Monthly Archives: August 2005

A Fading Constitution – Sixth Amendment

This isn’t about DUI specifically, but about the failure of the criminal justice system generally. Some of us may recall in the not-too-distant past such things as the right to competent counsel and the right to speedy trial.  For others, you may be interested in something called the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….and to have the assistance of counsel for his defense.

The Sixth Amendment was one of ten amendments to the Constitution which constituted something called the Bill of Rights.  Although of some historical significance, this document is rarely used today……

8 years in a Louisiana jail, but he never went to trial

By Laura Parker, USA Today, Mon Aug 29, 6:34 AM ET When he was charged with murder in 1996, James Thomas, an impoverished day laborer in Baton Rouge, became like many other criminal defendants: With no money to hire a lawyer, he had to rely on the government to provide him with one. He then spent the next 8½ years in jail, waiting for his case to go to trial. It never did.

Last spring, a Louisiana state appeals court ruled that prosecutors had waited too long to try him, and it threw the charge out. By then, Thomas was 34, his alibi witness for the night of the murder had died of kidney disease, and his case had become a symbol of the increasing problems within the nation’s public defender system….

More than 40 years after the U.S. Supreme Court ruled that every person charged with a crime is entitled to legal representation – provided by the government, if necessary – the promise is an empty one for many low-income defendants. Tens of thousands of poor people go to jail every year without ever talking to a lawyer, the National Legal Aid & Defender Association in Washington, D.C., found in a nationwide survey this spring of indigent legal services.

The survey found that such programs across the nation are short on lawyers, investigators and other staff, and that they frequently fail to investigate the charges against the client, hire necessary experts and make appropriate motions in court.

One of the worst examples the association found was the case of another Louisiana man, Johnny Lee Bell. He was convicted of second-degree murder and sentenced to life in prison without the possibility of parole last year after meeting with a public defender for what Bell says was just 11 minutes before trial….

(Thanks to Jeff Voll of Los Angeles.)

The Diabetic “DUI”

Contrary to popular belief, police officers have no inherent skill and little training in detecting levels of intoxication. In fact, they are psychologically predisposed in a drunk driving investigation to "see" what they expect to see, disregarding any alternative explanations.

Let’s take a look at one of those possibilities…..As everyone knows, diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation — in other words, the classic symptoms of alcohol intoxication. The diabetic will look and act like a drunk driver to the officer, and will certainly fail any DUI "field sobriety tests". As one expert has observed:

Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways…Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver. "Hypoglycemia: Driving Under the Influence", 8(1) Medical and Toxicological Information Review Sept. 2003.

But, of course, a Breathalyzer will clear him, right?

Wrong. Ignoring for the moment the inherent inaccuracy and unreliability of these machines, most suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the "methyl group" in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is "probably" alcohol.

Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is acetone. And a well-documented by-product of hypoglycemia is the production of acetones in the breath. In other words, the Breathalyzer will read significant levels of alcohol on a diabetic’s breath where there may be little or none. See, for example, Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).

But this rarely happens, right? Fact: roughly one in seven sober drivers on the road suffers from diabetes. 

Latest Weapon in the War on Drunk Driving – The Gauntlet SystemTM

The title of a recent DUIblog post asked the question “How Far Will They Go?“  A recent news release (, site no longer active) provides one answer:

New Patented Technology will Eradicate Impaired Driving

Akron, OH.  August 18, 2005 — Elaine Futrell, envisioneer and co-patent holder, explained that by virtue of the system’s unique design, The Gauntlet SystemTM will detect any type of impairment (alcohol, illegal drugs, prescription drugs, and sleep deprivation) in individuals and also knows when a person is not one of the vehicles’ authorized drivers, stopping both from being able to start the vehicle.

According to Futrell, “The Gauntlet SystemTM was designed using proprietary Impairment Detection TechnologyTM (IDT) which is based upon the medically accepted principal that impaired individuals have diminished reaction times. The Gauntlet SystemTM utilizes electronic functions already installed in all vehicles, such as turn signals, wipers, lights, brakes, interior lights, or seat belts, and requires the vehicle operator to perform what amounts to a road side sobriety test before being able to start their vehicle.”

Futrell goes on to say, “Vehicle operators must perform 5 or 6 functions – in sequence and within a calculated amount of time – before their vehicle will start”…

At Gauntlet Technology Systems’ urging, New Mexico earlier this year enacted legislation broadening the definition of an ignition interlock device to include new technology like The Gauntlet System. New Mexico also introduced and passed legislation mandating an ignition interlock device for ALL offenders, not just repeat offenders.

“The technology to fully address impaired driving and eradicate this epidemic is finally here. The market for this type of technology increased ten-fold with the passage of that legislation,” states Futrell. Futrell has already been in contact with numerous other states wanting to follow New Mexico’s example.   [Emphasis added]

Finally, the answer to the drunk driving sourge: Make us all perform field sobriety tests before we can start our cars.  Good idea — if you aren’t relatively young and well-coordinated, with quick reactions, good memory, not in a hurry and don’t get flustered taking tests.  And if you haven’t borrowed the car. Or rented it. Or the gizmo doesn’t malfunction.  Or….

(Thanks to Patrick Barone of Birmingham, Michigan.)

Scientific vs Legal Presumptions in DUI Cases

The recent news about a Virginia judge throwing out DUI cases has focused public attention on presumptions of law — specifically, the presumption of innocence. What is less appreciated are the recurring presumptions of fact in those same DUI cases — legal presumptions that simply ignore accepted scientific fact.  

One of the greatest sources of error in breath-alcohol testing, for example, is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely "average" in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect  with a true blood-alcohol level of .08 but a breath-to-blood ratio of, say, 1:1700 would have a .10 reading on an "accurate" breath testing instrument.

Put simply, these machines do not test individuals. Rather, they test the same "average suspect" over and over again, but using the individual subject’s breath.

Another example of the assumption of "averageness" can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio-that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called "retrograde extrapolation", or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by "extrapolating" backward-that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or "burned off" in the period between driving and testing. But this requires two assumptions: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the "burn-off" rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than still absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant was eliminating and that he eliminated at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present "average person" in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the nystagmus test ("follow my finger with your eyes") as part of the battery of field sobriety tests, he operates on the assumption that the suspect is "Mr. Average."  The officer has been trained to "read" at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails.  And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased, despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality, and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased-and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children-the average in the United States.

So why does the state presume facts that are clearly untrue?  Simple.  It is convenient: it makes prosecution and conviction much easier.

DUI Laws Unconstitutional (cont’d)

I’ve received a flood of queries concerning my previous post about the courageous Virginia judge’s ruling that the presumption of guilt in DUI cases is unconstitutional.  Perhaps the following examples, which I’ve used in past lectures, will help clear up the confusion about the presumption of innocence and the burden of proof…

Imagine the following scenarios from three separate criminal trials:

1.  Burglary.  Police find fingerprints at the scene of the crime.  The prosecution introduces evidence that they match the defendant’s fingerprints.  The judge then instructs the jury that, based entirely upon that evidence, the defendant is presumed to be guilty and that they must convict him — unless he can prove his innocence.

2.  Forgery.  The prosecution offers evidence that the forged handwriting is that of the defendant.  The judge instructs the jury that he is presumed by law to be guilty — unless he can prove he is not.

3.  Drunk driving.  The prosecution produces evidence of a breathalyzer test that the defendant’s blood-alcohol level was over .08%.  The judge instructs the jury that they must convict him (of both driving under the influence and driving over .08%) — unless he can prove he is innocent.

In the first two cases, the convictions would immediately be reversed on appeal — and the judge probably castigated for both shifting the burden of proof from the government to the defendant and violating his presumption of innocence. The Virginia judge is simply saying that the third case should be no different.