Monthly Archives: January 2006
The problem with the intelligent discussion of legal and scientific issues when it comes to drunk driving is that there is none. Any "discussion" is riddled with ignorance and emotion.
Let's take an example from a few days ago:
DUI Cases May Hinge on Ruling
Columbus, Ohio. A new ruling from Ohio's Supreme Court could affect hundreds of drunk driving cases. The decision concerns where and how a suspect's blood alcohol level is tested.
"It changed the playing field," said Dan Huston of the Ohio Prosecuting Attorneys' Association. "This was a system, a process in place and that system was essentially gutted by the Supreme Court in this particular case".
The controversy is about blood taken and tested by hospitals in the most serious drunk driving accidents. Most hospitals are drawing the blood for medical testing. Their results – including blood alcohol levels – have long been used by prosecutors in court cases. But most hospitals do not have state certification to test blood alcohol for law enforcement purposes. So the court said those results are not admissible…
The ruling means dozens of cases already in the system are in jeopardy.
"These folks stand to walk away from these charges," Huston said describing the worst case scenario. "More likely, there will be more pleas and reductions in sentence because a chunk of evidence will be lost".
For now, prosecutors and law enforcement are taking extra steps to ensure they get admissible blood samples. But ultimately, the Ohio General Assembly may address the new legal loophole by changing the law to specify that hospital test results are acceptable for court cases.
Another damned "legal loophole", right? And now the whole "system" is "gutted". Or did the media maybe once again fail to investigate the facts?
The superficial fact is that the hospitals in question were simply not certified to analyze blood for alcohol. But the real question should be: Will a blood sample analysis for alcohol concentration by a hospital give the same result as an analysis by a crime lab?
The answer: No. The hospital analysis will show a falsely higher result.
From my book Drunk Driving Defense, 6th edition":
Blood samples obtained in drunk driving cases are generally — but not always — analyzed as whole blood (sometimes called "legal blood"). If the sample is analyzed for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood"). Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum. A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called "supernatant" which is then analyzed.
Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood? In a study entitled "Distribution of Ethanol: Plasma to Whole Blood Ratios" (Hodgson and Shajani, 18 Forensic Science Journal 73, 1985), scientists attempted to determine the answer to this very question. The conclusion: Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant were about 5 percent higher….
For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, "Blood Alcohol Testing in the Clinical laboratories: Problems and Suggested Remedies", 39(3) Clinical Chemistry 377 (1993).
Another "legal loophole"….
Judging by the email, my post a couple of days ago “warning” about “MACED” (Mothers Against Caffeine-Enhanced Driving) was taken seriously by some. It was a spoof, folks. Social satire. Strictly tongue-in-cheek. (The news story is accurate, however: There really is a “Caffeine Awareness Council” and apparently there really are local governments eager to save us from “caffeine intoxication and dependency.”)
Me? I’m going to sit down with another cup of coffee and try to understand why so many people are constantly driven to save me from myself.
I have written repeatedly in the past about the prevailing presumption of guilt that prevails in drunk driving cases (see “Whatever Happended to the Presumption of Innocence?”). One example of this is the automatic driver’s license suspension (see “Due Process and Automatic License Suspensions”), where among other things the arresting officer acts as judge, jury and executioner in arresting the suspect, seizing his license and issuing a formal notice of suspension. (Note: this occurs even if a blood rather than breath test is given, so there will be no test result from the lab for days; it is presumed that the driver is guilty — over .08% — and it is also presumed that there will eventually be evidence to show it.)
The following news story simply reflects the latest in a long list of examples of “The DUI Exception to the Constitution“:
California Institutes New Penalties for Drunk Drivers
Sacramento, Calif. — Drivers committing a repeat drunk-driving offense in California have their vehicles seized under existing state law, but it doesn’t happen until after they are convicted. Under a new law to take effect Sunday, drivers in California can lose their cars upon arrest — before they are convicted — if they have committed a drunk driving offense in the previous decade…. The new rules are intended to teach drunk drivers a strict lesson after an offense occurs and to deter impaired motorists from getting behind the wheel.
I wonder what it teaches those who are innocent — who have not been given a chance to defend themselves? Or do the police now never make mistakes? And when did we start punishing folks first, then later mumbling “Sorry” if they’re found not guilty?
Well, it looks like the folks who brought us Prohibition and MADD are at it again:
City of Shaker Heights, Ohio ( Jan 17, 2006 ) — Following a health trend that appears to be brewing up all over the nation, Mayor Judith Rawson has signed a proclamation for the City of Shaker Heights that addresses the issues regarding caffeine intoxication and dependency.
In the proclamation the Mayor is “calling upon all Shaker Heights citizens, public and private institutions, business and schools to increase awareness and understanding of the consequences of caffeine consumption.”…
City of Shaker Heights is one of several cities across the country recognizing this annual event. This will be the third year for this event which is sponsored by the Caffeine Awareness Alliance, a non-profit organization. Marina Kushner, founder, states, “Each year more and more people are waking up to the real truth about the dangers of this ubiquitous drug. We are delighted that the mayor has recognized that this is not a laughing matter.”
Can MACED (Mothers Against Caffeine-Enhanced Driving) be far behind?
(Thanks to Jeanne M. Pruett.)
In the continuing "war on drunk driving" and its damage to the Constitution, what new weapons will be tried? One, certainly, would be randomly pulling drivers over for no reason and forcing them to take breath tests. Sound far-etched? They’ve been doing it in Victoria, Australia, for years:
In response to the magnitude of the alcohol affected driving problem in Victoria in 1977, the Government of the day introduced random interception and testing of drivers for the presence of alcohol without the intercepting police being required to have any previous knowledge of any alcohol affect on that driver. This was the birth of Random Breath Testing as we now know it. The original objective of this legislation was to identify and prosecute all drivers found to have a B.A.C. over .05% and remove them from our roadways….
An investigation in 1987 throughout Australia on R.B.T. by Prof Ross Homel and others found that the apparent effectiveness of R.B.T. was due to its preventative capacities rather than the detection of offenders for which it was originally designed (Homel, Caseldine and Kearns, 1988). It is now accepted in Victoria that the true objective of R.B.T. is "to create a perception amongst the driving public that if they drink then drive, their apprehension is inevitable". Whether that threat is real or otherwise is not the point, the key is whether the public believes it to be….
But this is America, you say. We have the Fourth Amendment, which prevents police from stopping you without probable cause to believe you have commited a crime. Then why do we have DUI roadblocks? Because the U.S. Supreme Court ruled 5-4 in Michigan v. Sitz that stops without warrant or suspicion was "justified" by the severity of the drunk driving problem (also known as "The DUI Exception to the Constitution").
When MADD discovers random breath testing (followed inevitably by politicians falling over themselves passing laws to accommodate them), do you really think the Court will take a different view? (Interestingly, the Irish are considering random breath testing, but the proposed law is considered unlikely to pass because it appears to be a violation of their constitution’s proportionality provision: laws cannot be "excessively powerful in proportion to the objectives they are meant to achieve". Not a bad concept for this country — but it would mean the end of DUI roadblocks, among many other things.)
When MADD discovers random breath testing (followed inevitably by politicians falling over themselves passing laws to accommodate them), do you really think the Court will take a different view?
(Interestingly, the Irish are considering random breath testing, but the proposed law is considered unlikely to pass because it appears to be a violation of their constitution’s proportionality provision: laws cannot be "excessively powerful in proportion to the objectives they are meant to achieve". Not a bad concept for this country — but it would mean the end of DUI roadblocks, among many other things.)
(Thanks to Richard Diamond for the Australia information.)