DUI BLOG

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?

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….

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…

 

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”.

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.)

As readers of this blog know, I’ve railed long and hard in the past about the ineffectiveness and unconstitutionality of DUI roadblocks (or, to use the government’s PR term, “sobriety checkpoints”). To begin with, they are illegal — a clear and blatant violation of the Fourth Amendment. From my earlier post, “DUI Sobriety Checkpoints: Unconstitutional?“:

The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are “articulable facts” indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?

Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were constitutionally permissible. Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka “sobriety checkpoints”) do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However….

However, it’s only a little one, and there’s all this “carnage” on the highways MADD tells us we’ve got to do something about. The “minimal intrusion on individual liberties”, he wrote, must be “weighed” against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means….aka, “The DUI exception to the Constitution”.

The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.” Brennan concluded by noting that “The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures”.

Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were “necessary” and “effective”. Are they? As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: “The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”.

So ignoring our Constitution for the moment (an increasingly common practice), are these roadblocks in fact “necessary” and “effective”?

As I’ve repeatedly pointed out in past posts (e.g., “Do DUI Roadblocks Work?”, “Do DUI Roadblocks Work: Part 2”), the facts clearly indicate they are not. In fact, the main purpose now appears to be as a tool for raising revenue from fines for expired licenses or registration, broken tailights, not using seat belts, etc. (see “Roadblocks for Fun and Profit”).

So how do you justify the continuation of roadblocks? Well, consider the following recent news story:

Are DUI Checkpoints a Good Idea?

Fargo, ND – Oct. 8 It’s been two years since Fargo police began conducting sobriety checkpoints, and the operation is being called a success despite some checkpoints yielding no arrests.

“The deterrent value of the checkpoint has already been accomplished before the checkpoint starts — people decide not to drink and drive”, said Sgt. Mathew Sanders. “The operation is not about the number of driving under the influence arrests made, but instead, it’s about raising awareness to deter people from drinking and driving.” (Emphasis added)

So, let’s see….DUI roadblocks are a clear violation of the Fourth Amendment. But that’s ok, because they’re so good at identifying drunk drivers. But actually they’re not. Well, ok, but at least they “raise awareness”.

Maybe we’ve got something here….How about roadblocks to check for current auto insurance — to “deter” those without valid coverage from driving? Roadblocks to check everyone for driver’s licenses? Unpaid parking tickets? Heck, we can keep drug dealers off the streets if we can stop everyone to see if there are drugs in the car. Or how about…..

No, that’s not a misprint:

Man Gets 99 Years for 8th DWI Conviction

Weatherford, Texas. A 56-year-old Fort Worth man was sentenced to 99 years in prison Wednesday on his eighth conviction on a DWI charge…

Prosecutors said that Bridges was driving his pickup west on Interstate 20 in Willow Park when he was pulled over. A test found that his blood alcohol concentration was 0.17, more than twice the legal limit.

A bit steep for having too much alcohol in your system? Well, this is his eighth time, right? In any event, this is probably just an aberration. I mean, they don’t really throw people in prison for the rest of their lives just for drinking and driving — not even in Texas….Do they?

They do.

One of the premier DUI attorneys in the country, Troy McKinney of Houston, recently made an Open Records Act demand on the Texas Department of Criminal Justice: How many Texans are serving sentences of 60 years to life in prison for drunk driving? Not for drunk driving resulting in injury or death — just for drunk driving (or driving over .08%). The letter from the Department arrived a couple of days ago:

21 to 25 years    125
26 to 30 years     39
31 to 40 years     55
41 to 59 years     16

And finally:

60 to 98 years     23
99 years 6 Life     13

Repeat: These are sentences just for drunk driving or driving over .08% — not for DWI causing death or serious injury. To trigger the longer sentences, the DWI was at least the offender’s fourth offense.

It would be a fairly safe assumption that these prisoners are alcoholics. In other words, life in prison for having a genetically-predisposed disease and being unable to control it…..without help.

So, what if they got help? What does it cost to keep a citizen in prison for the rest of his life? For even one year? And what does it cost to offer that person rehabilitative therapy? Even, perhaps, to involuntarily commit him to a facility for treatment of the disease?

Justice and humanity aside, do the math….

(For further discussion, see my post “Are Alcoholics Protected by the ADA in DUI Cases?”)

Maybe it’s my imagination, but increasingly these days I see signs of intelligent life on the planet. The following are some comments posted a couple of days ago by Lew Rockwell of the Mises Institute:

In November 2000, Clinton signed a bill passed by Congress that ordered the states to adopt new, more onerous drunk-driving standards or face a loss of highway funds… The feds have declared that a blood-alcohol level of 0.08 percent and above is criminal and must be severely punished…(T)his is absurdly low. The overwhelming majority of accidents related to drunk driving involve repeat offenders with blood-alcohol levels twice that high.

But there’s a more fundamental point. What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood…

What have we done by permitting government to criminalize the content of our blood instead of actions themselves? We have given it power to make the application of the law arbitrary, capricious, and contingent on the judgment of cops and cop technicians. Indeed, without the government’s “Breathalyzer,” there is no way to tell for sure if we are breaking the law.

Sure, we can do informal calculations in our head, based on our weight and the amount of alcohol we have had over some period of time. But at best these will be estimates. We have to wait for the government to administer a test to tell us whether or not we are criminals. That’s not the way law is supposed to work. Indeed, this is a form of tyranny.

Now, the immediate response goes this way: drunk driving has to be illegal because the probability of causing an accident rises dramatically when you drink. The answer is just as simple: government in a free society should not deal in probabilities. The law should deal in actions and actions alone, and only insofar as they damage person or property. Probabilities are something for insurance companies to assess on a competitive and voluntary basis.

This is why the campaign against “racial profiling” has intuitive plausibility to many people: surely a person shouldn’t be hounded solely because some demographic groups have higher crime rates than others. Government should be preventing and punishing crimes themselves, not probabilities and propensities…

To underscore the fact that it is some level of drinking that is being criminalized, government sets up these outrageous, civil-liberties-violating barricades that stop people to check their blood even when they have done nothing at all. This is a gross attack on liberty that implies that the government has and should have total control over us, extending even to the testing of intimate biological facts. But somehow we put up with it because we have conceded the first assumption that government ought to punish us for the content of our blood and not just our actions…

Amen.

I posted a news story four days ago (“Just Another Drunk Driver”) about a diabetic who died of cardiac arrest after being roughed up by four cops. They thought he was a drunk driver. In fact, he was having a diabetic attack; no alcohol was found in his body.

The following story about another driver having a diabetic attack took place the next day:

Paraplegic Man Allegedly Roughed Up By Police

Murfreesboro, TN. Sept. 29.  A paraplegic man in Rutherford County was allegedly roughed up Thursday night by police who thought they were dealing with an uncooperative drunk driver.

The misunderstanding happened when police removed Harvey Watson from his vehicle and thought that he was resisting arrest when they dragged him across the road.

Watson is diabetic and a paraplegic… A Rutherford County Sheriff’s Department incident report shows that officers tried to stop Harvey Watson’s vehicle but for medical reasons unknown to police at the time, he was disoriented. “When they told me to exit the vehicle I stuck both arms out the window and told them ‘I cannot exit,’” Harvey Watson said.

Harvey Watson said it wasn’t until officers had dragged him by his knees, roughed him up and handcuffed him that things became clearer for them.

(Watson’s wife) LeAnn Watson said the handicapped license plate, his hand controls for the vehicle and the wheelchair should have clued them in, along with several calls to 911 she made before the stop…

Based on the incident report, a spokesman with the sheriff’s department said officers followed procedure.

The War on Drunk Driving continues…

(Thanks to Jon.)

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect”). Without that presumption, field sobriety and breath alcohol tests would not be possible. Unfortunately, the premise is always false.

I’ve written about many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results”, “The Effect of Anemia on Breath Tests” and “Do Breathalyzers Discriminate Against Women?”).

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test.

The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio used by breathalyzers will be altered so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in even greater errors.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he notes that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”. Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”.

Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you. Instead, they are testing an “average” person who does not exist. But you are the one who gets convicted.