DUI BLOG

As I discussed in a recent post, the fatalities statistics used by MADD and government agencies to justify DUI checkpoints are flawed. In fact, the statistics can be viewed as indicating quite the opposite.

Well, all right, so checkpoints may not reduce fatalities — but, according to MADD, they certainly result in more DUI arrests.

Wrong again. The simple fact is that checkpoints are largely wastes of police resources and taxpayer money — not to mention unjustified invasions of privacy. In fact, in the United States Supreme Court decision (Michigan v. Sitz) upholding their constitutionality, a dissenting justice pointed out the “the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”. (Emphasis added)

This is confirmed by National Highway Traffic Safety Administration studies, which conclude that “the number of DWI arrests made by the roving patrol program was nearly three times the average number of DWI arrests made by the checkpoint programs”.

Then why do we have DUI roadblocks? Consider the following news story:

PENNDOT GRANTS TOTALLING $1 MILLION FUND SOBRIETY CHECKPOINTS STATEWIDE

Chester County officials said recent recommendations from the national headquarters of Mothers Against Drunk Driving have been implemented by area police departments for years. Among the recommendations are an increased focus on prevention tactics such as sobriety checkpoints.

“We work with MADD and will continue to work with them to reduce the incidents of drunken driving in Pennsylvania,” (DOT spokesperson Jenny) Robinson said….

“I’ve read that police are less than enthusiastic about DUI checkpoints because they don’t make as many arrests,” (MADD official Bryce) Templeton said….

Richard Harkness, superintendent of the Tredyffrin Police Department, said checkpoints keep drivers aware that police are on the lookout for drunken drivers. He said there usually aren’t many DUI arrests at checkpoints, but they help educate the public.

“There should be as many DUI roadblocks as economically feasible,” Harkness said.

So…Roadblocks are invasive, don’t reduce fatalities and don’t produce more arrests — but we should have lots more of them. Why? To educate us.

The latest weapon in MADD’s “War on Drunk Driving”:

Senate Measure Would Ban Lawyers

from DUI Advertising

Nashville, TN.  AP, April 22 – Defense attorneys would be banned from advertising their expertise with drunken driving cases under a bill advancing in the Senate.

Sen. Rosalind Kurita, a Clarksville Democrat, successfully added the provision to a bill that would create an online registry of repeat DUI offenders in Tennessee.

Kurita says officials have a hard enough time convicting drunken drivers without lawyers advertising their expertise in the field and offering discounts to DUI defendants…

In another article appearing hours later, Senator Kurita explained her reasoning:  “Kurita said she pushed for the amendment because she was tired of suspected DUI offenders not being convicted.”

Imagine that:  A citizen accused of a crime who is not convicted.  Intolerable!  There oughta be a law against that.

Another rational solution to the drunk driving problem…

(Thanks to David O’Shea.)

I’ve written repeatedly in the past about the inaccuracy and unreliability of the various breath machines used to estimate blood alcohol concentrations.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Breathalyzer Inaccuracy: Testing During the Absorptive State.  I’ve also pointed out how our laws now ignore scientific truth and presume that the blood-alcohol level at the time of testing was the same as when driving, say, three hours earlier.  See How to Overcome Scientific Facts: Pass a Law.  And I’ve written about how our laws now presume guilt based upon a reading over .08% from one of these machines — how these devices have become judge, jury and executioner.  See Whatever happened to the Presumption of Innocence?.

Well, at least a citizen accused of drunk driving can call his own expert from the local university to testify as to alcohol metabolism and the probable true levels of alcohol in the accused, right? 

That may now be disappearing, too….

Supreme Court Strikes Blow

to ‘Two-Beer Defence’

Toronto, April 17 – The Supreme Court of Canada dealt a blow Thursday to the so-called “two-beer defence” – used by individuals accused of impaired driving – in which defence toxicology experts use their own measurements to try to refute a breathalyzer reading taken by police.

A 7-2 majority said Thursday that allowing defence experts to estimate the amount of alcohol an accused person had in his or her system when arrested is an unreliable exercise that depends on too many variables.

“To admit such a defence would obviously fly in the face,” of Parliament’s desire to bring drinking and driving under control, Madam Justice Louise Charron said, writing on behalf of three other majority judges…

In a testy rebuke to the majority, Madam Justice Marie Deschamps said: “I find it highly troubling and offensive for a court to impeach an expert’s credibility by dismissing post-offence testing, without an indication that the testing conditions were inadequate, on the basis that it does not adequately replicate the conditions at the time of interception.

“Testing conditions are in the domain of experts, not of the courts,” she said, writing on behalf of Mr. Justice Ian Binnie. “Courts need evidence in order to question the weight of expert testimony…”

Defence toxicologists typically administer specific amounts of alcohol to the subject and measure the rate at which their body absorbs the alcohol. Their evidence ultimately covers a range of possible blood alcohol concentrations, taking into account the amount of alcohol consumed, the pattern of drinking, and the accused’s age, height, weight and gender…

  
Amazing.   Let me repeat the reasoning of the Court:

“To admit such a defence would obviously fly in the face,” of Parliament’s desire to bring drinking and driving under control, Madam Justice Louise Charron said, writing on behalf of three other majority judges…

In other words, the defendant is not permitted to question the Breathlayzer results — because it interferes with efforts to combat drunk driving.  Think about that.

In view of past decisions from the U.S. Supreme Court, and the political influence of MADD, how long do you think it will be before we follow the Canadians?

I’ve posted repeatedly in the past about the dangers of MADD’s so-called “DUI SuperCop” awards, encouraging police to make greater numbers of arrests — legal or otherwise.  See, e.g., How to be a DUI Super Cop,  Supercops..and Supercons and Another DUI SuperCop.  In yesterday’s news, the latest example: 

Cop with Most DUI Arrests Charged with

Misconduct, Other Felonies

Chicago, IL.  April 15 - A Chicago cop once honored for arresting more drunk drivers than any other Illinois officer faces felony charges for allegedly filing a bogus police report on one of his arrests.

John Haleas, 37, is charged with four counts of official misconduct, two counts of obstruction of justice, and four counts of perjury in a grand jury indictment dated
April 9.

Haleas was honored three times by the Schaumburg-based Alliance Against Intoxicated Motorists as the police officer with the most DUI busts in Illinois. But last October, the Cook County State’s Attorney’s office dropped about 50 DUI cases in which Haleas had been the arresting officer — and said as many as 500 cases could be in jeopardy…

According to the indictment, Haleas falsely reported that (the arrestee) failed a field sobriety test. Haleas allegedly wrote false traffic citations, the indictment states, and lied about (him) taking the “one leg stand” test, the “walk and turn” test, and the finger-to-nose test. In fact, Haleas “did not administer any field sobriety tests,” the indictment states.

I wonder how many of those record-breaking arrests by this DUI “SuperCop” were also based upon false evidence?  And how many other cops, hungry for the promotions that these awards bring, are also taking shortcuts?

For many years now, MADD has focused much of its considerable manpower (over 600 chapters), resources (revenues of over $51 million a year) and political influence on the proliferation of DUI roadblocks (or, to use the politically correct phrase, “sobriety checkpoints”). To justify this invasion of our privacy, we have been repeatedly assured that “checkpoints” are extremely effective in reducing alcohol-related traffic fatalities — and these assurances have been accompanied by statistics. Let’s take a closer look at these “statistics”….

According to MADD’s own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD’s website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:

Hawaii
Nevada
North Dakota
Rhode Island
South Carolina

According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:

Georgia
Kentucky
Indiana
Iowa
New York

If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.

Let’s take a look at another set of statistics: the effect of the proliferation of checkpoints on the national rate of alcohol-related fatalities. If checkpoints are effective, we would expect to find that alcohol-related fatalities will have declined since their widespread acceptance in recent years .

Again, the statistics do not support this. To use MADD’s own numbers: Since 1982, the number of fatalities nationwide from alcohol-related crashes has declined every year — until about 1993, when it dropped to 17,908. Perhaps coincidentally, this was the year after the United States Supreme Court ruled that sobriety checkpoints were not unconstitutional. In the 10 years since then, sobriety checkpoints have gained widespead acceptance — but the number of fatalities have levelled off, vacilating between 17,908 and 17,013. Far from supporting MADD’s position, one could even argue that this proves sobriety checkpoints have actually halted the steady decline in alcohol-related deaths. This would probably be incorrect — but indicative of how statistics can be used to serve a desired objective.

It is an unfortunate fact that law and politics repeatedly trump science when it comes to prosecuting citizens accused of drunk driving…..  

In People v. Bransford, to cite one notable example, the California Supreme Court was confronted with a defendant who was challenging his DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath.

He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been innocent.

The Supreme Court of California affirmed the conviction, however, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood ”as measured on the breath”. In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood!

An amazing decision. More interesting, perhaps, is the language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.  People v. Bransford, 8 Cal.4th 894 (1994).

In other words, preventing an accused from defending himself with scientific truth serves justice by making it easier to get convictions!

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. Recognizing the truth, she wrote in a separate opinion:

The majority…has on its own created the new crime of driving with alcohol in one’s breath.

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath or blood test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving?

It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.  21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if alcohol was still being absorbed and the BAC was rising, for example, it could have been a .07% or lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: It’s a scientific fact that BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?

Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving.  Vehicle Code sec. 23152(b).

Wait a minute….What about the truth?  And what about the State having the “burden of proof” — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the “presumption of innocence”?

Details, details. The important thing here is that we get these drunk drivers off the road, right?