Monthly Archives: October 2005

Texas Ignores Breathalyzer Standards

As readers of this blog know, I’ve railed long and hard about the inaccuracy and unreliability of breath testing machines — and the unquestioning reverence in which they are held. Now consider this latest news story:

Holding Breath Tests Accountable

Houston, October 26. One night last December, a Houston man drove away from a downtown bar and had an accident. After taking a breath test, he joined 98,000 other Texans charged that year with driving while intoxicated.

The case’s outcome was far from routine, however.

In September, a judge threw out the charge after a defense lawyer raised questions about not only the scientific integrity of the machine that gauges sobriety, but about the state’s breath-alcohol testing program, too.

Those questions ? sparked by the discovery that Texas disregards the manufacturer’s guidelines for operating the machine ? potentially could affect thousands of cases throughout the state as authorities and defense lawyers debate the credibility of breath tests.

Attorney Troy McKinney argued in a Harris County court last month that the program lacks adequate quality controls for calibrating breath-test devices, which compute a DWI suspect’s breath-alcohol level….

McKinney became suspicious after looking at the Intoxilyzer 5000, the machine used throughout Texas in a DWI program overseen by the state Department of Public Safety. He said records indicated the machine in his client’s case was operated with its voltage meter registering a current outside that recommended by the manufacturer, CMI Inc. of Owensboro, Ky.

Questioned about the discrepancy in a hearing without the jury present, HPD breath test training chief Rick Viser, who also performs maintenance on the machines, testified that DPS guidelines on an acceptable voltage range for the Intoxilyzer differ from the manufacturer’s ? although he could not say exactly how.

Viser, who has a bachelor of science degree in biology from Prairie View A&M University, declined to speak with the Chronicle for this story. He took on more responsibilities in the HPD breath test program after the October 2003 ouster of Pauline Louie, who retired after being suspended as head of the crime lab’s toxicology division, which tests blood and urine for alcohol and drugs.

Do you really believe that massive failures to properly maintain, calibrate and administer breath tests are limited to Texas?

MADD Retreats in Face of “Zero Tolerance” Backlash

As I have discussed at length in earlier posts, the eventual goal of Mothers Against Drunk Driving has long been the restablishment of Prohibition — and, until then, "zero tolerance" (no measurable alcohol) for anyone driving a vehicle. This was reflected in the press release for their recent 2005 "Nationwide Labor Day Crackdown on Drunk Driving", announcing the slogan, "You Drink, You Drive, You Lose" (not "You Drink Too Much, You Drive, You Lose").

In the face of the national attention — and ridicule — which Washington DC's zero tolerance laws have attracted, however, MADD appears to be back-pedaling. Patrick O'Connor, president of Northern Virginia's MADD chapter, responded to the apparent backlash:

"MADD's position is that you should drink responsibly and if you feel you're impaired, you should not drive," he said. "It's not MADD's position that if you have a glass of wine you shouldn't get into a car."

Contrast this with previous statements from the national presidents of MADD:

"Forget limits on BAC. It's just not acceptable to drink and drive, period." – Wendy Hamilton, immediate past President of MADD. "Lowering the legal [arrest] standard will be a deterrent for light drinkers as well as heavy drinkers. There is no safe blood alcohol level, and for that reason, responsible drinking and driving means no drinking and driving." – Katherine Prescott, past President of MADD "If you choose to drink, you should never drive. We will not tolerate drinking and driving — period." – Karolyn Nunnallee, past President of MADD

Prosecutors Told .08% Means When Driving

Police and prosecutors, in their zeal to raise drunk driving arrest and conviction rates, are continually looking for new and creative ways to interpret the laws.  The law requires that the person was actually driving — and so sitting in a parked car or even sleeping becomes "driving".  The law requires evidence that the accused drove a vehicle — so bicycles, wheelchairs, lawnmowers, and even horses become "vehicles".  Sadly, many courts have gone along with these deceits.

The law also requires that the person be over .08% under the influence when he is driving – not an hour later when tested at the police station.  The problem is that it takes on average roughly an hour for the body to reach peak absorption of alcohol after consumption.  So, for example, if a suspect has "one for the road", the drink will not be fully absorbed into his blood for an hour or so:  He may have had a blood-alcohol concentration (BAC) of .06% at the time he was pulled over, but .09% an hour later when tested on the machine.  (Another recurring problem is the driver who has a drink or two after driving.)

The laws of most states requires the taking of the test to be within two or three hours (depending on the state) after driving to be admissible.  It does not, however, change the law:  the prosecution must still show what the BAC was at the time of driving.  This is usually done through rebuttable presumptions and/or retrograde extrapolation — a fancy term for estimating earlier BAC levels based upon average rates of absorption and elimination.

As they have done in other areas of DUI litigation, however, prosecutors like to see how far they can go.  Result:  Convictions for having BACs over .08% at the time of testing, with no evidence of BAC when driving.  Every once in awhile, though, a court decides that enough is enough:

State Supreme Court Overturns DUI Conviction

Lexington (AP) — A Kentucky Supreme Court ruling now gives drunk drivers room to question blood-alcohol tests that are narrowly above the legal limit.

Friday the court unanimously overturned the ruling of a Lexington man, who was convicted of driving under the infuence.  Nelson Lopez was charged with a DUI on October 11th, 2002, and blew a 0.08 blood-alcohol level about an hour after his arrest.

The court says county prosecutors wrongly argued that it didn't matter what his blood-alcohol level was when he was driving, as long as Lopez's level measured above the legal limit of 0.08 within two hours of his leaving the car….

Why does it take the Supreme Court to explain to prosecutors that driving under the influence means driving under the influence?  And whatever happened to prosecutors whose concern was justice rather than winning convictions?

(All of which reminds me of an old joke when I was a deputy D.A.:  "Anyone can convict a guilty person: It takes skill to convict an innocent one".)

The Road to Prohibition – Part 4

The latest in the continuing saga of Washington’s “zero tolerance” drunk driving laws:

D.C. Council Votes to Ease No-Tolerance DUI Law

Business Needs Cited; Mayor Faults Proposal

Washington Post, October 19 The D.C. Council voted yesterday to relax the city’s “zero tolerance” drunken driving law, which allows drivers to be prosecuted for minimal amounts of alcohol in the bloodstream.

D.C. law gives police the authority to arrest drivers with blood alcohol levels above .01 but below .08, the level at which a driver is considered legally intoxicated in the District.

The council voted 9 to 3 for emergency legislation under which drivers with less than .05 blood alcohol would be presumed to be not intoxicated. Mayor Anthony A. Williams (D), who called the bill “hastily written,'’ has 10 days to decide whether to veto it.

Council members introduced the measure after news reports highlighted cases in which drivers were arrested after drinking as little as a glass of wine. Members said they were worried about a drop-off in business for District bars and restaurants and concerned that the city’s law was becoming a national joke….

Members said they are concerned that the story was making headlines across the country and portraying the District as the last refuge of Prohibition….

“D.C. is once again open for business,” said council member Carol Schwartz (R-At Large), principal author of the legislation. She said visitors “can come in and have a glass of wine and not be harassed or intimidated.”

Again, I find it interesting (but not surprising) that there was little or no concern about the injustice of arresting and prosecuting obviously sober people for “drunk driving”. The reasons for the change in law are clear from the headlines: “Business Needs Cited”.

The Road to Prohibition – Part 3

The recent reaction to the flap about Washington D.C.’s "zero tolerance" laws has prompted a flurry of public protest, political back-pedaling — and the predictably rigid police response:

Council Hastens To Revise DUI Law

Washington Post, October 15   D.C. Council members, swamped with irate calls and threats to boycott D.C. bars and restaurants, introduced emergency legislation yesterday that would override the police department’s controversial and little-known zero-tolerance policy for drinking and driving.

Council member Jack Evans (D-Ward 2), who represents Georgetown, said he has been bombarded with calls from restaurants, bars and constituents asking, "What kind of lunacy is this?"

D.C. Chief Defends Officers’ Judgments in DUI Arrests

Washington Post, October 14   D.C. Police Chief Charles H. Ramsey yesterday defended officers who arrest drivers with blood alcohol levels below the legal limit, and amid growing criticism of the department’s "zero tolerance" policy, he insisted that officers continue to be able to use their discretion.

One officer who has made such arrests, Dennis Fair, said D.C. law gave him the authority to arrest drivers with as little as a .01 blood alcohol level. "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C," Fair said in an interview. "We have zero tolerance."…

Ramsey said he does not use the term "zero tolerance."

After 35 years of prosecuting and defending, I still have difficulty understanding the law enforcement mentality.