Monthly Archives: September 2007

DUI Survey — or Roadblock?

As if unconstitutional police "sobriety checkpoints" weren’t enough, we now have privately-run but police-enforced roadblocks:

Alcohol Surveys Spur Complaints

A motorist who was stopped wants a halt to voluntary testing that is so "persistent" it feels like a DUI checkpoint. 

Denver, CO.  Sept. 18  -  The Gilpin County Sheriff’s Office was apologizing Monday after a weekend effort to help a research group led to complaints about what appeared to be a DUI checkpoint – but wasn’t.

Sheriff’s officials who participated in the stops now acknowledge that the nonprofit organization requesting voluntary DUI and drug tests from drivers was overly persistent, according to complaints.

Sgt. Bob Enney said deputies assisted the Pacific Institute for Research and Evaluation in stopping motorists at five sites along Colorado 119 for surveys on any drug and alcohol use. Surveyors then asked the motorists to voluntarily submit to tests of their breath, blood and saliva. At least 200 drivers were tested, Enney said. About five motorists later complained, he said.

Pacific Institute officials defended the initiative. They said the collection of vital statistics measuring, over time, the number of people driving under the influence helps gauge the impact of laws and enforcement policy changes.

"We’ve been literally surveying thousands of people," said John Lacey, the director of the Alcohol, Policy and Safety Research Center in Calverton, Md., through which Pacific Institute conducted its research. "So you can imagine if you stop people in the middle of the night, there will be complaints."…

Cathryn Hazouri, executive director of the American Civil Liberties Union of Colorado, said the participation of sheriff’s officials and the blue jumpsuits worn by the survey team may have confused some of those who were stopped.

And what do you think those deputy sheriffs would have done if any of those motorists had tested positive or had alcohol on his breath?  And doesn’t that make it an unauthorized de facto police DUI roadblock?  So…If police can’t get authorization for a roadblock, why not just set up a "survey" roadblock?

(Thanks to David O’Shea and Jeanne M. Pruett.)

Court Rejects Field Sobriety Test

The most critical evidence in a drunk driving case, after the blood or breath test, is the battery of field sobriety tests administered roadside by the officer before deciding whether to arrest.  These ”tests” are designed in theory to determine any impairment which may affect the safe operation of a vehicle. 

In fact, field sobriety tests (FSTs) simply test the physical skills and experience of the subject; a physically fit officer who has performed them hundreds of times will perform far better than an elderly, overweight, injured or unathletic person who is completely unfamiliar with the tests.  Add to this that the suspect is nervous and/or scared,  is attempting them in the dark late at night, in front of a police car with flashing lights, on a sloped roadside, with cars whizzing by within a few feet, possibly on high heels….Well, you get the picture.    

As I’ve mentioned in past posts, these “tests” are unreliable and highly inaccurate (see Field Sobriety Tests: Designed for Failure? and Are Field Sobriety Tests Valid?).  And this has been clearly demonstrated in scientific research. 

In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had “had too much to drink and drive”. Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00% — stone sober. The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, “Field Sobriety Tests: Are they Designed for Failure?”, 79 Perceptual and Motor Skills Journal 99 (1994).

A common reply from police and prosecutors to these criticisms is that one of the FSTs is not affected by any of these considerations:  horizontal gaze nystagmus (HGN).  Basically, this test involves the officer observing and estimating measurements of a suspect’s eyeball movements.  However, the test was never designed for detecting driving impairment nor for determining actual blood-alcohol levels, nor is the officer remotely qualified to administer this opthamological test — and certainly not under roadside conditions.  (See my earlier posts, Nystagmus: the “Eye Test”,  Nystagmus: The ‘Eye Test’ (part 2), Nystagmus: The ‘Eye Test’ (part 3), and DUI ‘Eye Test’ a Fraud?)

Years ago, when HGN was first introduced by police agencies around the country, the courts refused to admit the results into evidence — on the grounds there was no scientific accceptance of the test for determining alcohol impairment.  Gradually, however, and with considerable political pressure from prosecutors and MADD, local courts gradually began admitting HGN into evidence.  And the seemingly scientific nature of the test proved to be very impressive to juries.

Recenly, the Illinois Supreme Court considered whether HGN should continue to be admitted into evidence.  Two days ago they filed their decision:  No — not without a hearing where the prosecution must prove that the test is scientifically accepted.  Illinois v. McKown (Docket No. 102373, filed September 20, 2007).

(Thanks to Illinois attorney Donald J. Ramsell.)

Breathalyzer Software Revealed

As I’ve indicated in previous posts, defense attorneys for years have been trying to discover the software source code used by manufacturers of various breathalyzer models.  (See "Secret Breathalyzer Software Still Secret")   The accuracy of these  machines, which essentially determine a suspect’s guilt or innocence, depends upon the accuracy of the software driving them; as the computer techs say, "Garbage in, garbage out".  But the manufacturers have refused to produce the information, relying upon a claim of "trade secrets" — that is, that the code of each model is a unique creation of the manufacturer.  And prosecutors, apparently more concerned with profits than with justice, have joined them in resisting disclosure.

Recently, however, judges in Florida, Minnesota, New Jersey and a growing number of other states have begun ordering the manufacturers to reveal the inner workings of their machines to the defense.  (See "Judge: Divulge Breathalyzer Code…or Else".)  Not surprisingly, the manufacturers have refused to comply.  Until a few days ago….

New Jersey attorney Evan M. Levow was finally able to get an order from the Supreme Court of New Jersey forcing the manufacturer of the popular Draeger AlcoTest 7110 to reveal the source code.  Levow turned the code over to experts, Base One Technologies, to anaylze.

Initially, Base One found that, contrary to Draeger’s protestations that the code was proprietary, the code consisted mostly of general algorithms:  "That is, the code is not really unique or proprietary."  In other words, the "trade secrets" claim which manufacturers were hiding behind was completely without merit.

Some of the more interesting excerpts from the Base One report:

 1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete "white box" and "black box" testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the "trial and error" method. Several sections are marked as "temporary, for now". Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough…

7. Flow Measurements Adjusted/Substituted: The software takes an airflow measurement at power-up, and presumes this value is the "zero line" or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement…

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported…

Based upon a .08% reading from this machine, American citizens are accused of drunk driving and, in court, presumed by law to be guilty.