Archive for July, 2011

Are Field Sobriety Tests Designed for Failure?

Thursday, July 28th, 2011

Roadside field sobriety tests ("FSTs") are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as walk-and turn, one-leg stand, "nystagmus" ("follow the pencil with your eyes"), finger-to-nose, alphabet recitation, "Rohmberg" (eyes-closed-position-of-attention), etc. The officer may subjectively decide whether the individual "failed", or he may decide after applying federal so-called "standardized" scoring.

These DUI tests have an aura of scientific credibility. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case.

First, as any traffic officer or DUI attorney knows, the decision to arrest is made shortly after the stop at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of gathering evidence to support the officer’s opinion.

Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will "see" what he expects to see.

Third, the conditions under which the field sboriety tests are given almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened, completely unfamiliar with the tests, and with unknown physical limitations.

Fourth, field sobriety tests are irrelevant and, in fact, designed for failure. What scientific basis exists to validate FSTs in a DUI investigation? Only a single "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests.

To earn their federal money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the .10% limit. (Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.)

The company was sent back to the drawing board and, in 1981, came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.)

Clearly, SCRI was paid to put their stamp of approval on a set of field sobriety tests.

But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00%.

The results: the officers gave their opinion that 46% of these stone sober people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).
 

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“Professional Courtesy”

Saturday, July 23rd, 2011

I haven’t commented in some time on the double standard applied to cops when they’re found driving drunk — mainly because it’s so common.  If a cop is found to be DUI, he’s usually usually given a free pass — aka "professional courtesy"; if there’s an accident with witnesses, he never gets jail time.  See, e.g., The DUI Double Standard, The Blue Cover-Up and The DUI Double Standard 2.      

The following account from yesterday’s news, however, cries out to be read:


"You Suck": DPD Officer to Silverthorne Officer During DUI Arrest

Denver, CO.  July 22 – His blood alcohol level measured three times the legal limit when he crashed his Jeep, swore at officers and demanded special treatment. Now, a Denver Police officer’s behavior that was caught on tape is being used as an example by the city’s Independent Monitor to call for more discipline in the department.

According to an arrest report from the Silverthorne Police Department, off-duty Denver Police Officer Jesse M. Sandoval drove his Jeep Cherokee off the road in the 200 block of Wildernest Road just after 8 p.m. on Feb. 17, 2010.

When officers approached Sandoval, he claimed he was on his cell phone when he swerved off the road, but Silverthorne officers said his speech was slurred, his eyes were watery and pink and he smelled of alcohol. He also stated he had a gun in the vehicle, which was confiscated by Silverthorne Police.

The report says Sandoval identified himself as a Denver Police officer and asked for the responding officers to "help a fellow officer out and take him home."

One officer recorded the incident on her iPhone as they took Sandoval into custody. In audio recordings obtained by 9NEWS, Sandoval could be heard screaming obscenities at the Silverthorne officers and asking for special treatment.

"I’ll tell you what; we used to take care of police when I used to work in Chicago. We take care of each other. You suck. I have never, ever, ever (expletive) another policeman. And I don’t know what you guys do up here," he said. "You guys are being over the top because you think I’m a bad policeman. I’m such a bad person. I didn’t do anything you (expletive) haven’t done in your lifetime."

He went on for almost 40 minutes while the Silverthorne officers took care of paperwork and transported him to the Summit County Medical Center for a blood alcohol screen.

"You are the biggest (expletive) I’ve ever met. I worked in Chicago. Chicago PD and now I work in Denver. You know what, I’ve worked in two big cities and you know what, this is not the way we treated (expletive) the police, never. God bless you. I hope you feel good about yourself when you go home tonight," Sandoval said.

Sandoval pleaded guilty to DUI charges and was sentenced to 30 days of electronic monitoring, 48 hours of community service and 12 months of probation in the Summit County Court. He had no prior criminal history in Colorado and was previously awarded the Denver Police Department’s Medal of Valor. 9NEWS tried to contact Sandoval by email for a comment but did not receive a response.

It was what happened with his punishment at the Denver Police Department that has the Independent Monitor questioning discipline.

According to Denver Police, Sandoval served a 26-day probation period before returning to the job. The Independent Monitor believes that was adequate for the DUI offense, but stated in his report that officers who use their position to try to get out of trouble should face additional disciplinary action.

"While the discipline imposed for the Driving Under the Influence and the Unlawful Weapon Possession was reasonable and within the scope of post-discipline matrix protocol, the discipline for the officer’s attempts to obtain preferential treatment was insufficient," Independent Monitor Richard Rosenthal said…


Hmmmm….Crashed his car, had 3 times the legal limit, tried to get preferential treatment, swore at cops — and he still never did any jail time. 
 

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Ignition Interlock Makers Lobbying Congress to Require Them in All Cars

Wednesday, July 13th, 2011

I’ve posted in the past about ignition interlock devices (IIDs) — those small, cheap breath testers that are installed in a car’s dashboard and require periodic breath tests from the driver for the engine to function.  See, for example, Will Ignition Interlock Devices End Drunk Driving?.  I’ve also written about how these devices are unreliable and even dangerous on the highways.  See, Ignition Interlocks: Dangerous But Profitable.     

I’ve written about how MADD has been lobbying hard for mandatory installation of these IIDs in all vehicles, their CEO even claiming that they will "eliminate drunk driving once and for all".  See, All U.S. Cars to Have Ignition Interlock Devices? and Finally: An End to Drunk Driving.  And I’ve shown that MADD’s own IRS returns show that three of the six largest contributors to the organization are Nissan North America, Daimler Chrysler and General Motors — all of  which stand to make fortunes from installing these devices.  See, The Truth About Ignition Interlock Devices.    

Following is a Washington Post story from a couple of days ago, showing how IID manufacturers are now also using lobbyists in Washington to get bills passed requiring IIDs in all cars.


Steering Hill Leaders to Drunken-Driver Devices

Wash., DC.  July 10 –As House leaders prepare to roll out a massive six-year highway funding bill, among the many interests watching with anticipation are a handful of businesses that have pressed for a requirement that could take them from cottage industry to multimillion-dollar market overnight.

The campaign by the manufacturers of in-car devices to test blood alcohol levels is representative of a particularly successful model of lobbying in which for-profit businesses align with altruistic activist groups to implement government regulations that create a captive market for their products.

A bill that would withhold up to 5 percent of each state’s highway funding unless that state requires such as device in the cars of all convicted drunken drivers was introduced in the Senate in February by Sen. Frank R. Lautenberg, New Jersey Democrat, and last month in the House by Rep. Eliot L. Engel, New York Democrat.

For the past 18 months, lobbyists for "ignition interlocks," as they are called, have jockeyed to inject a provision into the crevices of the transportation reauthorization bill, a tentative outline of which was released Friday by Rep. John L. Mica, Florida Republican…

The Coalition of Ignition Interlock Manufacturers hired lobbyist David Kelly, a former chief of staff and acting administrator at the National Highway and Traffic Safety Administration. Mr. Lautenberg’s former chief of staff, Tim Yehl, now lobbies for Ignition Interlock Systems of Iowa…

 The manufacturers are taking a page from a well-worn playbook: lobbying campaigns in which private companies advocate for government requirements that would make them rich by aligning with activist forces who provide moral pronouncements that are appealing to politicians and – once on the table – the public…


We all know what happens when corporate lobbyists start handing out big money to the politicians.  Now add the huge political clout of MADD….  

Expect to have an ignition interlock device in your car in the near future — whether you want one or not.


(Thanks to Robert B. MacLean.)
 

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Wisconsin Approach Confirms Solution to Reducing DUI Fatalities

Thursday, July 7th, 2011

As I’ve often pontificated in past posts, the way to reduce DUI-related fatalities on our highways is not to destroy the lives of offenders with Draconian punishment, nor to dismantle the Constitution in the process.  Rather, the solution is in recognizing that the danger lies in not the vast majority of those accused but in the "problem drinker" — the person with prior convictions and whose blood-alcohol level is usually very high, typically an alcoholic.  See, for example, my recent post A Modest Proposal

A recent news story about such an approach in Wisconsin is confirming the validity of this view.


DOT Report Highlights Supervision of Repeat Drunken Drivers
 
Ashland, WI.  July 1 – Pretrial Intensive Supervision Programs in 11 Wisconsin counties have saved the state tens of thousands of jail days, according to a legislative report recently completed by the Wisconsin Department of Transportation.  The program began in 1993 in Milwaukee County and targets repeat drunken drivers through counseling, treatment, and monitoring…

The Department of Transportation annually evaluates the counties’ programs. In 2010, the department reported the following results:

In 2010, 80 percent of the 3,813 drunk drivers participating in intensive supervision programs successfully completed their program, which typically includes: treatment for alcohol dependency or addiction, monitoring for sobriety, a Driver Safety Plan component and compliance with court appearances and payment of fines.

From October 1, 2009 through September 30, 2010 (federal fiscal year 2010), counties with intensive supervision programs that reported totals saved 74,440 jail days. (Total jail days saved does not include information from all counties in the program).

"The pretrial intoxicated driver intervention program continues to enjoy support from the Milwaukee County Court judges, who cite the program as one of the most important resources the courts have for dealing with repeat OWI offenders," said Milwaukee County Chief Judge Jeffrey Kremers. "The court appreciates that pretrial supervision of clients results in better treatment compliance."

Along with the state’s justice system, the department of transportation sees program benefits, as well.

"Most traffic fatalities are linked to motorists’ behavior such as driving while impaired, speeding and not wearing seat belts. We know that the injuries and deaths caused by the traffic crashes are preventable," said Randy Romanski of the Wisconsin Department of Transportation’s Bureau of Transportation Safety. "The intensive supervision programs work to change behaviors and prevent situations where people drive drunk and injure or kill themselves or others."


Maybe it’s time to abandon MADD’s prohibition agenda and start dealing with reality.
 

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