Monthly Archives: March 2006

Asthmatics Punished for Inability to Give Breath Sample?

Almost all states now have increased penalties for refusing to submit to blood-alcohol testing, usually involving added jail time and/or longer license suspensions. A few states even make refusing a separate and distinct crime. A large percentage of those charged with “refusing” are innocent.

One of the most common refusals is the failure to breathe hard enough to produce a breath sample.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of the most common machine used today, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

(Thanks to Dr. Ronald Henson.)

Preemptive Arrests Spreading?

For those who think that the previous post about police arresting people in bars before they can drive under the influence (even if they don’t have a car) is just a recent and isolated Texas aberration, consider this past story from the Washington Post:

2 Arrested in Va. Bars Dispute Police Account

Reston, VA.   On karaoke night at a crowded Reston bar just before Christmas, Daniel Crowley had at least six beers at a stage side table where he sat with three friends.

The mortgage broker had no idea that the attractive man and woman eyeing him from their stools were plainclothes Fairfax County police officers. Their mission was to observe drunks in bars so uniformed officers could arrest them on charges of being drunk in public.

No one had complained about Crowley’s behavior, and one of his friends was the night’s designated driver. But Crowley was about to be caught up in a police operation that was designed to deter intoxicated drivers, but has subsequently been criticized as heavy-handed and unfair.

“I didn’t know what was going on,” Crowley testified yesterday in Fairfax County General District Court, where he contested the charge before Judge Michael Cassidy. “I’d paid my tab, and I was ready to go home.”…

Big Mother is watching….

New Tactic: Preemptive Arrest

The latest in the War on Drunk Driving: arrest folks before they commit the crime:

Bar Sweep Sparks Controversy

Dallas, March 22. NBC5 News.  The Texas Alcoholic Beverage Commission sent a message to bar patrons last week.

TABC agents and Irving police swept through 36 Irving bars and arrested about 30 people on charges of public intoxication. Agency representatives say the move came as a proactive measure to curtail drunken driving.

North Texans interviewed by NBC 5, however, worried that the sweep went too far. At one location, for example, agents and police arrested patrons of a hotel bar. Some of the suspects said they were registered at the hotel and had no intention of driving. Arresting authorities said the patrons were a danger to themselves and others…

TABC officials said the sweep concerned saving lives, not individual rights.

Individual rights? Haven’t they heard of the “DUI Exception to the Constitution”? (And so much for designated drivers, calling a taxi, walking home, etc.: now you get arrested for being a potential drunk driver — even, apparently, if you don’t have a car to drive.)

(Thanks to Jon Lucca.)

Cracks in the Dam?

Is the media finally beginning to get it?  From yesterday’s (Sunday) Boston Globe:

Over the Legal Limit

Get-tough laws in Massachusetts and nationwide are cracking down on drunk drivers. Are they also eroding our constitutional rights?

By Mark Schone  |  March 19, 2006

FOR YEARS, CALIFORNIA defense lawyer Lawrence Taylor, who specializes in drunken driving cases, has traveled the country telling anyone who will listen that the decades-long, nationwide crackdown on drunk drivers has posed a significant threat to the Bill of Rights — what he calls a dangerous ‘’DUI exception to the Constitution.”

Whenever he steps outside the echo chamber of his fellow defense attorneys, however, he doesn’t get a very warm reception. ‘’I've pretty much stopped doing radio,” Taylor said recently. ‘’Most of the time it’s a setup. They assure me I’ll be the only one on the show, and then they confront me with a woman from Mothers Against Drunk Driving whose son or daughter was killed by a drunk driver.”

Taylor has learned to expect little sympathy for his clients and his cause — from the public or their elected representatives. As much as 90 percent of the US population supports get-tough measures like highway roadblocks and license revocation for drivers who refuse blood-alcohol tests, and lawmakers are respecting their wishes. Last fall, the Massachusetts Legislature approved the anti-drunken-driving package called Melanie’s Law, and Rhode Island’s governor will sign an even tougher bill by June. Rhode Island’s version will make refusing a breath test a criminal offense, and will empower police to force motorists to provide blood samples.

The next step in the crackdown will be letting the police take the blood samples themselves — something Texas and Utah are already trying. ‘’Would you want a police officer to stick a hypodermic in you?” asks Taylor.

But the point of his crusade, Taylor says, is not saving drunk drivers from a clumsy jab with a needle. It’s not really about drunk drivers at all. Taylor believes that a series of Supreme Court decisions upholding harsh drunken driving laws means that authorities can now abridge civil liberties almost at will, as long as they invoke public safety. The decisions affect the defendant’s right to a jury trial, to examine evidence, to confront an accuser, and, perhaps most notably, to be free from self-incrimination and unreasonable search and seizure.

Taylor thinks the implications extend far beyond cases of driving under the influence to all areas of criminal law, including murder trials, and even to the measures taken by the Bush administration in the war on terror. Taylor likes to close his stump speech with a humorous paraphrase of Martin Niemoeller’s famous warning about creeping fascism — “First they came for the drunks, but I was not a drunk, so I did not speak up” — but he’s quite serious. ‘’Law is based on precedent,” he warned. ‘’When you start dismantling constitutional protections, you’re setting precedents. I don’t think people understand what we’re doing constitutionally.”…

Taylor thinks these measures have led to a Bill of Rights with a few asterisks for those who are accused of driving under the influence. But at the federal level at least, the battle over constitutionality, like the battle for public opinion, is mostly over. Most of the anti-drunken-driving measures that MADD has championed have been vetted by the Supreme Court and survived the ordeal….

Perhaps Lawrence Taylor, for years preaching to the converted, may yet find a new audience for his speeches — if not out of compassion for intoxicated motorists, then out of fear of those who might become intoxicated by power.

Perjured Police Expert Testimony (Cont’d)

The San Diego Police Department's script for its phlebotomists to recite as "testimony" mentioned in the previous post is not an isolated situation — not even in San Diego. The following, involving a San Diego Sheriff's crime lab forensic toxicologist, is from a news story appearing just three days ago:


An expert's problematic résumé and court testimony could jeopardize hundreds of convictions

San Diego, March 15. A DUI specialist with 30 years at the San Diego County Sheriff Department's crime lab, it was Raymond Cole's job to explain to judges and jurors how alcohol and drugs impair drivers and how the police measure levels of intoxication. That was before authorities found out Cole wasn't who he claimed to be'a revelation that could mean a sizeable number of the convictions he helped secure may be overturned….

According to a report written by Richard Debevec, a crime-lab supervisor, a mid-January audit of employee records revealed a discrepancy in Cole's résumé. Cole, who claimed to have obtained a premedical degree from the University of California, Berkeley, in 1957, had actually graduated from Berkeley with a bachelor's degree in political science…

Earlier this month, City Attorney Mike Aguirre's office began sending letters to lawyers who may have defended clients in cases in which Cole testified. A spokesperson for District Attorney Bonnie Dumanis said her office is in the process of drafting a similar letter…

Actually locating those cases is a different matter. According to testimony from a 2003 DUI trial, Cole estimated he'd testified 'well over 4,000 times' during his career, but representatives of Dumanis, Aguirre and the crime lab all say they have no way of tracking those cases. Instead, they put the responsibility for unearthing the trail of their expert witness on defense attorneys…

'That's always the heart of perjury'that you don't know where it stops and where it starts,' said retired Superior Court Judge Victor E. Ramirez, who said he presided over hundreds of cases in which Cole testified. 'Looking back on it as a judge, the only real redress that we have is that you have to prosecute Mr. Cole for his [allegedly] perjured testimony, if in fact it can be proved.'

Ramirez and others who have worked with Cole in the past described him as a difficult witness with a history of problematic testimony…

With crime-lab supervisors present, Ramirez expressed 'serious concern about Mr. Cole,' who he'd previously admonished for attempting to take evidence from the courtroom. 'The best that I can say' is that he has given less than complete' answers or less than thorough answers in his presentation.'…

According to a transcript of a hearing held to sanction [attorney Michael] Freemont for calling Cole a liar, Superior Court Judge Richard Mills, who previously faced Cole as a prosecutor and a defense attorney, declined to make a ruling regarding Cole's testimony but said it was 'at least, intentionally misleading'. I've been troubled by his testimony more than once'. I just can't have this type of testimony again'. Somebody's got to, at least, consider that it's time to do something, if not past time.'