Monthly Archives: April 2005

Drunk, Distracted or Drowsy?

The President of MADD was quoted in the Los Angeles Times as saying: "We don't want cell phones and drowsy driving to become the next hot-button issue for the country, because they don't even compare with the problem of drunk driving." The response of the Partnership for Safe Driving, a non-profit organization in Washington, D.C.:

Let's examine the claim. During the year 2001, the government estimates that 17,448 – or 41 percent – of the deaths on our nation's highways were "alcohol-related." In addition, approximately 275,000 – or 16 percent – of the injuries were attributed to alcohol. Since the rate of fatalities is so high, and so much higher than the rate of injuries, let's take a closer look at that statistic. Of the 17,448 fatalities, 2,555 occurred in crashes where alcohol was detected but no one was over the legal limit. In these crashes, alcohol may not have been the primary factor in the crash; speed, distraction or fatigue could have been. That leaves 14,893 deaths that can actually be attributed to alcohol. However, of these, 1,770 were intoxicated pedestrians and cyclists who walked out in front of the vehicles of sober drivers. They had nothing to do with drunk driving. The Partnership questions why these deaths were thrown in with what is normally presented as a drunk driving statistic. That leaves 13,123 deaths that can be attributed to intoxicated drivers. Of these, a staggering 8,308 were intoxicated drivers who killed themselves in crashes. That leaves 4,815 deaths in which intoxicated drivers killed someone other than themselves….

How do these figures compare with cell phone use?

To date, the Harvard Center for Risk Analysis has provided the only nationwide estimates of cell phone involvement in fatal and injury-producing crashes. Researchers there report that cell phones are now a factor in approximately 2,600 fatalities annually and 330,000 moderate to critical injuries. But because the data on cell phone use by motorists are still limited, the range of uncertainty is wide. Researchers say that the range for fatalities is 800 to 8,000 annually, and the range for injuries is 100,000 to one million annually….

And fatalities caused by tired and sleepy drivers?

As with cell phone use, the influence of drowsy driving and fatigue on crashes often is not known unless the driver survives the crash and admits to having nodded off. Unlike both alcohol involvement and cell phone use, there is no scientific method even available for determining its presence. That said, the government estimates conservatively that 1,500 people are killed annually as a result of motorists who fall asleep at the wheel, and another 71,000 are injured annually in such crashes. However, the National Sleep Foundation believes that drowsy driving and fatigue often play a role in crashes that are attributed to other causes. For example, the government lists driver inattention as the primary cause of approximately one million police-reported crashes each year. The sleep foundation points out that drowsy driving and fatigue make such lapses of attention more likely….

MADD's passionate fixation on drunk driving appears to be blinding it to the importance of other, possibly more significant, causes of traffic fatalities.

DUI and Traffic Fatalities

Due in no small part to the political influence of MADD and the use of deceptive statistics, federal and state governments continue to focus almost exclusively upon DUI in their efforts to address the loss of lives on the nation's highways — to the exclusion of such other major causes as distracted drivers (cell phones, eating, reading maps, etc.) and drowsy drivers.

While drunk driving continues to be a contributing factor in many traffic fatalities, the focus on this to the exclusion of other significant causes impairs any efforts to reduce the numbers. Let's take a look at teenage traffic fatalities as an example. Partnership for Safe Driving, a Washington, D.C.-based non-profit organization "dedicated to eliminating all forms of dangerous driving", recognized the problem in a recent report:

In response to a rash of high-profile teen crashes ' the majority of which have had nothing to do with alcohol ' the National Highway Traffic Safety Administration (NHTSA) is teaming up with Recording Artists, Actors and Athletes Against Drunk Driving (RADD) and a long list of other partners for a new educational campaign to deter teenage drinking and increase seatbelt use. As reported by NHTSA, 3,657 drivers 15 to 20 years old were killed on the roads in 2003, and 308,000 were injured. Approximately 31 percent of teen drivers killed in crashes had been drinking. This means that 69 percent had not. Data for 2004 are not yet available, but the recent rash of high-profile teen crashes appears to be related, first and foremost, to speeding and drag racing, not alcohol. In addition, a growing number of teen crashes are caused by cell phone use among teen drivers, which is still legal in most states….

Not surprisingly, in 1999 MADD's National Board of Directors unanimously voted to change the organization's mission statement to include the prevention of underage drinking. Not underage drinking and driving — just drinking. Is it possible that MADD's fixation on alcohol is actually impairing efforts to address the more significant causes of traffic fatalities?

While the Partnership for Safe Driving strongly supports campaigns to deter drunk driving, we continue to be thoroughly puzzled by the unwillingness of both the government and private sector to acknowledge that both speeding and distracted driving are much bigger problems for teenagers than drunk driving. Until these problems are addressed, we expect to see no significant decline in teen deaths on the roads.

Attempted DUI?

Let’s say you’ve had too much to drink, and you get into your car, put the key into the ignition and — the car won’t start:  the battery is dead.  About that time, an officer arrives and asks you to step out of the car for some field sobriety tests….

Is it possible to be convicted of attempting to drive under the influence?

The courts are not in agreement on whether there is such an offense as attempted drunk driving.  In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not.  In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was "not unmindful that there might be some troublesome questions which will have to be resolved in later cases."

Troublesome questions?  The court didn’t explain that cryptic comment, but one that occurs to me is that  attempted DUI becomes a specific intent crime.  So what, you ask? 

Well, there are two kinds of offenses: those requiring only a general intent, and those requiring a specific intent.  Burglary, for example, is a specific intent crime: it requires entry with the intent to commit theft or a felony; without that intent, it is just a trespass.  DUI is a general intent crime: the prosecutor need only prove the act of driving under the influence – not the intent to do it. 

You can, of course, be convicted of attempting to commit a criminal offense.  But it follows that you must intend to commit the offense: attempt requires a specific intent to commit the crime (along with steps toward its commission).  Thus, attempted DUI would become a specific intent crime.

So, while intoxication is not defense where there is only a general intent required, it can be a defense where specific intent must be proven:  intoxication can prevent the person from being able to knowingly and intelligently form the intent to accomplish the criminal act.

In other words, we may have a Catch-22:  If a person is mentally and physically too impaired to drive, doesn’t that fact tend to negate the specific intent required for an attempt to drive intoxicated

A "troublesome question"….

Breathalyzers and Radio Frequency Interference

One of the dirty little secrets in DUI law enforcement is that breathalyzers are susceptible to error caused by radio frequency interference (RFI), sometimes called electromagnetic interference (EMI). Put simply, any electronic device in the vicinity of the breathalyzer can emit electrical energy which can interfere with the circuitry of the machine, causing false test results. (A common example of the problem can be found in restaurants, where signs saying "Warning: Microwave in Use" alert customers to the danger of radio frequency interference with heart pacemakers.)

The police station where the tests are usually given is, of course, a veritable jungle of devices emitting electromagnetic energy — computers, cell phones, fax machines, police dispatch transmitters, teletypes, AM-FM radios, copy machines, hand-held "walkie-talkies", radar units, security cameras, microwaves, electronic locks, transmitters in police cars in the parking lot, fluorescent lighting, and so on….And in the middle of all of this sits the breathalyzer.

The problem is not a new one. In 1983, the National Bureau of Standards quietly prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers). Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment. Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency. The report characterized the potential effect of RFI on the testing of alcohol as "severe". Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions.

In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobile van showed how handheld radios radically affected the analysis of breath samples. To avoid a loss of public confidence in breathalyzers, the report was kept confidential — until attorney Don Nichols of Minneapolis successfully filed a legal action under the Freedom of Information Act.

Manufacturers of the various breath testing machines, which had long claimed RFI was simply the invention of defense lawyers, suddenly started offering "RFI detectors" as an option on their products. Predictably, these "detectors" have proven relatively ineffective. First, as repeated tests have demonstrated, there are segments of the frequency band to which the detectors are blind. Second, the detectors are rarely calibrated correctly, if at all. This type of calibration must be done at the factory, but most law enforcement agencies are unwilling to take their machines out of service. Instead, the detector is "calibrated" by a police officer simply holding a hand-held radio next to the machine; if the detector is activated, it is considered "calibrated". Of course, this only indicates that the detector worked one time at the one frequency.

Further, the "calibration" is rarely done during an actual capture and analysis — that is, during actual operating conditions — and so the all circuits are not tested during all phases of the operation. The only real guard against false blood alcohol readings due to RFI is to require duplicate analysis — that is, running two separate tests. This does not eliminate RFI, as a constant source of electromagnetic energy can cause duplicate false results, but it reduces the likelihood. Many states now require duplicate breath tests; many others, however, still do not.

Why Do Police Erase DUI Videotapes?

Many law enforcement agencies use videotapes to record a DUI suspect’s driving, appearance, demeanor, slurred speech and/or performance on the field sobriety tests. This taping may be done with a camera mounted in the police car, or with one at the police station (if there are no dedicated recorders at the station, experienced defense attorneys often try to obtain tape from the security cameras).

It is common to encounter situations where a suspect was videotaped but the tape was later erased (the legal term for this erasure is spoliation). This is sometimes done accidentally. Unfortunately, it is often done for a more insidious reason: the tape shows that the arrested person may not have been under the influence — his driving was not erratic, his speech not slurred, his balance and coordination on the field sobriety tests not impaired.

There is a string of United States Supreme Court decisions which deals with the consequences of lost and destroyed evidence generally (Brady-Agurs-Trombetta-Youngblood). Roughly, these decisions require any material evidence to be turned over to the defense if it is requested by the defense. Even without a request (the defense may not know about it), evidence must be turned over if it is exculpatory — that is, if it could have played a material defense role. The loss or destruction of exculpatory evidence constitutes a denial of due process. If the evidence was not clearly exculpatory but was still “potentially useful”, it is a denial of due process only if the loss or destruction was done in “bad faith” — that is, intentionally or for the purpose of denying the defendant access to it.

The burden of proof is on the defendant. The Catch-22, of course, is: How do you prove the erased tape was exculpatory if it has been erased? Or that the erasure was “potentially useful”? Or that it was erased in “bad faith”? Because of these usually insurmountable hurdles, some police officers continue to erase videotapes when their content contradict the damning descriptions in their arrest reports.