Monthly Archives: October 2006
As I’ve mentioned in the past, MADD and local police have increasingly encouraged citizens to inform on anyone they think might be a drunk driver (see "How to Get Your ex-Spouse: the Anonymous Tip"). The latest development is to encourage them to report drivers who may not appear intoxicated but nevertheless have specific "signs":
Detecting Drunk Drivers
Oct. 22, AOL. According to the DWI detection guide put out by the U.S. Department of Transportation and its National Highway Traffic Safety Administration (NHTSA), there are many common, telltale signs that can help identify a drunk driver. Police departments and state patrols around the country use this guide to identify and stop potential drunk drivers before they cause accidents…
Some of these "signs" are spelled out, for example:
Speed and braking problems. Braking smoothly becomes a more difficult task for impaired drivers, so look for general problems with stopping, like jerkiness or stopping in too short or long of a distance than needed. Maintaining speed also becomes more challenging for drunk drivers, so also look for drivers that accelerate or decelerate quickly for no apparent reason, or drivers that are going more than ten miles per hour under the speed limit.
Judgment problems…. Examples of this is following another vehicle too closely, or making unsafe lane changes like cutting off other vehicles and appearing unaware of any problem…
In other words, if you see a driver who is not braking as quickly or as slowly as you would, who accelerates quickly, who cuts you off, who is following too closely, or who is just going too slowly, then:
If you see two or more of the above factors, the driver is probably drunk, and it’s your responsibility to save the lives of other drivers and alert the police…Get the license plate number and dial 911.
So the next time some old guy’s not driving and braking as fast as you’d like, or some jerk tailgates you and then cuts you off, don’t just sit there fuming: Dial 911. The guy’s obviously drunk, right?
I’ve written in the past about how most so-called “breathalyzers” do not measure alcohol: they actually measure the presence of a molecular group in compounds. Ethyl alcohol (aka ethanol) contains the group, and so when the machine detects its presence (or, more accurately, an infrared beam is absorbed by it), it simply assumes that the detected compound must be ethyl alcohol.
Problem: there are thousands of compounds containing the molecular group — of which well over one hundred have been found on the human breath. Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days. And I’ve posted in the past that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the group.
However, you do not need to be a diabetic to have high levels of acetone. Scientific research has established that acetone can exist in perfectly normal individuals at levels sufficient to cause false high breath-alcohol test readings. “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246 (1985).
Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone. Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06% (this is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds, so that a true breath alcohol of .03%, for example, would be reported by the machine as .09%). “The Likelihood of Acetone Interference in Breath Alcohol Measurement”, 3 Alcohol, Drugs and Driving 1 (1987). And low-carbohydrate diets, such as Atkins, have long been associated with high levels of acetone production.
Of course, for many years law enforcement denied that any such problem existed, just as they denied that “mouth alcohol” and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.)
How reliable are breathalyzers? Not very (see “How Breathalyzers Work — and Why They Don’t” and “Close enough for government work”). As I’ve recently posted, there appears to be a growing trend toward letting officers draw blood themselves at the scene of arrest. Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….
In a rare moment of candor….
State Admits New Alcohol Breath
Tests Could Be Unreliable
ORLANDO, Fla. — Channel 9 has learned there’s a glitch in the state’s new breath testing procedure.
An Orlando defense attorney first discovered the problem. During a state hearing Wednesday, the Florida Department of Law Enforcement’s inspector admitted that the results of several new machines are scientifically unreliable…
But these tests are completely reliable in your state, right? (Funny, the headline says could be unreliable, but the expert testified that they are unreliable.)
In my recent post on DUI roadblocks, I again commented on the U.S. Supreme Court's increasing willingness to ignore constitutional protections — particularly when it comes to DUI cases.
In once again deciding that there was apparently a "DUI exception to the Constitution", the Court reversed the Michigan Supreme Court which had ruled that its citizens were protected from such violations of the Fourth Amendment. Michigan v. Sitz. Upon remand back to Michigan, however, the state court again reversed the conviction — this time holding that roadblocks violated their own state constitution. A small number of other states have followed Michigan.
In a similar situation, the South Dakota Supreme Court reversed a DUI conviction for violation of the defendant's Fifth Amendment right against self-incrimination when his refusal to submit to chemical testing was used as evidence of his guilt. The U.S, Supreme Court reversed, holding there was no violation. South Dakota v. Neville. Upon remand the South Dakota Supreme Court again reversed — based now upon their own state constitution.
A few days ago, the Alaska Court of Appeals reversed a cocaine possession conviction. The court specifically refused to follow a 1991 U.S. Supreme Court casess (California v. Hadari) in suppressing evidence obtained by the police in apparent violation of the Fourth Amendment, noting that over a dozen other states had similarly rejected the U.S. Supreme Court's ruling based upon a reliance on their state constitutions. In a highly unusual published criticism of the U.S. Supreme Court, the opinion stated:
We agree with these other states that the United States Supreme Court has adopted an interpretation of the Fourth Amendment and the exclusionary rule that fails to adequately safeguard our citizens' rights to privacy, that fails to adequately protect citizens from unwarranted government intrusion, and that unjustifiably reduces the incentive of police officers to honor citizens' constitutional rights. Joseph v. Alaska.
In what may be a growing trend, our state courts are increasingly assuming the role of protecting their citizens when faced with a Supreme Court which has apparently abandoned that role. (Thanks to Fred Slone of Anchorage.)
No, that’s not a misprint:
Man Gets 99 Years for 8th DWI Conviction
Weatherford, Texas. A 56-year-old Fort Worth man was sentenced to 99 years in prison Wednesday on his eighth conviction on a DWI charge…
Prosecutors said that Bridges was driving his pickup west on Interstate 20 in Willow Park when he was pulled over. A test found that his blood alcohol concentration was 0.17, more than twice the legal limit.
A bit steep for having too much alcohol in your system? Well, this is his eighth time, right? In any event, this is probably just an aberration. I mean, they don’t really throw people in prison for the rest of their lives just for drinking and driving — not even in Texas….Do they?
One of the premier DUI attorneys in the country, Troy McKinney of Houston, recently made an Open Records Act demand on the Texas Department of Criminal Justice: How many Texans are serving sentences of 60 years to life in prison for drunk driving? Not for drunk driving resulting in injury or death — just for drunk driving (or driving over .08%). The letter from the Department arrived a couple of days ago:
21 to 25 years 125
26 to 30 years 39
31 to 40 years 55
41 to 59 years 16
60 to 98 years 23
99 years 6 Life 13
Repeat: These are sentences just for drunk driving or driving over .08% — not for DWI causing death or serious injury. To trigger the longer sentences, the DWI was at least the offender’s fourth offense.
It would be a fairly safe assumption that these prisoners are alcoholics. In other words, life in prison for having a genetically-predisposed disease and being unable to control it…..without help.
So, what if they got help? What does it cost to keep a citizen in prison for the rest of his life? For even one year? And what does it cost to offer that person rehabilitative therapy? Even, perhaps, to involuntarily commit him to a facility for treatment of the disease?
Justice and humanity aside, do the math….
(For further discussion, see my post “Are Alcoholics Protected by the ADA in DUI Cases?”)