Experienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as â€œblack-and-white feverâ€.
That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted, in many jurisdictions, black and white). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensiveâ€™and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.
The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator). And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.
In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI. And after the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we tend to see what we expect to see: normally veined eyes appear â€œbloodshotâ€, normal but nervous speech sounds â€œslurredâ€, normal pink complexion appears â€œflushedâ€, etc. These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….Followed by an arrest for drunk driving.
Archive for March, 2007
Experienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as â€œblack-and-white feverâ€.
The latest thinking from the DUI bureaucracy…
New Jersey Star-Ledger, March 10 – In a quick about-face, the Attorney General’s Office issued revised procedures yesterday for police administering the Alcotest 7110 to suspected drunken drivers after 2 a.m. tomorrow, when daylight-saving time arrives three weeks earlier than in the past.
The procedures are designed to compensate for the Alcotest’s software, which is programmed to automatically convert to daylight-saving time on April 1. Until then, it will record test times that appear to be an hour earlier than actually given…
To cope with that situation, the new directive instructs police to convert the time of arrest to Eastern Standard Time — an hour earlier than Eastern Daylight Time — until April 1, when the machines will be back in sync with clocks.
The new policy was announced after The Star-Ledger reported on an earlier plan to deal with the time change problem and the objections it had drawn.
That plan required police to wait an additional hour before administering the test…
Another news story about another ineffective DUI roadblock…
DUI Checkpoint Comes Up Empty
Oxford, Ohio. March 8 – Officers stopped 225 vehicles from 11 p.m. to 2 a.m. along High Street in the Miami University area looking for drunk or drug-impaired drivers — and found none.
Lt. Wayne Price of the Ohio State Highway Patrol’s Hamilton Post says that’s great.
“The goal of the checkpoint is to act as a deterrent,” he said.
Funny, I thought the purpose of DUI roadblocks was to identify and apprehend drunk drivers.
Officers wrote 25 citations for offenses such as failure to wear seat belts or driving without a valid driver’s license.
To try to catch those who drink and drive but avoid the checkpoint area, officers conducted a “saturation patrol,” Price said.Those patrols stopped 60 vehicles during the three-hour span for minor traffic infractions and issued citations or warnings for infractions such as failing to use turn signals.
In permitting this unconstitutional practice, the U.S. Supreme Court in Michigan v. Sitz accepted the argument that the effectiveness of roadblocks in detecting and apprehending drunk drivers outweighed the admitted violation of the Fifth Amendment (see my earlier post “DUI Sobriety Checkpoints: Unconstitutional?”). Now that it has become apparent that they are ineffective for anything but raising revenue for local municipalities, police have changed the justification: “deterrence” (a safe claim since it can never be disproven).
If the police can set up unconstitutional roadblocks because they deter DUIs, why can’t they conduct random searches of citizens on the streets or in their homes to deter, say, possession of drugs?
In previous posts, Iâ€™ve explained many of the reasons why breathalyzers are inaccurate and unreliable. See, for example, â€œBreathalyzers â€” and Why They Donâ€™t Workâ€œ; â€Warning: Breathalyzer in Useâ€œ; â€Convicting the â€˜Averageâ€™ DUI Suspectâ€œ; â€œWhy Breathalyzers Donâ€™t Measure Alcoholâ€œ; â€œDriving Under the Influence ofâ€¦ Gasoline?; â€How to Fool the Breathalyzerâ€œ. (These and many other sources of error are explained more fully in Chapter 6 of 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 â€” while his or her body is still absorbing the alcohol.
Letâ€™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% â€” over the legal limit. She is booked for DUI and jailed.
Sarahâ€™s true BAC, however, was lower, perhaps much lower. If a blood sample had been taken instead of a breath test, the results would have shown only .05% â€” 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 â€” called equilibrium â€“ 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 bodyâ€™s arterial blood. Therefore, the breath sample obtained by the machine will be reflective of pulmonary BAC â€” 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 subjectâ€™s blood alcohol concentration during absorptionâ€¦..
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 â€” 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, â€œAccuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive Stateâ€, 33(6) Clinical Chemistry 753 (1987).
The most recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma, agrees with Simpson: â€œWhen a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain.â€
How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation several months earlier?
When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratically, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driverâ€™s breath, and how strong? Could it have come from the passenger? Was the driverâ€™s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as â€œWhere are you going? What time is it? Have you been drinking? What? When? Where? How much?â€ Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.
Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before instructed to? How many steps out? How did he turn? How many steps back? Which, if any, of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?
And the other three or four drunk driving field tests. In the horizontal gaze nystagmus test (â€Follow my pen with your eyes without moving your headâ€), for example, was there â€œsmooth pursuitâ€ of the right eyeball? What did it look like? How many times was it given? Did â€œonsetâ€ of nystagmus occur before 45 degrees? At what degree? Was the white of the eye still visible at the extreme range of the eye? Was there â€œdistinct nystagmusâ€ at this extreme? And what about all these observations in the left eye?
And then the arrest and the breath test at the station: What was the procedure used to administer the test? Was the suspect observed for 15 minutes before the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspectâ€™s two samples? And so onâ€¦.
In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation â€” and in dozens, perhaps hundreds, of other investigations conducted by the officer. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath. How does he do it?
Well, typically the officer sits down an hour or two after the arrest and writes out a â€œDUI arrest reportâ€. This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the â€œgun handâ€ to be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problemsâ€¦.
First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are usually 18 steps â€” 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe or with spacing?
And this is just one test. And what about the driving pattern, the symptoms, the defendantâ€™s statements, his conduct, and all of the other details?
Second, how can the officer recall four or five months later in trial everything that happened? He canâ€™t just read from the report during testimony: He has to testify to what he knows â€” that is, to what he independently remembers happened.
But here the law permits him an â€œoutâ€: He can â€œrefresh his recollectionâ€ by reading the report after he is asked a question. Then he can testify with a newly â€œrefreshedâ€ memory â€” in reality, however, he is just testifying to what he just read in the report. In most trials, the officer has also â€œrefreshed his recollectionâ€ just before testifying, and/or does so repeatedly during his testimony.
Problem: The report only contains incriminating facts.
The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendantâ€™s guilt. He did not bother to record facts which pointed to the defendantâ€™s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot â€œrefresh his memoryâ€ about things that happened but which are not in the report. And there will be little if anything in that report which will give â€œthe other sideâ€ of the story — that is, which will contradict the officer’s conclusion that the suspect was driving under the influence.
Put simply, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendantâ€™s innocence.