Archive for August, 2011

DUI Reports Falsely Certified by Arresting Cops

Wednesday, August 31st, 2011

Here we go again: yet another example of the growing trend of police officers to circumvent the rules and procedures in DUI cases.

I’ve posted repeatedly in the past about pre-written arrest DUI arrest reports — using reports which are written before ever stopping, investigating and arresting the suspect.  See, for example, Police Using Pre-Written DUI Reports, Pre-Written DUI Arrest Reports: A Smoking Gun, "Xeroxed" DUI Symptoms and Ready-Made DUI Arrest Reports.

A related and growing trend among some DUI cops is to circumvent the usual requirement that all arrests must be reviewed and approved by a supervisor…

Rubber-Stamped Seattle DUI Arrests Prompt Legal Challenge

Seattle, WA.  Aug. 31
— Seattle police have found that drunken-driving arrests were routinely rubber-stamped or falsely certified without approval by a supervisor, prompting one defendant to ask a judge to dismiss his case or suppress the arresting officer’s testimony.

The department launched an internal investigation in March after an audit revealed the mishandling of dozens of driving-under-the-influence (DUI) cases.

A sergeant who allegedly permitted the improper screening remains under investigation.

But the department has found that two members of the DUI Unit, Jonathon Huber and Jonathan Young Jr., routinely used the sergeant’s signature stamp without having their arrests approved by him as required by policy, according to an internal-investigation report obtained by The Seattle Times.

A third officer, John Velliquette Jr., put written statements in his reports indicating his sergeant had screened his arrests, even though the sergeant had not actually reviewed the cases, the June 22 report said.

Witnesses indicated the sergeant told the officers he had "preapproved" their arrests and offered his signature stamp, according to the report.

The three officers were cleared of misconduct allegations involving honesty and arrest procedures after the department’s Office of Professional Accountability (OPA) heard testimony that the practice had been going on for 20 to 25 years and that most law-enforcement agencies do not require DUI arrest screening because most suspects are released after processing.

Witnesses also said the stamp was used to satisfy data requirements and not to deceive.

According to the report, the OPA also considered DUI officers the department’s "experts in the identification, arrest, processing and courtroom presentation of evidence" and that "it is unnecessary to have a [sometimes] less knowledgeable sergeant reviewing their reports."

Although the allegations were not upheld, all three officers were ordered to undergo supervisory counseling and training for violating the department’s arrest-screening policy. They were put on desk duty when the investigation began, but they have been returned to DUI patrols.

The OPA originally found Velliquette had been dishonest and gone further than the other officers by submitting written information that was false. But Deputy Chief Nick Metz determined supervisory intervention was more appropriate. OPA Director Kathryn Olson concurred.

Supervisory intervention means that while there may have been a violation of policy, it was not a willful violation that amounted to misconduct, according to the department…

Seattle police declined to disclose the names of the officers or details of the internal investigation under a public-disclosure request filed by The Times, citing its policy of not releasing that information in cases where officers have been cleared of wrongdoing.

The Times independently obtained a copy of the findings from Stephen Hayne, a longtime DUI attorney in Bellevue.

Why do cops have to cheat so often in drunk driving cases?  What are they trying to hide?


Why I Defend Them

Wednesday, August 24th, 2011

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest in our society increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend those criminals?”

Well, to begin with, I have to wonder when Americans started assuming that any citizen who is accused by the government is a "criminal"…

But the answer to the cocktail question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, balancing the presentation of evidence, guarding constitutional rights, challenging untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping an increasingly intrusive government honest.

One of the better answers 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.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government…by a lone attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.


Can Smoking Alter Breathalyzer Results?

Sunday, August 21st, 2011

I have mentioned that a primary problem with blood alcohol analysis is that the 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…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.


Breathalyzer Results Depend Upon Your Breathing Pattern

Tuesday, August 16th, 2011

Want to trick that breathalyzer into a false reading? Not that difficult: just change your breathing pattern.

As I’ve indicated in literally hundreds of earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. (See, for example, How Breathalyzers Work – and Why They Don’tWhy Breathalyzers Don’t Measure Alcohol and How Accurate Are Breathalyzers?.)  Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested.

This has been confirmed in a number of scientific studies.

In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. "How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law275.For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:

"By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%." 9(6) The Champion 16 (1985).

Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the suspect to blow into the machine’s mouthpiece, they’ll yell at him, "Keep breathing! Breathe harder! Harder!" As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading.


The Unwritten Code

Friday, August 12th, 2011

So what happens when cops are called to an accident with a school bus caused by an obviously (.20%)  drunk driver…and discover he's a cop?  

Houston Police Threaten to Arrest Photographers to Protect Their Own

Houston, TX. Aug. 11 — With a blood-alcohol content of more than twice the legal limit and several open containers of booze in his truck, Houston Police Sergeant Ruben Trejo was on his way to work when he crashed into a school bus last April.

While it became immediately obvious he was drunk, his fellow officers responding to the accident did their best to cover up for him, including threatening to arrest witnesses who tried photographing the open containers in his truck.

Not only did police cite the bus driver for running a stop sign – when witnesses told them it was Trejo who ran the stop sign – they went on record with the media assuring he was not drunk.

But two weeks later, Trejo was charged with DWI. And only because local reporters kept pestering police about it.

According to the original news report from KHOU:

An HPD spokesman said the bus driver ran a stop sign and caused the accident. But other witnesses said the officer was the one who ran a stop sign.

The bus driver said she thinks he'd been drinking.

"He smelled drunk and he had beer and wine opened in his car," Teresa Argueta said.

Other witnesses said officers at the scene threw a towel over the open containers and threatened to arrest anyone who took photos.

Here is what the Houston Chronicle wrote two weeks later.

A veteran Houston police officer with a blood-alcohol content of .205 — more than twice the legal limit — was driving to work when he collided with a private school bus this month, authorities said.

Ruben Trejo, 46, was charged Monday with driving while intoxicated in connection with an April 13 wreck that sent him to the hospital. The legal limit for intoxication is 0.08.

Trejo collided with a school bus in the 7900 block of Harrisburg while off-duty in his personal vehicle, a Toyota Tundra pickup, about 2:15 p.m., HPD spokesman John Cannon said.

A sergeant on the Eastside patrol division, Trejo was en route to work when he wrecked, Cannon said. There were no children aboard the bus.

And as reporters kept digging, they learned he has a long history of traffic collisions, with ABC Local uncovering the following:

According to HPD's disciplinary records, Trejo has been named at fault in four accidents in 1990, 1992, 1999 and 2000. He was also cited for insubordination and conduct and behavior problems in 2008.

For other examples of the "unwritten code" among police officers in DUI cases, see some of my past posts:  The DUI Double Standard, The Blue Cover-Up and Guarding the Guardians.  

(Thanks to Andre Campos.)