Monthly Archives: February 2006

No Risk of Due Process with DMV License Suspensions

When a citizen is booked for drunk driving, his driver’s license is confiscated by the officer and a notice of immediate suspension from the state’s Department of Motor Vehicles is handed to him. The officer is judge, jury and executioner; there is no presumption of innocence. The only remedy available to the citizen is to request an administrative hearing before the state’s DMV — the very agency which is trying to suspend the license. (See my earlier post, “Due Process and the Automatic License Suspension”.)

Periodically, however, some conscientious judge decides that maybe due process (which is just a legal word for “fairness”) before the DMV isn’t all that it should be:

FORT LAUDERDALE, FL. February 25 – Marcie Wyrobeck graduated from the Philadelphia College of Art and worked in sales and for an arts and crafts store. She had no formal legal training. Yet, for nearly a decade, she was a state hearing officer who decided the appeals of people whose drivers licenses were suspended in drunken-driving cases. When a difficult legal question came up in one of those hearings, Wyrobeck said she and other Department of Highway Safety and Motor Vehicles hearing officers – some with only high school educations – routinely asked the agency’s lawyers for advice about how to rule. Now a judge in Broward County has ruled that allowing hearing officers like Wyrobeck to consult on legal issues with the department’s own attorneys violates the fundamental constitutional rights of defendants in drunken-driving cases. “How can the specter of actual conflict, much less the appearance of conflict, not raise its ugly head?” said Broward County Circuit Judge J. Leonard Fleet in his ruling late last year. Wyrobeck, who now consults for DUI defense lawyers, said the conflict is obvious: “It’s like being the judge and the prosecutor at the same time.”

Shoot, here in California it’s not like the judge is the prosecutor: the judge is the prosecutor. That’s right, the “prosecutor” at a DUI suspension hearing is a high school graduate and DMV employee who sits as the judge and decides whether his employer or the citizen wins. This individual, who has never read the Evidence Code, will make objections to the citizen’s evidence — and then rule on his own objection (and they don’t call anyone for legal advice). Want to cross-examine the officer? You have to subpoena him yourself — and pay his salary. Does the hearing officer have a conscience? Too many decisions against the DMV and he’s reassigned to more mundane duties.

Due process.

Breathalyzers and Circadian Rhythm

Circadian rhythm is the term used to describe the cyclical phenomenon commonly known as “the body’s internal clock”. The human body experiences regular physiological changes over a period of roughly 24 hours (some researchers claim a 25-hour period): body temperature, sleep, hormonal and mineral levels, physical coordination, emotional state, mental acuity, etc.

Various studies have concluded that a part of this rhythmic change involves the capacity of the body to absorb alcohol. One study, for example, compared subjects consuming alcohol at 10:00am and 10:00pm, and found that the morning consumption resulted in earlier and higher peak concentrations of blood-alcohol. Lakatua, et al., “Observations on the Pharmacokinetics of Ethanol”, Ann. Rev. Chronopharmacology 297 (1985).

One of the top blood-alcohol testing experts in the field, Professor Kurt Dubowski of the University of Oklahoma, has confirmed that the time of day when an alcoholic drink is consumed may affect both the absorption rate and the peak concentration time (time and quantity). Dubowski, “Absorption, Distribution and Elimination of Alcohol”, 10 J. Stud. Alcohol 98 (1985).

Obviously, the recognized effects of circadian rhythm add yet another variable to any attempts to estimate blood-alcohol levels when driving based upon blood-alcohol levels when tested. (See my earlier post, “Rising Blood-Alcohol Levels in DUI Cases”.)

Scientists: Aspirin Raises Blood-Alcohol

The next time you have a couple of drinks and think about throwing down a preventive aspirin or two, consider that research has determined this might elevate your blood-alcohol level above the legal limit:

Aspirin increases blood alcohol concentrations in
humans after ingestion of ethanol

Gastric first-pass metabolism of ethanol is an important determinant of blood alcohol concentrations. We studied five healthy volunteers after ingestion of ethanol (0.3 g/kg of body weight) and found that blood alcohol concentrations in the fed state (ie, 1 hour after a standard breakfast) were significantly higher when the subjects received 1 g of aspirin 1 hour before ingestion of ethanol than without the drug. In vitro, aspirin clearly decreased the activity of gastric alcohol dehydrogenase in human subjects…Thus, aspirin may increase the bioavailability of ingested ethanol in humans, possibly by reducing ethanol oxidation by gastric alcohol dehydrogenase.

Abstract from R. Roine, R. T. Gentry, R. Hernandez-Munoz, E. Baraona and C. S. Lieber, “Aspirin Increases Blood Alcohol Concentrations in Humans After Ingestion of Alcohol”,   264 (1) Journal of the American Medical Association (November 14, 1990). 

(Thanks to Chuck Laroue.)

High Breathalyzer Readings from Acid Reflux

Bryan is presently facing criminal charges for driving under the influence of alcohol. Except that he wasn’t under the influence of alcohol.

Bryan had one drink after work and was stopped at a DUI sobriety checkpoint on the way home. The officer smelled the alcohol on his breath and asked Bryan to step out of the car to take some field sobriety tests. He did fairly well on the tests but, just to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .12%.

Bryan was arrested for DUI, handcuffed and taken to jail; his license was immediately confiscated and he was served with a notice of automatic suspension. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Bryan have only consumed one beer but registered .12% on the machine?

Well, to begin with, breath machines (commonly referred to as “Breathalyzers”, although there are many competing makes and models) are notoriously inaccurate and unreliable (see “How Breathalyzers Work — and Why They Don’t”). Calibration, maintenance, malfunctions and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being non-specific for alcohol — that is, they don’t actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as “alcohol” (see “Why Brethalyzers Don’t Measure Alcohol”.)

Yet another recurring problem is mouth alcohol. What is “mouth alcohol” — and how could this have caused Bryan’s false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines — see “Convicting the Average Person”).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Bryan’s mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Bryan is facing DUI charges.

So what was alcohol doing in Bryan’s mouth or throat? Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Bryan had “one for the road” just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Bryan may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus.

But what actually happened was that Bryan suffers from a very common condition: GERD, or gastroesophageal reflux disease. This causes acid reflux, often experienced as heartburn. Acid reflux is sometimes caused by a hiatal hernia – damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Bryan is now ordered to breathe into the machine’s mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Bryan’s case, an “innocent” reading of perhaps .02% became a “guilty” .12%.

Result: Bryan lost his driver’s license….and now has to try to prove his innocence in court. Prove his innocence? Aren’t we presumed innocent in America? Here we have the notorious “DUI exception to the Constitution” again. Strangely, Bryan is not presumed to be innocent as we all thought: almost all state laws legally presume a person is under the influence of alcohol if if the machine’s reading is .08% or higher.

Yes, we have a system where citizens are convicted by a machine….A very fallible machine.

U.S. Court of Appeals Slams Nevada Courts, Prosecutors

This isn’t about DUI, but about our failing criminal justice system generally — and the rare willingness of one court to recognize it. 

In November 1987, Joni Goldyn opened checking and savings accounts with the Nevada Federal Credit Union, which promptly gave her a $500 line of credit and a check guarantee card.  Goldyn used up the funds in her account and most of the line of credit, but continued writing checks which were accepted by merchants.  The credit union continued covering her checks, as the check guarantee card obligated it to. As the credit union’s collection officer testified at trial: “If a member uses a check guarantee card with the check, the bank is liable, and we do have to honor those checks.”  Goldyn was convicted by a jury of five counts of writing bad checks. Because of her prior record, the judge gave her five life sentences.

On appeal, the Nevada Supreme Court unanimously affirmed the conviction and sentence.  After twelve years in prison, she was released and placed on lifetime parole.  She filed a writ of habeus corpus with the federal court, again arguing the obvious:  the checks were good because they were covered by her line of credit.  If the credit union was obligated to cover them, she argued, then they can sue her but she can’t have written bad checks.

A few days ago, the U.S. Court of Appeals (9th Circuit) granted the writ and reversed the conviction.  In its published opinion (Goldyn v. Hayes, No. 04-17338; February 1, 2006), the Court abandoned the unwritten never-speak-ill-of-another-judge rule:

No rational trier of fact could have found that Goldyn committed the crime of writing bad checks as defined by Nevada law.  And no rational judicial system would have upheld her conviction.  We are saddened and disappointed that the state supreme court unanimously affirmed a conviction carrying multiple life sentences based on such cursory and inadequate review of the record in light of the applicable statute…

Had the Nevada courts and prosecutor’s office taken more seriously their “obligation to serve the cause of justice,” United States v. Agurs (cite), Goldyn would not have spent twelve years behind bars for conduct that is not a crime.

The Court added:

Because we are granting Goldyn’s habeas petition for the reasons expressed above, we do not consider her numerous other claims, some of which raise similarly significant issues that cast further doubt on the state’s commitment to the pursuit of justice in this case.

(Thanks to Manny Daskal of Eureka, CA.)