DUI BLOG

I’m not sure if this is a sad commentary on our criminal justice system or on the values of society generally, but…the following is from a recent Washington Post comparison of Las Vegas slot machines and electronic voting machines.  I’ve taken the liberty of substituting breathalyzers for voting machines:

SOFTWARE

SLOT MACHINES:  State of Nevada has access to all software.  Illegal to use software that is not on file.

BREATHALYZERS:  Software is kept secret by manufacturers.  Neither the accused citizen nor the  government are permitted access.

SPOT-CHECKING

SLOT MACHINES:   State gaming inspectors show up unannounced at casinos to compare computer chips with those on file .  If there is a discrepancy, the machine is shut down and investigated.

BREATHALYZERS:  Software is kept secret by manufacturers.  Neither the accused citizen nor the  government are permitted access.

BACKGROUND SCRUTINY

SLOT MACHINES:  Manufacturers subjected to background checks.

BREATHALYZERS:  Manufacturers and manufacturing processes are not checked.

EQUIPMENT CERTIFICATION

SLOT MACHINES:  By a public agency at arm’s length from manufacturers.  Public questions invited.

BREATHALYZERS:  Generic models are approved by state government, based upon manufacturer-supplied specifications but without software information.  Individual machines are not certified.  Public questions are irrelevant.

HANDLING DISPUTES

SLOT MACHINES:  Casino must contact the Gaming Control Board, which has investigators on call around the clock.  They can open up machines to inspect internal mechanisms and records of recent gambling outcomes.

BREATHALYZERS:  No governmental agency exists for independently regulating breathalyzers or handling disputes concerning  accuracy. 

I guess that tells us a lot about our priorities.

(Thanks to Andre.)
                           

As I’ve mentioned repeatedly in past posts, simply creating harsher drunk driving laws and penalties and increasing enforcement has not proven effective.  The simple fact is that despite MADD’s hysterical "War on Drunk Driving", the DUI-related fatality statistics have remained unchanged over the past dozen years.  See MADDness and MADD Statistics Again Debunked.

Perhaps we can draw a lesson from our neighbors to the south:

Beer-Loving Brazilians Adapt to the "Dry Law"

Rio de Janeiro, Brazil.  Dec. 22  -  …Six months ago, the government imposed one of the strictest drunken-driving laws in the hemisphere, what people here call the "dry law." Anyone caught driving with a blood alcohol content of .02 percent or higher (compared with .08 in the United States) faces a $400 fine, loss of their license for a year, an impounded vehicle and jail time…

The dry law, introduced in June, hit the country like a cold shower. Police swarmed the streets outside night spots in major cities, setting up sobriety-test checkpoints, handing out fines and seizing licenses. More than 5,000 people have been cited under the law, which joined a measure this year limiting the sale of alcohol along federal highways.

But it is difficult to say how well the new law is working — or whether Brazilians’ behavior has changed much…

The statistics suggest the roads are no safer than before. In the law’s first five months, the number of car accidents on federal highways in Rio de Janeiro state rose 17 percent, compared with the same period in the previous year. Injuries also rose, by 32 percent, although deaths fell by 8 percent, according to police.

Across the country, the picture appeared worse. In those five months, accidents, injuries and deaths on federal highways increased over the previous five months…

Einstein used to define "insanity" as "doing the same thing over and over and always expecting a different result".

Perhaps it’s time for a different approach, one focused on problem drinkers rather than on Draconian laws and unconstitutional procedures.  See my post Time for a Change.
 

I’ve posted in the past about the emergence in Texas and Utah of a new practice in drunk driving law enforcement: bypassing a licensed blood technician and letting the cop draw the blood himself — on the highway.  See Blood Draws in the Back Seat by the Dashboard Light, Would You Want a Cop Taking Blood from You? and Taking Blood by Force.   

The scenario is rather chilling:  The frightened and struggling suspect spread-eagled on the hood of a car along the side of the road as the cop repeatedly jams a hypodermic needle into him. But the practice has continued to spread, as today’s news story from Arizona shows:

  
More Police Learning to Draw Blood in DUIs

Phoenix, AZ.  Dec. 18 – If you’re drunk behind the wheel in Arizona, chances are increasing that an officer might draw your blood to prove it.

During the past 15 years, most large law-enforcement agencies statewide have moved from using Breathalyzers in favor of using blood to determine alcohol levels.

 Nesci said his greater concern is with officers drawing blood during tense situations.

"You need a license to cut hair in Arizona, but you don’t need a license to puncture a vein and draw blood. That in and of itself is frightening," he said. "There are a couple (of) other things that go along with that. Was the person who drew your blood mad at you? Was it an adversarial situation?"

 
Would you want a cop taking blood from you? 
 

I’ve posted in the past about the increasing federalization of drunk driving laws and law enforcement procedures.  See Here Come the Feds and The Future of DUI.  But even I wasn’t ready for the latest development…

The U.S. Marines have landed…and are apparently manning "sobriety checkpoints" in San Bernardino County in California.  Yes, Marines.  Yes, civilian DUI roadblocks. 

From an official December 10th California Highway Patrol public relations release:

CHP to Conduct Sobriety/Driver’s License Checkpoint

The Morongo office of the California Highway Patrol (CHP) in conjunction with the  San Bernardino Sheriff’s Department and the USMC military police will conduct a joint sobriety/driver license checkpoint on Friday, December 12, 2008, somewhere in the unincorporated/incorporated area of San Bernardino County.

As an American citizen, not to mention a former Marine, I find this troubling — particularly in view of the clear wording of the Posse Comitatus act of 1878, described in Wikipedia:

The Posse Comitatus Act is a  United States federal law (18 U.S.C. § 1385) passed on June 16, 1878, after the end of Reconstruction. The Act prohibits most members of the federal uniformed services  (the Army, Air Force and State national Guard forces (when such are called into federal service) from exercising nominally state law enforcement, police or peace officer powers that maintain "law and order" on non-federal property (states and their counties and municipal divisions) in the former Confederate states.

The statute generally prohibits federal military personnel and units of the National Guard under federal authority from acting in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The Coast Guard is exempt from the Act.

A follow-up call to a Marine Corps public affairs sergeant resulted in assurances that the Marines would be there "as observers".   Hmmmm…..military observers.  Isn’t that how it all starts?

Thanks to Branson Hunter and Andre.

For years, MADD has loudly and widely extolled the virtues of "sobriety checkpoints" – despite clear evidence to the contrary.   See, e.g., my posts Do Roadblocks Work?, Do Roadblocks Work? (Part II), and DUI Logic: Roadblocks Effective Because They’re Ineffective.   Now, finally, there may be a glimmer of light out there.  Consider the following guest OpEd published yesterday in Louisiana:

Roadblocks Not Best Way to Curtail Drunk Driving

Thanksgiving kicked off the holiday season and its accompanying festivities. Families and friends will get together and chances are high that most adults will celebrate with a beverage or two. Local governments will be taking some extra precautions to keep our roads safe.

These heightened traffic safety programs, unfortunately, fall short of expectations year after year. Alcohol-related fatalities have been reduced by over 30 percent since 1982 — no thanks to sobriety checkpoints, one of the most popular traffic programs in the last decade (during which fatality numbers have completely leveled off). It is a policy which all but 11 states still cling to despite its obvious reliance on emotion instead of effectiveness.

These roadblocks will be among the many long lines that Louisianians will find themselves waiting in during the coming weeks of the holiday season. Still buried among the news stories about holiday shopping and the economy, plenty of articles will appear in local newspapers under headlines like: "No Drunk Drivers Caught At Sobriety Checkpoint." Such headlines appeared in newspapers across the country last holiday season. Countless counties also stopped hundreds of vehicles and made only one or two arrests. Since these checkpoints are highly visible by design and publicized in advance, it’s almost surprising that they manage to make any arrests at all. How can placing a group of officers at a single location and waiting for drunk drivers to come to them be the best approach to traffic safety improvement? The allegiance to these programs by so many state governments can’t be explained by a lack of better options. Roving police patrols or saturation patrols are clearly more effective. They arrest up to 10 times as many drunk drivers as checkpoints by patrolling the highways and looking for dangerous drivers…

Policymakers had good reason to give these checkpoint programs a chance. But the reality is that checkpoints aren’t further shrinking the much-diminished drunk driving problem. Why should we funnel limited resources away from measures that are proven to achieve the same goal more effectively? With a dozen or more officers, special equipment and printed materials, roadblocks cost taxpayers a whopping average of around $8,000 each. A typical saturation patrol with two officers runs about $300. Proponents are going to be working harder to justify the lack of return on these substantial investments of taxpayer money. But try not to be distracted by their emotional appeals. Checkpoint advocates, led by Mothers Against Drunk Driving, have a lot more in mind for these roadblocks than traffic safety.

MADD defends checkpoint programs so aggressively because it is dedicated to minimizing alcohol consumption, not simply ensuring it is consumed responsibly. This is why the group has publicly advocated putting ignition interlocks (in-car breathalyzers) in every car as a safety feature, like seat belts. Over the next several weeks, MADD’s campaigns will be dedicated to making sure that Americans feel sufficiently guilty about consuming any spiked eggnog whatsoever prior to driving.

No one is against taking extra steps to make the roads safer during the holidays. But there is little evidence to suggest that checkpoints are the smartest way to do that. Now more than ever, it is important to make sure our resources are being spent effectively. Be safe on the roads this holiday season as always. But remember that the coming weeks are especially appropriate for reexamining our most misguided alcohol policies.

Facts have an irritating way of eventually rising to the surface.

I’ve railed long and hard in past posts about the unconstitutionality of DUI roadblocks ("sobriety checkpoints") — as well as about their ineffectiveness and growing abuse.  See, e.g., Do Roadblocks Work?, Do Roadblocks Work? (Part II), DUI Logic: Roadblocks Effective Because They’re Ineffective, Police Using DUI Roadblocks Illegally, Purpose of DUI Roadblocks: "Shock and Awe" and DUI Roadblocks for Fun and Profit. 

Just another recent example here in California:

DUI Checkpoint Finds Many Unlicensed Drivers, But No Drunks

Bakersfield, CA –  Bakersfield police impounded 84 vehicles at a DUI checkpoint Friday night in the 4600 block of Stockdale Highway. The Traffic Enforcement Detail says the event is an effort to reduce the number of people killed each year in DUI related collisions, as well as insuring motorists on city streets are in possession of a valid driver’s license.

The checkpoint was set up at the intersection of Stockdale Highway and Montclair Street around 5 p.m. Friday and taken down at 1 a.m. Saturday. Nearly 3,000 vehicles were screened by officers, resulting in 32 citations for driving on a suspended or revoked license; 53 for driving without a valid license and 32 motorists were cited for miscellaneous vehicle code violations.

Another effective roadblock:  117 citations and 84 vehicle impounds –  worth a bucket of fines to the local city treasury.  Drunk drivers?  Who cares.

Oh, and by the way, the Supreme Court carved out an exception to the Constitution’s Fourth Amendment  for roadblocks — but only for apprehending drunk drivers, not for "insuring motorists on city streets are in possession of a valid driver’s license".

I’ve received a lot of email from readers who think there was some misunderstanding at the end of my last post, that it could not possibly be true:

It looks like Ohio is asking themselves the same question I’ve been asking:  "What are they hiding?".  Oh, and let me repeat that last paragraph in the news story:

(Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.

What?  An American citizen accused of driving over .08% is not permitted to question the accuracy of the machine — the only blood-alcohol evidence in the case?

Yep.  Ohio is the only state in the country saying that if a breath machine is approved for use by the State, it’s accuracy cannot be challenged in court.  See the Ohio Supreme Court case of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984).  

That’s right, folks.  No typo, no misinterpretation, no mistake.  That has been the law in the State of Ohio for 25 years now.  Right here in America:  if you are accused of drunk driving, you are not permitted to question the reliability or accuracy of the breath machine – and the manufacturers won’t even let you see what’s inside.   The machine is judge, jury and executioner.

One of those emailing me, an individual who is highly qualified to comment, wrote:

What is interesting is your comment on Vega and Mr. Engles statement…It is indicative of the attitudes that are created when the validity of forensic science is allowed to hide behind a judges robe.  His comment was an arrogant affront to every judge in this state and an insult to our judicial system. 

What is also interesting is that in the 25 or so years since Vega, no other state has taken judicial notice nor has any other state had a similar decision. 

Just imagine if you were accused of, say, burglary based upon fingerprints found at the scene — and you were not permitted to question the fingerprint analysis.  Or you were on trial for murder– but you couldn’t challenge the DNA analysis pointing to you as the killer.

Just another example of "The DUI Exception to the Constitution".

As readers here know, I’ve posted extensively in recent months about the need to know the secret software controlling various breath-testing machines – and the growing number of courts across the country that are ordering the manufacturers to divulge this critical information.  See, for example, Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathalyzer Code…or Else, and Second Manufacturer Must Reveal  Breathalyzer Secrets. 

The manufacturers of these machines continue to thumb their noses at the courts, unwilling to let anyone see what is inside these "black boxes" that act as judge and jury in DUI cases.  See Breathalyzer Manufacturer Thumbs Nose at Courts, Secret Breathalyzer Software Still Secret .

In what may be a growing trend, the State of Ohio announced yesterday that it is cancelling massive purchases of one of the machines, the popular Intoxilyzer 8000, citing the questions of reliability raised in the court challenges in other states.

State Reverses $6.4 Million Purchase Order for Controversial Drunken-Driving Testing Machine

Columbus, OH.  Dec. 1  -  The Ohio Controlling Board on Monday pulled a $6.4 million order it approved just two weeks ago for the purchase of a controversial drunken-driving testing machine.

The board unanimously agreed to reconsider releasing funds to purchase 700 breath-testing machines from a Kentucky company after The Plain Dealer reported that the accuracy of the Intoxilyzer 8000 is being challenged in courts in several states…

The machine’s accuracy is being challenged in Florida, Arizona and Minnesota where thousands of cases have either been delayed or dismissed because CMI has refused court orders to release the machines’ source code, or software.

Defense attorneys have said they need the codes to show that the machines are flawed and can easily be manipulated. And while CMI has promised to release the software to attorneys here if the machines came under litigation, attorneys say the confidential agreement they would have to abide by would make the information useless.

Furthermore, it might be a moot point. (Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.

It looks like Ohio is asking themselves the same question I’ve been asking:  "What are they hiding?".  Oh, and let me repeat that last paragraph in the news story:

(Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.

What?  An American citizen accused of driving over .08% is not permitted to question the accuracy of the machine — the only blood-alcohol evidence in the case?

Yep.  Ohio is the only state in the country saying that if a breath machine is approved for use by the State, it’s accuracy cannot be challenged in court.  See the Ohio Supreme Court case of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984). 

The DUI Exception to the Constitution lives on….