Monthly Archives: January 2008
In today’s I-told-you-so department:
Judges Reject DUI Breath-Test Results
Seattle, Jan. 31 – In a ruling that could affect thousands of cases, a panel of King County judges said Wednesday that the state’s toxicology lab engaged in “fraudulent and scientifically unacceptable” practices that have compromised breath-test readings used to prosecute suspected drunken drivers…
In its blistering 29-page ruling, the panel of three District Court judges said the Washington State Toxicology Lab created a “culture of compromise” with so many “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” that the breath tests should not be used as evidence in pending DUI cases.
Do you really think that cover-ups of inaccurate and unreliable breathalyzer tests are limited to Seattle’s crime labs? See “Breaking Up the Forensics Monopoly” in Reason magazine, November 2007, which concludes:
Americaâ€™s forensics system, the part of our criminal justice system responsible for scientific examinations of crime-scene evidence like fingerprints and DNA, is rife with errors. Some mistakes, like botched tests or erroneously interpreted results, are inevitable. But current error rates are needlessly high.
The most recent comprehensive study of crime lab proficiency, published by the Journal of Forensic Sciences in 1995, analyzed the tests administered by the Forensic Sciences Foundation and Collaborative Testing Services as a part of the accreditation process. For many forensic disciplines, including the analysis of fibers, paints, glass, and body fluid mixtures, the rate of incorrect matches between recovered evidence and a reference sample exceeded 10 percent…
Confronted with such statistics, policy makers usually call for greater oversightâ€”that is, finding a governmental body to watch over forensics and make sure everyone does his or her job right. In the current climate, that certainly would help. But the core problem with modern forensics isnâ€™t an absence of oversight. Itâ€™s monopoly. Once evidence goes to a given lab or facility, it is unlikely to be examined by any other lab or facility. That increases the chances that a mistake will slip through undetected.
The “monopoly”, in most cases, are crime labs that are not independent but part of law enforcement – and increasingly more interested in facilitating convictions than in seeking accuracy and reliability in evidence.
When a person is arrested for DUI, his driverâ€™s license is confiscated by the arresting officer and he is given a notice of â€œadministrative suspensionâ€. He is also given a citation to appear in court to face criminal drunk driving charges. These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI or DWI) and driving with .08%, which takes place in the courts.
In other words, even though he only drove once, the individual is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?
It gets worseâ€¦.The driver has already been punished by another state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. If he is later convicted in the stateâ€™s criminal court of driving over .08% (and/or driving under the influence), he will be punished once again. The sentence may involve jail, fines, DUI schools, community work, probation â€” and a restricted, suspended or revoked license.
How many times can the state prosecute a person for a single crime?
Our Constitution says only once. The Fifth Amendment specifically provides that no person shall â€œbe subject for the same offense to be twice put in jeopardy of life and limbâ€. So is this another example of â€œthe DUI exception to the Constitutionâ€?
Letâ€™s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, â€œthe test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not.â€ Sering v. State, 488 N.E.2d 369 (1986). The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is usually presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So itâ€™s ok to prosecute and convict him for both crimes â€“ so long as you donâ€™t punish him for both.
Well, what about punishing the driver by suspending his license when heâ€™s arrested â€” and then punishing him again in court? In fact, punishing him in court with a sentence that may include another license suspension?
This one caused the judges a bit more trouble. This wasnâ€™t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitutionâ€¦.
The courts could not agree. Some said that there was no double jeopardy or double punishment since the DMV license foreiture was not really a â€œpunishmentâ€ but only a â€œcivil sanctionâ€. Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a â€œcivil sanctionâ€ was actually a punishment â€” and thus double jeopardy â€” if (1) the â€œclear focus of (the statute) is on the culpability of the individualâ€, and (2) the legislature â€œunderstood these provisions as serving to deter and punishâ€. The Court added that â€œthe historical understanding of forfeiture as punishmentâ€ weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.
Well, relying upon the Supreme Courtâ€™s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement, insurance companies and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court.
In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Courtâ€™s ruling: â€œWe believe that Halperâ€™s deviation from long-standing double jeopardy principles was ill-consideredâ€¦.Halperâ€™s test for determining whether a particular sanction is â€œpunitiveâ€, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkableâ€. Hudson v. U.S., 592 U.S. 93 (1997).
Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driverâ€™s license of a drunk driving suspect is merely administering a â€œcivil sanctionâ€, not punishmentâ€¦.and that when he is later convicted in court and is fined, jailed and has his license suspended again, well thatâ€™s not really double jeopardy or multiple punishment. It just looks an awful lot like it.
From Lewis Carroll, Through the Looking Glass:
â€œWhen I use a word,â€ Humpty Dumpty said, in a rather scornful tone, â€œit means just what I choose it to mean, neither more nor less.â€
â€œThe question is,â€ said Alice, â€œwhether you can make words mean so many different things.â€
â€œThe question is,â€ said Humpty Dumpty, â€œwhich is to be master â€” thatâ€™s all.â€
Thatâ€™s right. What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds â€” including quite a few which can be found on the human breath. And this machine that determines a personâ€™s guilt or innocence will â€œseeâ€ all of those chemicals as alcohol â€” and report a falsely high â€œblood-alcoholâ€ concentration (BAC).
Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed â€œblood-alcoholâ€ reading.
Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific â€” that is, they are not capable of detecting and measuring a specific compound. More important for government work, they are relatively cheap. Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use only one or three less-costly filters. Result: these machines can only detect and measure a broad range of compounds containing the methyl group â€” and they then simply assume that the unknown compound within this group is ethyl alcohol.
If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the breath-alcohol level.
So what kinds of compounds may be on a personâ€™s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered. â€œTrace Composition of Human Respiratory Gasâ€, 30 Archives of Environmental Health 290. In another study invoviing 28 subjects, researchers found that the â€œcombined expired air comprises at least 102 various organic compounds of endogenous and exogenous originâ€. â€œCharacterization of Human Expired Airâ€, 15 Journal of Chromatographic Sciences 240. And Canadian scientists have discovered over 200 such compounds. â€œThe Diagnostic Potential of Breath Analysisâ€, 21(1) Clinical Chemistry 5.
What are these compounds? Are there any on my breath? Well, for starters, diabetics with low blood sugar can have high levels of acetone â€” which is â€œseenâ€ as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, â€œThe Likelihood of Acetone Interference in Breath Alcohol Measurementsâ€, 3 Alcohol, Drugs and Driving 1. And there are many other so-called â€œinterferentsâ€. See, for example, â€œExcretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanolâ€, 9 Journal of Analytical Toxicology 246.
If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde â€” reported by the breathalyzer as â€œalcoholâ€ â€” is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.
And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you donâ€™t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if youâ€™ve painted a room or been around gasoline in the last day or two, donâ€™t breath into a breathalyzer.
Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved â€” specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.
The latest weapon in MADD’s politically correct War on Drunk Driving:
New Law Strengthens DUI Penalties
San Jose, CA. ABC News – Each year, an estimated 17,000 people are killed in drunk driving crashes.
In October the governor signed a bill that got by-partisan support to strengthen the law against first time DUI offenders.
The bill requires everyone getting a driver’s license to sign a statement indicating they know that driving under the influence is dangerous and could result in death. The statement goes on to read that if they choose to drive impaired and kill a person, they understand they can be charged with murder.
The bill had backing from Mothers Against Drunk Driving, AAA and the CHP…
Well…It’s all a word game. You see, a death resulting from drunk driving is punishable as manslaughter (vehicular or involuntary manslaughter). But a death that is intentional, or involves the mental state of malice, is punishable as murder. So what is "malice"? Well, the courts have said it is a wanton and reckless indifference to human life. Hmmm…ok, so what is that?
Well, in a drunk driving case, the California courts have said it is driving a vehicle while under the influence (or with .08% blood-alcohol) — if you know that doing so is dangerous to human life. Hmmm…doesn’t everyone know that? I mean, duh?
Well, maybe. If the person was drunk enough and truly knew that he was dangerous. But what if he didn’t think he was that drunk or dangerous?
Yes, but what if that person signed a piece of paper saying that all DUI or driving with .08% is dangerous? Then everyone can be charged with murder — and the manslaughter statutes, which intended for DUI homicides, can be ignored and the .08% driver can be put away for life…just as if he intended to murder someone.
Manslaughter becomes murder…for signing a piece of paper.
My last post concerned the current efforts by the Governor of Washington to get legislation authorizing drunk driving roadblocks. This would trump their own Supreme Court's holding that these roadblocks violate the state constitution's prohibition against stopping citizens for no apparent reason. But it would appear that, once again, there is a growing backlash against this never-ending "War on Drunk Driving" — and on our Constitution. An example:
Stopping You for No Reason
Ridenbaugh Press, Jan. 8 – When Washington Governor Chris Gregoire was explaining on Monday her rationale behind her new security checkpoint program, she pointed out that we already have security stops and checks at courthouses and airports. In many of those places, we do; and the proposed expansion of governmental stops and checks of citizens who are minding their own business and violating no law is one of the exact reasons we disapprove of them so much. Where will the quest for â€œsafetyâ€ and â€œsecurityâ€ lead us next? How much more thoroughly will the Fourth Amendment be eviscerated in the name of keeping people safe?..
The freedom to travel from place to place without being stopped by government authorities – absent some specific reason why you should be – is core and central to freedom in America. Every one of these generalized stops and checkpoints of people undermines that, a point courts generally have upheld over the years, including courts in Washington when this kind of idea was proposed in the last decade.
And for DUI exclusively? You can see this coming: Agencies will want to piggyback other agendas on top of this one, just as the Patriot Act, supposedly solely an anti-terrorist measure, has been used much more for other purposes. Have no doubt, if this approach takes affect, it will happen. Where it will end, where its practical limits will be, remain unclear.
What this most specifically would accomplish would get Americans ever more accustomed to another stop and search routine of them by their government. And that is how the fourth amendment, and the sense of what it is to live in a free country, gets gradually whittled away.
As I've pointed out in the past, these so-called "sobriety checkpoints" are well-known to be ineffective in apprehending drunk drivers. Instead, they are increasingly being used as revenue generators and illegal subterfuges to stop innocent citizens for unrelated matters. Indeed, as the writer above has asked, where will it end? If you permit DUI roadblocks in clear violation of the Fourth Amendment, this sets a precedent for other roadblocks – and, as at airports, serves to get citizens used to such governmental intrusions.