Archive for June, 2008

MADD’s Latest Weapon: Update

Friday, June 13th, 2008

My post last week concerning a California High School's efforts with MADD to traumatize their students, drew quite a reaction from readers.  The following is an update:


School Defends Drunken Driving Hoax

Oceanside, CA.  AP, June 12 (article originally published by KGAN-TV CBS 2 Iowa) – School officials in Oceanside, California, are defending a scared-straight exercise that sent some El Camino High School students into hysterics.

One Monday last month, California Highway Patrol officers went to 20 classrooms and delivered the grim news that several students had been killed in drunken-driving car crashes over the weekend.

The news devastated Michelle de Gracia, who says she was nauseated and too stunned to cry. Others in her physics class were so upset that the teacher had to tell them it was all staged. Then they became angry. Michelle says says "they got the shock they wanted."

A 15-year-old student says, while she feels "betrayed" by her teachers and school administrators, she also feels that "if it saves one life, it's worth it." Others disagree. During assemblies after the hoax, some students held up posters reading "Death is real. Don't play with our emotions."

Camino High guidance counselor Lori Tauber says "we wanted them to be traumatized."


"We wanted them to be traumatized."  One wonders where the MADDness is going next….

Share

The Unknown Variable

Thursday, June 12th, 2008

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself.

A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer’s observations and conduct in the field:


The officer’s age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

The officer’s personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate—often by a wide margin—the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement—particularly in municipal departments—were found to lack this specialized training.

Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties.

Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.

Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

The suspect’s attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

The suspect’s race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed—the overwhelming majority of whom were white—reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

Suspect’s age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

Suspect’s sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming.”


Most DUI cases depend largely upon two variables: the officer and the machine. As has been discussed repeatedly in past posts, the machine is an unknown and unreliable variable. As the federal study indicates, so is the officer.

Share

The Hidden Danger of “One for the Road”

Sunday, June 8th, 2008

In previous posts, I’ve explained many of the reasons why breathalyzers are inaccurate and unreliable. See, for example, “Breathalyzers — and Why They Don’t Work“; ”Warning: Breathalyzer in Use“; ”Convicting the ‘Average’ DUI Suspect“; “Why Breathalyzers Don’t Measure Alcohol“; “Driving Under the Influence of… Gasoline?; ”How to Fool the Breathalyzer“. (These and many other sources of error are explained more fully in Chapter 6 of my book, Drunk Driving Defense, 6th edition.)

One of the most common sources of error in breath alcohol analysis is simply testing the subject too early — while his or her body is still absorbing the alcohol.

Let’s take a common example. At a restaurant Sarah shares a bottle of wine with a friend. She nurses one glass over a one-hour dinner. Nearing the end, another glass is poured from the bottle and she finishes this. The two friends then order an after-dinner drink. Noting the time, Sarah quickly finishes the drink and leaves. She is stopped by the police one block from the restaurant. After questioning and field sobriety tests, she is taken to a police station and tested on a breathalyzer. The machine shows her blood alcohol concentration (BAC) to be .09% — over the legal limit. She is booked for DUI and jailed.

Sarah’s true BAC, however, was lower, perhaps much lower. If a blood sample had been taken instead of a breath test, the results would have shown only .05% — well under the legal limit.

Absorption of alcohol continues for anywhere from 45 minutes to two hours after drinking or even longer. Peak absorption normally occurs within an hour; this can range from as little as 15 minutes to as much as two-and-a-half hours. The presence of food in the stomach can delay this to as much as four hours, with two hours being common.

During this absorptive phase, the distribution of alcohol throughout the body is not uniform; uniformity of distribution — called equilibrium – will not occur until absoprtion is complete. In other words, some parts of the body will have a higher blood alcohol concentration (BAC) than others. One aspect of this non-uniformity is that the BAC in arterial blood will be higher than in veinous blood (laws generally require blood samples to be veinous). During peak absorption arterial BAC can be as much as 60 percent higher than veinous.

This becomes very relevant to breath alcohol analysis because the alveolar sacs in the lungs are bathed by arterial blood, not veinous: The diffusion of alcohol through the sacs and into the lung air will reflect the BAC of the body’s arterial blood. Therefore, the breath sample obtained by the machine will be reflective of pulmonary BAC — which, during absorption, will be considerably higher than veinous BAC (and higher than the BAC in other parts of the body).

After extensive research, one of the most noted experts in the field of blood alcohol analysis has concluded:

Breath testing is not a reliable means of estimating a subject’s blood alcohol concentration during absorption…..

There is a significant likelihood that a given subject will be in the absorptive state when tested under field conditons. Because of large differences in arterial BAC and veinous BAC during absorption, breath test results consistently overestimate the result that would be obtained from a blood test — by as much as 100% or more. In order to have some idea of the reliability of a given breath test result, it is essential to determine by some objective means whether the subject is in the absorptive or post-absorptive state. In the absence of such information, an appropriate value for the uncertainty associated with the absorptive state should be applied to all breath test results.

Simpson, “Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State”, 33(6) Clinical Chemistry 753 (1987).

The most recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma, agrees with Simpson: “When a blood test is allowed, an administered breath test is discriminatory, because in law enforcement practice the status of absorption is always uncertain.”

Share

MADD’s Latest Weapon

Wednesday, June 4th, 2008

So where is MADD going with their “War on Drunk Driving”?


El Camino Teens Face Heavy Emotions Brought

About by Drunken-Driving Dramatization

Oceanside, CA.  May 30 – It was an elaborate hoax, but 36 students at El Camino High pulled it off with potentially life-saving consequences.

The result was a soberingly realistic dramatization about the dangers of drinking and driving, delivered with surprising professionalism.

Many juniors and seniors were driven to tears – a few to near hysterics – May 26 when a uniformed police officer arrived in several classrooms to notify them that a fellow student had been killed in a drunken-driving accident.

The officer read a brief eulogy, placed a rose on the deceased student’s seat, then left the class members to process their thoughts and emotions for the next hour.

The program, titled “Every 15 Minutes,” was designed by Mothers Against Drunk Driving. Its title refers to the frequency in which a person somewhere in the country dies in an alcohol-related traffic accident.

About 10 a.m., students were called to the athletic stadium, where they learned that their classmates had not died…

Though the deception left some teens temporarily confused and angry, “If it makes even one student think twice before getting behind the wheel of a car while intoxicated, it is worth the price”, said California Highway Patrol Officer Eric Newbury, who orchestrates the program at local high schools.

“I want them to be an emotional wreck. I don’t want them to have to live through this for real.”


The laws of every state in this country include a right to sue for the tort of “intentional infliction of emotional distress”.  Are MADD and the California Highway Patrol immune?  Or is this another example of the “DUI Exception”?


(Thanks to John Kruzelock.) 

Share

Due Process and Automatic License Suspensions

Tuesday, June 3rd, 2008

So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about due process: Can they punish me before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) drunk driving who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a drunk driving case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (“administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced all 50 states into adopting APS suspensions — or else no highway funds

Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection!

Not too surprisingly, the DMV wins about 96% of these DUI hearings.

That’s called “due process” in a drunk driving case.

Share