DUI BLOG

It is not uncommon for police to be trained in recognizing drug intoxication. But should they be allowed to testify as experts in court about drug intoxication in DUI cases?

At least one judge believes not, and rightfully so.

Timothy B. Callahan, from Cheshire, Massachusetts, was pulled over in May of 2016 after police received a report that he had smoked laced marijuana and was acting violently. Additionally, he was alleged to have been speeding and driving erratically before the stop.

Callahan was arrested on suspicion of driving under the influence (operating a motor vehicle under the influence or “OUI” as it’s called in Massachusetts).

While being booked, police called in Officer Brennan Polidoro to observe Callahan.

Polidoro received a drug-recognition certificate in 2014 and has since been considered the only Drug Recognition Expert in the county. As of the summer of 2018, Polidoro had evaluated over 15 people accused of driving under the influence of narcotics.

Following Polidoro’s evaluation of Callahan, Polidoro determined that Callahan was under the influence of drugs and Polidoro’s conclusions were included into the police report.

During Callahan’s criminal case, prosecutors sought to have the court recognize Polidoro as an expert so that he could provide testimony about the effects of drugs on a human and offer an opinion as to whether someone was under the influence of drugs.  

Callahan’s attorney filed a motion seeking to exclude Polidoro’s testimony as an expert.

During the hearing on whether Polidoro should be allowed to testify as an expert, the prosecution offered evidence that Polidoro was trained in drug recognition and that the training was based on three law enforcement studies from 1985, 1986, and 1994. Evidence was also offered that after evaluating 12 individuals during training, Polidoro was determined to be “proficient” by his instructors who formed their opinions as to his proficiency based on the same studies.

Let me get this straight. The prosecution is arguing that an officer should be deemed an “expert” in how chemicals affect the human body if other law enforcement officers think they’re proficient, not physicians or chemists or other medical professionals? “Proficiency” after 12 training evaluations, really? Am I missing something? Does Polidoro have a background in chemistry or medicine?

What’s more, “proficiency” as determined by law enforcement is an accuracy rate of 43% to 49% when people did not have drugs in their system. Really?!?! That means that law enforcement considers being wrong 57% to 51% of the time as “proficient.” With people’s lives at stake, you’d think they’d set their standards a little bit higher.

Fortunately, the court disagreed with the prosecution.

“As law enforcement has embraced these studies as the basis for their trainings, the Court finds that, `proficient,’ as used by law enforcement means a 43% to 49% accuracy rate for identifying those subjects with no drugs in their systems,” said Judge Jennifer Tyne. “The Court does not find this to be reliable, let alone proficient.”

“Based on the evidence presented at this hearing, the Court finds that the body of knowledge, the principles and the methods that the officer was instructed on are not reliable predictors of whether an individual is under the influence of certain narcotics,” Tyne said.

Having denied the prosecution the ability to introduce Polidoro’s testimony about drug recognition and the effects of drugs on humans as an expert, Judge Tyne did, however, say that Polidoro could testify about his observations of Callahan and any statements Callahan might have made after Callahan’s arrest.

Callahan may very well have been under the influence of drugs while driving, but that’s not the point. The court should not allow the testimony of “experts” without a sufficient basis to deem that person an expert. Doing so can lead to wrongful convictions in DUI and any other types of criminal cases.

The question has been raised recently several times: Should victims of DUI-related collisions be allowed to sue the bar who served the drunk driver that caused the collision?

Relatives of an entire family that was killed by a drunk driver certainly think so.

Relatives of the Abbas family have filed a wrongful death lawsuit against two Kentucky bars who are accused of over-serving a customer, and against the customer’s estate.

According to the police report, in January of this year, Joey Lee Bailey consumed at least two 22-ounce beers and three double White Russians at the restaurant, Roosters Wings in Georgetown. Bailey then drove to Horseshoes Kentucky Grill & Saloon in Lexington. There he was served at least one beer and four more double White Russians.

After Bailey left the last bar, Lexington police said they received a report of a white pickup truck traveling in the wrong direction on the interstate. Shortly thereafter, a collision was reported.

Bailey had collided with an SUV carrying a family of five who were headed home from a vacation in Florida. Bailey did not survive and unfortunately neither did the occupants of the SUV; 42-year-old Issam Abbas, and Issam’s wife, 38-year-old Rima Abbas, along with their three children, 14-year-old Ali Abbas, 13-year-old Isabella Abbas and 7-year-old Giselle Abbas.

“For the surviving family members, as well as for their many friends left behind, the nightmare and grief caused by that crash will never go away,” said Greg Bubalo, an attorney representing the Abbas family. “By filing the lawsuit, the family hopes to hold those responsible accountable and ensure that this type of tragedy does not occur to another family. This is a second time fatalities have been alleged to have resulted from over-serving alcohol by Horseshoes.” 

According to the coroner, Bailey’s blood alcohol content level was 0.306 percent, more than three times the legal limit in Kentucky (and California) of 0.08 percent.

While I agree with Mr. Bubalo’s first statement, I wholeheartedly disagree with his second.

I’m sorry, but it is not the job of bars and restaurants to babysit customers. It is not their job to make sure they don’t drink and then drive. And it is not their job to monitor whether someone is too intoxicated to drive.

Bailey, an adult, made the decision to have that many drinks and then, after having left the bars, get behind the wheel. What were the bars supposed to have done? Breathalyze Bailey before he left? Were they supposed to take his keys away? Were they supposed to have someone monitor the exit of the parking lot?

Fortunately, thus far, the California legislature feels the same.

Fortunately, California sees it the same.

While other states such as Kentucky may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Kentucky, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

Having said that, I’ve been practicing criminal law for 10 year and I’ve never seen California Business and Professions Code section 25602(a) charged. My guess is that it’s difficult to prove that a bar knew that someone was “obviously intoxicated,” as might have been the case with the bars that served Bailey.

The New York Legislature last month voted to lower the blood alcohol limit allowed while hunting to match the threshold for the blood alcohol content someone can have while driving.

On March 26^th of this year, the New York Assembly voted 147 – 1 to amend the law that previously outlawed hunting in the state with a blood alcohol content of 0.10 percent or higher. The following day, the New York senate voted 56 – 5 to amend the law. Under the amended law, hunters cannot have a blood alcohol content of 0.08 percent or higher, matching blood alcohol content limit while driving in most states, including California (Utah just became the first state to lower its blood alcohol content limit to 0.05 percent).

Under the new law, hunting with a blood alcohol content of 0.08 percent or more is a misdemeanor and carries a fine of up to $500, up to a year in jail, and a revocation of a person’s hunting license for two years. Additionally, licensed hunters who refuse to submit to a breath or other test for intoxication can also have their licenses revoked.

“These changes were based in part on studies which determined that this level of alcohol in an individual’s bloodstream can result in substantially impaired motor skills, perception and judgment,” Assemblyman Kenneth Zebrowski wrote in his sponsor’s memo. “These are also critical skills used in hunting.”

In California and other states, DUI laws generally include prohibitions against both driving with a per se blood alcohol limit of 0.08 percent or higher (or 0.05 percent or higher in Utah) and driving while under the influence (or some other iteration like “driving while intoxicated” or “operating under the influence”).

The purpose for this is that nobody should be driving while actually under the influence, meaning that they cannot drive like a reasonable and sober person would. And, as Mr. Zebrowski stated, at a 0.08 percent, studies have shown that the motor skills of individuals, albeit very subjectively, are affected to a degree that might impair driving.

Like Zebrowski, lawmakers who approved of New York’s new limit expressly cited the risk of injury and death.

“An individual who is too intoxicated to drive a car or pilot a boat is also unfit to engage in hunting and the increased risk is not only to the hunter, but to everyone else in the field,” Zebrowski, a Rockland County Democrat, wrote. “This bill would ensure a consistent standard for intoxication in state law.”

Sure, it sounds like they’re considering driving with a blood alcohol content limit of 0.08 percent just as dangerous as shooting a gun with a blood alcohol content limit of 0.08 percent or higher.  But are they really?

Let me get this straight. It is illegal to shoot a gun and drive with a blood alcohol content of 0.08 percent or higher. Fine. However, it is also illegal to drive a vehicle while “under the influence” regardless of what a person’s blood alcohol content is. Yet, a person can shoot, say a semi-automatic rifle, if they are “under the influence,” but not necessarily above a 0.08 percent.

Let me give an example. Take a person weighing less than a hundred pounds who has never had a sip of alcohol before in their life. If they have a couple of beers, they may not be above a blood alcohol content of 0.08 percent, but they’re certainly going to be “drunk” or “under the influence.” New York is telling them, “Sure, go shoot that gun, but don’t you dare drive.”

Really?

It seems to me, and I would hope others would agree, that using any firearms with any alcohol seems patently dangerous, and certainly more dangerous than driving a vehicle. Not that I’m saying it’s safe to drive with alcohol in your system. Neither are safe. But if lawmakers are using a driving under the influence as a measuring standard for how they draft other laws, then it should actually be equal at a minimum, if not more restrictive for more dangerous activities. Or is this just another example of the overzealous vilification of DUI’s?

New York’s new law becomes effective September 1^st.

It’s not a novel question. Should California lower the blood alcohol content limit before someone can be arrested, charged, and convicted of a DUI in the state?

Although a nationwide blood alcohol content limit was suggested prior, it was not until 2001 that the Department of Transportation said it would cut funding to states that did not maintain a blood alcohol content limit of 0.08 percent for DUI cases. As a result, all states adopted a 0.08 percent blood alcohol content limit. However, as of January 1^st of this year, Utah became the first state to lower the blood alcohol content limit to 0.05 percent making it the strictest in the country.

A new bill introduced in California hopes to follow in Utah’s footsteps.

Introduced by Assemblywoman Autumn Burke (D-Marina del Rey), AB1713, otherwise known as Liam’s Law, would lower California’s BAC limit to 0.05 percent.

The bill was named in honor of a 15-month old who was struck and killed by a drunk driver in 2016 when his aunt was pushing his stroller across Hawthorne Boulevard. Liam was the son of former mixed martial art fighter Marcus Kowal and his wife, Mishel Eder. Since then, both have been pushing for a lower BAC limit and Burke said that she had been influence by them.

“Every year, we see drunk drivers kill or injure our friends and loved ones because they thought they were OK to drive,” said Assemblyman Heath Flora (R-Ripon), who co-authored the bill and who also introduced a bill to increase the penalties for repeat DUI offenders. “Lowering the [blood alcohol content] limit to .05 percent has [been] shown to decrease DUI-related traffic fatalities by serving as a deterrent to folks driving drunk in the first place.”

Flora is referring to studies that suggest people begin to start feeling the effects of alcohol at 0.04 percent, and which have been used by the National Transportation Safety to justify its support of a 0.05 percent limit.

According to the National Highway Traffic Safety Administration, a male weighing 140 pounds would be at, or close to, a 0.08 percent blood alcohol content having had three drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.08 percent blood alcohol content having had just two drinks within an hour. Regardless of gender, your blood alcohol content will not be as high if you weigh more. Conversely, your blood alcohol content will be higher if you weigh less.

On the other hand, male weighing 140 pounds would be at, or close to, 0.05 percent blood alcohol content having had two drinks within an hour. A female weighing 120 pounds would be at, or close to, 0.04 percent blood alcohol content having had just one drink within an hour.

Of course, these figures are approximate and depend on several factors which include, but are not limited to, whether the person ate, what they ate, what they drank, and how fast they drank it. But based on these approximate numbers, we can see that for both males and females, the difference between a 0.08 and a 0.05 percent blood alcohol content is about one less drink in an hour.

This raises another question: Is this law merely changing the definition of “drunk” to cast a wider net, thus creating more “criminals”?

“When (a bill) is first introduced, the 10,000-foot view is, ‘This is a law that’s tough on drunk driving. It should pass pretty easily,’” said Jackson Shedelbower, spokesman for the American Beverage Institute. “But in reality, it’s not tough on drunk driving. It’s punishing moderate, social drinkers. It’s focusing traffic safety resources away from people who are the real problem toward people who aren’t the problem.”

Shedelbower went on to say that most DUI-related collisions are caused by drivers with BAC levels higher than 0.05 and repeat offenders, and that having a BAC level of 0.05 is less impairing than talking on a hands-free cell phone while driving.

Should the bill become law, many could be arrested after having a single drink and certainly when they’re not even drunk. I’m sorry, but I thought DUI laws were meant to protect against impaired driving. I’m not so sure that the hoped effect of the bill is worth the collateral consequence of arresting, charging, and convicting non-impaired drivers.  

Apparently, some high courts in this country don’t care whether science can show a person is innocent.

Earlier this month, the Maine Supreme Court denied the appeal of a man who sought to introduce the testimony of a medical expert at trial that he suffers from auto-brewery syndrome.

Believe it or not, there is a rare medical condition that causes a person to “brew” alcohol within their body causing them to become intoxicated even though they haven’t had a sip of actual alcohol; hence the name, “auto-brewery syndrome.”

If you know how beer is made, you’ll know that yeast is added to grain extract (which is essentially sugar). When the yeast eats the sugar, it releases carbon dioxide (which creates the carbonation in beer) and alcohol (which gives beer its intoxicating effects). This process is known as fermentation. A person with auto-brewery syndrome produces unusually high levels of yeast in their gastrointestinal tract which, in turns, eats the sugars that a person ingests creating both carbon dioxide and alcohol in the person’s system even though they haven’t actually ingested any alcohol. In some instances of auto-brewery syndrome, the production of alcohol is so much that it can actually cause a person to become legally intoxicated!

I think you can see where I’m going with this. John Burbank claimed to be such a person afflicted with this rare disorder when he was arrested on suspicion of a DUI in 2016 because his blood alcohol content was 0.31 percent, almost four times the legal limit. In preparation for trial, Burbank sought to introduce an expert who would have testified that he suffered from this condition and that the condition caused him to become intoxicated through no fault of his own.

The trial court judge, however, denied the introduction of Burbank’s expert. And without the expert’s testimony, Burbank opted to plead no contest and filed an appeal challenging the denial of the expert’s testimony.

The Maine Supreme Court concluded that the trial court was correct in not allowing the expert to testify, thus affirming Burbank’s DUI conviction.

The Maine Supreme Court justified its conclusion by saying that, although the expert was a P.h.D. in toxicology and physiology, she was merely basing her opinions several articles regarding the condition, but that she, herself, had not worked directly with cases of auto-brewery syndrome or with Burbank and his condition.  Additionally, the court pointed out, that Burbank’s symptoms were different than those who were the subjects of the articles that the expert was relying on.

Bear in mind that auto-brewery syndrome is extremely rare with far less available research and knowledge about it than many other conditions.

The court went on to say that the denial of the expert’s testimony did not amount to a denial of Burbank’s constitutional right to present a defense because, according to the justices, the denial was a “reasonable restriction.”

I don’t know about you, but this sounds like an unreasonable restriction to me. In law, for expert testimony to be admissible, it must be relevant and reliable. It is relevant because it could show that Burbank did not choose to become intoxicated when he drove. The law should not and, in most cases, does not punish people for things they cannot control. The law should only punish people who, through voluntariness and free will, engage in criminal conduct. And it is reliable because, while the expert may not have specific knowledge as to Burbank’s auto-brewery syndrome, it is nonetheless a legitimate and recognized medical condition, albeit with little research on it because of its rarity. People with rare conditions should not be disadvantaged and punished merely because their condition is rare, which is exactly what the Maine Supreme Court is doing.

What’s more, the concurring justice concluded that the defense of involuntary intoxication should not be allowed in DUI cases because “it may invite many ‘I didn’t know there was vodka in my orange juice’ or similar defenses to [DUI]…charges.”

So what?! So what if it invites future defenses? If it is a plausible defense to a crime for which the government can take away someone’s freedom, a defendant should be allowed to assert it. It’s their life on the line, not the judges. And pardon me, but I thought it was the jury’s job to determine if a defense is true or not. If the jury had heard the expert testimony, but still concluded that Burbank did drink and drive, then so be it. At least he was provided the opportunity to defend himself.  

What’s next? Courts not allowing an alibi defense because it could invite many “I was somewhere else” defenses?