Monthly Archives: March 2007
As with the odor of alcohol on the breath , few police reports will fail to include an observation by the arresting officer that the arrestee exhibited “slurred speech”. The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and it is a psychological fact that we tend to “hear” what we expect to hear. And "hearing" slurred speech supplies the officer with corroboration of his suspicions.
Even assuming the accuracy of the officer’s perception that the defendant’s speech was slurred, there is little evidence that this is symptomatic of intoxication. Impairment of speech is, for example, a common — and sober — reaction to the stress, fear and nervousness that a police investigation would be expected to engender; fatigue is another well-known cause. However, consider the following excerpt from Discover magazine:
Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people’s alcohol levels by the way they talk.
Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes….
He thinks his research could encourage police to be more wary of making snap judgments: Mild drinkers might come under needless suspicion…”
Saunders, “News of Science, Medicine and Technology: Straight Talk”, 21(1) Discover (Oct. 2000).
As any experienced criminal attorney knows, you will never see a DUI police report that does not say the arrestee had â€œan odor of alcohol on his breathâ€ â€” usually further characterized as either a â€œmoderateâ€ or â€œstrongâ€ odor of alcohol. If the report does not mention an alcoholic breath, you can be sure the later breath test at the station came back clean â€” and the arrest has been â€œrevisedâ€ from DUI alcohol to DUI drugs.
Criminal attorneys also know the reality of drunk driving investigations: after stopping a car late at night, the officer approaches the driverâ€™s window predisposed to finding a drunk driver behind the wheel. It is a psychological fact that we tend to see what we expect to see. And the first thing the officer will be looking for to corroborate his expectations is an odor of alcohol. Once he smells alcohol, the arrest is a foregone conclusion; the field sobriety tests are mere formalities, the subjective â€œpass-failâ€ decision made by the already-convinced officer.
Of course, as I indicated in an earlier post, â€œThe Suspect Had a Strong Odor of Alcohol on his Breathâ€œ, alcohol itself actually has little if any odor.
I have received queries after this post as to whether there are any scientific studies to back up my claim that breath alcohol odor is largely irrelevant yet disproportionately weighted as â€œevidenceâ€ of intoxication. Yes, there is such a studyâ€¦
In 1999, the same scientists whose federally-contracted studies became the basis of the so-called â€œstandardizedâ€ battery of field sobriety tests conducted another study on the effectiveness of alochol odor in detecting intoxication.These researchers used 20 experienced officers working with 14 subjects who were tested at blood-alcohol concentrations (BACs) ranging from zero to .13 percent. Over a four-hour period, the officers smelled the subjectâ€™s breath odor under optimal conditions, with the subjects hidden rom view.
The conclusions of the study: Odor strength estimates were unrelated to BAC levels. In fact, estimates of BAC levels failed to rise above random guesses. Further, officers were unable to recognize whether the alcohol beverage was beer, wine, bourbon or vodka. According to the scientists, these results demonstrate that even under the best of conditions, breath odor detection is unreliable. Moscowittz, Burns & Furgeson, â€œPolice Officersâ€™ Detection of Breath Odors from Alcohol Ingestionâ€, 31(3) Accident Analysis and Prevention 175 (May 1999).
Interesting review concluding that certain common prescription drugs are causing a craving for alcohol and, possibly, alcoholism:
Alcohol Cravings Induced via Increased Serotonin
There is an alarming connection between alcoholism and the various prescription drugs that increase serotonin. The most popular of those drugs are: PROZAC, ZOLOFT, PAXIL, LUVOX, SERZONE, EFFEXOR, ANAFRANIL, and the new diet pills, FEN-PHEN and REDUX. For seven years numerous reports have been made by reformed alcoholics (some for 15 years and longer) who are being "driven" to alcohol again after being prescribed one of these drugs. And many other patients who had no previous history of alcoholism have continued to report an "overwhelming compulsion" to drink while using these drugs…
For some time we did not have specific medical documentation to help us understand why this was happening. Could it be that Prozac, Zoloft, Paxil, etc., being mood altering substances, were removing the inhibitions that individuals had placed upon themselves to stop their additions? But beyond this mood altering effect of Prozac, etc., there seemed to be a physiological cause for this alcoholic obsession as well. There were reports of people who rarely drank before Prozac, etc., consuming excessive amounts of alcohol after starting usage of these various drugs.
In November of 1994 Yale published a study that gave us one answer to the alcohol cravings associated with these drugs. The study demonstrated that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. They found this to be especially true for those who have a history of alcoholism…
The Yale study mentioned is Specificity of Ethanol-like Effects Elicited in Serotonergic and Noradrenergic Mechanisms," ARCHIVES OF GENERAL PSYCHIATRY, Vol. 51, Issue 11, pgs 898-911.
(Thanks to William C. Head.)
A few days ago I posted about a gentleman in Montana who was arrested for drunk driving, but claimed that he was not driving — a Unicorn was.
Update: yet another foul-up by prosecutors at a defendant’s expense. It seems that the gentleman had explained to the officer that a woman in the car had been driving. Later, a prosecutor who was familiar with the case emailed the prosecutor who was to appear for the arraignment that the defendant was going to use the “SEDI defense” (somebody-else-did-it). He jokingly referred to it as “the Unicorn defense”, suggesting that some mythical being was driving.
Unfortunately, the prosecutor at the arraignment apparently did not understand the humor, and at the arraignment asked the judge for high bail, explaining that the defendant had claimed a unicorn was driving.
(Thanks to Bob Battle.)
Similar DUI fatality cases, but one is charged as vehicular manslaughter, the other as murder. Why?
Inconsistency in DUI Death Verdicts?
Sacramento, Calif. Mar. 14 – The cases are very similar. In one, a drunk driver kills a police officer. In the other the drunk driver is a police officer. But the outcomes, and the penalties, are very different.
In fact, after a Placer County jury found Eric Dungan, 27, guilty of second degree murder Tuesday in the death of Rocklin police officer Matt Redding, Dungan's family raised the question. Dungan's aunt brought up a similar case in which off-duty Sacramento police officer Jason March was drunk when he struck and killed 13-year-old Michael Ramirez in Elk Grove.
"Broad daylight … he got vehicular manslaughter. He was a police officer. Eric's second degree," said Dungan's aunt, Liz Brooke. "Does that make sense to anyone? It doesn't make sense to us."
The March and Dungan incidents both happened in 2005, but they have similarities. Both had blood alcohol levels around .16 to .18 — twice the legal limit. Both drove away after hitting the victim. Neither was speeding nor driving recklessly, other than being intoxicated, before or during the crash. Neither had criminal records, nor any prior DUI convictions.
Yet there are key differences in the cases. March hit Ramirez during the afternoon on a residential street. Dungan hit Redding in the early morning hours on Highway 65. Dungan took full responsibility and expressed remorse on the stand. March never did…
On a separate issue, this again raises the question of just how far are we going with with the emerging murder approach to DUI fatality cases? See my earlier posts: