speed limit.

Judgment problems…. Examples of this is following another vehicle too closely, or making unsafe lane changes like cutting off other vehicles and appearing unaware of any problem…

In other words, if you see a driver who is not braking as quickly or as slowly as you would, who accelerates quickly, who cuts you off, who is following too closely, or who is just going too slowly, then:

If you see two or more of the above factors, the driver is probably drunk, and it’s your responsibility to save the lives of other drivers and alert the police…Get the license plate number and dial 911.

So the next time some old guy’s not driving and braking as fast as you’d like, or some jerk tailgates you and then cuts you off, don’t just sit there fuming: Dial 911. The guy’s obviously drunk, right?


Dieting Can Cause High Breathalyzer Results

Monday, October 23rd, 2006

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol: they actually measure the presence of a molecular group in compounds. Ethyl alcohol (aka ethanol) contains the group, and so when the machine detects its presence (or, more accurately, an infrared beam is absorbed by it), it simply assumes that the detected compound must be ethyl alcohol.

Problem: there are thousands of compounds containing the molecular group — of which well over one hundred have been found on the human breath. Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days. And I’ve posted in the past that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the group.

However, you do not need to be a diabetic to have high levels of acetone. Scientific research has established that acetone can exist in perfectly normal individuals at levels sufficient to cause false high breath-alcohol test readings. "Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985).

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone. Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds, so that a true breath alcohol of .03%, for example, would be reported by the machine as .09%). "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3 Alcohol, Drugs and Driving 1 (1987). And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that "mouth alcohol" and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.)

How reliable are breathalyzers? Not very (see "How Breathalyzers Work — and Why They Don’t" and "Close enough for government work"). As I’ve recently posted, there appears to be a growing trend toward letting officers draw blood themselves at the scene of arrest. Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….


Florida Admits Breathalyzers “Unreliable”

Friday, October 20th, 2006

In a rare moment of candor….

State Admits New Alcohol Breath

Tests Could Be Unreliable

ORLANDO, Fla.Channel 9 has learned there’s a glitch in the state’s new breath testing procedure.

An Orlando defense attorney first discovered the problem. During a state hearing Wednesday, the Florida Department of Law Enforcement’s inspector admitted that the results of several new machines are scientifically unreliable…

But these tests are completely reliable in your state, right? (Funny, the headline says could be unreliable, but the expert testified that they are unreliable.)

Why Do Police Destroy Breath Evidence in DUI Cases?

Wednesday, October 18th, 2006

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations….

What is the single most important piece of evidence in most drunk driving cases? The breathalyzer test, of course: it’s usually the only physical evidence — and the only evidence of any kind for the charge of driving with over .08% blood alcohol. (It’s pretty important for the "driving under the influence" charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher.) Evidence just doesn’t get more important than that.

So, naturally, the police are careful to preserve the breath sample, right? After all, there may later be some question of whether the machine was accurate; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that the test was properly administered and the results were from the defendant.

The fact is, the breath sample is routinely destroyed moments after it is tested. But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a "field crimper-indium encapsulation kit" was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today? The Trombetta case was appealed by the prosecution to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984). [emphasis added]

What? These two conditions are not obvious in a DUI case? Let’s take another look at the Supreme Court’s test:

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be exculpatory? 2. The defendant was able to "obtain comparable evidence by other means"…..How? He has no legal access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.

The New Hampshire Supreme Court later rejected the U.S. Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied. Another example of "The DUI Exception to the Constitution".


State Courts Protecting Citizens in Absence of Supreme Court

Sunday, October 15th, 2006

In my recent post on DUI roadblocks, I again commented on the U.S. Supreme Court's increasing willingness to ignore constitutional protections — particularly when it comes to DUI cases.

In once again deciding that there was apparently a "DUI exception to the Constitution", the Court reversed the Michigan Supreme Court which had ruled that its citizens were protected from such violations of the Fourth Amendment. Michigan v. Sitz. Upon remand back to Michigan, however, the state court again reversed the conviction — this time holding that roadblocks violated their own state constitution. A small number of other states have followed Michigan.

In a similar situation, the South Dakota Supreme Court reversed a DUI conviction for violation of the defendant's Fifth Amendment right against self-incrimination when his refusal to submit to chemical testing was used as evidence of his guilt. The U.S, Supreme Court reversed, holding there was no violation. South Dakota v. Neville. Upon remand the South Dakota Supreme Court again reversed — based now upon their own state constitution.

A few days ago, the Alaska Court of Appeals reversed a cocaine possession conviction. The court specifically refused to follow a 1991 U.S. Supreme Court casess (California v. Hadari) in suppressing evidence obtained by the police in apparent violation of the Fourth Amendment, noting that over a dozen other states had similarly rejected the U.S. Supreme Court's ruling based upon a reliance on their state constitutions. In a highly unusual published criticism of the U.S. Supreme Court, the opinion stated:

We agree with these other states that the United States Supreme Court has adopted an interpretation of the Fourth Amendment and the exclusionary rule that fails to adequately safeguard our citizens' rights to privacy, that fails to adequately protect citizens from unwarranted government intrusion, and that unjustifiably reduces the incentive of police officers to honor citizens' constitutional rights. Joseph v. Alaska.

In what may be a growing trend, our state courts are increasingly assuming the role of protecting their citizens when faced with a Supreme Court which has apparently abandoned that role. (Thanks to Fred Slone of Anchorage.)