Archive for February, 2008

Breathing Paint Fumes = High Breath Test Results?

Thursday, February 28th, 2008

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.”


How Good Are Cops at Detecting Intoxication?

Monday, February 25th, 2008

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).


The Thin Blue Line Exception

Thursday, February 21st, 2008

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.


So the drunk driving case was thrown out because…there was no breath test?  Hmmm…so what do they do in roughly 25% of DUI arrests where the suspect refuses to take a breath test?  Just let him go?  Oh, right, they charge him with drunk driving anyway — and prosecute based on evidence such as witnesses, driving symptoms (weaving, accidents), personal symptoms (slurred speed, bloodshot eyes), field sobriety tests, incriminating statements and the arresting officer's opinion….Unless the guy's a cop.

(Thanks to Andre Campos)


Washington State Says “No” to DUI Scarlet Letter

Friday, February 15th, 2008

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? 


Washington State Says “No” to DUI Roadblocks

Thursday, February 14th, 2008

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.