DUI BLOG

Insurify, an auto insurance quotes comparison website, used questionnaire information gathered from their over 1.6 million car insurance shoppers, excessive drinking and traffic fatality information from the Centers for Disease Control (CDC), and population information from the United States Census Bureau to determine a national rate of DUI history as well as a breakdown by state. Alaska was omitted from the analysis due to insufficient data.

Insurify’s team of data analysts analyzed approximately seven years of driver history and came to some interesting conclusions. The nationwide average of their applicants who reported a prior DUI was 2.15 percent. Northern states seemed to cement their spots as DUI territory and some of the least populated states seemed to have some of the highest number of DUIs. The team also found a moderate correlation between the rates of DUI, excessive drinking, and alcohol-related traffic deaths. Resulting in a reasonably predictable assumption that in the states with higher DUI count, the rates of drinking and alcohol-related driving deaths will also be higher.

According to the CDC, 18 percent of Americans drink excessively on a regular basis across the country. Of the top 10 states that Insurify came up with, six of the states contained cities that fell within 10 percent of the country for excessive drinking and up to 26.5 percent of adult residents reporting over-drinking.

The data analyzed by Insurify resulted in following the rankings and numbers:

10. Colorado

            – Drivers reporting a history of DUI: 3.13%

            – Traffic fatalities involving alcohol: 34.7%

            – Adults reporting excessive drinking: 19.1%

9. Iowa

            – Drivers reporting a history of DUI: 3.23%

            – Traffic fatalities involving alcohol: 25.4%

            – Adults reporting excessive drinking: 21.0%

8. Nebraska

            – Drivers reporting a history of DUI: 3.34%

            – Traffic fatalities involving alcohol: 35.6%

            – Adults reporting excessive drinking: 20.4%

7. Minnesota

            – Drivers reporting a history of DUI: 3.47%

            – Traffic fatalities involving alcohol: 30.9%

            – Adults reporting excessive drinking: 21.1%

6. Idaho

            – Drivers reporting a history of DUI: 3.49%

            – Traffic fatalities involving alcohol: 32.4%

            – Adults reporting excessive drinking: 15.4%

5. Montana

            – Drivers reporting a history of DUI: 3.61%

            – Traffic fatalities involving alcohol: 46.3%

            – Adults reporting excessive drinking: 21.8%

4. Wisconsin

            – Drivers reporting a history of DUI: 4.07%

            – Traffic fatalities involving alcohol: 36.9%

            – Adults reporting excessive drinking: 24.5%

3. South Dakota

            – Drivers reporting a history of DUI: 4.12%

            – Traffic fatalities involving alcohol: 35.2%

            – Adults reporting excessive drinking: 17.7%

2. Wyoming

            – Drivers reporting a history of DUI: 5.56%

            – Traffic fatalities involving alcohol: 35.3%

            – Adults reporting excessive drinking: 17.5%

1. North Dakota

            – Drivers reporting a history of DUI: 5.73%

            – Traffic fatalities involving alcohol: 46.7%

            – Adults reporting excessive drinking: 24.7%

In looking at the numbers from the top 10 percentage of drivers reporting a history of DUI, to say there is a correlation between the number of drivers with a history of DUI and number of traffic fatalities, and reports of excessive drinking seems to be an understatement. But it does bring up some interesting questions. How was excessive drinking defined in the questionnaire? Did multiple offenses by the same driver also constitute as excessive drinking? Given the data patterns found, it would be interesting to further analyze how each state has differed in handling their DUI numbers and if differences in legislation has contributed to any of these numbers or if it strictly correlates to things such as population and access to public transportation.

I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.

Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.

“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”

However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.

Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:

1. The decision to conduct checkpoint must be at the supervisory level.
2. There must be limits on the discretion of field officers.
3. Checkpoints must be maintained safely for both the officers and the motorists.
4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official nature of the roadblock.
7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1^st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

People’s opinions and memories are subjective, which is why in the court of law, science and factual evidence is often the nail in the coffin, so to speak. If DNA evidence from a suspect matches the one said to have been found at the scene of the crime, even when the suspect “does not remember” being there, doubt gives way in favor of the DNA evidence. However, what if there was reason to believe that the lab mislabeled the samples, or that the machine that ran the tests were never cleaned or not properly calibrated? Now, what was once factual evidence is now less than reliable, perhaps even completely inaccurate.

Lab technicians are human. Therefore, no matter how careful one may be, it is undisputed that there is always the chance of human error. Unfortunately, however, there is difference between innocent human error and a concerted effort to undermine forensic testing in criminal cases, including DUI cases.  

If you have read our articles in the past, it should come as no surprise that another forensic lab, this time in New Jersey, has made a conscious effort to allow inaccurate evidence to pass through the lab doors and entered in court to convict drivers in drunk driving cases within that state.

Many of the breathalyzers used across the country are manufactured by Alcotest. This machine, although fairly accurate when used correctly, needs to be calibrated to ensure its accuracy. Sergeant Marc Dennis of the New Jersey State Police’s Drug and Alcohol Testing Unit was responsible for conducting tests twice a year on machines for five different counties to determine if recalibration was needed and to administer the recalibration where necessary. It was found that Dennis did not perform the required calibrations and, to make matters worse, he also falsely certified the accuracy of the machines in the paperwork filed with the state. Thousands of people in the state of New Jersey were convicted based on the results of these uncalibrated machines. Dennis was criminally charged with misconduct and tampering with public records in September of 2018 and the New Jersey State Administrative Office of the Courts was notified by the attorney general’s office that over 20,000 breath samples were in question.

The New Jersey Supreme Court ordered an extensive hearing regarding the failure to follow proper calibration procedures by Sergeant Dennis. The state Division of Criminal Justice brought the charge, but the division’s director stated that the omission of the calibration step does not undermine the credibility of any of the State Police test results. However, the New Jersey Supreme Court determined in their opinion issued in December 2018 that the some 20,000 breath tests done by the uncalibrated machines could not be trusted.

All of those cases will need to be reviewed, and there is a high probability that many of those cases will be dismissed.

Whether Dennis’s actions (or lack thereof) came from laziness or as a means to advance his career, such misconduct is sadly not uncommon. There have been other reported cases of forensic misconduct in the New Jersey State Police, as well as other states such as Massachusetts, Oregon and Texas. Although in Dennis’s case, his actions were noticed by a supervisor who is said to have “immediately reported to internal affairs,” the truth is his actions went unnoticed for years.

Back in 2009, the U.S. National Research Council gave a report regarding forensic practices across the country. What they found was a lack of accreditation for crime labs and lack of certification for forensic scientists. Instead of having the ability to rely on evidence being produced by forensic labs, whose precise job it is to produce accurate scientific evidence, we’re left wondering if further investigation needs to be done to determine if the lab is doing what it should be doing to ensure the reliability of the evidence it is processing.

Movement towards forensic reform slowly gained momentum after this report and in 2016, the U.S. President’s Council of Advisors on Science and Technology relayed similar concerns in a report and requested an independent oversight commission for labs across the country. Unfortunately for the reform movement, then-U.S. Attorney General Jeff Sessions, shut down the National Commission on Forensic Science in 2017, effectively also shutting down the idea for a national independent oversight committee.

Although we may have stalled, or possibly even have taken a few steps back, with regard to ensuring the reliability of forensic labs throughout the country, hopefully states will take these scandals as a wake-up call to adopt better measures of ensuring reliability of their forensic testing. In the meantime, the legal system runs the risk of wrongfully convicting drunk drivers, or any criminal suspect for that matter, and defense counsel should do everything in their power to make sure that faulty evidence be identified and thrown out.

The topic is nothing new to this blog; breathalyzer results used to try to convict people of a DUI are thrown out because of their lack of reliability.

The latest incident comes from Massachusetts where a judge ruled that breathalyzers in over 400 DUI cases must be thrown out until the machine that police in that state use to determine a driver’s blood alcohol content can be proven as accurate.

In the consolidated case, Judge Robert Brennan found that the Office of Alcohol Testing had failed to release evidence to DUI defense attorneys that breathalyzers used in their client’s cases were inaccurate. As a result, the head of the office was fired, the results of the breathalyzers were thrown out, and prosecutors are scrambling to find additional evidence to prove the intoxication of those drivers.

According to Massachusetts law, if someone refuses a breathalyzer, their refusal cannot be revealed in a DUI trial against that person as a means to avoid prejudicing a judge or jury. When that happens, prosecutors are forced to rely on law enforcement officers’ testimony that a person was intoxicated based on their observations.

“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” said Bellingham Police Chief Gerard Daigle. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”

 Additionally, Judge Brennan said that the Office of Alcohol Testing must undergo significant reform including providing additional training for staff and instituting internal regulations for complying with discovery requests in criminal cases, including DUI cases, similar to those that are followed by the state police’s crime management unit.

“Right now, there’s serious cause to doubt the scientific results,” said Massachusetts attorney, Daniel Cappetta. “Judge Brennan has rightly decided that these tests shouldn’t be used to take anyone’s liberty.”

The Office of Alcohol Testing is planning on applying for nation accreditation by August of this year and district attorney offices will be monitoring the office’s progress.

“We are reviewing yesterday’s ruling,” said District Attorney, Marian Ryan. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”

This is not the first time Massachusetts has dealt with issues of faulty breathalyzers. In fact, this is not the first time Judge Brennan has overseen DUI cases dealing with the reliability of the state’s use of breathalyzers.

In September of last year, I wrote Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts where the same Judge Brennan, who was presiding over proceedings challenging the reliability of breathalyzers since 2015, was provided with an agreement that prosecutors were not use breathalyzer results dating back to 2011. The reason was due to the lack of proper calibration of the breathalyzers since the state purchased them in 2011.

I’ve said it before and I’ll say it again, drivers should never submit to a pre-arrest breathalyzer and they should only submit to required chemical test breathalyzer (rather than a blood test) if they’re unsure whether their blood alcohol content was above or below the legal limit. The reason for this is precisely because they are inaccurate. Whether through inherent mechanical flaws or less-than-trustworthy toxicology labs, if a driver’s blood alcohol content is slightly above the legal limit, it is easier for defense attorneys to argue that there’s a chance that the driver’s blood alcohol content is actually below the legal limit.

The Oregon State Police crime lab is behind on its testing, way behind, and it’s affecting DUI cases in the state.

The chemical tests for motorists accused of driving under the influence has a backlog of about 14 months. While that is bad, it’s better than some departments within the lab such as property crimes, where they no longer process DNA for property crimes such as theft to allow more focus on other cases, such as sexual assault. This is problematic since the statute of limitations (the time period for which a prosecutor can file a criminal case) on a case might, and in many cases will run, without having the evidence tested.

Oregon’s Linn County District Attorney’s office handled more than 500 DUI cases in 2018. Alcohol related cases can use breathalyzers as evidence without the need for a crime lab. However, not all of the DUI cases that the DA’s office handles are alcohol related. About half of the DUI cases in Linn County involve other drugs where levels are determined by urine tests. The current backlog of 14 months is still within the standard statute of limitations of two years, so cases can still likely be filed. In its current state and with crime never ceasing, the crime lab is undoubtedly overworked, understaffed, and limited with what they can do. Therefore, the statute of limitations for some of those DUI’s may too come and go, which is unfair to both the prosecutors as well as the accused.

Although representatives of the District Attorney’s office were unaware of any cases directly being impacted by the turnaround time of the lab, Benton County District Attorney John Haroldson said, “The turnaround time for the lab is impacting our office because we’re having to wait for extended periods of time. But it’s critical for me to note that the [Oregon State police] crime lab, no matter how well they do their job, they have a finite capacity. and when that finite capacity is exceeded, the impact for us is the delay on having the lab work done.”

However, Haroldson also went on to say that, although a statute of limitation may not have run, suspects should not have to wait that long to be formally charged.

“Part of seeking justice is doing all we can to make sure that our systems are fair to everyone, including the accused. Long delays do not represent the best work that we can do if we were properly funded,” said Haroldson.

It was also noted that the testing delays can also lead to increased risks to the public as motorists who were suspected of driving under the influence will not have their licenses suspended until the charges have at least been filed. One county had at least four drivers who were arrested twice for DUI during 2018 and whose cases were yet to be settled as their lab results were still pending months later.

With Oregon’s legalization of recreational marijuana in 2015, the number of requests for toxicology tests have only continued to increase. As Oregon’s population also continues to rise, it can be anticipated that the growth in demand for the lab’s services will also continue to rise. Although science and technology have evolved to make some of the processes go much smoother and faster, toxicology result turnaround times still take much longer than our TV crime solvers make us believe. What’s more, costs are still too high to effectively rely on outsourcing as part of the solution.

Amanda Dalton, a lobbyist on behalf of the Oregon District Attorney Association, says that the association is hoping to change the backlog situation through current legislation.

“We believe delayed testing is a crisis as it relates to DUI prosecution and overall community safety and that [the Oregon State Police] is doing all they can with the resources they currently have,” said Dalton.

Although the Oregon District Attorneys Association realizes that the legislation currently proposed will not solve the problem, they maintain hope that it will, at a minimum, start the conversation that will eventually lead to the appropriate funding to fix the issues.