Monthly Archives: May 2005

Denial of Independent Blood Test

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombetta ruled that there is no right to this. (See "Why Do Police Destroy the Evidence in DUI Cases?".) Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example:

(a) ….a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later…

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is commonly checked off — and ignored.) So what can a defendant do if this legal right is violated? Well, the statute clearly says "shall" advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law — the only meaningful one being suppression of the breath test. Wrong. Remember: This is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following:

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested.

Cute, no? The law gives you a "right", and then makes it unenforceable. It is, as we lawyers say, "a right without a remedy". And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test. There are some court decisions, however, which seem to say that interfering with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g., In re Martin, 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In State v. George, 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician.

How Breathalyzers Work

Did you ever wonder how breathalyzers work? There is a website which will give you a pretty fair idea. But first, let’s clear up some confusion….

There are many different kinds of “breathalyzers” — or, more accurately, there are many kinds of breath testing devices. The first of the modern breath testers, manufactured by Smith and Wesson many years ago (yes, that Smith and Wesson), was called the Breathalyzer. Since then, various manufacturers have recognized the growing market and come out with their own models, bearing such names as Intoxilyzer, Intoximeter, DataMaster, AlcoSensor, Alcotest and so on; most of these products have been produced in different model versions, such as the Intoxilyer 4011, 5000 and 8000.

To deal with the confusion, the term “breathalyzer” came to be used as a generic term for any breath testing instrument. (To confuse things further, a German company — Draeger — bought the rights to the Breathalyzer brand and have sometimes used that name in some of their models.)

Most of these are evidentiary machines — that is, larger machines generally kept at the police station whose test results are used in evidence. Others are smaller, handheld units carried by officers in the field; generally called PBTs (preliminary breath tests) or PAS (preliminary alcohol screedning), these are less accurate and are usually used as a field sobriety test to help determine whether to arrest a suspect.

The original Breathalyzer operated using a wet chemical method of analysis, employing a disposable glass ampoule of chemicals. Although still occasionally found in law enforcement, this relatively primitive technology was replaced in later machines by infrared spectroscopy, gas chromatography or, mainly in handheld units, fuel cell analysis; a couple of the more recent machines use a combination of infrared and fuel cell.

Now that this has been cleared up, you might want to visit the following sites to understand the actual workings of these gizmos:

Chemical (the Breathalyzer)
Infrared spectroscopy (the Intoxilyzer)
Fuel cell (the Alcosensor)

Note: Gas chromatography is rarely encountered anymore, as it was primarily used in the discontinued Intoximeter 3000.

Note #2: To further understand why these machines aren’t nearly as accurate as law enforcement would have you believe, visit a few of my previous posts:

Breathalyzers — and Why They Don’t Work
Breathalyzer Inaccuracy: Testing During the Absorptive Stage
Breathalyzer Inaccuracy: Post-Absorptive
Breathalyzer Inaccuracy….It Gets Worse
“Close Enough for Government Work”
Why Breathalyzers Don’t Measure Alcohol
How to Fool the Breathalyzer
Breathalyzers and Radio Frequency Interference
Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?

“Lies, Damned Lies and MADD Statistics”

As part of its 25th Anniversay celebration, the President of MADD is once again touting the organization's success in the following recent press release:

MADD is cautiously optimistic about the National Highway Traffic Safety Administration's (NHTSA) report showing a 2.1 percent decrease in alcohol-related traffic fatalities from 2003 to 2004. NHTSA's preliminary Fatality Analysis Reporting System (FARS) data estimates that 16,654 people died in preventable alcohol-related traffic crashes, compared to 17,013 alcohol-related traffic fatalities in 2003….

We believe that the slight decrease in alcohol-related traffic fatalities is linked to increased law enforcement efforts and 13 states starting to enforce the .08 percent Blood Alcohol Concentration (BAC) law in 2003. As of July 2004, all states have passed the .08 BAC law, but Minnesota's law will not go into effect until August of this year.

As for what constitutes "preventable alcohol-related traffic crashes", who knows? However, another set of statistics on MADD's own website indicates that the numbers for 2004 are only an estimate – as opposed to the confirmed fatality statistics for the previous 24 years of MADD's existence. And if one looks at all of those numbers, it appears that alcohol-related fatalities have remained fairly constant for the past decade. In fact, the fatalities estimated for 2004 are about the same as for 1997 and 1998 — and actually higher than those for 1999. If, as MADD claims, the slight decrease in 2004 was due to 13 states starting to enforce the .08 law, why didn't the fatality rate decrease during the past decade — when the other 37 states adopted and started enforcing the .08 law? And as for "increased law enforcement efforts", there is no evidence (or statistics) that enforcement in 2004 was any different than in, say, 2003 or 2002. And as for the claim that "16,544 people died in preventable alcohol-related traffic fatalities", read in my earlier post how these statistics have been made to sit up and bark.

DUI Sobriety Checkpoints: The Slippery Slope

In a number of previous posts I’ve discussed the dubious efficacy, statistics and constitutionality of DUI roadblocks, aka "sobriety checkpoints". However, I’ve only briefly mentioned the potential for abusing the right to set up these roadblocks — the potential for government to use them as a pretext to violate citizen’s rights. Consider the following story from yesterday’s Washington Post:

Safety Stops Draw Doubts

D.C. Police Gather Nonviolators’ Data

Lisa Davis had done nothing wrong. She was wearing a seat belt, was obeying the speed limit and produced a valid driver’s license when D.C. police pulled her over one recent night at a traffic safety checkpoint in a crime-plagued neighborhood.

Even so, an officer jotted down some basic information before letting her go, including her name, address and the time and location of the stop for a police database used for crime solving.

"I’ve got some serious constitutional issues with that," Davis said as she sat in her idling Acura at the checkpoint at Kansas Avenue and Shepherd Street NW in the Petworth neighborhood. "I feel like it’s a violation of my rights. It’s a slippery slope to Big Brother."

The details about Davis and the stop will be fed into the database, which is linked to a computer that includes arrest records and mug shots of criminals….

Civil liberties advocates aren’t the only ones questioning the practice. The policy is sparking concern among some officers who conduct the checkpoint stops, most of which are made in areas where crime, not traffic safety, is the primary concern.

"That’s an invasion of privacy, demanding information from a citizen and putting that in a database," said Officer Gregory I. Green of D.C. police, who is assigned to represent the police union….

The officers jot down motorists’ information on a file-card-size form called a PD-76, which is recorded into the database. The forms also are used for routine traffic stops, and the information will also be used for a racial profiling study, (D.C. Police Chief Charles) Ramsey said.

D.C. homicide Detective Paul Regan said the collection of such data has been "a great intelligence tool".

In the 6-3 United States Supreme Court case holding that DUI checkpoints were permissible, Justice Rehnquist admitted that the stops constituted "seizures" within the meaning of the Fourth Amendment. However, he said, this was justified because "No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it."

Would the Court would have ruled as it did had the justices known what these supposed "sobriety checkpoints" would eventually become?

(Thanks to Steve Oberman of Knoxville, TN.)

DUI and the “Choice of Evils” Defense

Let’s say that after dinner — and too many drinks — at a friend’s house, your wife is driving you home.  She suddenly feels intense pain shooting up her left arm, swerves off the road and loses consciousness.  You jump behind the wheel and start driving at high speed for the hospital.  As you pull up to the emergency center, a police car follows in after you, its lights flashing.  Shortly afterwards, you are arrested for drunk driving.


The courts, as is common in DUI cases, are in considerable disagreement.  Some states recognize the affirmative defense of necessity, or as it is sometimes called, the choice of evils defense.  As one New Jersey judge observed, “When, as here, there is a collision between law and common sense, this court should exert its best effort to vindicate common sense.  Our institutional legitimacy depends on our succeeding in that endeavor.”  State v. Fogarty, 607 A.2d 624.

Other courts do not recognize the defense in DUI cases, or severely restrict its application.  In People v. Slack, 258 Cal. Rptr. 702, for example, the defendant was fleeing across the Mexican border from Tijuana police who had beaten him in the past.  The court held that he had not adequately shown that there was no alternative to drunk driving, or that the emergency was not the result of his own conduct.  More to the point, the court said that “the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated person pales in comparison.”

Continuing the inconsistencies, some courts permit the defense in criminal cases — but, illogically, not in license suspensions.  As one California court has held:

(The) relevant statutes and their clear public policy preclude the application of the necessity defense to administrative hearings….In contrast to criminal prosecution for drunk driving, the administrative remedy involving the suspension of driver’s licenses was designed to be a “swift and certain” method of deterring such conduct. 

However, another California court had earlier come to the opposite conclusion, saying that “It is undeniably true that under any reasonable concept, right and justice would be defeated by the erroneous suspension of (his) driver’s license.”  Curtin v. DMV, 123 Cal. App.3d 481.

To muddy the waters further, there is a separate but related defense of duress which is often confused with the necessity defense. 

So….Was driving your wife to the hospital a criminal act?  As is often the case, that may depend upon what state you were in, or what cases the judge chooses to follow.