I commented a couple of days ago about confronting the CEO of MADD during an NPR debate with the question:  Why have fatality figures remained unchanged for the past 13 years — despite the increasingly Draconian laws, harsh penalties and unconstitutional procedures so successfully advocated by MADD during that same period?  His response was that attorneys were to blame. 

Those figures included the last year available: 2005.  Coincidentally, the Department of Transportation was just releasing the new figures for 2006:

U.S. Drunk Driving Deaths Rise

May 25, Washington.  Reuters  –  Alcohol-related deaths on U.S. roads rose to their highest level in 14 years in 2006, while the overall number of people killed in traffic crashes declined slightly but still topped 43,000, according to preliminary government estimates Friday.

The Transportation Department said that drunken driving deaths rose 2.4 percent to 17,941 after a slight decline in 2005. It was the highest level since 1992 when 18,290 deaths were reported.

I was wrong.  Despite unfair laws, harsh penalties, false evidence and a prevailing “DUI exception to the Constitution”, the rate of alcohol-related fatalities is actually increasing.

To again quote Mr. Einstein’s definition of “insanity”:  “Doing the same thing over and over and expecting a different result”.

Yesterday was an enlightening experience for me.  I learned, at long last, what is causing the “carnage on the highways”. 

I was invited to take part in a 1/2-hour debate yesterday with the CEO of MADD, Charles Hurley.  The taped debate was part of the Justice Talking series on National Public Radio, broadcast from the Annenberg Public Policy Center in Philadelphia (it will be broadcast the week of June 11th).  I was in the NPR studio in Los Angeles, Mr. Hurley in Washington, D.C., and the moderator in Philadelphia.

Mr. Hurley started by trumpeting MADD’s new campaign to require greater use of ignition interlock devices (IIDs).   I mentioned MADD’s recent press release entitled “MADD Announces National Campaign to Eliminate Drunk Driving”, and questioned whether their “4-point plan” could actually “wipe out drunk driving in the United States” as claimed.  The plan consists of (1) more roadblocks and roving patrols, (2) increased use of ignition interlock devices, (3) appointing a blue-ribbon committee to study possible technology, and (4) “mobilization of grass-roots support” (which, I assume, means more contributions to pad MADD’s usual take of $52 million a year).  Certainly nothing new there — nothing to reduce the static fatality figures, much less to “eliminate” or “wipe out” drunk driving altogether.

At one point, I questioned Mr. Hurley why the fatality statistics have remained unchanged for 13 years — despite the increasingly Draconian laws, harsh penalties and unconstitutional procedures so successfully advocated by MADD during that same period.  I mentioned Albert Einstein’s oft-quoted definition of insanity:  “Doing the same thing over and over and expecting a different result”.  (Unfortunately, the irony of the terms “MADD” and “insanity” escaped me at the time.)

The reason for the continuing fatalities, Mr. Hurley calmly explained, is that defense lawyers are more concerned with their clients’ constitutional rights than with their clients’ victims. 

A remarkable comment.  And an insight into the thinking at the top of MADD’s bureaucracy.  I can only assume that the next press release will announce yet another end to drunk driving — by denying DUI defendants the right to counsel. 

And for those of you who think Mr. Hurley was simply exaggerating or pulling my chain, the following is from a recent report entitled ““Impaired Driving Guidebook: Three Keys to Renewed Focus and Success”, issued by MADD jointly with the federal government’s National Highway Traffic Safety Administration.  From page 16 of that document:

HURDLES TO REFORM

- A judiciary that struggles to define itself and maintain its objectivity in the face of aggressive defense attorneys.

- An organized DUI defense bar more concerned with “winning a case” than with the carnage on our streets and highways…

And yet another constitutional right will go down the drain in the ongoing “War on Drunk Driving”. 

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In the United States, however, the presumption of innocence has always been a fundamental part of our rights as a free people.

This basic protection against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. U.S., 156 U.S. 432 (1895).

So what happened to this presumption of innocence in a drunk driving case? Is this yet another example of “The DUI Exception to the Constitution“?

Let’s take a look at how our DUI laws have slowly eroded this fundamental right….

Assume that you’ve been arrested for drunk driving, and a breathalyzer gives a reading of .09% blood-alcohol concentration (BAC). You will probably be charged with two crimes: (1) driving under the influence of alcohol, and (2) driving with over .08% BAC.

Let’s look at the .08% charge first. The .08% offense depends entirely upon the results of the breath machine (often called a “Breathalyzer”, although there are many manufacturers, makes and models). These machines are notorously inaccurate and unreliable for any number of reasons. But a funny thing happens when your attorney tries to bring out those reasons for the jury.

He tries to point out, for example, that the breathalyzer computes the results by presuming that the defendant has a partition ratio of 2100:1 (the ratio of alcohol in the breath to the alcohol in the blood) — but that this is only an average: in fact, the defendant’s ratio is much lower, so the .09% reading should actually be .07%. However, the judge stops him: the law presumes that all men are average — even if they are not.

The Supreme Court of California has specifically ruled that such scientific truth is irrelevant. In People v. Bransford, 884 P.2d 70 (1994), that high Court justified its ruling in a rather frank — and amazing — justification:

It (.08%) will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.

In other words, ignoring scientific facts makes it easier — and cheaper — to convict.

What about the officer who gave the breath test? Surely, we can question his experience and the way he administered the breath test. And this raises a prosecutorial favorite: the “Official Duty Presumption”. The California Evidence Code (sec. 664) puts it very simply: It is presumed that official duty has been regularly performed. Period. That’s it: Since it was the officer’s official duty to give the test, the law presumes he did it correctly — and the burden is on the defendant to prove he didn’t.

Interesting twist on the presumption of innocence, huh? Well, so much for the .08% charge. At least the defendant is presumed innocent of the DUI charge, right?

Wrong. The laws of most states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is legally presumed to be under the influence of alcohol. That’s right: the defendant is presumed guilty. As with the others, this is called a “rebuttable presumption” — that is, the defendant can try to rebut this presumption with other evidence. Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

Ok, but the law says it’s illegal to have .08% BAC when driving — not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove what the BAC was at the time of driving?

Easy: the law presumes the BAC is the same. Let’s take a look at California’s fairly typical law:

In any prosecution…it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her breath at the time of the performance of a chemical test within thre hours of the driving.

Well, now, that’s really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with scientific certainty, that the BAC will not be the same three hours after the test — and yet the law says it is.

So much for the “presumption of innocence” in a DUI case….

As readers of this blog are aware, I’ve railed long and hard against the so-called “breathalyzers” (see, for example, ”How Breathalyzers Work — And Why They Don’t”).  The number of citizens falsely convicted of DUI because of these gizmos is in the high thousands. A few days ago I commented about how some police agencies are finally abandoning these machines and turning completely to direct blood testing (“So If Breathalyzers Are So Accurate…”).  Why?

Getting convictions in the ongoing “War on Drunk Driving” depends upon the public’s faith in blood-alcohol evidence — particularly in these breathalyzers. And over the 37 years or so that I’ve prosecuted and then defended, prosecutors have always represented them to juries as deadly accurate and fail-safe — no matter what make or model the breath machine. State of the art. Yet, I’ve noticed an interesting phenomenon…..

The manufacturers keep changing them.

A whole lot of years ago, when I was dealing with the grandaddy of the breath machines, the Breathalyzer 900, these devices were presented to juries as ushering in a new age of highly accurate breath-alcohol analysis. And which scientific laboratory developed and manufactured these scientific wonders? Well, not exactly a lab.  Actually, uh, Smith and Wesson. Yes, the manufacturer of that marvel of science, the six-shooter.

And, of course, there were endless problems with these machines, so Smith and Wesson modified it and offered the model 900A. Which continued to have problems, so S&W developed the Breathalyzer 900B — followed by the new, improved, “state of the art” and now truly foolproof Breathalyzer 1000. Which turned out to be even less reliable than the 900.

Of course, this led to the model 1100, followed by the absolutely-no-fooling-state-of-the-art Breathalyzer 2000. Which eventually led to Smith and Wesson finally throwing up their hands and selling out to a German company, National Draeger. (Incidentally, the old Breathalyzer 900s are still being used by some rural police departments today.)

Meanwhile, other corporations had smelled the government money. A new player, Omicron Systems, came out with a machine to compete with the Breathalyzer: the Intoxilyzer. Omicron then sold out to CMI, Inc., which produced the Intoxilyzer 4011 — offered as a vast improvement over the Breathalyzers. This model, like the Breathalyzer, was followed by a series of modifications and improvements (models 4011A, 4011AR, 4011AS, et al.) and, of course, finally by ditching the machine for their new, ultimate gizmo: the Intoxilyzer 5000. Truly “state of the art”. Except, of course, it wasn’t.

So back to the drawing board — and, after a series of modified versions of the 5000 over the years, the latest model: the Intoxilyzer 8000. Which, jurors are again assured, is completely reliable and deadly accurate….until the next improved version.  Predictably, the 8000 is receiving a less-than-entusiastic reception.

Meanwhile, other competitors decided that the sad state of breath testing presented opportunities. Intoximeters, Inc., was created and produced the Intoximeter 3000. Which did not fare well. This time Intoximeters, Inc., gave up relying solely on the underlying technology, infrared spectroscopy, and tried to integrate a simpler method involving electrochemical analysis. Result: the Intoximeter EC/IR. State of the art….until the next improved model is offered.

Others smelled the blood in the water. Verax Systems produced the BAC Datamaster, then quickly gave up and sold out to another manufacturer, National Patent. And the German heirs to Smith and Wesson, Draeger, began marketing their improved version, the Alcotest 7110. And so on….

Each of these devices, their manufacturers assured well-funded law enforcement agencies, was a great improvement over earlier models and competitors’ machines. And in each and every case, regardless of the machine being used, the prosecution would assure jurors that this machine was reliable, accurate and, in fact, “state of the art”: based entirely upon its reading, they could convict the defendant with a clear conscience.

And when defense attorneys would point out the defects and problems, jurors would be assured that this was just “smoke and mirrors” from sleazy lawyers. The defense would point out, for example, that the machine falsely reports a wide range of chemical compounds as alcohol. Acetone in the breath, for example, caused high readings. And prosecutors assured jurors that this was another defense lie…until the manufacturers developed and began marketing acetone detectors.

Then there were the studies indicating that radio frequency interference (RFI) was widely causing unpredictable fluctuations in test results. More smoke and mirrors from the defense, jurors were told. But soon manufacturers were marketing RFI detectors.

And the mouth alcohol problem — another baseless attack on the prosecution’s state of the art evidence, followed by another device developed by the machines’ makers: the mouth alcohol detector. Which didn’t work reliably. And so on ad nauseum….

So what is the latest trend? Apparently, after all of those public reassurances, law enforcement is starting to give up on the machines. Abandoning the search for “state of the art”, they are going in the opposite direction: cheaper, easier to use and even less accurate hand-held breath gizmos used in the field. And, as I’ve indicated in past posts, police are turning increasingly to direct blood analysis: cops jamming hypodermic needles into suspects out on the highways. 

State of the art.

It was inevitable…

State Not Backpedaling on

Bicyclist’s DUI Charge

Woodstock, Illinois.  May 11 – Even prosecutors acknowledged the case is a bit odd, but that’s not stopping them from pursuing felony drunk driving charges against an Oakwood Hills man and repeat DUI offender accused of riding his Schwinn bicycle while drunk.

Oakwood Hills police charged Charles Braun, 43, with drunken driving after he allegedly rode his bike – which happened to have a small motor attached to it – into traffic and caused a crash near Valley View Road and North Park Drive on April 21. His blood alcohol level was .272 at the time, prosecutors said…

“The bicycle had a motor that was no longer operating,” Braun told the judge during his request for a bond reduction. “The pull-cord was broken before the [crash].”

In agreeing to lower Braun’s bond from $20,000 to $10,000, Judge Joseph Condon said the state has no evidence that the motor was working…

But prosecutors said they believe the charges are valid. Even if the motor wasn’t working, the charges would still stand, (Assistant State’s Attorney Ryan) Blackney said, because the bicycle was not in “junk status.”

Because of a prior record that includes three drunken driving convictions – those from driving an actual car – if convicted on the bicycle charges, he’d have to serve a mandatory minimum of three years in prison and would not be eligible for probation or supervision.

Three years in state prison for riding a bike under the influence.  That should teach him…to just use a car next time.