DUI BLOG

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: 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…..
 

First off, I don’t defend drunk drivers:  I defend citizens who have been accused of being drunk drivers.  And no, that is not just a technicality — at least not in this country.  Not yet.

But it always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly when it’s DUI.  Arrest is increasingly seen as guilt, and there is a public perception of criminal defense attorneys as being obstructionist in this rush to judgment, of being nefarious and somehow unethical.  Certainly, every defense attorney tires of the ubiquitous cocktail party question:  “How can you defend guilty people?” 

The answer to that question is complex, involving issues of possible innocence, inaccurate or false evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh or illegal punishment — and just keeping the government honest. 

One of the better answers, however, was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.  To this extent, our so-called adversary system is not adversary at all; nor should it be.

But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. 

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

One fine day, someone you love will be arrested and charged with a criminal  offense.  That person may or may not be innocent, but on that day you will pray that he or she is defended against the overwhelming forces of the government — by one lone attorney.

If that doesn’t do it, read To Kill a Mockingbird one more time.
 

I have mentioned that a primary problem with blood alcohol analysis is that no two individuals are alike in their physiology and metabolism of alcohol (see, for example, Convicting the Average Person, Racial Differences in the Metabolism of Alcohol and High Blood Alcohol - or a Zinc Deficiency?. Further, many foreign compounds can influence attempts to measure blood alcohol levels (see, for example, Under the Influence of Gasoline?,  Asthma Inhalers Can Cause High Breathalyzer Results and Driving Under the Influence of Paint?.

One of many other factors that render attempts to estimate an individual’s blood alcohol concentration at a given point in time is smoking.

A scientific study has found that cigarette smoking can influence absorption by the body of alcohol and thus, among other things, attempts to estimate earlier blood alcohol levels when driving based upon tested levels. Johnson et al., Cigarette Smoking and Rate of Gastric Emptying: Effect on Alcohol Absorption, 302 British Medical Journal 20 (1991).

The researchers reported testing blood samples of a group of smokers for blood alcohol levels both after smoking and after prolonged abstinence. The result was that "areas under the venous blood alcohol concentration-time curves between zero and 30 minutes and 60 minutes and the peak blood alcohol concentrations were significantly less during the smoking period compared with the non-smoking period."  (Emphasis added)  Gastric emptying was also found to be slower during the smoking evaluation.

The scientists concluded that the effect of smoking on alcohol absorption has "considerable social and medicolegal relevance", and that the ingestion of nicotine should be taken into when dealing with alcohol metabolism.

Non-specific analysis is another problem causing breath machines to give false readings when the subject is a smoker. As I mentioned in an earlier post, Why Breathalyzers Don’t Measure Alcohol, breath machines are actually designed to report the presence of any compound containing the methyl group in its molecular structure, not just alcohol. They cannot distinguish the difference between alcohol and, say, acetaldehyde.

Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol moving from the blood into the lungs has been found to metabolize there as well – and, thus, to produce acetaldehyde there. The amount of acetaldehyde produced in the lungs varies from person to person. However, scientists have found one interesting fact: acetaldehyde concentrations in the lungs of smokers are greater than for non-smokers –  far greater. Translated: smokers are more likely to have falsely high readings on a Breathalyzer.  Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking, 100 Journal of Laboratory Clinical Medicine 908.

End result: because breathalyzers can’t tell the difference between alcohol and acetaldehyde, a higher blood-alcohol reading.  And if you are a smoker, a much higher reading.
 

A rash of recent studies confirm that DWT (driving while texting) is more dangerous than DUI.  For that matter, so is driving while talking on a cell phone.  See, for example,  my previous posts Inebriated or Texting: Which is More Dangerous While Driving?  and Feds Crack Down on DUI…and Cover Up DWT. 

Presumably, the punishment for DWT reflects the greater danger, right?

Wrong.  Think $50 fine.  In fact, in most states DWT isn’t even a crime. 

 
Real Penalties Would Deter Cell Use and Texting While Driving

Los Angeles, CA.  – There are some 270 million cell phones in the U.S. at the moment (out of a population of some 307 million people). Of those who drive, nearly 50 percent say that it’s dangerous to use cell phones or similar devices while driving. However, 80 percent of drivers told researchers they’ve talked on their cell phone while driving, and nearly one in five said they had read or typed text messages while driving. Perhaps they think it’s only dangerous for the other guy…

Every state has laws – and severe penalties – for driving while drunk, yet only five ban the use of hand-held cell phones while driving. Fourteen states, including California, ban texting while driving, and it’s a miracle that those states have texting laws at all. Cell phone companies, with the exception of Verizon, pay lip service to the dangers of driving while talking and texting, but their lobbyists know which buttons to push when laws are introduced.

Then there is the matter of enforcement and fines, which tend to be lax and symbolic, at best. In California, where the use of hand-held phones and texting have only recently been outlawed, the fine for a first offense is $20; for the second offense it’s $50. Even though court costs can triple those fines, that’s not a deterrent. Not when a driver who runs a red light and gets his picture taken by a red light camera can pay fines of $500 and more and acquire a point on his DMV record. Drivers who text don’t get a point, and most don’t get the point.

So what’s the difference between DUI and DWT?  In a word:  alcohol.  Prohibitionist groups like MADD don’t like alcohol.  Add alcohol to the dangerous driving and the punishment jumps from a $50 fine to jail time, license suspensions, $1500 fines, long DUI schools, ignition interlock devices, probation and more.  And that doesn’t include attorneys’ fees, increased car insurance for years, and the possible loss of job, professional licensing or security clearances.  And then there’s the criminal record….

Ever wonder why MADD constantly touts the traffic fatality figures for DUI — but remains silent on the figures for DWT…and still hasn’t taken a stand against driving while talking or texting?
 

Maybe MADD’s "War on Drunk Driving" has gotten a little out of control.  From yesterday’s Los Angeles Times:

Bounty Hunter Shoots Man in Sun Valley

Sun Valley, CA.  Aug. 3 –Three bounty hunters were involved in a shooting after they tried to arrest a suspect in Sun Valley who was wanted in connection with a misdemeanor DUI arrest, police said.

The shooting occurred at 9:57 p.m. in the 8200 block of Marmay Place, said Officer Karen Rayner of the Los Angeles Police Department. She said the man was shot once in the left thigh and did not appear to be seriously wounded. 

The bounty hunters, armed with guns, arrived at the home near the 5 Freeway to  arrest the man. He apparently grabbed one of the guns during the scuffle, Rayner said.

"The bounty hunter had his weapon taken away, and his partner fired a least one shot at the suspect," Rayner said.

Officers were at the scene investigating. The body hunters and suspects were not identified.
 

It’s interesting that Mothers Against Drunk Driving has taken no position against texting or talking on a cell phone while driving — practices which have repeatedly been proven more dangerous than drunk driving.  See, for example, Inebriated or Texting: Which is More Dangerous?.  If anyone still questions MADD’s underlying agenda….

MADD, Industry Clash Over Beer Summit

Politico.com.  Aug 3 –President Barack Obama’s beer summit may have made peace among its participants, but the event seems to have inflamed a long-simmering fight between Mothers Against Drunk Driviing and the alcoholic beverage industry.

"MADD is no longer an organization that opposes drunk driving, but an anti-alcohol group that has been hijacked by the modern day temperance movement,” Sarah Longwell of the American Beverage Institute said in a statement emailed to reporters.  “That someone in a position of leadership at MADD would criticize President Obama for simply drinking beer, illustrates the neoprohibitionist mentality that now dominates the group. … MADD’s position on the ‘Beer Summit’ should remind Americans that the group once dedicated to preventing drunk driving has transitioned into leading the anti-alcohol movement."

The beverage industry’s wrath was triggered by comments the head of MADD’s Delaware chapter made last Friday, commenting on Obama gathering Harvard professor Henry Louis Gates Jr. and Cambridge, Mass., Police Sgt. James Crowley to chat about issues raised by Crowley’s arrest of Gates at his home earlier in the month.

"It’s a well known fact that young people tend to mimic the actions of the adults,” Nancy Raynor of MADD told WDEL-AM of Wilmington, Del., according to audio posted on the station’s website. The station summarized Raynor’s comments as suggesting that convening the men over beer "could be a bad influence."…
 

More idiocy from the "War on Drunk Driving" front…

Charges Dropped in "DUI On Horse" Case

Dalton, CA.  Aug. 1 –Two men charged in for driving under the influence on a horse have had their charges dropped…

District Attorney Kermit McManus told the Citizen that it came down to distinctions in the case–between a vehicle and a horse.  McManus said a horse "did not meet the definition of a vehicle."

Duh…..Lucky we have razor-sharp legal minds in the D.A.’s office to second-guess the boys in blue.

(Think this is a fluke?  See my my past posts, DUI on a Horse?, DUI on a Horse, Drunk Riding and New Law: A Horse is not a Vehicle.)   
 

How easy is it for a cop to frame someone for drunk driving?  Very….if you forget there’s a video tape running in the patrol car:

Charges Dropped Against Woman Framed by Cops

Miami, FL.  July 29 – Alexandra Torrensvilas was the target of cops who pinned a DUI on her for an accident they caused. Now she has been cleared of charges after the Broward State Attorney’s Office officially dropped the four DUI citations on Wednesday.

But the saga is far from over as now prosecutors turn their attention to the four Hollywood police officers who made up an intricate story to cover for a February traffic accident involving a cop car. The scheme was caught on one of the officers dashboard cameras.

The disturbing video shows Alexandra Torrensvilas, 23, handcuffed in the back of the squad car as the officers get their stories straight on what they are going to say happened.

Officer Joel Francisco crashed into the back of Torrensvilas’ vehicle at a light on February 17 at midnight. The cop radioed to other officers who converged on the scene and hatched a way to bail Francisco out.

 Officer Dewey Pressley, 42, arrives and questions Torrensvilas, who tells him that she has been drinking. The 21-year veteran officer seizes the opportunity and arrests her for DUI. But the plot thickens from there.

The cops begin to brainstorm believable excuses for the accident. ..

Then, another cop debates with Pressley on who is going to write up the fabricated report to clear their police comrade…

"I’ll write the narrative," Pressley says. "We’re going to bend this a little bit."

Civilian Community Service Officer Karim Thomas joins the three senior officers and the four cops go so far as to change the angle of pictures of the accident to make it look like Torrensvilas swerved in front of the cop car and caused the accident, not Francisco.

Throughout the tape, the cops acknowledged what they are doing is illegal, but when you are the law, there is nothing wrong with bending it for a fellow cop, one says…

The cops even do a final rehearsal before Villa is taken to the city lock up.

"We’ll take care of it," one officer says. The others reply: "We’re good."

The police officers are currently on administrative duty pending a state attorney’s office investigation.

Do you really think this is an isolated event?  How easy is it for a cop to simply claim that a driver drove erratically, appeared drunk, failed field sobriety tests and then "refused" a breathalyzer test — making it his word against the accused? Doesn’t it make you wonder about all those self-styled "DUI Super Cops" out there who get awards, promotions and huge overtime pay for racking up massive "drunk driving" arrests?

( Thanks to Hockey Bobc.)