Archive for February, 2009

“Trial by Machine”….But How Good Are the Machines?

Sunday, February 15th, 2009

All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Unless you refuse to take a chemical test, you will be charged and prosecuted for both offenses — and can be convicted of both.

The breath machines (commonly — and inaccurately — referred to as “Breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the thing says .08% or higher and the jury believes it, the defendant is guilty.  In effect, if you are accused of driving with .08% BAC, you will face "trial by machine" — and you will not be able to confront your accuser.

It gets worse….Even as to the DUI charge, the readings will be considered presumptive: if the BAC is .08% or higher, the jury will be instructed by the judge that the defendant is presumed to be guilty — and he must be found guilty unless he can prove his innocence.  See “Whatever Happened to the Presumption of Innocence?”.

These machines are all-important: they determine guilt or innocence. But despite the manufacturers refusing court orders to disclose the software that runs the machines (see What Are Breathalyzer Manufacturers Hiding?), they continue to assure us that the things are “state of the art”.  So how accurate are they?

Well, as I’ve written in the past, not very.  Just a few examples:

Breathalyzers — and Why They Don’t Work
Close Enough for Government Work
The Mouth Alcohol Problem
Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?
Driving Under the Influence of….Bread?
Warning: Breathalyzer in Use
Breath Fresheners and Breathalyzers
Diabetes and the Counterfeit DUI
Why Breathalyzers Don’t Measure Alcohol
Can Body Temperature Affect Breathalyzer Results?
The Effect of Anemia of Breath Tests
GERD, Acid Reflux and False Breathalyzer Results
Driving Under the Influence of….Gasoline?
Do Breathalyzers Discriminate Against Women?
Breathalyzer Inaccuracy: Testing During the Absorptive State
Breathalyzer Inaccuracy: Post-Absorptive
Breathalyzer Inaccuracy….It Gets Worse
Warning: Smoking Can be Hazardous to Breathalyzer Results
How to Fool the Breathalyzer
Breathalyzer Manufacturers Won’t Tell How They Work

State of the art? Far from it, yet thousands of American citizens continue to be accused and convicted by these machines…..

 

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Blood Test Error Nearly Sends Man to Prison

Monday, February 9th, 2009

I’ve posted in the past about various problems, such as fermentation and coagulation, in analyzing human blood samples for alcohol content.   But human error in the lab is just as insidious.  I mentioned in an earlier post one of my firm’s cases in which we had our client’s blood sample analyzed for DNA — which proved that the blood tested was not our client’s.  See How Do You Know the Blood They Tested Was Yours?  Human error in the crime lab happens more often than is appreciated — and is extremely hard to detect.

Following is another recent example of a lab screwup that almost sent an innocent man to prison for a long stretch.  Fortunately, one of those "obstructionist" defense attorneys had the blood restested, forcing the prosecution to have it retested as well.  The blood-alcohol content, which had been reported as .19% — over three times the legal limit — was in fact .00%.


Homicide Charge Dropped Following Blood Test Mistake

Tooele County, UT.  Jan 28 – The Tooele County Attorney’s Office is dropping vehicular homicide charges against a man involved in a fatal Tooele accident in December. Steven Jakeman was facing the charges in connection with the death of UPS driver Alan Christofferson…
 

According to the attorney’s office, there was a mistake in the initial blood test. After retesting his blood, prosecutors are sure he wasn’t under the influence at the time.

Turns out it was a human error made at the state lab that resulted in the blood-alcohol content reading double the legal limit…

That mistake started with the initial testing of Jakeman’s blood. Apparently, a technician misread the digits on a sample tube of his blood: a rare mistake. Gambrelli Layco with the Bureau of Forensic Toxicology said, "We did make an error in this case for transposing one number from a nine to an eight …"

When prosecutors had the blood retested at a private lab, Jakeman’s BAC levels came back triple zeros, no alcohol at all. To be safe, they had it retested with the state lab. Same result.


Hmmm.  How does "transposing a number" change a .00% blood sample into a .19%?


(Thanks to Glen Neeley)
 

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Ignition Interlocks: Is the Media Finally Getting It?

Thursday, February 5th, 2009

As most of you know, MADD has focused on ignition interlock devices (IIDs) as the answer to the drunk driving problem in America.  The organization has even widely trumpted the device as the way to "literally wipe out drunk driving in the United States".  MADD Announces End to Drunk Driving: A Reply.  But there appears to be a growing recognition that the Empress is wearing no clothes…

  
DUI Penalty Should Fit Facts, Not Beliefs

Greenwood, MS.  Jan. 25 — Mothers Against Drunk Driving has done much over the years to reduce the incidence of drunk driving and the terrible consequences that can come from it…

The group, though, has hit somewhat of a plateau. For at least a decade, the numbers have hardly budged. Somewhere around 13,000 people — give or take a few hundred — die every year in an alcohol-related crash in the United States.

When a well-intended advocacy group hits a wall, the danger is that it will go overboard with heavy-handed proposals. That is the case with MADD’s latest push to get judges to order all convicted DUI offenders, even first-timers, to outfit their cars with ignition interlock devices.

The devices aren’t foolproof, however. Despite the efforts of engineers to outwit the ways that a drunk driver might try to circumvent one, MADD’s own statistics put the devices’ effectiveness at 64 percent…

Yet, that seems to be MAAD’s big push this year. Only eight states mandate or allow judges to order ignition interlock devices for a first offender. MADD wants it be an option in every state. The advocacy group has gotten bills to that effect filed in legislatures all across the country, including Mississippi.

As dangerous as drunk driving can be, this remedy still rings of being overblown. It adds another layer of punishment to a crime that the courts are required to take seriously, thanks to mandatory minimum sentences that have been instituted over the years.

Mississippi, like most of the country, already has stern DUI laws on the books that are designed to dissuade those who get caught one time from repeating their mistake…

If, after serving that penalty, a driver gets a second DUI, he either is incapable of learning from his mistakes or he has a drinking problem. Either way, employing an ignition interlock device then becomes a reasonable response to protect the public from what appears to be a persistent threat to its safety.

MADD, though, sounds as if it wants to treat all DUI offenders as if they are repeat abusers. In fact, that’s part of its argument for the interlock ignition proposal. Citing a 13-year-old research study, it claims that on average a person will drive drunk 87 times before he is caught and convicted the first time.

The number sounds inflated. Even if it were close to accurate, though, MADD’s response turns our system of jurisprudence on its head. It presumes a person is guilty of criminal misconduct for which there is no record and penalizes the person accordingly. Is there another crime, large or small, for which that is the case?

Punishment should fit the crime for which there is evidence to prove guilt. It shouldn’t be based on the premise that one conviction is an automatic admission to previous violations of the same law.

 

Hmmm…Interesting concept.
 

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When Judges Protect Their Own

Monday, February 2nd, 2009

I’ve posted stories over the past week about what happens to cops, prosecutors and judges when they’re arrested for drunk driving — or, more accurately, what doesn’t happen.  Following is yet another example of the prevalent DUI double standard:


Plenty of Blame to Go Around in Tarrant Judge’s DWI Case

Dallas, TX.  Jan. 29 – Tarrant County Judge Elizabeth Berry was stopped for speeding last year in Alvarado, south of Fort Worth. She refused to take a field sobriety test, a breath test or a blood test, so a municipal judge signed a search warrant authorizing a blood test against her wishes.

Last week, after a three-hour hearing, Judge Robert Dohoney ruled that the results of the blood test can’t be used against Berry because the arresting officer’s supporting affidavit was too vague.

Too vague?

It said Berry was driving 92 miles an hour, appeared confused and unusually quiet, had eight beer bottles on the floorboard of her SUV and the smell of alcohol on her breath…


No comment necessary.

(Thanks to Ken Sharp)
 

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