Archive for June, 2010

“Yes, We Have No DUI Quotas”

Sunday, June 13th, 2010

As every experienced DUI attorney (and patrol cop) knows, DUI quotas commonly exist — despite the repeated denials of police bureaucrats.  See my past posts DUI Quotas, "Inside Edition" Documents DUI Quotas Across U.S. and "What DUI Quotas?"

They may be unwritten, or disguised as "suggestions" or "guidelines", but the intent to the patrol cop is clear:  make the quota or else.  And the coercive effect of this can be considerable, leading many cops to make arrests where there may be insufficient reason to do so.

In today’s headlines:

Alabama Troopers at Birmingham Post Instructed to Cite More for DUI

Birmingham, AL.  June 13 —   The number of tickets for DUI written by state police from the Birmingham post doubled in March after a memo from the acting post commander threatened to punish any trooper who did not make at least three DUI arrests by the end of that month.

Trooper officials defended the memo from now-retired Sgt. Steve Bryant and obtained by The Birmingham News. The memo said each trooper should make at least three DUI arrests by the end of March, and that those who failed to do so could lose their day-shift assignments or opportunities for overtime pay…

"Initially, this issue is lose-lose for both sides of the table; the trooper on the roadway and the citizens of this area," said Whitney Polson, a DUI defense attorney in Homewood.  "The arrest determination should be based upon facts, not threats of lost pay and time away from the family," Polson said.

Polson and another attorney also said they believed the quota in the e-mail could cast doubt on the legitimacy of DUI arrests.

Phillip Price, a Huntsville attorney and author of the legal reference Alabama DUI Handbook, said he believes quotas exist in law enforcement but he had never seen it put in writing like that before…


400 Wrongly Convicted in Washington: Faulty Breathalyzers

Thursday, June 10th, 2010

I’ve posted well over 100 times during the past six years on this blog about the multitude of reasons why breath alcohol machines are both inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t), Breath Alcohol Testing: "State of the Art"?, Breathalyzer Inaccuracy: Testing During the Absorptive Stage, "Close Enough for Government Work" and Why Breathalyzers Don’t Measure Alcohol.

In today’s news, just another example of the tens of thousands of American citizens who face "trial by machine"…and are wrongly convicted: 

Wash., DC.  June 10 – Nearly 400 people in Washington, D.C., have been convicted of driving while intoxicated based on faulty breath tests that calculated blood alcohol levels about 20 percent higher than the reality.

D.C. Attorney General Peter Nickles said the problem was caused when a police officer set improper baseline levels on the machines, the Washington Post reports. Nickles’ office is contacting the convicted drivers and their lawyers.

About 200 of those convicted spent some time in jail, the story says. At least one lawsuit has already been filed based on the revelation.

Nickles’ office launched an investigation after an outside consultant indicated a possible inaccuracy.

(Thanks to Steve Oberman, Nashville, TN, co-author of my book Drunk Driving Defense and Dean of the National College for DUI Defense.)


Scientific Truth vs Legal Expediency: Presuming Guilt in DUI Cases

Wednesday, June 9th, 2010

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving? It’s a problem…

They can try to guess what the BAC was in a DUI case — by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called retrograde extrapolation — a fancy name for trying to guess back in time. The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates at different times depending on many variables.

In one study, for example, researchers found a wide range of metabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, "Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded. 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the BAC was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true? Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 2 or 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving. Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the "presumption of innocence"?

Details, details…The important thing here is that we get these drunk drivers off the road, isn’t it?



Another DUI “Right Without a Remedy”

Saturday, June 5th, 2010

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombettaruled that there is no right to this. (See "Why Do Police Destroy the Evidence in DUI Cases?".)

Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example:

(a) ….a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later…

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is routinely checked off — and ignored.)

So what can a defendant do if this legal right is violated? Well, the statute clearly says "shall" advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law.  Under Miranda, for example, a failure to advise a suspect of his rights results in the suppression of any statements.  Thus, the only meaningful remedy would be suppression of the breath test.

Wrong. Remember: This is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following:

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested.

Cute, no? The law gives you a "right", and then makes it unenforceable. It is, as we lawyers say, "a right without a remedy". And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test.

There are some court decisions, however, which seem to say that interfering with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g., In re Martin, 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In State v. George, 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician.

Yet another example of "The DUI Exception to the Constitution".