DUI BLOG

Just when you thought it couldn’t get more ridiculous….

DUI Arrest May Be a First; Case Seen as a Legal Challenge

Wilkes-Barre, PA.  March 31 — The arrest of a Throop woman on evidence of driving under the influence of bath salts is believed to be the first in the region and possibly the state.

As the case against Michele Pace, 39, begins a slow process through the court system, a defense lawyer believes there is a good chance it may end sooner than later.

City police charged Pace as the driver of a Chevrolet that was pursued from the busy intersection of Kidder and Scott streets to George Avenue on Monday. Police alleged Pace was swerving in traffic and nearly struck a utility pole and other vehicles before being boxed in a driveway by a detective and another officer, according to charges filed.

Police said in the criminal complaint that Pace and a passenger, Donna Zilla, 40, of Dunmore, were under the influence of bath salts. Two children in the vehicle were not injured, police said.

Pace and Zilla “appeared highly euphoric, aggressive and agitated. They were unable to control simple body movements, and when answering questions, both were flailing and talking quickly,” the complaint says.

Pace was charged with driving under the influence of bath salts…

"Friends don’t let friends bathe and drive!" 
 
(Thanks to David Baker.)
 

As regular readers of this blog are painfully aware, over the past 7 years I’ve posted ad nauseum about the inaccuracy and unreliability of breath machines used in drunk driving cases.  See, for example, How Breathalyzers Work – and Why They Don’t, Breath-Alcohol Testing: "State of the Art"?, Report: Breathalyzers Outdated, Unreliable, Unstable and "Close Enough for Government Work".  In fact, a few days ago I wrote about the Washington D.C. Attorney General throwing out dozens of DUI cases and investigating hundreds of others because of breathalyzer accuracy issues.  See Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines.

For those doubters out there who thought this was just an isolated instance, consider today’s news:
  

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months 

Philadelphia, PA.  March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams  declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete. 

Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

The real bill will be some time in coming.

Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.

Thousands of citizens are convicted every day of driving with a blood-alcohol level of .08% — based entirely upon the readings of these machines.  In a "trial by machine", the results of these devices legally establish a rebuttable presumption of guilt and are considered proof beyond a reasonable doubt.  See Whatever Happened to the Presumption of Innocence? and Trial by Machine. 

(Thanks to Ari Weiner.)
 

It is a cardinal rule of ethics in the legal profession that the duty of a prosecutor is not to seek convictions, but to pursue justice — even if that pursuit leads to a dismissal or acquittal of charges.  Sadly, that is less and less true in today’s world of winning at any cost….

19th Judicial District Attorney Offers Cash for Convictions

Arapahoe County, CO.  March 23 – The 18th Judicial District Attorney, Carol Chambers, is giving bonuses to her deputy attorneys who tried more than five cases last year and have a conviction rate higher than 70 percent, 9Wants to Know has learned.

Critics say it’s unethical to give prosecutors a financial prize for winning a trial and may give defense attorneys a reason to appeal a case.

"The prosecutor’s ethical obligation is to seek justice for everyone," Colorado State Public Defender Douglas Wilson said. "Basing bonus pay of conviction rates flies in the face of that obligation and sounds a lot like the Old West bounties."…

The DAs for both of the metro area’s biggest districts believe paying for performance could leave the prosecutor interested in the outcome of the case.

"Our job is not to directly tie the conviction rate, trials or plea bargains to a monetary figure," First Judicial District Attorney Scott Storey said. "That would be like working on commission or something. And that’s not what we do."

The American Bar Association standards say a prosecutor’s duty is to seek justice, not conviction.

"What matters is that you go in there and you seek justice. And you do the best job you can and then you leave it up to 12 citizens to make a decision," Morrissey said.

How would you like to be accused of a crime…and know that the prosecuting agency has a bounty on your head — guilty or not?
 

Senators are now pressuring Apple and others companies to remove internet applications which warn motorists of drunk driving roadblocks.

Senators Ask Apple, Google, RIM to Pull Checkpoint Apps 

Washington, DC.  March 22 — Four Democratic senators on Tuesday penned a letter to Apple, Google, and Research in Motion to urge the companies to remove apps that provide users with information about DUI checkpoints.

"With more than 10,000 Americans dying in drunk-driving crashes every year, providing access to applications that alert users to DUI checkpoints is harmful to public safety," according to the letter, which was signed by Sens. Harry Reid, Chuck Schumer, Frank Lautenberg, and Mark Udall.

The senators asked the companies to remove the apps, unless the app creators remove DUI or DWI checkpoint functionality.

"One application contains a database of DUI checkpoints updated in real-time. Another application, with more than 10 million users, also allows users to alert each other to DUI checkpoints in real time," they wrote. "Giving drunk drivers a free tool to evade checkpoints, putting innocent families and children at risk, is a matter of public concern.

How conveniently memories fade….

As I’ve summarized in past posts (see, for example, DUI Sobriety Checkpoints: Unconstitutional?), a number of years ago the Michigan Supreme Court held that DUI roadblocks (aka "sobriety checkpoints) were unconstitutional.  Such warrantless stops, the court correctly concluded, were a violation of the Fourth Amendment to the Constitution since American citizens cannot be stopped in their cars without reasonable suspicion to believe that they had committed a crime.  

The United States Supreme Court thereafter reversed the state court.  In Michigan v. Sitz, Chief Justice Rehnquist essentially admitted that the stops were violations of citizens’ rights — but found that these were only minimal violations.  And these minimal intrusions, Rehnquist found, were outweighed by the more important interests of the government in ensuring safety on the highways.  However, the Court left to the states the role of determining how to minimize these intrusions.

The first state supreme court decision to define these regulations was Ingersoll v. Palmer.  In that landmark case, the California Supreme Court laid down the safeguards mentioned in Sitz.  These mandatory procedures specifically included "advance publicity":

Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, at page 1001 explained the value of advance publicity: "Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning may well decrease the chance of apprehending ‘ordinary’ criminals, but should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.

Any one of these goals, if achieved, would have the salutary effect of interfering with the lethal combination of alcohol and gasoline. Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening." (663 P.2d 992, 1001, conc. opn.Feldman, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.)  Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists. Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the observation, consistent with finding reasonableness under the Fourth Amendment, that [43 Cal. 3d 1347] "’[A]dvance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.’ [Citation.]" (Id., at p. 1080.)
 

Maybe the senators need a crash course in constitutional law….
 

I’ve posted repeatedly in the past about the increasingly common practice of police agencies using "templates" in drunk driving cases. See, for example, Pre-Written DUI Police Reports, Xeroxed DUI Symptoms and Ready-Made DUI Police Reports.  Instead of writing an official police investigation report after the arrest that summarizes the observations of the officer, they are essentially written before the arrest — containing such "facts" as driving symptoms, physical appearance and performance on field sobriety tests. This saves time, of course, but also ensures that commonly observed incriminating "evidence" is included — whether present or not.

A related issue involves the common requirement in law enforcement agencies of having all arrest reports reviewed and approved by a more experienced supervising officer. However, as with pre-written reports, the safeguards in DUI cases are increasingly being bypassed by rubber-stamping these "approvals"…
 

City Suspends DUI Cases While Police Investigate Rubber-Stamping of Arrest Reports  

Seattle, WA. March 21 — Seattle police have launched an internal investigation into the alleged mishandling of dozens of drunken-driving cases by members of the department’s DUI Squad, prompting city attorneys to put some prosecutions on hold.

City Attorney Peter Holmes said in a statement that his criminal division will review current and past driving-under-the-influence (DUI) cases to determine whether they may be affected by the pending findings of the police investigation.

The investigation, disclosed by sources familiar with the matter and later confirmed by the department, is focused on accusations that arrest reports weren’t properly screened and approved by a sergeant in the DUI Squad, as required under department policy. The investigation has forced the department to pull all but one member of its five-member DUI Squad from the street and assign them to desk duties, according to police…

Among the allegations is that the sergeant, David A. Abe, a 32-year veteran, routinely did not report to work and approved DUI arrests by telephone, one source said.

A rubber stamp then was used by DUI officers to affix the sergeant’s name to reports, the source said.

The practice has been going on for about a year, another source said.

The Police Department is looking into the possibility that the sergeant’s name was put on reports without first contacting him, the department said…

"The scope of the investigation at this point focuses on the administrative policy violation of screening all arrests with a supervisor in person, which department policy requires," the statement said. "This investigation is in its infancy. The scope may change as new information is developed."

Whenever officers arrest or detain someone in any type of crime, the Seattle Police Department manual states that a sergeant "shall be notified so that an in person review of the incident can occur … "

Once at the scene or the precinct, supervisors are supposed to review the circumstances of the arrest and the condition of the suspect. The supervisor is supposed to evaluate the appropriateness of any allegation, sign off on any jail booking or release, and ensure evidence is properly collected and preserved, according to the manual.

"It’s just an opportunity to have a second set of eyes look at the facts and circumstances of an arrest," said Sgt. Sean Whitcomb, the Police Department’s chief spokesman.

(Thanks to Ari Weiner.)
 

Breathalyzers don’t actually measure alcohol.

That’s right.  What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will “see” all of those chemicals as alcohol — and report a falsely high “blood-alcohol” concentration (BAC).

Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed “blood-alcohol” reading.

Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific — that is, they are not capable of detecting and measuring a specific compound (such as ethyl alcohol).  

More important for government work, they are relatively cheap.  Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use a lesser number of less-costly filters.  Result:  these machines can only detect and measure a broad range of compounds containing the methyl group — and they then simply assume that the unknown compound within this group is ethyl alcohol.

If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read and report a cumulative result: it will add them up and falsely report the total as the level of alcohol in the breath.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered.  “Trace Composition of Human Respiratory Gas”, 30 Archives of Environmental Health 290.  In another study invoviing 28 subjects, researchers found that the “combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin”.  “Characterization of Human Expired Air”, 15 Journal of Chromatographic Sciences 240.  And Canadian scientists have discovered over 200 such compounds.  “The Diagnostic Potential of Breath Analysis”, 21(1) Clinical Chemistry 5.

What are these compounds?  Are there any on my breath?  Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is “seen” as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1. And there are many other so-called “interferents”. See, for example, “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the breathalyzer as “alcohol” — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if you’ve painted a room or been around gasoline in the last day or two, don’t breath into a breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.
 
Oh well, close enough for government work, right?
 

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. Trombetta ruled 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 commonly 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 — the only meaningful one being 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.

Bottom line:  yes, you have an absolute legal right to a blood sample…except, well, you don’t. 
  

So you only had two beers, but the breathlyzer read .11%. What happened? Well, for starters, breath machines are generally inaccurate and unreliable. Then again, maybe you had a dietary deficiency. Scientific research appears to indicate that a high blood-alcohol level may not reflect high alcohol consumption, but rather a deficiency of zinc in the blood.

In a study conducted at the University of North Dakota, researchers discovered that the metabolism of alcohol was dramatically affected by zinc intake. For example, they found that for those subjects on a low zinc diet, blood-alcohol levels increased rapidly within 15 minutes of consumption of measured amounts of alcohol: roughly twice as much alcohol was present in their blood as was present in those subjects on normal zinc diets. Further, greater amounts of alcohol remained in the blood for longer periods of time when there was a zinc deficiency. 46 American Journal of Clinical Nutrition 688.

Interestingly, it has been discovered that individuals who regularly consume large amounts of alcohol develop zinc deficiencies. This deficiency will, of course, cause the higher alcohol concentration and slower elimination. In other words, it is the problem drinker who is most likely to have abnormal absorption and elimination of alcohol — and abnormally high blood-alcohol test results.