Archive for November, 2005

Police Using Pre-Written DUI Reports

Thursday, November 17th, 2005

An increasing number of police officers are using pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest.

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff's deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It's the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it's there whether the suspect's blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn't smell right," said DUI defense attorney Stu Hyman. "It's a sad state of affairs when somebody hasn't even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn't it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff's office has computer DUI templates. The deputy testified, "I've been told people use them. I just choose not to."

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time. (Years ago, I used to get a court order for copies of an arresting officer's DUI reports for the previous 30 days; when the reports became an embarrassment, the Orange County (California) D.A.'s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.)


Are “Field Sobriety Tests” Valid?

Wednesday, November 16th, 2005

Has the media finally stopped buying into the propaganda from MADD and begun independently investigating the truth? Following a recent story in the Washington Post critical of Washington DC’s "zero tolerance" laws, now comes another another Post story openly questioning the validity of "field sobriety tests" — a validity which I’ve repeatedly challenged on this blog (see, for example, "Field Sobriety Tests: Designed for Failure").

DUI Hokeypokey

Police, Lawyers And Scientists Engage in a Clumsy Dance Over the Merits Of Roadside Sobriety Tests

November 15. Stand up! Heels together. Toes out. Hands at your sides. Raise the leg of your choice right in front of you, six inches off the ground, leg straight, toe pointed. Keep your eyes on your raised toe and begin counting aloud from 1,001 until I say stop. Do you understand? Begin. One thousand one. One thousand two . . Keep going

Some dark night on the side of the road, police lights flashing in your peripheral vision, your freedom may depend on how well you do this. Did you sway? Raise your arms for balance? How about hop? Or put your foot down? If you did any two, a police officer will conclude with 65 percent accuracy, as stipulated in the prevailing science of inebriation diagnostics, that you may be too drunk to drive.

And if you bent your leg, stared straight ahead instead of at your foot or began before I said so, you may be in trouble. Police officers are taught that people under the influence of alcohol don’t follow directions well. If you made it through 30 seconds ramrod straight, congratulations! You may not be drunk. This is the one-leg stand — OLS in cop-speak. It is one of the three scientifically researched standardized field sobriety tests, blessed by the National Highway Traffic Safety Administration, that officers call "the holy grail" and give on the side of the road to help them decide whether to make a drunk driving arrest….

The one-leg stand has its skeptics and its court challenges, and plenty of them, but, according to NHTSA, the test is "easily performed by most unimpaired people." Oh, really? On a recent sunny afternoon in Dupont Circle, Franklin Urena, 32, a waiter at Chevy’s, couldn’t do it. "I have flat feet," he explained as he started hopping at the count of 1,021. His friend, Henry Van Dyke, 50, didn’t make it past the count of 1,003. "Maybe if I had a glass of wine I could do better because I wouldn’t be so self-conscious," he said. "I have no coordination."

Christine Ju, Elisa Catalano and Justin Sullivan, all in their early thirties, balanced well but didn’t follow directions. "What an absurd test," sniffed Catalano, a yoga teacher. In a completely unscientific test of 14 random people, five passed, seven failed and two were judgment calls — one because he counted quickly in Italian and the other because it was unclear whether her wobbles would count as a sway….

So hundreds of thousands of drivers have been arrested — no doubt many deservedly so — on the basis of a 30-year-old study [by Marcelline Burns] that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol…..

Some forensic psychologists and, understandably, a slew of DWI defense attorneys have been assiduously picking apart Burns’s research on the standardized field sobriety tests for years….Troll the Internet, and you will quickly find disparaging reports with titles like "Field Sobriety Tests: Designed for Failure"…. But she is unmoved. "We’re now 30 years past the development of the test. They’re widely used by police officers. Why would they use them if they don’t help them make a proper decision?" she said. "These defense attorneys write all this stuff, but never once do they suggest an optional test. What do they want the officer to do? Toss a coin?"

Not at all, says Spurgeon Cole, a forensic scientist and consultant in Georgia who has been her chief nemesis in court and expert witness for the defense for years. But maybe videotapes in patrol cars, he argues, would help remove some of the subjectivity. "We have no idea how well a sober person can perform on the SFST [field tests]. How does age or gender affect performance? How does fatigue or practice affect performance?" he has written. "Without answers to these basic questions, the SFST remain in the same category as tarot cards."

Cole did his own study, administering the tests to 21 of his students at Clemson University in South Carolina — none of whom had had a drop of alcohol — and then showing the videotape of their performance to a group of officers. They officers reported they’d arrest nearly half the students. "And these people had absolutely zero to drink," Cole said in an interview. "These tests are absolutely worthless."

(Thanks to George Bianchi of Seattle.)


DUI Roadblocks Still Ineffective — and Lucrative

Wednesday, November 9th, 2005

In recent posts I've commented upon the ineffectiveness of roadblocks in apprehending drunk drivers — and the increasing tendency of local governments to use them as a thinly-veiled means for generating revenue from unrelated traffic, registration and equipment citations and towed vehicles.

Three drivers arrested at weekend DUI checkpoint

Stockton, CA, Nov. 7 — Police conducted a DUI checkpoint from 5 p.m. Saturday till 1 a.m. Sunday at Hammer Lane and El Dorado Street.Of the 1,744 vehicles that passed through, three drivers were arrested for driving under the influence, 28 vehicles were towed, and 36 citations were issued, according to the Stockton Police Department.

Final tally: 3 arrests…after stopping 1,744 cars over 8 hours (and pocketing a lot of money from minor violations and impound fees). (Thanks to Jeanne M. Pruett of RIDL.)


“Zero Tolerance” Not Dead Yet

Tuesday, November 8th, 2005

I recently suggested that the backlash from Washington DC's "zero tolerance" laws (criminalizing driving with any measurable amount of alcohol in your blood) might be a light at the end of the tunnel. Maybe….but it just might be a very long tunnel. Some other recent reactions:

Man arrested with 0.02 blood-alcohol level

Farmington, NM November 4, AP –People can be prosecuted on drunken driving charges with a blood-alcohol content below the state's presumed level of intoxication of 0.08 percent. That's the word from Farmington police and District Attorney Lyndy Bennett….She says the blood-alcohol content is not an absolute. Farmington attorney Victor Titus was arrested this week on a charge of drunken driving after registering a blood-alcohol level of 0.02. The officer says he arrested Titus because the results of a breath test were not consistent with what he described as "observed impairment."

And this opinion piece the next day:

Boston Herald, November 5. It is time to separate fact from fiction about our drunken driving laws. It is time to stop deluding ourselves into believing that stricter penalties are the solution. It is also time to start promulgating laws that attack the core problem… The major problem with our existing laws is that it is legally permissible to have a drink or two or three and drive a car. Juries at drunk driving trials are actually instructed it is not against the law to drink alcohol and drive. It is only when the person is impaired or reaches the magical .08 blood alcohol level that he has committed a crime…. So what is the solution? Perhaps it is time to make it illegal to drink any alcohol and drive a car….

It would appear that MADD's objective of "zero tolerance" and an eventual return to Prohibition is far from dead.


Florida Judges Order Breathalyzer Code Given to Defendants

Saturday, November 5th, 2005

Contrary to popular opinion, breathalyzers don’t just mechanically or chemically analyze and report the amount of alcohol in a breath sample. The machine is run by an internal computer — a computer which is, of course, controlled by software written by the manufacturer. This software determines everything about the operation of the machine — its setup, capture of breath sample, analysis, and even "interpretation" of the results. For example, the computer will multiply the amount of alcohol it has determined to be in the breath by a factor — usually 2100 — to get the amount in the blood.

This 2100 figure is based upon the partition ratio in the average human; the actual ratio varies widely from one person to another. This variance already lends itself to significant error in results, but what ratio was actually used in the software? Does the software program even comply with the government’s standards for breath analysis?

We don’t know — any more than we know anything else about how this particular machine’s software was designed to analyze and report breath alcohol — unless we have access to the software code. In other words, the amount of alcohol actually in the breath sample is meaningless if the software code causes the machine to analyze and report erroneously. GIGO, as the computer folks say: "Garbage In, Garbage Out". The problem is that manufacturers are unwilling to provide those codes — not even to the police or prosecutors.

Why? Their stock reply is protection of "trade secrets". This is patently ridiculous, of course: Any concerns can be addressed by a court order limiting access to the code to a defense expert witness. In any event, the manufacturer is capable of suing for any unlikely infringements.

The real reason for the secrecy is that manufacturers are afraid of having defects, inaccuracies and/or non-compliance in the code revealed. If a citizen is accused of driving with a blood-alcohol level of .08% of higher, the only real evidence is the machine’s reading. But for years, manufacturers have been successful in keeping those citizens from finding out whether their machines are accurate and reliable. Until recently….

Surprise court ruling threatens to nullify results of DUI tests

Venice, FL. November 4 – In a decision that could throw out the use of alcohol-breath test results in Sarasota County drunken-driving cases, a panel of judges ruled that defendants are entitled to inspect the source code of the breath-testing machine’s software, though the manufacturer has refused to divulge it.

Three Sarasota County judges surprised prosecutors Wednesday when they sided with Venice defense attorney Robert Harrison by giving the state 15 days to produce the machine’s source code for the defense. The catch: the Kentucky-based manufacturer, CMI Inc., has refused to turn over the code — the electronic instructions that drive the machine — calling it a trade secret…

The order, prosecutors say, threatens to nullify breath test results from the Intoxilyzer 5000, which police statewide use to measure whether a driver’s blood-alcohol content exceeds the .08 legal limit. Those results can often be one of the most damning pieces of evidence introduced in a DUI case… Attorneys close to the case expect the state’s attorney to appeal. In the meantime, police will continue to the use the test despite the deadlock over source code….

The ruling isn’t the first of its kind in Florida. Last November, judges in Seminole and Orange counties decided to exclude Intoxilyzer 5000 breath-test results from hundreds of cases. But judges in two other Florida counties have ruled otherwise, upholding prosecutors’ arguments that they can’t turn over something they do not possess and that the code itself is immaterial to the DUI cases. CMI refused to comment Thursday.

"Full information should include the software that runs the instrument," reads the order, signed by county judges David Denkin, Kimberly Bonner and Judy Goldman. "Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains …. nothing more than a ‘mystical machine’ used to establish an accused’s guilt."

The judges ruled that a look at the source code was material to the case, based on photographic evidence that showed visible differences in the arrangement and number of erasable and programmable memory chips inside Intoxylizers now in use throughout Sarasota County. An expert witness testified that without the source code, he would be unable to determine whether any changes or modifications had occurred.

"Unless the defense can see how the breathalyzer works and verify it is an approved machine, it remains …. nothing more than a ‘mystical machine’ used to establish an accused’s guilt." Finally.