DUI BLOG

The President of MADD was quoted in the Los Angeles Times as saying: “We don’t want cell phones and drowsy driving to become the next hot-button issue for the country, because they don’t even compare with the problem of drunk driving.”

The response of the Partnership for Safe Driving, a non-profit organization in Washington, D.C.:

Let’s examine the claim. During the year 2001, the government estimates that 17,448 – or 41 percent – of the deaths on our nation’s highways were “alcohol-related.” In addition, approximately 275,000 – or 16 percent – of the injuries were attributed to alcohol. Since the rate of fatalities is so high, and so much higher than the rate of injuries, let’s take a closer look at that statistic.

Of the 17,448 fatalities, 2,555 occurred in crashes where alcohol was detected but no one was over the legal limit. In these crashes, alcohol may not have been the primary factor in the crash; speed, distraction or fatigue could have been. That leaves 14,893 deaths that can actually be attributed to alcohol. However, of these, 1,770 were intoxicated pedestrians and cyclists who walked out in front of the vehicles of sober drivers. They had nothing to do with drunk driving.

The Partnership questions why these deaths were thrown in with what is normally presented as a drunk driving statistic. That leaves 13,123 deaths that can be attributed to intoxicated drivers. Of these, a staggering 8,308 were intoxicated drivers who killed themselves in crashes. That leaves 4,815 deaths in which intoxicated drivers killed someone other than themselves….

How do these figures compare with cell phone use?

To date, the Harvard Center for Risk Analysis has provided the only nationwide estimates of cell phone involvement in fatal and injury-producing crashes. Researchers there report that cell phones are now a factor in approximately 2,600 fatalities annually and 330,000 moderate to critical injuries. But because the data on cell phone use by motorists are still limited, the range of uncertainty is wide. Researchers say that the range for fatalities is 800 to 8,000 annually, and the range for injuries is 100,000 to one million annually….

And fatalities caused by tired and sleepy drivers?

As with cell phone use, the influence of drowsy driving and fatigue on crashes often is not known unless the driver survives the crash and admits to having nodded off. Unlike both alcohol involvement and cell phone use, there is no scientific method even available for determining its presence. That said, the government estimates conservatively that 1,500 people are killed annually as a result of motorists who fall asleep at the wheel, and another 71,000 are injured annually in such crashes. However, the National Sleep Foundation believes that drowsy driving and fatigue often play a role in crashes that are attributed to other causes. For example, the government lists driver inattention as the primary cause of approximately one million police-reported crashes each year. The sleep foundation points out that drowsy driving and fatigue make such lapses of attention more likely….

Recent confirmation of this date came from a study jointly undertaken by the AAA Foundation for Traffic Safety and the National Highway Traffic Safety Administration (NHTSA), which found that “Nearly nine out of every ten police officers…reported they had stopped a driver who they believed was drunk, but turned out to be drowsy…. According to NHTSA data, up to 100,000 police-reported crashes annually involve drowsiness or fatigue as a principal causal factor.” 

Interestingly, “89 percent of police officers agreed that drowsy driving is as dangerous as drunk driving”.

MADD’s passionate fixation on drunk driving appears to be blinding it to the importance of other, possibly more significant, causes of traffic fatalities.

At long last, conclusive evidence that having the cop serve as judge, jury and executioner in suspending the driver’s license of any citizen arrested for DUI will put an end to drunk driving:

Lohan Arrest Highlights DUI License

Suspension Study

ABC News, July 24  – When Lindsay Lohan was arrested early Tuesday morning, it marked the second time in less than two months that the actress was investigated for suspected driving under the influence.

Now, a new study suggests that immediately taking the driver’s licenses away from DUI suspects like Lohan could save hundreds of lives a year…

Swift Justice

The study’s authors believe that the speed of the punishment is what makes immediate suspensions so effective.

“Consequences that occur close in time to the behavior are more reinforcing or punishing than those that occur later,” they wrote in their paper.

Uh….Wasn’t Miss Lohan driving on a suspended license when arrested — an immediate suspension from a DUI arrest a few weeks earlier?  Didn’t seem to stop her.  Or maybe I’m just missing the MADD-style logic here…

Remember that “new car” smell?  The great scent inside of that new car you bought a couple of years ago? It could get you charged with DUI….

Consider an excerpt from the Reuters news agency (Sydney, December 9, 2001):

Australian scientists have warned that the reassuring smell of a new car actually contains high levels of toxic air emissions which can make drivers ill. A study by Australia’s main scientific body, the Commonwealth Scientific and Industrial Research Organization (CSIRO), found high levels of toxic emissions in cars for up to six months and longer after they leave the showroom… The toxic emissions include benzene, a cancer-causing toxin; acetone, a mucosal irritant; ethylbenzene, a systemic toxic agent; and xylene isomers, a foetal development toxic agent….”

So what has this got to do with breath tests? Well, one of the compounds you were actually smelling was acetone. As has been discussed in earlier posts (”Why Breathlyzers Don’t Measure Alcohol“), acetone is one of many chemical compounds which Breathalyzers will mistakenly report as alcohol. See the reasearch reported in such scientific articles as “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1, and “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

And no, you don’t have to drink the stuff. Simply absorbing it through your skin or inhaling it can result in measurable levels of the compound in your body for hours or even days, which will be continually expelled in the breath….. and possibly into a judge-and-jury breathalyzer.

A citizen arrested for DUI usually has the right to choose between taking a breath test or a blood test. There is, of course, a third choice: refuse to take either. The individual can do this, but there are consequences: he will face an increased jail sentence or a longer driver’s license suspension — or, in most states, both.

The problem is that some police just won’t take “no” for an answer. An increasing practice among law enforcement agencies is to simply ignore this third choice and forcefully take blood from the arrestee (although some states have banned this practice). By doing this, they can “have their cake and eat it, too”: blood is obtained for testing– and the suspect still suffers the heavier sentencing for having refused.

So, just how much “force” will the courts permit? Or looking at this from the legal view, drawing blood is considered a search of the person and, therefore, must be “reasonable” under the Fourth Amendment to the U.S. Constitution. Which still leaves the question: What is “reasonable” force?

The United States Supreme Court addressed this issue in Rochin v. California (342 U.S. 165), where a drug suspect was unconscious and the police forced open his mouth and pumped his stomach to get drugs. Such conduct is not permissible, the Court said, if it “shocks the conscience”. This vague “shocks the conscience” standard — if it is a standard — was later applied by the Supreme Court in a drunk driving case: The blood, the Court said, must be taken under “humane and medically acceptable” circumstances. Schmerber v. California (384 U.S. 757).  [As anyone who has watched certain videotapes knows, California seems to have recurring problems with heavy-handed police.]

Humane and medically acceptable circumstances…..Shocks the conscience…..Well, let’s take a look at what police and courts in California have decided this all means. In Carleton v. Superior Court (216 Cal.Rptr. 890), the California Court of Appeals was confronted with a case where the arrested citizen was pinned down by six police officers, a needle jammed into him and blood forceably withdrawn. The Court saw nothing wrong with this:

Although this degree of force may approach the brink of excessiveness, it was not excessive. Carleton’s self-induced brief physical restraint before and during the withdrawal of a blood sample is not conscience shocking.

One wonders what it would take to go over that “brink”….Maybe having cops spread-eagle you across the hood of your car along the highway and jamming needles into you themselves?  It’s already being done (see my earlier post, “Would You Want a Cop Taking Blood From You?”). 

As I’ve mention in previous posts, MADD has trumpeted ignition interlock devices  (IIDs) as their answer to the “carnage on the highways” — going so far as having their national president  announce to the media that the device would “literally wipe out drunk driving in the United States”.  (See “Lies, Damned Lies and MADD Press Releases”).

I’ve also posted in the recent past that these IIDs are inaccurate, unreliable and exist primarily because (1) there is strong political pressure from MADD on the legislatures and the courts, and  (2) there is a lot of money in them for the manufacturers and local governments.  (See “Ignition Interlock Devices: Dangerous but Profitable”.) 

Based upon recent history, however, expect to see the federal government, pushed by MADD’s Washington lobbyists and $52 million annual budget, to continue usurping state jurisdictions and require mandatory IIDs in all DUI cases — or lose federal highway funding.  As has been done with reduction of blood-alcohol limits to .08%, zero tolerance (.01% for drivers under 21), automatic license suspensions administered in the field by the police, ad nauseum.  While these may or may not be appropriate, it would seem they should be matters for the states to determine, as they have always been. 

But what about these IIDs — these miracle cures to end all drunk driving?  The following is excerpted from a comment recently posted by a reader:

First, I haven’t had anything to drink in over four years.  I have a Draeger Interlock installed in my car (pre-XT) model as that’s all that was available from the one local dealer.

My problem is that it doesn’t work as it should which creates frustrating and potentially dangerous situations due to the amount of extra attention required.  To begin with, you have to suck/blow just right!

Blowing Problems
1. Didn’t suck hard enough.
2. Didn’t suck/blow quickly enough.
3. Blew to soft.
4. Blew too hard.
5. Didn’t blow long enough.
6. Any combination of the above.

You are allowed 10 tries in theory before a lockout scenario. 

First Problem 06/13/07

The first time I failed was for a re-test just as I was getting ready to turn car off and get gas.  After several tries, the horn blew. After a few more the horn started blowing every 20 seconds and the lights are flashing.  Now, I’m driving through a busy suburban neighborhood with the horn and lights going while trying to get the interlock to accept a blow test.  Finally about 10-15 minutes and 20-25 attempts, it accepted the test and passed me which stopped the horn and lights.

Second Problem 06/23/07

The second time I was at a hot construction site and after 10 tries before starting, the car went into lockdown for 15 minutes before I was allowed try again (which I did and got it started).

Third Problem 06/29/07

The third time I had a problem. I got a re-test and after 6-7 blows, it said disabled and while I was driving and started a 15 min lockout countdown. Two and one-half minutes later at a congested traffic light, the horn and lights started going off.  I pulled into a parking lot and turned the car off till the remainder of the 15 minutes expired and allowed me to restart the car.
Note: The first & third problems are contradictory as to how it’s supposed to function. I believe the third is what was supposed to happen.  None the less, getting this to work as it should has become a real problem in itself.

Fourth Problem 07/05/07

The fourth problem today was that it totally lost its logic.  I started the car and going down the interstate. Instead of the first 15 min re-test I was expecting, it said re-test after about 10 minutes.  I blew and passed the rolling re-test.  However, instead of putting dot’s on the screen it says “OK to Start” as if I was ready to start the car for the first time or had shut the car off and had a 4 min window to re-start without testing. It was stuck in a loop. Every 4 minutes now going down the interstate it’s goes into a 10 sec warm-up countdown and asks for another test as if the car had not been started.  Each time I pass it say’s “Ok to Start” again and waits another 4 minutes.  The bottom line is it’s unable to distinguish whether the car is turned on or off.

Design flaw: It has a display measuring bars which can’t be seen while taking the test. It also provides to tones to gauges the success or not of a test.  Being hearing impaired, I cannot hear the high-pitched tones (which are the first to go with a hearing loss). There is no volume control, tone adjustments, or options for external amp/speakers.  I have currently overcome this by buying a $25 2″ amp with a microphone and headphone jack from Radio Shack and taping it to the back of the box.  This means turning on the amp and inserting an ear-bud in addition to having to turn the stereo down and the air conditioning off every time this ask for a re-test all while under a 5 minute time restraint while driving.

And that’s what is going to “literally wipe out drunk driving in the United States”.

When did we lose the presumption of innocence in this country?  When did we become so quick to judge and condemn our fellow citizens?

Tank Won’t Face DUI Charge

Chicago, IL.  Chicago Sun-Times, July 6  –  The Arizona bust that got Tank Johnson booted from the Chicago Bears will not result in criminal charges, police said Thursday.

Sgt. Andrew Duncan of the Gilbert, Ariz., police said Johnson will not be prosecuted following a June arrest for allegedly driving under the influence. A blood test later revealed Johnson was not legally drunk…

The Bears cut Johnson three days after the Arizona arrest, with officials saying they were “embarrassed” by the lineman’s actions.

So Mr. Johnson was fired from his job as an athlete with the Chicago Bears beccause….well, because he was arrested.  He wasn’t charged with or convicted of a crime.  He was just arrested.  And that was enough.

Do you recall the arrest of the Duke University lacrosse players for gang rape?  Turns out they were all innocent, railroaded by a politically ambitious D.A.  But the possibility of innocence sure didn’t stop the University administration from quickly throwing the students out in disgrace.

I’m not even talking about the attitudes of police, prosecutors and judges in today’s assembly line criminal justice system.  I’m talking about you and me.  As Pogo used to say, “I have met the enemy, and he is us.”

Every DUI defense attorney knows when he is in trial that he is facing a jury brainwashed by Mothers Against Drunk Driving’s massive, hysterical and never-ending chorus, and simmering with frustration and anger from the daily bombardment of news reporting crime, violence and corruption.  Every defense attorney knows the look in jurors’ eyes at the start of a trial:  “So prove to me he’s innocent”.  As more than one juror has commented to me after a trial, “If he’s innocent, what’s he doing here?” 

But this only happens to other people, right?  Keep believing that — when you are stopped and arrested because of alcohol on your breath from only a drink or two.  

I’ve been prosecuting and defending criminal cases for most of 38 years, and it didn’t used to be this way.  What happened?

Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror. Well, you think, thank God I only had a couple of drinks. A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line.

Only a couple of drinks…..and coffee.

Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as “walk-and-turn”, “finger-to-nose” and “one-leg-stand”. The greater the intoxication, in theory, the worse will be the performance on these tests. However, the truth is that these “tests” are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the invididual, unfamiliarity with the tests, failure of the officer to communicate instructions, and many others. And then there is caffeine…..

Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the outward symptoms of alcohol. The definitive studies were done by researchers in Great Britain and reported in an article entitled, “Interactions of Alcohol and Caffeine on Human Reaction Time”, appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983). The conclusions of the scientists:

Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case…

Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine.”

Result? Poorer performance on the field sobriety tests — and an arrest for DUI.

It is difficult for members of the public to recognize and appreciate the degree to which a double standard exists in the drunk driving field. The laws are increasingly unrealistic, procedures unfair, evidence unreliable and constitutional protections largely ignored. An example of this was demonstrated in a United States Supreme Court decision three years ago (Leocal v. Ashcroft, 543 U.S. 1).

The Court was faced with the appeal of Josue Leocal, a lawful permanent resident of 20 years, who pleaded guilty to DUI with injury. As a result, the Immigration and Naturalization Service (INS) commenced proceedings to have him deported as an alien convicted of an “aggravated felony”. The INS regulations defined an aggravated felony as “a crime of violence”, which in turn is defined as “an offense that has as an element the use…of physical force against the person or property of another.” An Immigration Judge ordered the deportation, and the Board of Immigration Appeals upheld the order. Leocal went to the U.S. Court of Appeals, which promptly denied his petition for review.

Fortunately, the Supreme Court reversed the deportation order. In a rare unanimous decision, the Court stated the obvious: DUI is not a crime of violence, even if someone is injured in its commission. A deportable “crime of violence”, the Court said, required “a higher mens rea [mental state] than the merely accidental or negligent conduct involved in a DUI offense.” In other words, the requirement of “the use of physical force against” a person necessarily involves the intent to use that force. Put simply: How can you be accidentally violent?

The point here, of course, is that the everyone right up to the Supreme Court of the United States was perfectly willing to twist the clear wording of the law when the politically unpopular crime of drunk driving was involved. At every level, the nations’s agencies and courts pretended that a crime clearly involving no intent was, in fact, a crime involving the intentional commission of a violent act against someone.