Archive for January, 2008

Judges: Crime Lab DUI Records “Deceptive & Fraudulent”

Thursday, January 31st, 2008

In today’s I-told-you-so department:


Judges Reject DUI Breath-Test Results

Seattle, Jan. 31  –  In a ruling that could affect thousands of cases, a panel of King County judges said Wednesday that the state’s toxicology lab engaged in “fraudulent and scientifically unacceptable” practices that have compromised breath-test readings used to prosecute suspected drunken drivers…

In its blistering 29-page ruling, the panel of three District Court judges said the Washington State Toxicology Lab created a “culture of compromise” with so many “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” that the breath tests should not be used as evidence in pending DUI cases.


Do you really think that cover-ups of inaccurate and unreliable breathalyzer tests are limited to Seattle’s crime labs?  See “Breaking Up the Forensics Monopoly” in Reason magazine, November 2007, which concludes:


America’s forensics system, the part of our criminal justice system responsible for scientific examinations of crime-scene evidence like fingerprints and DNA, is rife with errors. Some mistakes, like botched tests or erroneously interpreted results, are inevitable. But current error rates are needlessly high.

The most recent comprehensive study of crime lab proficiency, published by the Journal of Forensic Sciences in 1995, analyzed the tests administered by the Forensic Sciences Foundation and Collaborative Testing Services as a part of the accreditation process. For many forensic disciplines, including the analysis of fibers, paints, glass, and body fluid mixtures, the rate of incorrect matches between recovered evidence and a reference sample exceeded 10 percent…

Confronted with such statistics, policy makers usually call for greater oversight—that is, finding a governmental body to watch over forensics and make sure everyone does his or her job right. In the current climate, that certainly would help. But the core problem with modern forensics isn’t an absence of oversight. It’s monopoly. Once evidence goes to a given lab or facility, it is unlikely to be examined by any other lab or facility. That increases the chances that a mistake will slip through undetected.


The “monopoly”, in most cases, are crime labs that are not independent but part of law enforcement – and increasingly more interested in facilitating convictions than in seeking accuracy and reliability in evidence.

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DUI Double Jeopardy and Multiple Punishment

Wednesday, January 30th, 2008

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.

In other words, even though he only drove once, the individual 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?

It gets worse….The driver has already been punished by another state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. 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 once again. The sentence may involve jail, fines, DUI schools, community work, probation — and a restricted, suspended or revoked license.

How many times can the state prosecute 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, but eventually came to the conclusion 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…

Well, 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 may include another license suspension?

This one caused the judges 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 the 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, insurance companies and pretty much everyone else who did not take the Constitution too seriously. But rescue 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.

From Lewis Carroll, Through the Looking Glass:

“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.”

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When is a Refusal Not a Refusal?

Tuesday, January 29th, 2008

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI.

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own unique approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will be charged with a refusal as well.

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Breathalyzers Don’t Measure Alcohol

Saturday, January 26th, 2008

That’s right.  What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will “see” all of those chemicals as alcohol — and report a falsely high “blood-alcohol” concentration (BAC).

Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed “blood-alcohol” reading.

Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific — that is, they are not capable of detecting and measuring a specific compound.  More important for government work, they are relatively cheap.  Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use only one or three less-costly filters.  Result:  these machines can only detect and measure a broad range of compounds containing the methyl group — and they then simply assume that the unknown compound within this group is ethyl alcohol.

If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the breath-alcohol level.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered.  “Trace Composition of Human Respiratory Gas”, 30 Archives of Environmental Health 290.  In another study invoviing 28 subjects, researchers found that the “combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin”.  “Characterization of Human Expired Air”, 15 Journal of Chromatographic Sciences 240.  And Canadian scientists have discovered over 200 such compounds.  “The Diagnostic Potential of Breath Analysis”, 21(1) Clinical Chemistry 5.

What are these compounds?  Are there any on my breath?  Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is “seen” as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1. And there are many other so-called “interferents”. See, for example, “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the breathalyzer as “alcohol” — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if you’ve painted a room or been around gasoline in the last day or two, don’t breath into a breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.

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Breathalyzer Results Depend on Body Temperature

Thursday, January 24th, 2008

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect”). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results” and “The Effect of Anemia on Breath Tests”).

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this effect. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.

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