Monthly Archives: February 2008

Breathing Paint Fumes = High Breath Test Results?

In “Why Breathalyzers Don’t Measure Alcohol”, I mentioned one of the many reliability problems breath machines have: they falsely report any of thousands of chemical compounds as “alcohol”. 

Scientific studies have clearly proven this defect, a problem referred to as non-specificity.  My post “Driving Under the Influence of…Gasoline?” presented a practical example of one such compound. But is gasoline the only chemical product that has been proven to falsely register as alcohol on these machines?

Far from it. See, for example, “The Response of the Intoxilyzer 4011AS to a Number of Possible Interfering Substances”, 35(4) Journal of Forensic Sciences 797, where researchers found numerous common substances which were falsely reported by breathalyzers as alcohol — including methyl ethyl ketone, which is used in lacquers, paint removers, cements, adhesives, celluloid and cleaning fluids. Another compound, toluene, also caused false high readings and is commonly used in paints, lacquers, varnishes and glues.  Yet another is isopropanol, commonly known as rubbing alcohol. Fumes from these chemicals can be inhaled or absorbed through the skin.

In an interesting scientific study, researchers performed tests on a professional painter who was exposed to lacquer fumes under controlled conditions. In the first test, he sprayed paint in a room for 20 minutes, wearing a protective mask; his blood and breath were then tested. Although the blood test showed no presence of alcohol, a breath machine (Intoxilyzer 5000) indicated a reading of .075% blood-alcohol concentration –very close to the legal limit of .08%.  “Lacquer Fumes and the Intoxilyzer”, 12 Journal of Analytical Toxicology 168.

Yet another scientific study discovered that diethyl ether, found in some plastics and automotive products, can be inhaled and detected by breathalyzers as “alcohol”. “Diethyl Ether Interference with Infrared Breath Analysis”, 16 Journal of Analytical Toxicology (1992).  The researchers concluded that “the possibility of interference with an alcohol reading by ether or by other substances may therefore render prosecution more difficult if not impossible.”

The Thin Blue Line Exception

Just the most recent example of the double standard applied when cops, prosecutors or judges are busted by honest officers for drunk driving:

Officer Found Not Guilty of OUI Charge

Northborough, MA.  Feb. 19  –  A judge has cleared a town police officer of drunken driving after throwing out his blood alcohol reading because it was taken at the hospital without his consent.

Earlier this month James Scesny, 38, of Clinton, was found not guilty of driving under the influence of alcohol and not responsible for a charge of marked lanes violation by Fitchburg District Court Judge Andrew Mandell.

The charges stemmed from a May 2007 accident in Clinton in which Scesny and his girlfriend were injured when the car he was driving struck a telephone pole.

The case was headed toward a jury trial, but at a Feb. 1 hearing Scesny's attorney, Michael Erlich, requested a bench trial. Two weeks earlier, a Clinton District Court judge allowed Erlich's motion to keep the blood alcohol test out of the trial.

Two blood samples taken by Clinton Hospital staff were tested by the Massachusetts State Police Crime Lab and both found a 0.168 blood alcohol level, according to a crime lab document in the court file.

Erlich argued that police took the samples without his client's permission, and that authorities did not follow proper chain of custody protocol before sending them samples to the crime lab.

Erlich said his client refused to be tested when asked by three Clinton Police officers at the hospital.


So the drunk driving case was thrown out because…there was no breath test?  Hmmm…so what do they do in roughly 25% of DUI arrests where the suspect refuses to take a breath test?  Just let him go?  Oh, right, they charge him with drunk driving anyway — and prosecute based on evidence such as witnesses, driving symptoms (weaving, accidents), personal symptoms (slurred speed, bloodshot eyes), field sobriety tests, incriminating statements and the arresting officer's opinion….Unless the guy's a cop.

(Thanks to Andre Campos)

Washington State Says “No” to DUI Scarlet Letter

I posted yesterday about the Washington State legislature recently refusing to cave in to the Governor and others interested in resurrecting DUI roadblocks found to be illegal by the state supreme court.  In today’s news, that same legislature again balked at further insanities in the "War on Drunk Driving". 

Bill Proposes Yellow License Plates for DUI Drivers

Olympia, WA.  Feb. 12 — Sen. Mike Carrell wants everyone on the road to know who’s been caught driving drunk.

He’s sponsoring a bill that would require people convicted of drunken driving to put fluorescent-yellow license plates on their cars for one year — once their driving privileges have been restored…

Ohio, Iowa, Minnesota and Oregon have similar requirements for DUI offenders.

A few days later:

DUI Bill Dies, No Doubt From Embarrassment

Olympia, WA.  Feb. 15 — Finally, common sense prevails in dealing with the state’s laws on driving under the influence of liquor and drugs.

A bill steeped in election-year, get-tough-on-crime grandstanding has quietly gone to the burial ground for bad bills in the state Legislature. It failed to make it out of the Senate Transportation Committee before Tuesday’s deadline…

The gaudy plates would theoretically warn the motoring public and law enforcement that someone convicted of DUI is on the road, even though that person already has jumped through the hoops demanded by tough state laws and has had driving privileges restored.

That embarrassment factor seems like piling on when DUI offenders can already face jail time, even if for a day, higher insurance rates, mandatory counseling and suspended or restricted driving privileges.  

Wouldn’t it be nice if all politicians had such common sense and respect for their citizens? 

Washington State Says “No” to DUI Roadblocks

As many of you know, the United States Supreme Court in Michigan v. Sitz found that although sobriety checkpoints were apparent violations of the Fourth Amendment, they were only ”minor” violations.  Permitting police to stop citizens without reason to believe they had done anything wrong, Chief Justice Rehnquist said, was permissible in view of the government’s ongoing “War on Drunk Driving”.  (See my earlier post, ”DUI Sobriety Checkpoints: Unconstitutional?”)

Subsequently, politicians — fearful of MADD’s influence at the polls — have authorized the use of DUI roadblocks in 41 states.  Others, including Washington State, have rebelled at this refusal to protect their citizens’ right to privacy and have banned the practice by relying upon their own state constitutions. 

Recently, there has legislation proposed in Washington designed to avoid their own state Supreme Court’s ruling that DUI roadblocks were illegal.  The Governor of the state, Christine Gregoire, has very publicly thrown her political muscle behind the new bill…

DUI Roadblock Bill Dies in Olympia

Olympia, WA.  Seattle Times  –   Gov. Christine Gregoire suffered her first major defeat of the 2008 Legislature on Thursday when her push for drunken-driving checkpoints died without enough support from lawmakers…

But the plan encountered strong, bipartisan resistance in the Legislature. Critics said the Washington constitution’s privacy protections, which are stronger than those in federal law, prohibit police searches without a greater degree of suspicion.

Rep. Steve Kirby, D-Tacoma, said he heard loud and clear from constituents that the police roadblocks weren’t a good idea. He agreed.

“To me, this is a step away from letting the police stop us on the streets and search our pockets and our backpacks,” Kirby said.

It’s unfortunate that the politicans of so many other states are more concerned about MADD than about the rights of their citizens.      

The Fading Right to Jury Trial

Ok, the cop said I looked bad on the field sobriety tests, but I know I’m not guilty: I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Well…Not necessarily. This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental to the framers of our Constitution that they included it in the Bill of Rights’ Sixth Amendment? It makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

How did the government get around this fundamental right? Well, once again they started whitling away by playing around with words. (As Humpty Dumpty said Lewis Carroll’s Through the Looking Glass, “When I use a word, it means just what I choose it to mean, neither more nor less.”)

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in “serious” criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for one-half year was not enough to justify giving a citizen a right to trial by his peers. The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York 399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — AND a bunch of other stuff: fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury? No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”