DUI BLOG

In “Why Breathalyzers Don’t Measure Alcohol”, I mentioned one of the many reliability problems breath machines have: they falsely report any of thousands of chemical compounds as “alcohol”. 

Scientific studies have clearly proven this defect, a problem referred to as non-specificity.  My post “Driving Under the Influence of…Gasoline?” presented a practical example of one such compound. But is gasoline the only chemical product that has been proven to falsely register as alcohol on these machines?

Far from it. See, for example, “The Response of the Intoxilyzer 4011AS to a Number of Possible Interfering Substances”, 35(4) Journal of Forensic Sciences 797, where researchers found numerous common substances which were falsely reported by breathalyzers as alcohol — including methyl ethyl ketone, which is used in lacquers, paint removers, cements, adhesives, celluloid and cleaning fluids. Another compound, toluene, also caused false high readings and is commonly used in paints, lacquers, varnishes and glues.  Yet another is isopropanol, commonly known as rubbing alcohol. Fumes from these chemicals can be inhaled or absorbed through the skin.

In an interesting scientific study, researchers performed tests on a professional painter who was exposed to lacquer fumes under controlled conditions. In the first test, he sprayed paint in a room for 20 minutes, wearing a protective mask; his blood and breath were then tested. Although the blood test showed no presence of alcohol, a breath machine (Intoxilyzer 5000) indicated a reading of .075% blood-alcohol concentration –very close to the legal limit of .08%.  “Lacquer Fumes and the Intoxilyzer”, 12 Journal of Analytical Toxicology 168.

Yet another scientific study discovered that diethyl ether, found in some plastics and automotive products, can be inhaled and detected by breathalyzers as “alcohol”. “Diethyl Ether Interference with Infrared Breath Analysis”, 16 Journal of Analytical Toxicology (1992).  The researchers concluded that “the possibility of interference with an alcohol reading by ether or by other substances may therefore render prosecution more difficult if not impossible.”

The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests. It is his DUI report (and his opinion in that report) which will largely determine what, if any, criminal charges will be filed by the prosecutor.  It is the officer’s decision which will or will not result in a suspension of the driver’s license, his testimony at trial which will largely decide the guilt or innocence of the person he arrests.

Just how expert is the average police officer at judging levels of intoxication in a DUI case?

To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication. The researchers’ conclusion: “The assumption that social drinkers would prove to be accurate judges…was not confirmed.”

In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that “the bartenders correctly rated a target in only one of four instances”.

The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests. Results?

When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.

The scientists concluded that “the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time.” Langenbrucher and Nathan, “Psychology, Public Policy and the Evidence for Alcohol Intoxication”, American Psychologist 1070 (Sept. 1983).

Just the most recent example of the double standard applied when cops, prosecutors or judges are busted by honest officers for drunk driving:

Officer Found Not Guilty of OUI Charge

Northborough, MA.  Feb. 19  –  A judge has cleared a town police officer of drunken driving after throwing out his blood alcohol reading because it was taken at the hospital without his consent.

Earlier this month James Scesny, 38, of Clinton, was found not guilty of driving under the influence of alcohol and not responsible for a charge of marked lanes violation by Fitchburg District Court Judge Andrew Mandell.

The charges stemmed from a May 2007 accident in Clinton in which Scesny and his girlfriend were injured when the car he was driving struck a telephone pole.

The case was headed toward a jury trial, but at a Feb. 1 hearing Scesny’s attorney, Michael Erlich, requested a bench trial. Two weeks earlier, a Clinton District Court judge allowed Erlich’s motion to keep the blood alcohol test out of the trial.

Two blood samples taken by Clinton Hospital staff were tested by the Massachusetts State Police Crime Lab and both found a 0.168 blood alcohol level, according to a crime lab document in the court file.

Erlich argued that police took the samples without his client’s permission, and that authorities did not follow proper chain of custody protocol before sending them samples to the crime lab.

Erlich said his client refused to be tested when asked by three Clinton Police officers at the hospital.

I posted yesterday about the Washington State legislature recently refusing to cave in to the Governor and others interested in resurrecting DUI roadblocks found to be illegal by the state supreme court.  In today’s news, that same legislature again balked at further insanities in the “War on Drunk Driving”. 

Bill Proposes Yellow License Plates for DUI Drivers

Olympia, WA.  Feb. 12 – Sen. Mike Carrell wants everyone on the road to know who’s been caught driving drunk.

He’s sponsoring a bill that would require people convicted of drunken driving to put fluorescent-yellow license plates on their cars for one year — once their driving privileges have been restored…

Ohio, Iowa, Minnesota and Oregon have similar requirements for DUI offenders.

A few days later:

DUI Bill Dies, No Doubt From Embarrassment

Olympia, WA.  Feb. 15 – Finally, common sense prevails in dealing with the state’s laws on driving under the influence of liquor and drugs.

A bill steeped in election-year, get-tough-on-crime grandstanding has quietly gone to the burial ground for bad bills in the state Legislature. It failed to make it out of the Senate Transportation Committee before Tuesday’s deadline…

The gaudy plates would theoretically warn the motoring public and law enforcement that someone convicted of DUI is on the road, even though that person already has jumped through the hoops demanded by tough state laws and has had driving privileges restored.

That embarrassment factor seems like piling on when DUI offenders can already face jail time, even if for a day, higher insurance rates, mandatory counseling and suspended or restricted driving privileges.  

Wouldn’t it be nice if all politicians had such common sense and respect for their citizens? 

As many of you know, the United States Supreme Court in Michigan v. Sitz found that although sobriety checkpoints were apparent violations of the Fourth Amendment, they were only ”minor” violations.  Permitting police to stop citizens without reason to believe they had done anything wrong, Chief Justice Rehnquist said, was permissible in view of the government’s ongoing “War on Drunk Driving”.  (See my earlier post, ”DUI Sobriety Checkpoints: Unconstitutional?”)

Subsequently, politicians — fearful of MADD’s influence at the polls — have authorized the use of DUI roadblocks in 41 states.  Others, including Washington State, have rebelled at this refusal to protect their citizens’ right to privacy and have banned the practice by relying upon their own state constitutions. 

Recently, there has legislation proposed in Washington designed to avoid their own state Supreme Court’s ruling that DUI roadblocks were illegal.  The Governor of the state, Christine Gregoire, has very publicly thrown her political muscle behind the new bill…

DUI Roadblock Bill Dies in Olympia

Olympia, WA.  Seattle Times  –   Gov. Christine Gregoire suffered her first major defeat of the 2008 Legislature on Thursday when her push for drunken-driving checkpoints died without enough support from lawmakers…

But the plan encountered strong, bipartisan resistance in the Legislature. Critics said the Washington constitution’s privacy protections, which are stronger than those in federal law, prohibit police searches without a greater degree of suspicion.

Rep. Steve Kirby, D-Tacoma, said he heard loud and clear from constituents that the police roadblocks weren’t a good idea. He agreed.

“To me, this is a step away from letting the police stop us on the streets and search our pockets and our backpacks,” Kirby said.

It’s unfortunate that the politicans of so many other states are more concerned about MADD than about the rights of their citizens.      

Ok, the cop said I looked bad on the field sobriety tests, but I know I’m not guilty: I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Well….Not necessarily. This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental to the framers of our Constitution that they included it in the Bill of Rights’ Sixth Amendment? It makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

How did the government get around this fundamental right? Well, once again they started whitling away by playing around with words. (As Humpty Dumpty said Lewis Carroll’s Through the Looking Glass, “When I use a word, it means just what I choose it to mean, neither more nor less.”)

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in “serious” criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for one-half year was not enough to justify giving a citizen a right to trial by his peers. The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York 399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — AND a bunch of other stuff: fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury? No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”

My last post reported on the findings of a panel of Seattle judges which concluded that the state’s crime lab responsible for breath testing had routinely engaged in “fraudulent and scientifically unacceptable” practices that have compromised breath-test readings across Washington. 

On February 2nd, a Seattle television station ran a more in-depth investigation, resulting in an interesting report on their news program.  The complete video can be seen and heard at ”Up Front: DUI Breath Tests Thrown Into Question”, and begins with comments concerning the judicial findings:

…A scathing report of what was going on at this state agency lab.  Judges say it was fraud, a total disregard for accuracy.  So what does it mean for DUI cases going back for years?…

The judges are brutally blunt and saying it’s not just mistakes, it’s fraud, and the breath tests results simply cannot be trusted…

Defense attorneys say the problem is not with the police or with how the test is administered, it’s a meltdown at the state toxicology lab.

Defense Attorney Ted Vosk:  They deceived the judges, they deceived the prosecutors, they deceived the officer out on the street.

The panel of three King County judges agreed, finding “Ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.  Literally thousands of breath tests performed in recent years were effected through a multiplicity of errors.”…

How did it happen?…

The report goes on to give a credible account of what’s been going on in the Washington state crim lab. No problem, though, according to the King County prosecutor:

Reporter:  When you see a breath test today, how much confidence do you place in the results?

Prosecutor: I’m quite confident.

How did it happen?  The same way it’s happening in police crime labs across the country:  the role of the crime lab has shifted from one of analyzing evidence to one of facilitating convictions…whatever it takes.