Archive for August, 2009

Trial by Machine — But How Good Are the Machines?

Tuesday, August 25th, 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: 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…..


“How Can You Defend Drunk Drivers?”

Thursday, August 20th, 2009

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.


How Smoking Can Affect Your Breathalyzer Test Results

Saturday, August 15th, 2009

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.


The Difference Between DUI and DWT is….?

Tuesday, August 11th, 2009

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?


DUI Suspect Shot by Bounty Hunters

Tuesday, August 4th, 2009

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.