Archive for September, 2007

Racial Differences in the Effects of Alcohol

Wednesday, September 26th, 2007

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”.


DUI Survey — or Roadblock?

Saturday, September 22nd, 2007

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.)


Court Rejects Field Sobriety Test

Friday, September 21st, 2007

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.)


Double Punishment in DUI Cases

Wednesday, September 19th, 2007

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).


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.”


Mothers Against Caffeine Intoxication

Saturday, September 15th, 2007

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?