Law Trumps Science…in Drunk Driving
Posted by Lawrence Taylor on July 16th, 2008It 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 1500:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .07% — 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 recently re-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 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.
Oh where do we stop? When will it stop? I don’t think the DUI situation will ever go away, it will just get worse. Prohibition, here we come!
If this is the court’s stance, why bother having a trial at all? Why not just take the alleged DUI perpetrator straight to jail from the squad car and lock them up for a few years? This tramples on the individual’s state and federal constitutional rights. The courts are being lazy and bowing down to public pressure.
what if the defendant wanted to offer proof that the actually machine he was tested on , that the software was programmed at 2500-1 or 1500-1, and not at 2100-1. this is the real true argument. no one knows, not even the police, what it was programmed for, because a breath terat on machines like the alcotest and intoxalyzer, do not provide the raw data signal, the analog converted to digital result, in order that someone could do the calculation by hand , using 2100-1 factor, and come out with the same bac answer as the computer did. this is my argument, that i have been waiting 35 months to make in a nj municipal court, as my own expert witness.
i think, the most basic point here, we at least, and this is where we part thinking,.. that at least, we should be able to know the result produced, right or wrong as far as others issues, is at least the right result as to what the instrument should produce. and we do not know this. there is absolutley no way to do this without raw data, and this is the best argument we have, i feel. instead of attacking the instrument by complaints, take the real life, everydfay approach, where is the beef. where is the data, for a breath test, that once can take the digital result, and do the caluculation by hand, like every instrument, millions of instruments in nj, and california by the way, do.
i am strong minded on this point because i have been an analytical chemist in nj for 20 years, with much experience in many areas within analytical chemistry, and have been under the gun for 20 years to ensure raw data is not only available, but preserved. that is why i strongly say the alcotest is programmed correctly. there is not an hplc, gc, aa, ir, uv, that produces a quantitative result of significance, in nj, or in california, as audited by the fda, epa, and state dep’s, that do not provide raw data, so any and every result can be checked by hand.
again, i am sorry i have posted a lopt in this thread, but dui and analytical chemistry is complicated, and not easily summed up in a few lines. i am actually providing mr, taylor, with something he can and should truly sink his teeth into. and i posted my 4 part arument on here in the pasdt and emailed it to him,.,….. the fact is, even with raw data, that doesnt mean challanging cant be made, it means more challanges can be made,…. because it is simply more to look at and review,. and afterall, do we all not want to know, at the very least, the alcotest or intoxalyzer produced the result that it is claiming to be able to produce. everyone, lawyers, defendants, and the State
here is the case law below posted here as information… and i submitt, how can the courts think a breath testing device such as the alcotest or intoxalyzer be accepted by scientific community , when it simnply is not, nor could be.. because it would need to provide raw data to support such an important result.
“â€To allow the admission of scientific evidence in criminal cases, there must be general acceptance by the relevant scientific community. State v. Harvey, 151 N.J. 117, 169-70 (1997) (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923); Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Johnson, 42 N.J. 146, 170-71 (1964); Foley, 370 N.J. Super. at 349. To establish general acceptance, test results must have “’sufficient scientific basis to produce uniform and reasonably reliable results [which] will contribute materially to the ascertainment of the truth.’†Romano, 96 N.J. at 80 (quoting State v. Hurd, 86 N.J. 525, 536 (1981)). “Proving general acceptance ‘entails the strict application of the scientific method, which requires the extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience.’†Harvey, 151 N.J. at 171 (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 436 (1991)).—