Archive for February, 2007

Justice Scalia’s Daughter Charged with DUI

Wednesday, February 14th, 2007

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.

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New DUI Weapon Unveiled in War on DUI

Wednesday, February 14th, 2007

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.)

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If You Can’t Prove It, Make the Defendant Disprove It

Sunday, February 11th, 2007

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?

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Breathalyzer Inaccuracy: Testing During Absorption

Tuesday, February 6th, 2007

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."

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