Archive for November, 2009

Guilty…Of Being Average

Sunday, November 29th, 2009

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions.

Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly dependent upon the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .07 but a breath-to-blood ratio of, say, 1:1500 would have a .10 reading on an “accurate” breath testing instrument.

In other words, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio — that is, it is based entirely upon the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

This constant reliance on averages shows itself again when the prosecutor in a DUI trial offers evidence of so-called retrograde extrapolation, or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was actually driving. This is commonly done by “extrapolating” backwards — that is, by computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing.

But this requires two assumptions: The blood-alcohol level was declining and the rate of absorption and elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the nystagmus test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.” The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased — despite the obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased — and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children — the average in the United States.

So why does the state presume facts in a DUI case that are clearly untrue? Simple. It is convenient: it makes prosecution and conviction much easier.


Another “DUI Exception”

Sunday, November 22nd, 2009

You’ve just been arrested for DUI. And, like in the movies, the officer reads you the "Miranda" rights: "You have the right to remain silent", he tells you, "You have the right to an attorney"

And then the very next thing he asks if if you’ll take a breath or a blood test.

Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those breathalyzers accurate? Would a blood test be better?

Well, you think, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide wheher to take a test or not, and which one I should take.

So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. "Are you refusing to take a test?" he asks darkly. "I just want to talk to my attorney," you reply. "Your funeral," the officer says.

Now what did he mean by that?

What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as "consciousness of guilt".

Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common — what is called "officer-induced confusion". Three apparently contradictory things are communicated to the (confused and very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you — without speaking with an attorney. What would the normal person conclude?

Well, let’s take a closer look at the laws involved here…

First, the so-called "implied consent" laws say that a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to "remain silent", or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known "DUI double standard").

As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, "You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two". (As we say, "the DUI exception to the Constitution".)

What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test. Most states, however, will not let you change your mind. As one appellate court bluntly put it, "One offer plus one rejection equals one refusal and one suspension". Dunlop v. DMV (156 Cal.App.3d 279).

Translation: tough luck all around. Granted it’s all very confusing, and the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.


Are you sure the blood they tested was yours?

Wednesday, November 18th, 2009

Let me tell you about one of our DUI cases that ended up on the front pages of the Los Angeles Times. My law firm had a young client, I’ll call him "Steve", who had been arrested for drunk driving by the Los Angeles Police Department and a blood sample drawn from his arm. He swore to us that he was innocent, and after interviewing witnesses and reviewing the evidence we believed him.

Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing blood of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything was in order. Steve still insisted he was not driving under the influence of alcohol.

The only other possibility was a faulty "chain of custody". In other words, LAPD lab got the vial mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case. So we had the sample blood-typed to see if it was that of another arrestee. Result: type "O"– the same as Steve’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory that specialized in DNA testing. A month or so later the report came in.

The blood tested by LAPD was conclusively not Steve’s.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. Predictably, according to the L.A, Times, LAPD tried to point the finger at someone else: "Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confidant that the lab did not make a mistake." One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys.

So how could this have happened? The truth is that it probably happens far more commonly that we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then sealed. Procedures then require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage.

At any stage of this chain of custody, of course, things can go wrong with the vial or the records. It may be a week or so before the vial is finally analyzed. This is usually done using gas chromatograph instruments, and the vial is one of many analyzed in large "batches". A batch is a group of blood vials, perhaps 40 or more of them, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial afer another.

Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every vial may also be off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

"How do I know the blood they tested was mine?" Simple — if you can hire a top DUI attorney, get a portion of the sample from the crime lab, and then have an extra $1500 laying around for DNA testing. Otherwise, I guess you’ll never know….


DUI Cop Framing Gay Drivers for Drunk Driving

Saturday, November 14th, 2009

I’ve posted in the past about how easy it is for a police officer to falsely arrest a driver for DUI and to fabricate evidence.  Some of these cops carry this to extremes.  These so-called "DUI SuperCops" receive awards from MADD, departmental promotions, and huge overtime paychecks for testifying in court.  See, for example, DUI SuperCops and SuperCops: The Smoking Gun.  And sometimes there are other reasons for the false arrests…

More Lawsuits Against Chicago DUI Cop Richard Fiorito 

Chicago, IL.  Nov. 13  –Chicago oolice officer Richard Fiorito is now facing 37 lawsuits alleging he intentionally targeted gay and lesbian drivers to issue false DUI arrests.

The lawsuits claim Fiorito was looking to capitalize on overtime pay issued to police officers when they appear in court to testify in a DUI case. Fiorito made 313 DUI arrests between January of 2007 and June of 2008; the officer was even honored by MADD for his efforts. Most of these arrests were against gay and lesbian suspects. He supposedly targeted these individuals when they left gay and lesbian bars or frequented gay and lesbian areas.

New dash cam evidence is pointing to the fact these arrest reports may have been exaggerated if not totally falsified…

Fiorito has been placed on desk duty since the charges were first issued in early October.  16 more plaintiffs recently joined the case with the original 21, leading the total to 37 lawsuits against the officer. All testimony from Fiorito in any of these pending DUI cases will be on hold until internal investigations from the Cook County State Attorney’s Office and Independent Police Review Authority are complete.

Fiorito is not the only Chicago officer accused of these types of arrests in the previous few years. Officer John Haleas was suspected to be guilty of perjury last year, having about 50 cases dismissed, but was exonerated of criminal charges.  [See my post No Surprise: Dirty DUI Cops Goes Free]

Framing gays for drunk driving is reprehensible. Hopefully, however, the public will also see the underlying message: it’s very easy for a cop to frame anyone for this cirme — for any reason.


In the “Physician Heal Thyself” Department

Wednesday, November 11th, 2009

The endless hypocrisy of MADD’s "War on Drunk Driving" continues…

Ohio Trooper of Year Charged With Drunk Driving

Lima, OH.  Nov. 10 -  A state trooper in northwest Ohio who was honored by Mothers Against Drunk Driving in 1997 for the number of drunken-driving arrests he made has been charged with drunken driving…

Gibson was off duty Sunday when Waynesfield police say he drifted over the center lane and then refused to take a Breathalyzer test. Waynesfield is 12 miles northwest of Lima.

Mothers Against Drunk Driving honored Gibson in 1997 for making the most drunken-driving arrests by a Lima trooper. He was named trooper of the year in 2002 in Lima.