DUI BLOG

The breathalyzer is the most commonly used method for testing the blood alcohol content of suspected drunk drivers in California. Yet, both myself and Lawrence Taylor have written on more than a few occasions about the inaccuracies of the breathalyzer. Such inaccuracies include, but are not limited to an inability to differentiate between blood alcohol and “mouth alcohol,” elevated temperatures causing elevated BAC readings, and certain diets causing elevated readings.  

So can a person suspected of driving under the influence of alcohol in California challenge the accuracy of breathalyzers in court?

Notwithstanding the widely proven fact that breathalyzers are generally inaccurate, the California Supreme Court in 2013 ruled that scientific evidence refuting the accuracy of breathalyzers in general in California DUI cases are inadmissible.

The issue arose when a California trial court agreed with the prosecutor and excluded the testimony of a defense expert of Terry Vangelder who would have testified that breathalyzers, in general, can be inaccurate.

In 2007, California Highway Patrol pulled over Vangelder for allegedly going 125 miles per hour in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

"They are (inaccurate)," Dr. Hlastala testified before the trial judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case."

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine Californi’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."

The Court went on to say that, “Although  Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."

I’m sorry, but I read that to say, “We recognize that science is important in determining the accuracy of breathalyzers, but we’re not going to undermine the legislature because of its good intent.”

Legislators are not scientists.

The effect of the decision was that people suspected of a California DUI can no longer offer evidence that breathalyzers, in general, are inaccurate. People suspected of a California DUI can, however, still challenge the accuracy of a particular breathalyzer.

Seems to me that the California Supreme Court doesn’t want accuracy in California DUI cases.

Law enforcement continues to be frustrated in trying to prove that a possibly impaired driver is under the influence of marijuana (so-called "stoned driving").  

As recent posts on this blog have pointed out, the simple fact is that there is no scientifically valid method for measuring marijuana and its effect. The current method involves drawing a blood sample from the person after the suspect is arrested and analyzing it for marijuana — or, more accurately, for the presence and amounts of the active ingredient, THC (tetrahydrocannabinol), in the blood.  

But there are two primary problems with this.  First, the marijuana measured may well be inactive and still present in the body from ingestion days or even weeks earlier.  Second, there is no generally accepted scientific evidence as to what levels of THC can cause sufficient impairment to the ability to safely operate a motor vehicle.  See, for example, my previous post Identifying and Proving DUI Marijuana ("Stoned Driving").  

The latest attempts for a quick-and-easy way to prove "stoned driving" involve developing a "marijuana breathalyzer" — a device that will test for THC on the breath, as is done for alcohol with current breathalyzers.  To date, these have proven inaccurate and unreliable.  See previous posts Can Breathalyzers Measure Marijuana? and Is a Marijuana Breathalyzer in the Offing?

Today, a company claims to have finally developed the long-hoped-for answer to law enforcement’s dilemma…           

Pot Breathalyzer Hits the Street

U.S. News & World Report.  Sept. 14 – American police have for the first time used a marijuana breathalyzer to evaluate impaired drivers, the company behind the pioneering device declared Tuesday, saying it separately confirmed its breath test can detect recent consumption of marijuana-infused food.

The two apparent firsts allow Hound Labs to move forward with plans to widely distribute its technology to law enforcement in the first half of next year, says CEO Mike Lynn.   Lynn, an emergency room doctor in Oakland, California, also is a reserve officer with the Alameda County Sheriff’s Office and he helped pull over drivers in the initial field tests, none of whom were arrested after voluntarily breathing into the handheld contraption…

The technology, if all goes according to plan, will be welcomed by both sides of the pot legalization debate, those who fear drugged drivers and reformers outraged that pot users in some jurisdictions are subjectively detained and forced to undergo blood tests that don’t prove impairment, especially in frequent users….

There’s a two-part testing challenge now: confirming with laboratory equipment that the device gives accurate results, and then correlating specific measurements (given in picograms of THC) with levels of intoxication, a challenge that will include sending stoned drivers on an obstacle course — something already done informally….

Hound Labs, of course, isn’t the only company that sees an opening as U.S. states increasingly regulate sales of marijuana for recreational or medical use, but it is ahead of the curve, beating another company aiming to introduce a marijuana breathalyzer, Cannabix Technologies….   

 
Hmmmm…..Might there a conflict of interest when the CEO is a reserve police officer involved in field testing his own product?  And how can an indirect analysis of THC on the breath done in the field be more reliable and accurate than directly analyzing it in the blood in a laboratory?  

Profit and politics has always trumped science and truth in the DUI field.  See my post DUI Laws Overrule Scientific Truth.
 

Despite what some think, drunk driving doesn’t necessarily involve driving. In some states a person can actually be arrested, charged and convicted of drunk driving even when the person didn’t drive their vehicle. Such states have what are called “dominion and control” DUI laws. Under “dominion and control” DUI laws, if a person is intoxicated and have dominion and control of their vehicles with the mere ability to drive, they can be arrested, charged, and convicted of that state’s DUI laws.

Simply put, “dominion and control” DUI laws create the possibility of someone getting arrested, charged, and convicted of a DUI when they’re trying to sober up in their vehicle and have absolutely no intent to drive.

Having said that, the question arises, “Do ‘dominion and control’ DUI laws give people incentive to actually drive drunk?”

This question is currently being asked by law makers in New Jersey.

Steve Carrellas, director or government and public affairs for the New Jersey chapter of the National Motorists Association, considered the repercussions of such a scenario.

“But then they’ll say, ‘Well, I have more of a chance of getting arrested doing the right thing than I do attempting to drive home, so I’m going to drive home.’ What a mixed message,” said Carrellas.

“I think it has to be looked to on a case-by-case basis,” said New Jersey Assemblyman John McKeon.

McKeon says it appears the law needs redefining.

“I’m going to consider it now that this topic is swirling around and there seems to be a lack of consistency. I’m going to do it in an intelligent way, though. We’ll have special hearings in the Legislature and hear what law enforcement has to say, hear what attorneys have to say that specialize in that field and try to come up with something that’s consistent,” he said.

Carrellas and McKeon are right to question the law. Lawmakers, be it the courts or our legislators, have a duty to create laws to deter bad behavior and not punish good behavior. First off, we don’t want to punish people who deliberately attempt to avoid driving drunk by sleeping it off in the car. And we most certainly don’t want to give incentive people to drive drunk.

Fortunately, we here in California don’t have that problem. California is not a “dominion and control” DUI law state. In California, the law requires that a person actually drive a vehicle. In 1991, the California Supreme Court in the case of Mercer v. Department of Motor Vehicles held that the word “drive” in California’s DUI law means that the defendant volitionally and voluntarily moved the vehicle. The court has held that even a “slight movement” is enough to meet the element of driving.

It would not be a surprise to many if California was the next state to legalize recreational marijuana with Proposition 64. If approved, California would follow the heels of Alaska, Oregon, Washington, Colorado, and the District of Columbia. California is among five states to vote on the legalization of recreational marijuana this November 8^th. As the sixth largest economy in the world and an already existing thriving medical marijuana market, it is estimated that the marijuana industry could become a $6 billion industry by 2020.

In 2010, voters failed to pass Proposition 19, which would have legalized recreational marijuana, by a 53.5% majority of vote. So do California voters have the same sentiment six years later? Current polls show support for the passing of Proposition 64 by 60% or more, making it the initiative most likely to pass on the ballot.

Since Proposition 64 is likely to pass, it would be appropriate to discuss how it might affect California DUIs and California DUI law.

California Vehicle Code section 23152(e) makes it illegal to drive a vehicle while under the influence of drugs including marijuana. Unlike California’s DUI of alcohol law, there is no legal limit for marijuana, or more specifically, tetrahydrocannabinol (THC) the psychoactive component of marijuana. Therefore, a person can only be arrested and convicted of a marijuana DUI if the ingestion of marijuana impairs a person’s ability to drive a vehicle as a sober person would under similar circumstances.

To prove that a person is driving under the influence of marijuana, a prosecutor can use officer observations of driving patterns, observations during the traffic stop, performance on field sobriety tests, and the presence of THC in any blood test done.

Since “under the influence” is an extremely subjective standard, it is often very difficult to prosecute DUI of marijuana cases. This is especially true if the driver refused to perform the field sobriety tests and/or the officer did not observe driving that would be indicative of someone who is under the influence of marijuana.

If proposition 64 is passed, law makers could seek some sort of per se limit for how much THC can be in a person’s blood while driving. Several states have set a per se limit of five nanograms of THC per milliliter of blood. Colorado, has set a five nanogram per milliliter of blood limit to allow for the presumption that a person is “under the influence.” Unfortunately, current per se limits for THC, however, are an inaccurate measure of how impaired a person is.

Unlike alcohol, THC is fat soluble and remains in a user’s system long after they have ingested the marijuana, sometimes by several weeks. This creates the possibility of being arrested with five nanograms of THC in the system weeks after a person has smoked marijuana and well after the “high” is gone. Yet, because the THC is present, a person can either be arrested or, in Colorado, presumed to be under the influence.

In June of last year, Cannabix Technologies Inc., a Vancouver based company announced the testing of a prototype marijuana breathalyzer. The company says that the breathalyzer will be able to test whether a person has ingested alcohol within the past two hours. Although the machine will not test for a quantitative amount of THC, it will provide a timeframe for marijuana usage, which is a better indicator of impairment that nanograms of THC in a person’s blood.

In April of this year, the California state legislature awarded UCSD’s cannabis research center $1.8 million to study THC impairment and develop an accurate roadside test for marijuana impairment.

While an accurate test for marijuana impairment may be in the offing, nothing yet exists to provide lawmakers with the ability to create an accurate per se level. Until that happens, which may be before pot shops open up in January of 2018 if Proposition 64 is passed, law enforcement and prosecutors will have to continue to rely on California’s flimsy standard of “under the influence.”

Put yourself in the following situation: You and your friend, Vary Waysted agreed to go out to the local watering hole for the evening. This time, however, is Vary’s turn to be the designated driver. Half way into the evening, you notice Vary at the bar ordering a drink, but you do nothing. You know he shouldn’t have any alcohol because he was to be driving the both of you home, but still you do nothing. Sure enough, on the drive home Vary is stopped on the way home and arrested on suspicion of a California DUI.

You may be thinking to yourself that you would never allow that, that you would’ve spoken up and admonished Vary for not staying absolutely sober. But believe it or not, this is an extremely common phenomenon and it, unfortunately, is the cause of many drunk driving incidences and arrests.

Still don’t believe me? The Colorado Department of Transportation (CDOT) recently offered a brewery tour as part of a social experiment which demonstrated that turning a blind eye to drunk driving actually does happen.

Denver, Colorado is quickly becoming one of America’s epicenters for craft breweries. And a group of beer enthusiasts signed up to partake in tour of three of its breweries. Unbeknownst to the beer enthusiasts was that the transportation for the tour was a bus driven by an actor hired by the CDOT and the tour guide was also an actor.

With hidden cameras documenting the tour, the participants enjoyed their beers. None of the participants, however, seemed to care too much that their bus driver was enjoying beers right alongside them.

Fortunately, the driver was only drinking non-alcoholic beer. To drive the point home, the tour guide, who was similar to the driver in height and weight was actually drinking the alcoholic beer. After three 16-ounce beers, the tour guide had a blood alcohol content of 0.10 percent.

In a news release, the CDOT said "even small amounts of alcohol can land you a DUI."

"The experiment confirmed for us that many adults underestimate the dangers associated with driving after having a few drinks," CDOT spokesman Sam Cole said in a statement. "The participants never expressed concern that their driver was drinking and driving."

So why do so many people willfully choose to ignore information and situations which may be harmful to themselves or others?

As I’ve mentioned before, I have a background in psychology. While my focus on the law has long since overshadowed my focus on psychology, my interest does get piqued when psychology intersects with DUI law.

Humans turn a blind eye to information and situations which may be harmful to themselves or others when doing so is easier than facing the scary, hostile, and/or objectionable consequences of acknowledging and confronting the situation.

Let’s go back to our scenario. Instead of turning a blind eye, you confront Vary Waysted about ordering the drink when he was supposed to be the designated driver. The confrontation leads to an argument, but eventually Vary acquiesces to remaining sober. Although Vary doesn’t talk to you for the rest of the evening, both of you make it home safe and DUI-free.

Before turning a blind eye to DUI, ask yourself, “Would I rather have someone upset with me for a little while or run the risk of being involved in a DUI-related accident?”