Now another form of impaired driving has been shown to be possibly more dangerous than drunk driving.

Eating While Driving Riskier Than Being Legally Impaired by Alcohol or Texting

Great Britain. May 7 — Would you believe that eating food while at the wheel of a vehicle could be more dangerous than drinking or texting while driving?

According to a study by the University of Leeds called “Two Hands Better than One,” this is exactly what researchers found based on observation of test subjects operating driving simulators.

The UK researchers measured reaction time while drivers negotiated virtual vehicles, and as it turns out, eating increased response times by 44 percent.

In contrast, texting increased reaction time by 37 percent, and drinking a non-alcoholic beverage from a can or bottle increased reaction time by 22 percent.

And what about the one driving no-no that that nearly everyone agrees is undesirable – drinking alcohol and operating a vehicle?

Drivers asked to operate the simulator who were at the U.S. “legal limit” of .08 percent blood alcohol content increased reaction time by 12.5 percent…

Common sense dictates that drivers can compound their chances for an accident if they do not self-govern and recognize their limits. And as the study indicates, a distraction can come in several forms – even ones that have been considered benign…

Much more could be said about this subject which the U.S. Department of Transportation has been up in arms about in recent years, labeling distracted driving an “epidemic.”

Maybe someone should remind MADD that the goal is saving lives — not returning to Prohibition.
 

Whereas previously the drunk driving laws made it illegal to drive a vehicle while under the influence of alcohol, the new ones didn’t care about impairment but simply made it a crime to have a blood-alcohol level of .08% or higher.  It didn’t matter if a given driver had higher than average tolerance to alcohol; whether a citizen was impaired and a danger or not was no longer relevant.  The crime was the presence of alcohol in the body.

This, of course, made it much easier to prosecute and convict citizens of drunk driving — even if they weren’t "drunk".

Now that strategy is increasingly being adopted by states for the offense of "driving while stoned" — that is, driving while under the influence of marijuana.  As with alcohol, it is more difficult to prove that a citizen’s driving ability is impaired by marijuana than it is to prove that there is an arbitrary amount of it in his body.  

Solution: criminalize the presence of a given amount of cannabis in the blood.  Of course, there is little scientific consensus as to what levels of marijuana cause driving impairment.  But the result will be more arrests, prosecutions — and more unimpaired drivers convicted.   

"The ends justify the means", right?  

Colorado Senate Gives Initial OK to Stoned-Driving Limits 

Denver, CO.  May 2 – The Colorado Senate Tuesday gave initial approval to a bill making it easier to convict people of driving while stoned, in the toughest test yet for the proposal…

The measure, Senate Bill 117, would set a limit of THC — the psychoactive chemical in marijuana — in the blood above which it would be illegal to drive. King said numerous studies suggest that the large majority of people with more than 5 nanograms of THC per milliliter of blood are impaired.

[Bill sponsor Steve] King said the bill is needed to stem what appears to be an increase in stoned driving in Colorado. Drivers whose blood tested positive for THC at the state toxicology lab have increased from a couple hundred in 2009 to more than 1,000 last year, King said…

Opponents say that research isn’t conclusive that everybody is stoned at 5 ng and that the bill would result in sober drivers being convicted. Sen. Morgan Carroll, D-Aurora, called the bill, "a shortcut on burden of proof." Sen. Pat Steadman, D-Denver, said state law already makes it illegal to drive while stoned — including for those drivers who are impaired at less than 5 ng.

"I would prefer to stick with current law, where the question of impairment is put to a jury and where evidence of someone’s conduct is presented in court," Steadman said.

Steadman said the bill would hurt medical-marijuana patients who regularly use marijuana and may have higher baseline levels of THC in their blood.
But King said the bill sends an important message that driving high is not OK.

"What I’m saying is, you can’t get high and drive," King said. "It has an impact on the rest of us. You can smoke and wait. You can smoke and walk. You can smoke and find a ride. But you cannot smoke and drive."

Fourteen other states have laws creating a THC limit for driving — laws that are known as "per se" laws. Several other states have zero-tolerance driving laws for THC.

Notice the focus of the law in the opening line of the story:  "a bill making it easier to convict people".  Not a bill to reduce casualties on the highways.  Not a bill to punish criminals. No, a bill making it easier to convict citizens.

The great legal scholar Blackstone famously stated back in the 1760s: "Better that ten guilty guilty persons escape than that one innocent suffer".  That revered old legal principle has been reversed in DUI cases..  

The concept goes back even further — much further.  From Genesis 18:23-32 of the Bible:  

Abraham drew near and said, ‘Will you consume the righteous with the wicked?  What if there are fifty righteous within the city?  Will you consume and not spare the place for the fifty righteous that are in it?  What if ten are found there?".  He [The Lord] said, "I will not destroy it for the ten’s sake".  

The dragnet approach to justice.  Yet another example of what I have termed "The DUI Exception to the Constitution".
 

Since then, it has been common practice for police to pull over any driver who appears to be avoiding a roadblock.  And the question has arisen:  Does turning around, say, a block ahead of the checkpoint, constitute sufficient reasonable suspicion of intoxication to justify pulling the driver over?  In almost every case, the courts have held that it does not: mere avoidance is not an indication of drunk driving and so cannot be used to justify a stop and detention.

The Supreme Court of South Dakota, however, has decided that although turning around to avoid a roadblock is not enough, it becomes sufficiently "suspicious" if the turn is a wide one — even if a legal one!

South Dakota Supreme Court: Avoiding Nighttime Roadblock is Suspicious

The Newspaper.com, April 25 — Avoiding a roadblock is, in effect, sufficient justification for police to pull over a driver, the Supreme Court of South Dakota ruled last Wednesday. The justices unanimously ruled that avoidance itself technically is not enough, they approved the most minor of "suspicious" circumstances to justify pulling over any motorist who does not want to be stopped and interrogated at a checkpoint.

The decision came in the case of Ryan Rademaker, who had been driving a friend home at 1am on a Sunday. As he saw the blockade on the highway ahead, Rademaker turned off on a gravel road. A highway patrol officer issued orders to a local police officer who understood his mission was to stop Rademaker for avoiding the roadblock. The officer testified that he did not observe Rademaker violating any traffic laws, but the officer noted the driver made a "wide turn." The officer also noted, after he activated his red lights, that Rademaker might have been speeding.

The court looked to the question of whether the officer violated Rademaker’s Fourth Amendment rights and whether there was reasonable suspicion that Rademaker may have been involved in criminal activity. Rademaker cited a series of Eight US Circuit Court of Appeals decisions that concluded avoiding a roadblock is not enough to justify a traffic stop.

"In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion," Justice Lori S. Wilbur wrote for the court. "However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here."

To uphold the conviction, the justices turned to the "totality of circumstances" doctrine to find a number of elements that are not in themselves criminal but lend enough to rationalize the officer’s actions in the court’s eyes.

"In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn," Wilbur wrote. "Both this court and the Eighth Circuit have used the time of day as a ‘factor’ in determining whether reasonable suspicion exists… Likewise, this court recently held that a wide turn, even if not in violation of any traffic laws, may be sufficient in some circumstances to engender reasonable suspicion."

As a result of the high court’s finding, Rademaker’s conviction for driving under the influence of alcohol (DUI) was upheld. Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming outlaw DUI roadblocks as a violation of their state constitutional protection against warrantless search and seizure.
 

Amazing.  A turn that is legal but "unusually wide" (whatever that means) is enough to pull over a driver on suspicion of drunk driving.  This is an example of what I meant in the banner at the top of this blog by "a fading Constitution".
 

Fast forward….Mothers Against Drunk Driving and their cohorts seem intent on resurrecting humiliation as an added punishment — but only in DUI cases.  See, for example, The Scarlet Letters, The Return of the Scarlet Letter and The Scarlet Letter Revisited.  

The most recent manifestation of this archaic witch-hunting:

Houston Man to Wear Placard Saying He Killed a Man

Houston, TX.  April 19 - A driver who served time in jail for killing a man in a drunk-driving accident in Harris County will now have to advertise his crime by wearing a sign in public.

Harris County Court-at-Law Judge Michael R. Fields has ordered Michael Giacona, 39, to wear the sign, which states “I killed Aaron Coy Pennywell while driving drunk,” during four consecutive Saturdays as part of his two-year probated sentence…

Giacona was ordered to wear the sign from 9 a.m. to 5 p.m. at the accident scene, starting this Saturday.

Aside from the issue of public humiliation generally, one has to ask the question:  Why only drunk drivers?  Why aren’t rapists, drug dealers, child molesters and murderers forced to wear signs as well?  
 

How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:
 

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.

A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.

Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.

Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.

"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
 

This, of course, opened the floodgates:  Big Money is now busily exercising their newly-discovered "free speech" by  buying up judges, too….

Super PACs, Donors Turn Sights on Judicial Branch

Orlando, FL.  Mar 29 – Just before sunset on a recent evening, scores of lawyers in dark suits and polished loafers streamed into the swanky 18th-floor ballroom of a downtown high-rise here. They sipped chardonnay and nursed Heinekens, munched on cheese cubes and made small talk.

The invitation to the event had asked for a “suggested contribution” of $500 to each of three candidates, who were now mingling sheepishly among the crowd. They were no ordinary politicians. In fact, they weren’t politicians at all, but rather Florida Supreme Court justices. Each has been in office since the 1990s, each retained by voters overwhelmingly in previous elections, and each now reluctantly campaigning — for the first time.

 While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.

The three justices sipping water and shaking hands in the ballroom decided months ago that they needed to campaign early and hard. They saw two of their colleagues targeted in 2010 after the court refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan. They knew the organizers of that effort, angry about what they call “judicial activism,” had promised to step up their campaign and had formed a political organization that by law can raise unlimited money.

The judges were less than excited about having to ask people for money.

“It is almost embarrassing to be doing it,” Justice Fred Lewis said…

Those challenging the judges say their actions offer a way to inform the public and hold the judiciary accountable. The judges say they welcome accountability but want to protect the independence of the bench.

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections…

Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.

In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.

“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”

Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said…

I wonder what the going price is for a judge?
 

On the Road Again: Obama’s ‘Drunk Driving’ and Illegal Immigrant Uncle Allowed to Drive Again After Hardship License is Approved 

Boston, MA.  April 3 –Just a week after President Obama’s uncle pleaded guilty to drunk driving and surrendered his driver’s licence, he’s back behind the wheel.

Onyango Obama, 67, was approved for a ‘hardship licence’ yesterday, which allows him to drive in Massachusetts from noon to midnight.

The Boston Herald reported that Obama, the half brother of the president’s father, convinced a Registry of Motor Vehicles panel that an inability to drive would adversely affect his job as a liquor store manager.

And, despite his status as an illegal immigrant, his request was approved…

Obama, of Kenya, is also appealing a deportation order that dates to 1992, when he failed to renew his application to remain in the U.S.

The drunken driving charge will be dismissed if he stays out of trouble for a year, officials said.

Obama was arrested in Framingham in August after a police officer said he made a rolling stop at a stop sign and nearly caused the officer’s cruiser to crash into his sport utility vehicle.  Once pulled over, the DA said Obama’s speech was slurred, ‘his eyes were red and glassy and there was an odor of alcohol coming from inside the motor vehicle.’

Obama then failed several field sobriety tests and his blood alcohol was almost twice over the legal limit, reports the Herald.

It must be nice to be the uncle of the President….
 

The issue of immediate destruction of breath samples — which can be easily and cheaply saved for later reanalysis by the defense — was raised a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.

So why isn’t the evidence saved in DUI cases today?  Because the Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.  California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would be so much later that it would probably not be relevant or admissible in court.

The following news story does an excellent job of highlighting some of the issues of a growing problem:
 

New Wrinkle in Pot Debate: Stoned Driving

Denver, CO.  March 18  – Angeline Chilton says she can’t drive unless she smokes pot. The suburban Denver woman says she’d never get behind the wheel right after smoking, but she does use medical marijuana twice a day to ease tremors caused by multiple sclerosis that previously left her homebound.

"I don’t drink and drive, and I don’t smoke and drive," she said. "But my body is completely saturated with THC."

Her case underscores a problem that no one’s sure how to solve: How do you tell if someone is too stoned to drive?

States that allow medical marijuana have grappled with determining impairment levels for years. And voters in Colorado and Washington state will decide this fall whether to legalize the drug for recreational use, bringing a new urgency to the issue.

A Denver marijuana advocate says officials are scrambling for limits in part because more drivers acknowledge using the drug.

"The explosion of medical marijuana patients has led to a lot of drivers sticking the (marijuana) card in law enforcement’s face, saying, `You can’t do anything to me, I’m legal,’" said Sean McAllister, a lawyer who defends people charged with driving under the influence of marijuana.

It’s not that simple. Driving while impaired by any drug is illegal in all states.

But it highlights the challenges law enforcement officers face using old tools to try to fix a new problem. Most convictions for drugged driving now are based on police observations, followed later by a blood test.

Authorities envision a legal threshold for pot that would be comparable to the blood-alcohol standard used to determine drunken driving.

But unlike alcohol, marijuana stays in the blood long after the high wears off a few hours after use, and there is no quick test to determine someone’s level of impairment — not that scientists haven’t been working on it.

Dr. Marilyn Huestis of the National Institute on Drug Abuse, a government research lab, says that soon there will be a saliva test to detect recent marijuana use.

But government officials say that doesn’t address the question of impairment.

"I’ll be dead — and so will lots of other people — from old age, before we know the impairment levels" for marijuana and other drugs, said White House drug czar Gil Kerlikowske.

Authorities recognize the need for a solution. Marijuana causes dizziness, slowed reaction time and drivers are more likely to drift and swerve while they’re high…

Physicians say that while many tests can show whether someone has recently used pot, it’s more difficult to pinpoint impairment at any certain time.

Urine and blood tests are better at showing whether someone used the drug in the past — which is why employers and probation officers use them. But determining current impairment is far trickier.

"There’s no sure answer to that question," said Dr. Guohua Li, a Columbia University researcher who reviewed marijuana use and motor vehicle crashes last year.

His survey linked pot use to crash risk, but pointed out wide research gaps. Scientists do not have conclusive data to link marijuana dosing to accident likelihood; whether it matters if the drug is smoked or eaten; or how pot interacts with other drugs.

The limited data has prompted a furious debate.

Proposed solutions include setting limits on the amount of the main psychoactive chemical in marijuana, THC, that drivers can have in their blood. But THC limits to determine impairment are not widely agreed upon.

Two states place the standard at 2 nanograms per milliliter of blood. Others have zero tolerance policies. And Colorado and Washington state are debating a threshold of 5 nanograms.

Such an attempt failed the Colorado Legislature last year, amid opposition from Republicans and Democrats. State officials then set up a task force to settle the question — and the panel couldn’t agree.

This year, Colorado lawmakers are debating a similar measure, but its sponsors concede they don’t know whether the "driving while high" bill will pass.

In Washington state, the ballot measure on marijuana legalization includes a 5 nanogram THC limit.

The measure’s backers say polling indicates such a driving limit could be crucial to winning public support for legalization…

The White House, which has a goal of reducing drugged driving by 10 percent in the next three years, wants states to set a blood-level standard upon which to base convictions, but has not said what that limit should be.

Administration officials insist marijuana should remain illegal, and Kerlikowske called it a "bogus argument" to say any legal level of THC in a driver is safe.

But several factors can skew THC blood tests, including age, gender, weight and frequency of marijuana use. Also, THC can remain in the system weeks after a user sobers up, leading to the anxiety shared by many in the 16 medical marijuana states: They could be at risk for a positive test at any time, whether they had recently used the drug or not.
 

(Thanks to Andre Campos.) 
 

In a follow-up yesterday, the San Francisco Chronicle has confirmed this:

SF Not Alone in DUI Test Flaw, Dropped Convictions

San Francisco, CA.  Mar. 12 – In facing the possible loss of hundreds of drunken-driving convictions because of a testing controversy, San Francisco is not alone.

District Attorney George Gascón said last week that his office was reviewing cases going back to 2006 because of possible police mismanagement of the breath-test devices used to measure drivers’ blood-alcohol levels. Public Defender Jeff Adachi said as many as 1,000 convictions could eventually be overturned.

Other jurisdictions, including Santa Clara County and Ventura County, have had to drop some drunken-driving convictions because of problems with faulty or mishandled breath-test devices – although fears of mass dismissals have proved unfounded.

San Francisco’s troubles began when attorneys with the public defender’s office discovered suspicious bookkeeping in the Police Department’s accuracy testing of the devices. The entries suggested that officers weren’t conducting the checks at all.

A similar situation in Philadelphia last year resulted in the district attorney offering new trials to nearly 1,500 people who had been convicted of driving under the influence over the previous 15 months.

Police there revealed in March 2011 that four breath-test devices – different models from those used in San Francisco – had not been properly calibrated, said Tasha Jamerson, a spokeswoman for the district attorney’s office…

Officers in the field there ask suspected drunken drivers to exhale into portable testing devices to estimate whether a driver’s blood alcohol level is above the legal limit of 0.08 percent. In April 2010, Santa Clara County authorities learned that condensation was building up in the device, the Alco-Sensor V, that San Jose and Palo Alto police had been using for nearly all of 2010, resulting in erratic readings.

The device was a newer model of the Alco-Sensor IV that San Francisco police and many other Bay Area law enforcement agencies use…

Ventura County dismissed at least 64 cases in 2011 because of the same condensation glitch, said Senior Deputy District Attorney Stacy Ratner.

Intoximeters, the Missouri company that makes the Alco-Sensor devices, did not respond to requests for comments…

Although the news story only mentioned California counties, as well as Philadelphia, the widespread unreliability of these machines — upon which criminal convictions are based — goes far beyond that state.  See, for example, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and More Massive Breathalyzer Failures.  

For a confidential government document verifying the unreliability, see Report: Breathalyzers Outdated, Unstable, Unreliable.

(Thanks to Andre Campos.)