Archive for May, 2009

“Close Enough for Government Work”

Friday, May 22nd, 2009

With more than a little federal coercion, all states have now passed laws lowering the blood-alcohol level to .08%. And most people suspected of violating the law are given breath tests to determine the level of alcohol in their blood. The breathalyzer will take a small sample of the suspect’s breath and estimate how much alcohol is in it — and, from that, estimate how much may be in the blood.

And what that machine says is pretty much the end of it. There will be no second tests. There will be no cross-examination of the machine. Are these machines so reliable and accurate that we have permitted them to become judge and jury?

Scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01%. That means that if everything is working perfectly (an unlikely scenario), a .13% breathalyzer test result can be anywhere from .12% to .14%.This has been acknowledged by courts across the country (see, for example, People v. Campos, 138 Cal.Rptr. 366 (California); Haynes v. Department of Public Safety, 865 P.2d 753 (Alaska); State v. Boehmer, 613 P.2d 916 (Hawaii), recognizing an even larger .0165% inherent error).

What does that tell us about the accuracy of these breathalyzers? Well, let’s take a test result of .10%. Taking inherent error into consideration — and assuming the machine was working perfectly, the officer administers the test correctly, and the suspect’s physiology is normal and perfectly average — the true BAC could be anywhere from .09% to .11%. In other words, the true BAC can be 10% in either direction — or, put another way, anywhere within a 20% margin of error.

These machines have a 20% margin of error?

That’s right. A person accused of driving with over .08% BAC can be convicted by a machine which, if everything else is perfect (not likely), has a built-in 20% margin of error. Would you be comfortable with an airline pilot who worked with a 20% range of error? A brain surgeon? A bank teller? How about the sole evidence in a criminal case where guilt must be proven beyond a reasonable doubt?

Beyond a reasonable doubt?  Or "close enough for government work"?


High Breathalyzer Readings….from Dieting

Tuesday, May 19th, 2009

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol:  they actually measure the presence of the methyl group in chemical compounds.  One of those compounds is ethyl alcohol (aka ethanol), and the machine simply assumes that the detected compound is ethyl alcohol. 

Problem:  there are thousands of compounds containing the methyl group — of which over one hundred have been found on the human breath.  Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days afterwards.  And I’ve posted that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the methyl group. 

However, you don’t have to be a diabetic to have high levels of acetone:  scientific research has established that acetone can exist in perfectly normal individuals at  levels sufficient to cause false high breath-alcohol test readings.  See "Excretion of Low-Molecular Weight Volatile Substances in Human Breath:  Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985). 

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone.  Studies have concluded that fasting can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actaully caused by alcohol or other compounds).   See "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3  Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that mouth alcohol and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.) 

How reliable are breathalyzers?  "Close enough for government work".  As I’ve posted, there seems to be a growing trend toward letting officers draw blood themselves at the scene of arrest.  Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are increasingly turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….


Investigative Reporter Exposes DUI Attorney Practices

Friday, May 15th, 2009

The May 2009 issue of California Lawyer magazine, circulated to all attorneys in the state, has just been published — featuring the cover article "The DUI Defense Bar".  Investigative reporter Tom McNichol takes a hard (and long-overdue) look at the good, the bad and the ugly among drunk driving laws and lawyers.  A small sample:

…DUI defense lawyers, however, aren't nearly as easy to pigeonhole. At one end of the spectrum are the specialists who've spent much of their professional lives mastering arcane technical issues such as blood and breath partition ratios, microbial contamination in urinalysis, and the perils of retrograde extrapolation in chemical tests. These attorneys typically charge anywhere from $3,500 to $10,000 to defend a first offender, not including the expert witness fees or lab tests that may be required. Top expert witnesses with national reputations can easily push the total cost closer to $20,000.

At the other end of the spectrum are cut-rate practitioners with no particular expertise, who charge as little as $1,000 per case. These include "dump truck" lawyers, who sign up as many clients as possible and then dump them all on the guilty-plea docket; and "escort" lawyers, who escort clients up to the judge like a high-paid call girl, plead them guilty, and then disappear with the money.

These DUI mills typically offer a lowball rate to clients, and they tend to give commensurate service. One California attorney who advertises his "cheap DUI defense" widely on the Internet pitches prospective clients: "We do the same thing over and over again. There is simply no reason to spend thousands of dollars on your defense. We charge about half of the going rate."…

Ok, time for a little shameless back-patting:

…By punching enough holes in the prosecution's case, a good DUI lawyer can, if not exonerate a client, then at least knock the charge down to what's known in the trade as a "wet reckless"—an alcohol-related reckless driving offense. 

This is where defendants often get from their lawyers what they pay for. At the Law Offices of Lawrence Taylor, Inc.—where attorneys devoted exclusively to DUI cases charge top dollar—blood and urine samples are routinely reanalyzed; breathalyzer maintenance, calibration, and administration are investigated; and sometimes the scene of an arrest is revisited. Taylor's firm also boasts a support staff that includes a forensic toxicologist who once did DUI testing for the Los Angeles County Sheriff's crime lab, a former hearing officer for the DMV, and a former police officer who was on the Santa Ana department's DUI task force. That's a far cry from the firms where lawyers, by their own admission, "do the same thing over and over again."

Still, at a time when general practitioners are finding it much harder to make ends meet, it's a good bet that more of them will take on DUI cases, whether or not they know what they're doing. Tough times are also likely to drive more drunks onto the road, leading to more DUI cases—and even more lawyers chasing them.

What insight!  Pulitzer Prize stuff….


MADD Chief’s Nomination Withdrawn

Wednesday, May 13th, 2009

As I’ve mentioned in earlier posts, Chuck Hurley, the CEO of Mothers Against Drunk Driving, was nominated by President Obama to head the National Highway Traffic Administration.  See Ex-CEO of MADD to Set Vehicle Safety Standards.  And, along with other MADD objectives, part of Hurley’s agenda inevitably would be to require ignition interlock devices as standard equipment in all cars.  See New MADD Goal: All Cars Equipped with Breathalyzers.  Not coincidentally, auto manufacturers who will profit are the biggest contributors to MADD’s $52 million average annual income.  See Why is MADD Pushing Ignition Interlock Devices? 

Since my postings, some of the media has been less than enthusiastic about placing a single-issue MADD zealot in charge of overseeing vehicle and traffic safety regulation.  See, for example, Reaction to CEO of MADD Heading Federal Agency.

In yesterday’s news:

Obama Pick for Highway Safety Post Withdraws

Washington, D.C.  May 12 –  A top official with Mothers Against Drunk Driving who was chosen to oversee a federal highway safety agency has withdrawn his name for the post, the White House said Tuesday.

The Obama administration said in April it intended to nominate Chuck Hurley to become the administrator of the National Highway Traffic Safety Administration. Hurley, who was not formally nominated, is a longtime safety advocate and has served as MADD’s chief executive officer since 2005.

Some environmental groups had questioned Hurley’s commitment to tougher fuel efficiency requirements and his ties to automakers. MADD has received funding from several auto companies, including General Motors Corp., Toyota Motor Corp., Ford Motor Co. and others.

The federal agency oversees highway safety programs and sets fuel efficiency and safety requirements for car companies.

At MADD, Hurley has pushed states to adopt tougher drunken driving laws and require first-time offenders to use ignition interlock devices on their cars. The devices require drivers to blow into an instrument that measures alcohol and prevent a vehicle from starting if the driver’s blood alcohol concentration exceeds a certain level…

Sanity finally trumps MADDness.


“The Politics of Modern Prohibition”

Friday, May 8th, 2009

Recently, it seems that there has been an increasing willingness of the media willing to reject political correctness and MADD's hysteria, instead adopting a more objective and reasoned approach to the question of traffic safety…

Our View:  The Politics of Modern Prohibition

Colorado Springs, CO.  May 4 –Do not drink and drive. Do not drink and drive, do not drink and drive, do not drink and drive. There. It has been said. The Gazette's editorial board officially opposes drinking and driving. It's a truly bad idea.

With that out of the way, it's time to raise the question: Why does law enforcement aggressively seek to prohibit drinking and driving, severely punishing some drivers who've had a few drinks and caused no harm, while tolerating an array of other dangerous driving conditions? The answer might be the politics of modern prohibition, or the political feasibility of enacting controls over people who drink but not people who are too old or too ill to drive safely, or those too busy texting, eating, shaving or looking at maps to pay attention to traffic around them…

Our criminal justice system does not demand that most people with dementia stop driving, even though it's a condition that can cause them to crash. Police don't seek them out with checkpoints, in order to fine and jail them for driving while confused. They seldom target and punish drivers who've neglected to get sleep. They don't hunt down people who are driving despite knowledge of an imminent heart attack or stroke.

When medically challenged drivers are held accountable for driving when they shouldn't, it's only after they crash. Yet drinkers, even casual drinkers who aren't drunk and are not statistically at high risk for causing harm, are punished for what might have happened. It violates the spirit of the 14th Amendment, which requires equal protection under the law.

"This severe legal persecution of drunk drivers alone, instead of all dangerous drivers, makes a complete mockery of our legal system," wrote Mark Crovelli, of Denver, for "It is a situation in which one group of demonized and socially-despised drivers is mercilessly persecuted, while other non-demonized drivers are virtually ignored – even though both groups of drivers put other people's lives at risk."

Crovelli points to a U.S. Census Bureau projection that says 9.6 million people will be older than age 85 by 2030, up 73 percent from today. He said road safety analysts predict that by 2030 drivers over 65 will cause 25 percent of all fatal crashes – up from 11 percent in 2005. Crovelli wants to know if police will set up checkpoints to catch people for driving while too old, handcuff them, jail them overnight, counsel them, and fine them thousands of dollars because of the harm they might have caused if left on the road.

Again, for the record, it's a bad idea to drink and drive. It's downright dangerous to drive after drinking to excess. But it's also dangerous to drive with an array of other conditions and behaviors, known to affect young and old alike, that endanger others on the road. In our zeal to criminalize all who drink and drive, including those with blood alcohol levels as low as 0.05, let's not conveniently forget that little requirement of equal protection under the law.

Is it possible that the recent appointment of MADD's CEO to head the National Highway Traffic Safety Administration has triggered a long-overdue backlash?

(Thanks to Ken Sharp)