DUI BLOG

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.
A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder, malice?
A. As you know, malice usually means there’s an intent to kill. But the law says you can imply malice.

Q. OK, but imply it from what?
A. “It is implied when…the circumstances attending the killing show an abandoned and malignant heart”. [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is “an abandoned and malignant heart”?
A. Our Supreme Court says it’s when someone “does an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life”. [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. “High probability” a DUI will result in death? Anyway, the guy was just drunk: How can I prove “base antisocial motive” and “wanton disregard for human life” from that?
A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?
A. We call it a “Watson murder”.

Q. That’s a long way from “high probability it will result in death”.
A. Yeah, that sort of got swept under the rug.

Q. But how do I prove he knew it was dangerous?
A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?
A. Just find someone who once told him drunk driving was dangerous.

Q. What if we can’t find someone….
A. Has he ever attended a driver education class? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?
A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?
A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?
A. They already tried it in a North Carolina case, but the jury went for life without parole instead. We’re working on it…


Note: Judges in California now make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident, regardless of the facts. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying “DUI is dangerous”.

Another triumph of form over substance….

For those who think my post a couple of days ago ("Who Will Guard the Guardians?") was just an aberration, the following are a few random news stories from a quick Google search for DUI arrests — all within just the past week:

"Hartford Officer Arrested in Vegas for Drunk Driving"
"St. Petersburg Police Officer Arrested for DUI"
"N. Ky. Police Chief Arrested on DUI Charge"
"Another Officer Faces DUI"
"Warsaw Police Chief Arrested for DUI"
"Police Officer Among Those Arrested for DUI Over Weekend"
"Prosecutor Fired After Car Wreck, DUI Arrest"
"Police Report: Off-Duty Deputy Arrested for DUI"

Do as I say, not as I do…

From our Double Standards department: 

Springfield, Ill. Feb. 18 ” When Judge Steven Nordquist agreed to a breath test during his DUI arrest last summer, he became an anomaly among his colleagues on the bench.

The judge from Winnebago County appears to be the first in Illinois to blow, providing evidence of his guilt, when stopped by police on suspicion of driving under the influence of alcohol. At least four other Illinois judges stopped for DUI refused the test.

Two of these judges also refused to cooperate with field sobriety tests. Another judge, charged with DUI in December, refused both breath and field sobriety tests.

Welcome to a crash course in Illinois DUI law. And who knows the law better than a judge?…

John Karns, an appellate court justice from southern Illinois, refused to blow when he was arrested for DUI in 1978. He threatened to fight police officers and “challenged one or more of the police personnel to engage in such fighting,” the JIB said.

The next morning, Karns and his lawyer seized all police documents pertaining to his arrest. The JIB said he and his lawyer destroyed or suppressed them, and that he was never prosecuted…

Ad nauseum…..

Want to trick that breath machine into a false reading? Not that difficult: just vary your breathing pattern.

As I’ve indicated in earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies. In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.

The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. “How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses”, 22(4) Medical Science and the Law 275. For another study with similar findings, see “Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing”, 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%. 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at him, “Keep breathing! Breathe harder! Harder!” As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading.

Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results"…

Elevenfold Increase in Number Imprisoned for DUI

Columbus, Ohio. AP – Yearly incarcerations for drunken driving convictions have increased elevenfold in the past decade, the state prisons department reported.

Judges sentenced 465 drunken drivers to prison last year, up from 38 in 1997, when the Ohio Department of Rehabilitation and Correction began tracking DUI offenders. Tougher enforcement and increased penalties in state law contributed to the trend. Also, Ohio dropped the legal blood alcohol limit to 0.08 in 2003, from 0.10, putting more drivers in violation…

The following summary of DUI-related traffic fatalities for the same decade, compiled by the National Highway Traffic Administration, is from MADD's website:

1997 16,711
1998 16,673
1999 16,572
2000 17,380
2001 17,400
2002 17,524
2003 17,105
2004 16,919
2005 16,885
2006 (not yet available)

In the past decade, Ohio (as most states) has increased the number of citizens sent to prison by 1100%. During that same period of time, there has been no reduction in traffic fatalities. (Arguably, the DUI-related fatality figures would have increased, as factors such as seat belts, air bags and improved vehicle construction have lowered fatalities in traffic accidents.)

Is it possibly time to consider an alternative approach?

As readers are aware, I’ve railed repeatedly in the past about the "DUI Exception to the Constitution" — the clear willingness of our Supreme Court to ignore the Bill of Rights when it comes to dunk driving cases.  That appears about to change:

Scalia’s Daughter Charged with Drunk Driving

Wheaton, Ill., February 14.  AP  -  U.S. Supreme Court Justice Antonin Scalia’s daughter was arrested this week and charged with driving under the influence of alcohol and child endangerment, officials said Wednesday.

Ann S. Banaszewski, 45, of Wheaton, was arrested Monday evening while driving away from a fast-food restaurant in the suburb 20 miles west of Chicago, police said. Three children were inside Banaszewski’s van when someone called police to report a suspected intoxicated driver, said Deputy Chief Tom Meloni.

Meloni would not release Banaszewski’s blood-alcohol level. He also declined to give the children’s ages or say whether Banaszewski had a previous record.

The latest news from the front:

Talking Urinal Cakes Dissuade Drunk Driving

San Diego, Dec. 12  -  In the age of cameras everywhere the men's room was thought to be the last bastion of safety from Big Brother but a new weapon in the fight against drunk driving could be on its way to a urinal near you.

Talking urinal cakes are made in China by a company called Wiz-Mark. They don't have hidden cameras or sensors that tell if you've had too much to drink but just simply try to make you consider how much you've had.The cakes are already being used in New Mexico and so far reaction to them has been mixed.

Women won't feel left out as the lady Wiz-Mark isn't too far behind.

(Thanks to Robert E. Battle.)

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving?

It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.  21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a Breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the BAC was rising, for example, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?

Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:

“It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the “burden of proof” — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the “presumption of innocence”?

Details, details. The important thing here is that we get these drunk drivers off the road, right?

In previous posts, I have explained many of the reasons why breathalyzers are inaccurate and unreliable. See, for example, "Breathalyzers — and Why They Don’t Work"; "Warning: Breathalyzer in Use"; "Convicting the ‘Average’ DUI Suspect"; "Why Breathalyzers Don’t Measure Alcohol"; "Driving Under the Influence of… Gasoline?; "How to Fool the Breathalyzer". (These and many other sources of error are explained more fully in my book, Drunk Driving Defense, 6th edition.) One of the most common sources of error in breath alcohol analysis is simply testing the subject too early — while his or her body is still absorbing the alcohol.

Let’s take a common example. At a restaurant Sarah shares a bottle of wine with a friend. She nurses one glass over a one-hour dinner. Nearing the end, another glass is poured from the bottle and she finishes this. The two friends then order an after-dinner drink. Noting the time, Sarah quickly finishes the drink and leaves. She is stopped by the police one block from the restaurant. After questioning and field sobriety tests, she is taken to a police station and tested on a breathalyzer. The machine shows her blood alcohol concentration (BAC) to be .09% — over the legal limit. She is booked for DUI and jailed. Sarah’s true BAC, however, was much lower. If a blood sample had been taken instead of a breath test, the results would have shown only .05% — well under the legal limit.

Absorption of alcohol continues for anywhere from 45 minutes to two hours after drinking or even longer. Peak absorption normally occurs within an hour; this can range from as little as 15 minutes to as much as two-and-a-half hours. The presence of food in the stomach can delay this to as much as four hours, with two hours being common. During this absorptive phase, the distribution of alcohol throughout the body is not uniform; uniformity of distribution — called equilibrium — will not occur until absoprtion is complete. In other words, some parts of the body will have a higher blood alcohol concentration (BAC) than others.

One aspect of this non-uniformity is that the BAC in arterial blood will be higher than in veinous blood (laws generally require blood samples to be veinous). During peak absorption arterial BAC can be as much as 60 percent higher than veinous. This becomes very relevant to breath alcohol analysis because the alveolar sacs in the lungs are bathed by arterial blood, not veinous: The diffusion of alcohol through the sacs and into the lung air will reflect the BAC of the body’s arterial blood. Therefore, the breath sample obtained by the machine will be reflective of pulmonary BAC — which, during absorption, will be considerably higher than veinous BAC (and higher than the BAC in other parts of the body). After extensive research, one of the most noted experts in the field of blood alcohol analysis has concluded:

Breath testing is not a reliable means of estimating a subject’s blood alcohol concentration during absorption….. There is a significant likelihood that a given subject will be in the absorptive state when tested under field conditons. Because of large differences in arterial BAC and veinous BAC during absorption, breath test results consistently overestimate the result that would be obtained from a blood test — by as much as 100% or more. In order to have some idea of the reliability of a given breath test result, it is essential to determine by some objective means whether the subject is in the absorptive or post-absorptive state. In the absence of such information, an appropriate value for the uncertainty associated with the absorptive state should be applied to all breath test results.

Simpson, "Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State", 33(6) Clinical Chemistry 753 (1987). The most recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma, agrees with Simpson: "When a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain."