Deputy Crashes into Car, Breaking Driver’s Neck…then Arrests Her for DUI

Tuesday, May 6th, 2014

As I've repeatedly written on this blog, DUI can be an extremely subjective offense.  Although there may be a breathalyzer or blood alcohol test involved — and these are inherently unreliable — much if not most of the "evidence" depends upon the arresting officer's testimony: driving symptoms, physical appearance, slurred speech, red eyes, impaired coordination and judgment, poor performance on "field sobriety tests", incriminating statements, etc.  All of these depend upon the cop's perceptions, expertise…and honesty.   

So what happens when a cop smashes into another car, causing an accident so violent that the other driver's neck is broken?  Simple:  arrest her for drunk driving.


Sober Driver Arrested for OWI When Deputy Crashes Into Her Car

Milwaukee, WI.  May 3 – A Milwaukee County Sheriff’s Deputy rolls through a stop sign and causes a violent crash. So why was the victim placed under arrest?

A FOX6 Investigation finds that a deputy’s changing story may have changed one woman’s life forever.

Tanya Weyker was hurt so badly, she couldn’t blow into a breath-testing device or perform field sobriety tests.  But a Sheriff’s deputy arrested her for drunk driving anyway.  And the County hung those charges over her head for nearly a year, even long after blood tests proved she was perfectly sober.

Tanya Weyker remembers it clearly. Not just the crash that broke her neck in four places, but the false accusations that followed.

“My reputation is everything to me,” she said.

At the age of 25, Weyker’s criminal history is as flawless as her posture. She was diagnosed with cancer at age three, and the prolonged radiation treatments literally curved her spine. So doctors inserted metal rods to keep her back straight.  The lifelong medical complications have not stopped her from pursuing a college degree. Or from driving a car. In fact, Weyker had never gotten so much as a speeding ticket until the night she crossed paths with Milwaukee County Deputy Sheriff Joseph Quiles.

It was February 20th, 2013, and Deputy Quiles was working the night shift on patrol at General Mitchell International Airport.

As he pulled out onto Howell Avenue to make his rounds, he T-boned a passing car and sent it spinning into a tree.

“Very scary,” Weyker recalls.

Her spine was already fused with steel. Now, she had a fractured neck to go with it.

“It was a miracle I wasn’t paralyzed,” she said.

As rescue workers tended to Weyker, police and Sheriff’s deputies started asking questions.

“One asked if I had anything to drink that night,” she said. “And I told them a few sips from a friend’s drink.”

A deputy noted a light odor of alcohol on her breath. He said her speech was slurred. And her eyes looked red and glassy.

“I explained to him my eyes were red and glassy because I was crying,” she said….

In his official report, Deputy Quiles wrote that he stopped at the stop sign and looked both ways before pulling out.  He told a Milwaukee police officer that he never saw any headlights, even though Weyker’s Camry had lights that come on automatically.

“I knew I was innocent this whole time,” Weyker declared.

The truth might never have surfaced were it not for video from a nearby airport surveillance camera. It shows what investigators say is Deputy Quiles’ squad car traveling west on Hutsteiner Avenue, then continuing onto Howell without making a complete stop, as Quiles claimed in his report. The Sheriff’s Office knew about the video just two days after the crash.  But no one told Weyker.

Instead, the County sent letters blaming her for the crash and threatening legal action if she didn’t pay for the damage.

Of course, if Weyker was drunk, it would have been easy to pin the blame on her. But less than a month after the crash, test results showed she had no alcohol in her system. And by July, her drug test came back negative too. Five months after the crash, it was clear Weyker had been stone cold sober.

But still the case didn’t go away.

“I don’t think it is fair at all,” Weyker said.

Five more months passed before a prosecutor finally looked at the case and declined to file charges. But even then, Weyker says, she was left in the dark.

“No one called me.”…


So…an isolated incident, right?  Think again.  The only thing that distinguishes this case from thousands like it across the country is the fact that Deputy Qiles caught two bad breaks:


1.  His "drunk driving investigation" was recorded by a nearby surveillance camera.  What are the odds of this happening in any other DUI case?

2.  In most cases where a cop doesn't want a breath test contradicting his "evidence", he simply writes in his arrest report the magic words:  "Suspect was asked to submit to a breath test but refused."  It's that simple.  In this case that wasn't necessary: the suspect was physically unable to give a breath sample.  What Deputy Qiles didn't realize, however, was that the hospital treating Ms. Weyker would in the normal course of treatment take a blood test — and that the hospital lab would find that there was no trace of alcohol.


Absent these very fortuitous events, Ms. Weyker would have been prosecuted for DUI.  And who do you think a jury would believe?  The sworn testimony of an experienced and impartial police officer?  Or that of an accused drunk driver?  

If it were not for these two lucky breaks, Ms. Weyker would have been convicted, punished and branded with "drunk driver" for the rest of her life.  

And it happens all the time…
 

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Alcohol Intoxication and Race

Friday, February 21st, 2014

As I have said in previous posts, the single greatest flaw in breathalyzers is that they are designed to assume that all humans are the same. You and I are physiologically different, and I am different at this moment from what I will be in an hour. The ratio of alcohol measured on the breath to the amount in the blood, for example, varies widely from time to time and from person to person. Our bodies metabolize alcohol — absorb and eliminate it — at different rates; among other things, this confounds attempts to estimate blood alcohol levels when driving based upon breath/blood tests an hour later.

Further, each of us has a different physiological response — tolerance — to alcohol. An example of this human diversity can be seen in racial differences toward alcohol. The body of scientific literature seems to clearly indicate a racial — i.e., genetic — difference in the metabolism and effects of alcohol. Studies, for example, have found that American Indians metabolize alcohol more than twice as fast as Caucasians. Bennion and Li, "Alcohol Metabolism in American Indians and Whites", 294 New England Journal of Medicine 9 (1976); Holzbacher, "Elimination of Ethanol in Humans", 17 Canadian Society of Forensic Science Journal 182 (1984); Fenna et al., "Ethanol Metabolism in Various Racial Groups", 105 Canadian Medical Association Journal 472 (1971).

The following excerpt is from one of the books I wrote while teaching at a law school some years ago. Entitled Born to Crime (Greenwood Press: London, 1984), it dealt with the sensitive subject of genetic predisposition toward criminal behavior. One chapter addressed the causes of alcoholism:

…This ethnic approach was first used in 1972 in a study of the comparative effects of alcohol on men and women in Japan, Taiwan, Korea and the United States. Wolff, "Ethnic Differences in Alcohol Sensitivity", 175 Science 449 (1972). Interested by the lower rate of alcoholism among Asians, an American physician selected 38 Japanese, 24 Taiwanese, 20 Koreans and 34 Americans as subjects (all between the ages of 25 and 35). He fed each subject measured amounts of beer, with Americans (that is, Caucasians) receiving more than twice as much per pound of body wieght as the Asians. He then measured the body’s reaction to the alcohol by recording the flushing of the earlobe with an optical densitometer, as well as increases in pulse pressure.If there were no genetic differences in reactions to alcohol, the physician could expect to find that flushing (an indication of vessel dilation) and pulse pressure — both under the control of the autonomic nervous system — would be consistent among the various ethnic groups.

The results, however, clearly indicated a genetic factor in the reaction to alcohol. Fully 83 percent of the Asian subjects responded to the measured amounts of alcohol with a marked flush, but only 6 percent of the Caucasians did, despite the latter having received larger doses. Similarly, increases in pulse pressures were observed in 74 percent of the Asians, with only 3 percent (one adult) of the Caucasians demonstrating such a reaction. To insure against any possble cultural differences on alcohol consumption, the physician next duplicated the experiment with Japanese, Taiwanese and American infants, giving them small amounts of port wine in a glucose solution. Again, the results showed that heredity rather than environment dictated the body’s automatic reaction to alcohol: Of the Asian babies, 74 percent responded with flushing, but of the Caucasian babies, only 5 per cent (one baby) so reacted. Clearly, the alcohol-induced changes in blood flow were not learned or conditioned responses….

These experiments were repeated by a team of scientists two years later, this time with 24 Chinese and 24 European subjects. Ewing et al., "Alcohol Sensitivity and Ethnic Background", 131 American Journal of Psychiatry 206 (1974). The results proved to be the same: Skin flushing, increased heart rate and decreased blood pressure in response to alcohol were much more noticeable among the Chinese. The scientists concluded that physiological rather than cultural factors determined the relatively low rate of alcoholism in Asians….

Humans are a diverse group. Each of us, thankfully, is unique. And it is this uniqueness and variability which will always render unreliable the use of machines to estimate blood alcohol levels or degrees of intoxication by measuring breath, and the use of mathematical formulas and legal presumptions based upon uniform metabolism to estimate earlier levels when driving. Note: In most states, the law presumes that (1) a person with .08% blood-alcohol level is under the influence, and (2) the blood-alcohol level when tested is the same as when driving (up to 2 or 3 hours, depending upon the state).

But then, as Dickens wrote long ago, "The law is a ass".
 

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Circadian Rhythm and Field Sobriety Tests

Sunday, February 2nd, 2014

Most drunk driving arrests take place at night, often well after midnight. One reason for this is that many police officers engage in "cherry picking" — that is, the illegal practice of staking out bars and restaurants from about 10:00pm to "closing time" at around 2:00am, pulling cars over on some pretext as patrons leave and drive away.

It is during this period of time that the individual’s circadian rhythm is taking effect. This is the 24-hour biological alarm clock in each of our bodies, often noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning.

Unfortunately, it is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not.

British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555.

The researchers concluded that "the differences we have found (in field sobriety test performances)…must be attributable to circadian change and susceptibility of the body to its effect."
 

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Give a Breath Sample — or Be Strapped Down and Jabbed With Needles

Sunday, January 19th, 2014

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by ForceForced Blood Draws by Cops: Constitutional?Forced Blood Draws by Cops SpreadingBlood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.



Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…



Hmmm…Threatening to strap a suspect down and "poke" him with a needle actually "encourages" him to submit to a breath test?  Welcome to MADD's "War on Drunk Driving".   
 

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Breath Testing Alcoholics — and “Catch-22″

Friday, January 3rd, 2014

It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings. It may surprise you, however, to learn that alcoholics will often have higher blood-alcohol readings because they are alcoholics – not because they  have higher levels of alcohol.

That’s right. It’s because the physiology of alcoholics is different in some important respects.

One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. "Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking", 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. "Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination", 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, "Why Breathalyzers Don’t Measure Alcohol"), alcoholics will usually have falsely higher blood-alcohol readings.
 

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