Monthly Archives: April 2006

A Ray of Light (cont’d)

My previous post suggested that maybe the media was finally beginning to get it.  And then again, maybe they'll never get it…

Blowing Off DUI Test May Lead to Jail

Tallahassee, FL The Miami Herald  -  It's the not-so-secret way to avoid a DUI record: Refuse to submit to a breath test. You'll lose your license for a year but won't face criminal charges.

The state Legislature looks poised to change that with a bill that would make it a crime — punishable by one year in jail — for drunken-driving suspects to refuse a breath, blood or urine test.

''The word is around: If you're drinking, refuse to blow,'' state Rep. Irv Slosberg, a Boca Raton Democrat, said Tuesday at the House Justice Council, a group of lawmakers that deals with criminal justice issues. "The problem is too many people are refusing to blow, and more and more DUI offenders are on the streets.''

The bill, which has been met with unanimous approval from four House committees, is sponsored by Rep. Ari Porth, a Coral Springs Democrat and Broward prosecutor.

Under existing law, drivers who refuse to submit to a DUI test on their first offense can lose their license for a year, but they aren't charged criminally in the absence of breath test results….

As usual, the MADD-dominated media has absolutely no idea what they're talking about when it comes to DUI issues…The "not-so-secret way to avoid a DUI record"? Refuse the breath test and you "won't face criminal charges?" "Under existing law, drivers who refuse to submit to a DUI test…aren't charged criminally"?

This is the kind of ignorance and hysteria that prevails in addressing DUI issues. If the reporter — or the politicians — bothered to read Florida's DUI laws, they would discover that there exists a single crime of "Driving Under the Influence". This crime can be proved in either of two different ways: evidence of impairment or evidence of a blood- or breath-alcohol level of .08%. Either way, the penalty is the same.

In other words, as in all other states, the suspect who refuses chemical testing will simply be prosecuted based upon the officer's opinion and the evidence of driving symptoms, personal appearance, statements, field sobriety tests, witnesses, etc.

Compounding ignorance with arrogance, Forida's legislators intend to make refusing to incriminate yourself in a DUI case a crime — punishable by a year in jail. How far we have come….

Most Americans today still harbor the belief that they have a Fifth Amendment right to refuse to incriminate themselves. Sadly, our Supreme Court has ruled that in a DUI case you do not (see my earlier post "Believing You Have Constitutional Rights in a DUI Case Can be Dangerous"). Not only do they not have the right, but this proposed law — unanimously approved by four House committees — sends them to jail for one year for believing they have the right.

A Ray of Light

This recent Op-Ed piece from a New Jersey newpaper is yet another indication that maybe they’re finally beginning to get it: 


Putting drunken drivers in jail is not a solution. The reasoning behind strict punishment for “driving while intoxicated” is to prevent it from happening again. Unfortunately, despite the new Michael’s Law in January 2004, New Jersey saw a 2 percent increase in arrests for driving under the influence that year.

Michael’s Law mandates a 180-day prison term for anyone convicted of a third or subsequent driving-while-intoxicated offense. Up to half that sentence could be spent in a drug or alcohol rehabilitation hospital.

Yet, recently, Assemblyman Nelson Albano, D-Vineland, proposed a bill that would require these generally nonviolent offenders to spend a mandatory 180 days in jail without the option of spending up to 90 days in rehabilitation. The bill would further burden our already overpopulated jails during a budget crisis.

Making the law tougher will not work. We could, however, make such laws more effective. Alcoholism is a disease and incarceration is not a cure. And, apparently, incarceration is not a deterrent either.

Instead, the state could make money by sentencing these offenders to house arrest and make them foot that bill. Furthermore, the outdated, ineffective, 10-year license suspension is in desperate need of reform. We have about 200,000 people with suspended licenses. New Jersey could safely put these people back into the workforce and make money on their taxes by issuing time-restricted work permits and using ignition locking devices to prevent them from drunken driving.

But in the interest of vengeance, we would rather lock up a desperate group of sick individuals when jail time has not significantly lowered alcohol-related fatalies.

(Thanks to Sheri Rathbone.)

ABA Journal Reports on Perjury in San Diego DUI Cases

You may recall my recent posts concerning the San Diego Police Department instructing blood technicians in DUI trials what to say in their testimony ("Police DUI Experts Instructed to Commit Perjury"), and a San Diego Sheriff's crime lab forensic toxicologist who had testified falsely in over 4000 DUI trials ("Perjured Police Expert Testimony – Cont'd"). The following story appeared today (April 7) in the American Bar Association Journal:

Expert Witness Credibility Questioned in San Diego Case

The prosecution of DUI cases in San Diego got a sobering jolt recently with the revelation that a veteran expert witness who testified for the government in more than 4,000 cases had falsified his resumé. .. On its face, the resumé discrepancy seems minor. Raymond K. Cole claimed his 1957 bachelor of arts degree from the University of California at Berkeley was in premedical studies. Actually it was in political science, as pre-med studies would have resulted in a bachelor of science degree.

For defense lawyers, however, the picture is much larger. An expert's credibility is the heart of a case, and good lawyers can drive truckloads of doubt through such holes. News of Cole's resumé discrepancy, they say, is merely the latest development in a series of complaints over the past several years by lawyers and judges that he fudged more than his background in trial testimony.

As early as 1998, Superior Court Judge Victor E. Ramirez, now retired and running for Congress, noted that he had "serious concern about Mr. Cole" and found his testimony "less than forthcoming," according to court transcripts of a hearing on a motion for a new trial. While Ramirez refused defense counsel's request to issue a finding of perjury, the transcript reflects that Ramirez did consider Cole's testimony about instruments used to test for intoxication "something just less than perjury." … "I've been troubled by his testimony more than once," (Judge Richard) Mills said at one point, without offering specifics. He also said he found that…Cole's "testimony was, at least, intentionally misleading." The judge added that "Somebody's got to at least consider that it's time to do something, if not past time." …

But that's not the only issue riling San Diego's defense bar. In a separate matter, DUI defense lawyers recently obtained a document they consider a smoking gun that could undermine the credibility of other prosecution experts, the phlebotomists, or blood and alcohol technicians. DUI Blog, a Web log by Long Beach, Calif., DUI lawyer Lawrence Taylor, says the document appears to instruct the witness how to testify. For example, the document says: "The important thing to remember is that you always follow the same procedure, so even though you don't remember this particular individual, you know that you drew the person following our standard procedure." (Emphasis in the original.)

The script is highly questionable, says Shaun P. Martin, who teaches professional responsibility and criminal law at the University of San Diego School of Law. "What the San Diego Police Department has done here comes very close to, and probably crosses, the line and appears to encourage witnesses to testify to certain facts regardless of whether they're true," Martin says. Martin reviewed a transcript of the document taken from Taylor's blog. Martin has co-authored a law review article on the do's and don'ts of coaching witnesses. The script is "is simply telling a witness how they want the witness to testify in the mere hope that it might be true," Martin says. "That's improper."

The most disturbing thing about all of this is that it's not just a San Diego problem. The simple fact has long been that blood-alcohol witnesses working for police agencies view themselves as members of the law enforcement team, not neutral scientific witness: their job is to help the prosecution win — not to present the truth which may favor the defense. The only thing unusual about Raymond K. Cole is that he finally got called on it — after 30 years and 4000 acts of perjury. And the only thing unusual about the blood technician's script was that someone finally got caught with it.

How to Get Arrested for DUI

Ask a Dumb Question, Get a DUI Charge

SYDNEY, Australia.  AP — A tipsy tourist couldn’t spot Ayers Rock despite parking only 100 yards away with his headlights pointing at the landmark, police said.

A 44-year-old Australian man flagged down a car late Tuesday thinking it carried park rangers and asked directions to the giant monolith (about 1,000 feet tall) that juts out of an Outback plain.

Unfortunately for the hapless tourist, the car was carrying police.

‘’Nonetheless, the tourist told police he and his female companion wanted directions to the rock,'’ Northern Territory Police said in a statement. ‘’The police officer breathalyzed the driver after pointing out his headlights were shining right at it.'’

The man was found to be driving with excess alcohol in his blood and without a license. He was ordered to appear in court on May 18.

Breathalyzers and the RFI Problem

One of the dirty little secrets in DUI law enforcement is that breathalyzers are susceptible to error caused by radio frequency interference (RFI), sometimes called electromagnetic interference (EMI).  Put simply, any electronic device in the vicinity of the breathalyzer can emit electrical energy which can interfere with the circuitry of the machine, causing false test results.  (A common example of the problem can be found in restaurants, where signs saying “Warning: Microwave in Use” alert customers to the danger of radio frequency interference with heart pacemakers.) 

The police station where the tests are usually given is, of course, a veritable jungle of devices emitting electromagnetic energy – computers, cell phones, fax machines, police dispatch transmitters, teletypes, AM-FM radios, copy machines, hand-held “walkie-talkies”, radar units, security cameras, microwaves, electronic locks, transmitters in police cars in the parking lot, fluorescent lighting, and so on….And in the middle of all of this sits the breathalyzer.  The manufacturers of some breath anlayzing machines contain warnings in their manuals, such as that in the Datamaster’s:  ”CAUTION:  NO PORTABLE RADIO TRANSMITTERS SHALL BE ALLOWED IN THE AREA DESIGNATED FOR BREATH ALCOHOL TESTING”.  These warnings are widely ignored.

The problem is not a new one.  In 1983, the National Bureau of Standards quietly  prepared a preliminary report on tests performed on the various breath testing devices used by police agencies nationwide (Effects for the Electromagnetic Fields on Evidential Breath Testers).  Each of the 16 models tested were subjected to four different frequencies typically present in the standard police environment.  Of the 16 units tested, 6 showed minimal interference; 10 of the 16 showed substantial susceptibility on at least one frequency. 

The report characterized the potential effect of RFI on the testing of breath alcohol as “severe”.

Those conducting the study noted that the local Washington D.C. Metropolitan Police Department was complaining that breathalyzers were giving erroneous breath alcohol readings in the presence of radio transmissions.  In a field demonstration of the RFI problem for representatives of NBS and the National Highway Traffic Safety Administration, D.C. officers using a breathalyzer in a mobile van showed how handheld radios radically affected the analysis of breath samples.

To avoid a loss of public confidence in breathalyzers, the report was kept confidential — until attorney Don Nichols of Minneapolis successfully filed a legal action under the Freedom of Information Act. 

Manufacturers of the various breath testing machines, which had long claimed RFI was simply the invention of defense lawyers, suddenly started offering lead shielding and “RFI detectors” as options with their products.  Predictably, these shields and “detectors” have proven relatively ineffective. 

The shields, which consisted essentially of encasing the machines in a lead box, created overheating problems.  Ventilation slits were then integrated into the design — which immediately provided entry for radio waves.  The shields were then largely abandoned, and the focus shifted to the “detectors”.

The first major problem with these circuits, as repeated tests have demonstrated, is that there are segments of the frequency band to which the detectors are blind. 

Second, the detectors are rarely calibrated correctly, if at all.  This type of calibration must be done at the factory, but most law enforcement agencies are unwilling to take their machines out of service for that period of time.  Instead, the detector is “calibrated” by a police officer simply holding a hand-held radio next to the machine; if the detector is activated, it is considered “calibrated”.  Of course, this only indicates that the detector worked one time at the one frequency.  Further, the “calibration” is rarely done during an actual capture and analysis — that is, during actual operating conditions — and so the all circuits are not tested during all phases of the operation.

The only real guard against false blood alcohol readings due to RFI is to require duplicate analysis — that is, running two separate tests, on the theory that RFI is unlikely to cause the same erroneous reading twice.  This does not eliminate the problem, as a constant source of electromagnetic energy can cause duplicate false results, but it reduces the likelihood.  Many states now require duplicate breath tests; many others, however, still do not.