DUI BLOG

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same. You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds attempts to estimate blood alcohol levels when driving based upon breath/blood tests two or three hours later.  Each of us has a different physiological response — tolerance — to alcohol.  And so on…

An example of this human diversity can be seen in racial differences toward alcohol.

The body of scientific literature seems to clearly indicate a racial — that is, genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, “Alcohol Metabolism in American Indians and Whites”, 294 New England Journal of Medicine 9 (1976); Holzbacher, “Elimination of Ethanol in Humans”, 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., “Ethanol Metabolism in Various Racial Groups”, 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:

…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, “Ethnic Differences in Alcohol Sensitivity”, 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure. If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups.

The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction.

To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., “Alcohol Sensitivity and Ethnic Background”, 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese.

The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….

Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels by measuring breath, and the use of mathematical formulas and legal presumptions based upon uniform metabolism to estimate earlier levels when driving.

Note: In most states, the law presumes that (1) a person with .08% blood-alcohol level is under the influence, and (2) the blood-alcohol level when tested is the same as when driving (up to 2 or 3 hours, depending upon the state). But then, as Dickens wrote long ago, “The law is a ass”.

As if unconstitutional police "sobriety checkpoints" weren’t enough, we now have privately-run but police-enforced roadblocks:

Alcohol Surveys Spur Complaints

A motorist who was stopped wants a halt to voluntary testing that is so "persistent" it feels like a DUI checkpoint. 

Denver, CO.  Sept. 18  -  The Gilpin County Sheriff’s Office was apologizing Monday after a weekend effort to help a research group led to complaints about what appeared to be a DUI checkpoint – but wasn’t.

Sheriff’s officials who participated in the stops now acknowledge that the nonprofit organization requesting voluntary DUI and drug tests from drivers was overly persistent, according to complaints.

Sgt. Bob Enney said deputies assisted the Pacific Institute for Research and Evaluation in stopping motorists at five sites along Colorado 119 for surveys on any drug and alcohol use. Surveyors then asked the motorists to voluntarily submit to tests of their breath, blood and saliva. At least 200 drivers were tested, Enney said. About five motorists later complained, he said.

Pacific Institute officials defended the initiative. They said the collection of vital statistics measuring, over time, the number of people driving under the influence helps gauge the impact of laws and enforcement policy changes.

"We’ve been literally surveying thousands of people," said John Lacey, the director of the Alcohol, Policy and Safety Research Center in Calverton, Md., through which Pacific Institute conducted its research. "So you can imagine if you stop people in the middle of the night, there will be complaints."…

Cathryn Hazouri, executive director of the American Civil Liberties Union of Colorado, said the participation of sheriff’s officials and the blue jumpsuits worn by the survey team may have confused some of those who were stopped.

And what do you think those deputy sheriffs would have done if any of those motorists had tested positive or had alcohol on his breath?  And doesn’t that make it an unauthorized de facto police DUI roadblock?  So…If police can’t get authorization for a roadblock, why not just set up a "survey" roadblock?

(Thanks to David O’Shea and Jeanne M. Pruett.)

The most critical evidence in a drunk driving case, after the blood or breath test, is the battery of field sobriety tests administered roadside by the officer before deciding whether to arrest.  These ”tests” are designed in theory to determine any impairment which may affect the safe operation of a vehicle. 

In fact, field sobriety tests (FSTs) simply test the physical skills and experience of the subject; a physically fit officer who has performed them hundreds of times will perform far better than an elderly, overweight, injured or unathletic person who is completely unfamiliar with the tests.  Add to this that the suspect is nervous and/or scared,  is attempting them in the dark late at night, in front of a police car with flashing lights, on a sloped roadside, with cars whizzing by within a few feet, possibly on high heels….Well, you get the picture.    

As I’ve mentioned in past posts, these “tests” are unreliable and highly inaccurate (see Field Sobriety Tests: Designed for Failure? and Are Field Sobriety Tests Valid?).  And this has been clearly demonstrated in scientific research. 

In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had “had too much to drink and drive”. Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00% — stone sober. The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, “Field Sobriety Tests: Are they Designed for Failure?”, 79 Perceptual and Motor Skills Journal 99 (1994).

A common reply from police and prosecutors to these criticisms is that one of the FSTs is not affected by any of these considerations:  horizontal gaze nystagmus (HGN).  Basically, this test involves the officer observing and estimating measurements of a suspect’s eyeball movements.  However, the test was never designed for detecting driving impairment nor for determining actual blood-alcohol levels, nor is the officer remotely qualified to administer this opthamological test — and certainly not under roadside conditions.  (See my earlier posts, Nystagmus: the “Eye Test”,  Nystagmus: The ‘Eye Test’ (part 2), Nystagmus: The ‘Eye Test’ (part 3), and DUI ‘Eye Test’ a Fraud?)

Years ago, when HGN was first introduced by police agencies around the country, the courts refused to admit the results into evidence — on the grounds there was no scientific accceptance of the test for determining alcohol impairment.  Gradually, however, and with considerable political pressure from prosecutors and MADD, local courts gradually began admitting HGN into evidence.  And the seemingly scientific nature of the test proved to be very impressive to juries.

Recenly, the Illinois Supreme Court considered whether HGN should continue to be admitted into evidence.  Two days ago they filed their decision:  No — not without a hearing where the prosecution must prove that the test is scientifically accepted.  Illinois v. McKown (Docket No. 102373, filed September 20, 2007).

(Thanks to Illinois attorney Donald J. Ramsell.)

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of “administrative suspension”. He is also given a citation to appear in court to face criminal drunk driving charges. These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI or DWI) and driving with .08%,  which takes place in the courts.

Let’s take a closer look at that second proceeding, the criminal charges in the courts….The accused allegedly engaged in a single act of driving.  Yet, he is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

But what about that first proceeding?….The driver has already been punished by another state agency (the DMV) for driving over .08% by having his license suspended (or for refusing to take a chemical test). If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished a second time. The sentence may involve jail, fines, DUI schools, ignition interlock devices, community work, probation — and a second restriction or suspension of his license.

How many times can the state prosecute and punish a person for a single crime?

Our Constitution says only once. The Fifth Amendment specifically provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb”. So is this another example of “The DUI exception to the Constitution”?

Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, coming to different conclusions, but eventually reached a consensus that the driver actually commited two different crimes. As an Indiana court reasoned, “The test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not.” Sering v. State, 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes – so long as you don’t punish him for both. 

Hmm…Isn’ that just word games?  Defining a single act in different ways?  Couldn’t you define it ten different ways and get ten different crimes to charge the citizen with? 

And waht about that first license suspension?  What about punishing the driver by suspending his license when he’s arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that probably includes another license suspension?

This one caused the appellate courts a bit more trouble. This wasn’t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around that pesky Constitution….

The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a “punishment” but only a “civil sanction”. Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a “civil sanction” was actually a punishment — and thus double jeopardy — if (1) the “clear focus of (the statute) is on the culpability of the individual”, and (2) the legislature “understood these provisions as serving to deter and punish”. The Court added that “the historical understanding of forfeiture as punishment” weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously.

But help arrived  from a more conservative U.S. Supreme Court. In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling: “We believe that Halper’s deviation from long-standing double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is “punitive”, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable”. Hudson v. U.S., 592 U.S. 93 (1997).

Unworkable?

Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a “civil sanction”, not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy or multiple punishment. It just looks an awful lot like it.

Somehow, the words of Lewis Carroll keep coming to mind:

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

A “post from the past” from the kind of folks who brought us DUI roadblocks, zero tolerance and prohibition:

Mayor Judith Rawson Declares March National Caffeine Awareness Month

Shaker Heights, Ohio ( Jan 17, 2006 ) — Following a health trend that appears to be brewing up all over the nation, Mayor Judith Rawson has signed a proclamation for the City of Shaker Heights that addresses the issues regarding caffeine intoxication and dependency.

In the proclamation the Mayor is “calling upon all Shaker Heights citizens, public and private institutions, business and schools to increase awareness and understanding of the consequences of caffeine consumption.”…

City of Shaker Heights is one of several cities across the country recognizing this annual event. This will be the third year for this event which is sponsored by the Caffeine Awareness Alliance, a non-profit organization.  Marina Kushner, founder, states, “Each year more and more people are waking up to the real truth about the dangers of this ubiquitous drug. We are delighted that the mayor has recognized that this is not a laughing matter.”

Can MACED (Mothers Against Caffeine-Enhanced Driving) be far behind?

Let me tell you about one of my law firm’s cases that ended up in a Los Angeles Times article entitled “DUI Case Botched by Blood Mixup“.

One of our attorneys had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood. 

So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confident that the lab did not make a mistake. One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys.

As always, the police claim infallibility: “We do not make mistakes…It was the nurses”.

So how could this have happened? The truth is that it probably happens far more commonly than you suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of vials tested by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around.

Otherwise, I guess you’ll never know….

As I’ve indicated in previous posts, defense attorneys for years have been trying to discover the software source code used by manufacturers of various breathalyzer models.  (See “Secret Breathalyzer Software Still Secret”)   The accuracy of these  machines, which essentially determine a suspect’s guilt or innocence, depends upon the accuracy of the software driving them; as the computer techs say, “Garbage in, garbage out”.  But the manufacturers have refused to produce the information, relying upon a claim of “trade secrets” — that is, that the code of each model is a unique creation of the manufacturer.  And prosecutors, apparently more concerned with profits than with justice, have joined them in resisting disclosure.

Recently, however, judges in Florida, Minnesota, New Jersey and a growing number of other states have begun ordering the manufacturers to reveal the inner workings of their machines to the defense.  (See “Judge: Divulge Breathalyzer Code…or Else”.)  Not surprisingly, the manufacturers have refused to comply.  Until a few days ago….

New Jersey attorney Evan M. Levow was finally able to get an order from the Supreme Court of New Jersey forcing the manufacturer of the popular Draeger AlcoTest 7110 to reveal the source code.  Levow turned the code over to experts, Base One Technologies, to anaylze.

Initially, Base One found that, contrary to Draeger’s protestations that the code was proprietary, the code consisted mostly of general algorithms:  “That is, the code is not really unique or proprietary.“  In other words, the “trade secrets” claim which manufacturers were hiding behind was completely without merit.

Some of the more interesting excerpts from the Base One report:

 1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough…

7. Flow Measurements Adjusted/Substituted: The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement…

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported…

Based upon a .08% reading from this machine, American citizens are accused of drunk driving and, in court, presumed by law to be guilty.