A promising new tactic in the “War on Drunk Driving”:  Go after the lawyers….or their wives.

Arrested for DUI Without Drinking a Drop of Alcohol

Phoenix, AZ.  May 29 – Heather Squires was the designated driver. Never exactly a fun thing, but a college buddy of her husband’s was driving up from Tucson to celebrate his acceptance into law school. So when her husband, Jason, asked, Heather said yes.

At Chuy’s in Tempe, Heather’s brother and her husband and the soon-to-be-law-school student knocked off four pitchers of beer. Everybody was having a great time.

Around 9:30 p.m., they decided to head home. So they piled into Jason Squires’ new pickup truck. As planned, Heather drove.

They didn’t get very far.

A motorcycle cop spotted the truck as Heather drove through the intersection of Baseline Road and Mesa Drive. Not familiar with the truck, she’d failed to flip on her lights. Soon the cop was flipping on his — and they were flashing.

Heather was ordered out of the vehicle and almost immediately handcuffed. She was taken to the Mesa Police Department and charged with both driving under the influence and driving with a blood alcohol content over the legal limit. The truck was searched, then impounded.

Heather Squires was no different from any of the thousands of people who’ve been charged with DUI this year in Arizona. They drank, they got busted, and now — thanks to the toughest DUI laws in the nation — they can expect jail time, big fines, and an ignition interlock.

Except for one thing.

Heather Squires’ blood alcohol content that night was 0.00. The records prove, beyond the shadow of a doubt, that she was an exemplary designated driver.

She hadn’t had a drop to drink…

The arrest should never have happened. And though Mesa police quietly dismissed the charges against her a month later, her case still raises serious questions.

Let’s face it. The DUI situation in Arizona is out of control. As I reported earlier this year, drivers are getting popped after just one or two drinks, with blood alcohol contents far below the legal limit.

But Heather’s case is the only one I’ve seen in which the driver drank nothing. It certainly makes me wonder whether her treatment was related to the fact that her husband, Jason, is a DUI attorney based in Mesa.

A few months before Heather’s arrest, in fact, he helped a client beat the rap for extreme DUI at a jury trial, even though records suggest the guy was guilty.

The officer who arrested the guy? Bond Gonzalez — the same cop who would arrest Heather Squires.

I’ve posted in the past about efforts to attack defense attorneys who defend citizens accused of drunk driving.  See, MADD’s Solution: Get Rid of the Lawyers; New MADD Strategy: Shut Down the Lawyers; MADD: Lawyers the Cause of Continuing DUI Fatalities.  But going after their wives is a new one…

I’ve written repeatedly in the past about the inaccuracy and unreliability of the various breath machines used to estimate blood alcohol concentrations.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Breathalyzer Inaccuracy: Testing During the Absorptive State.  

Yet, our MADD-influenced laws increasingly ignore scientific evidence and rely upon these machines to establish proof beyond a reasonable doubt — assisted by more laws that now presume guilt based upon a reading over .08% from one of these machines.  See Whatever happened to the Presumption of Innocence?.  Even more laws presume that the blood-alcohol level at the time of testing was the same as when driving, say, three hours earlier.  See How to Overcome Scientific Facts: Pass a Law.   Quite literally, these devices have become judge, jury and executioner. 

However, some judges across the country are beginning to take a closer look at these machines…

Breath Test Won’t Prove Some DUIs

A Snohomish District Court judge says there are too

many questions about reliability. But the tests are

accepted at Everett Municipal Court.

Everett, WA.  May 20 – Police and prosecutors better have more than a breath test to prove someone was driving drunk when they walk into one Everett judge’s courtroom.

Snohomish County District Court Judge Tam Bui last week ruled that she will not accept breath tests measuring a person’s alcohol level because of a litany of problems with the state’s testing process.

The way the state has been conducting the tests is flawed, and until changes are made at the Washington State Patrol Toxicology Lab, the results can’t be used as evidence in her courtroom, Bui ruled…

Jurors should be allowed to hear the results of the breath tests, as well as the problems with the lab and make their own decisions about the weight to give test evidence, said Snohomish County deputy prosecutor Charlie Blackman.

“The decision essentially says that many small errors, which in our opinion have no scientific significance, result in the courts viewing the evidence not reliable enough for a jury to consider,” Blackman said. “We think that’s wrong. We think you can trust a jury to sort this out.”

Trust a jury to sort it out?  After the judge is required by law to instruct the jury that they must rebuttably presume guilt if the machine says .08% ?

An Arizona judge threw out the breath tests in 49 drunk driving cases yesterday….because the manufacturer refuses to let the defense look into its machines.  Thank god for a few honest and gutsy judges still left…. 

I have posted in the past about a battle being fought in courts across the country — notably in Florida, Minnesota, New Jersey and Arizona — concerning the right of an accused to take a closer look at the all-important breath  machine.  Under our current legal system, that machine has essentially become the judge, jury and executioner.

Trial by machine.  But how can this be?

Let’s review the laws, which are essentially similar across the country now due to increased federal pressure and MADD’s influence on state legislatures.  Let’s assume you’ve been arrested for “drunk driving” and you take a breath test which gives a .09% blood-alcohol concentration (BAC) reading.

First, your license will immediately be seized by the officer and he will serve you with a notice of suspension from the DMV: the so-called .08% per se suspension.  That’s it.  And the only evidence to support this immediate suspension at the police station is…the machine.  In most cases, unless you appeal the suspension and are able to prove the machine was wrong, your license remains forfeited.

Second, you will be criminally charged with driving with .08% or higher BAC.  The only evidence for this in most cases will be…the machine.  The machine is rebuttably presumed by law to be reliable and accurate.  In other words, unless you are able to show that the machine is wrong, the jury is told you are presumed to be guilty

Third, you will be charged with “driving under the influence” (DUI), “driving while intoxicated”  (DWI) or “operating a vehicle while intoxicated” (OWI); each state uses different terminology.  The primary evidence for this charge will be…the machine.  Most states now have laws which impose a legal presumption of intoxication if the BAC was .08% or higher.

In other words, unless you are able to prove that the machine was wrong, the jury will be instructed that you are presumed to be guilty.

But it takes time to investigate the suspect in the field, transport him to the station and prepare the breath  test.  Commonly, this can take an hour or two, often more.  So…if your BAC was .10% at the station, what was it two hours later when you were actually driving?  We know that alcohol can take 1/2 to 4 hours to absorb, so the BAC may well have been lower when driving.  No problem.  Again, our state legislatures have relieved prosecutors of that awkward scientific fact, as the following statute from California exemplifies:

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 three hours after the driving.  California Vehicle Code sec. 23152(b)

Again, presumed guilty…unless you can prove the machine was wrong. 

Ok, so everything depends upon proving the machine was wrong.  How do we do that?

Well…there are two ways, really.  You can have your breath sample re-analyzed by an independent laboratory,  just as can be done with a blood or urine test. Or you can look inside one of these machines and inspect its brain — the software programs that run everything.

Fine.  Let’s try the first method: get the breath sample from the police and have it reanalyzed.  Except that the breath sample was thrown away.  In all police agencies today, the all-important breath sample is dispersed into the air — despite the easy availability of cheap capture devices.  When this constitutional denial of the right to access evidence was raised on appeal to the California Supreme Court, the conviction was reversed:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

Not so fast, said the U.S. Supreme Court, which reversed the California Supreme Court and decided that to require saving the breath sample “the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means.”  California v. Trombetta, 467 U.S. 479 (1984).  A classic Catch-22: you have to save the breath sample only if it clearly shows him to be innocent.  Why would you then be charged?

Result: no police agency in the U.S. today bothers to save the breath samples.

Hmmm….Ok, but at least we can take a look inside, can’t we?  I mean, we can see if the software running it is accurate and reliable, right?  After all, the U.S. Supreme Court attempted to justify its dubious decision by pointing out that the accused could always inpsect the machine itself:

To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations.

Now, I’ve written ad nauseum in the past about all of the reasons why these devices are inherently unreliable and inaccurate.  See, for example, How Breathalyzers Work and Why They Don’t, Close Enough for Government Work, Why Breathalyzers Don’t measure Alcohol, The Mouth Alcohol Problem and Breathalyzer Inaccuracy: Testing During the Absorptive State.  Yet, they are cloaked with an aura of infallibility — to the extent of imposing presumptions of guilt.

Well, at least the Supreme Court says the accused citizen has the right to “inspect the machine”, right?

Wrong. 

This is the battle that is being fought around the country today…and, as usual when DUI is involved, largely being lost.  Problem:  the prosecutors don’t have the software code to turn over, nor do the police or the police laboratories.  The code inside of the machine is the property of the manufacturers.  Problem: the manufacturers have all refused to provide their codes, hiding behind the “trade secrets” theory.

Unfortunately for the manufacturers, the Supreme Court of New Jersey recently ordered one maker to turn their “secret” code over to the defense or lose its exclusive contract with the state.  The code was then turned over to defense attorneys, who turned it over to a specialized computer laboratory, which then turned over its findings.  As I layed out in an earlier post (Secret Software Code Finally Revealed),  the results indicated that the software was…a mess.  Nor was there nothing unique about the codes to justify characterizing as “trade secret”.  After pointing out numerous technical problems, the report concluded:

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…

No wonder the manufacturers didn’t want to let anyone look at what was inside their profitable little machines.

They shouldn’t worry.  Their machines will continue to be kept secret, breath samples will continue to be safe from re-analysis, test results will continue to be accepted by courts as proof beyond a reasonable doubt, and citizens will continue to be presumed guilty based upon them.

I mentioned in my previous post how new statistics show that millions of Americans admit to having driven with .08% blood-alcohol in the previous month.  As Draconian as DUI penalties have become, one would nevertheless hope that the offense would not destroy the accused’s life, at least for a first offense.  Increasingly, one would be wrong…

Cadet Gets Confinement, Dismissal for Drunk Driving

West Point, NY.  May 14 — A U.S. Military Academy cadet was found guilty of drunken driving by a military judge and sentenced to dismissal from the U.S. Army yesterday.

The verdict came less than three weeks before Dixon was due to graduate with the class of 2008.

Dixon was formally charged in December with violating two articles of the Uniform Code of Military Justice: drunken and reckless operation of a vehicle, and conduct unbecoming an officer and a gentleman…

The judge sentenced Dixon to one year and one month confinement, dismissal from the Army and foreiture of all pay and allowances.

What do you do when literally millions of American citizens admit to violating a law on a regular basis — say, at least once a month?  How do you catch that many?  How do you build enough jails?  Or is it time to maybe take a second look at that law?   

 Study: 9% of Us Admit to Drunk Driving

U.S.A. Today  -  Despite nearly 30 years of media campaigns detailing the dangers of drunken driving, almost one in 11 people admit to driving when they thought they were legally intoxicated, according to a survey released today by the AAA Foundation for Traffic Safety.

 Of 2,509 adults surveyed, 9% said they had driven within the previous 30 days when they believed their blood-alcohol content was .08% or above, the legal threshold for drunken driving in all states and Washington, D.C. The AAA Foundation is a non-profit research and education group founded by AAA auto club in 1947.

The results resemble those of an unrelated, larger study released last week by the federal government. The Substance Abuse & Mental Health Services Administration’s survey of 127,000 adults found that 15% of drivers 18 and older said they had driven under the influence of alcohol at least once in the past year.

"It’s frightening," says Aaron White, adjunct assistant professor of psychiatry at Duke University Medical Center who studies drunken driving among young people. "If you’ve got 10% of the people saying I drove when I was over the legal limit, you’ve probably got another chunk of people that would say I drank and drove but I wasn’t over the limit."

White and his colleagues just completed a study of 5,000 recent high school graduates; they found 10% of the grads had drunk and driven within two weeks of being questioned…

Think about that.  Millions of people in the U.S. are driving with .08% blood-alcohol on a fairly regular basis – and that’s just counting the ones who admit it.

Maybe it’s time to recognize certain realities.  Rather than dismantling the Constitution and destroying the lives of countless citizens who statistically pose little danger, perhaps we should take a closer look at how the law addresses the problem.  Such as recognizing that a .08% blood-alcohol  level is an arbitrary figure, failing to recognize individual tolerance to alcohol.  The original level, as recommended years ago by the American Medical Association, was .15%.  See my post, DUI, MADD and the New Prohibition.  

Such as focusing instead on the small percentage of drivers who pose the greatest risk of harming others. 

The simple fact is that a small percentage of drivers pose the largest risk – those who abuse alcohol.  As any experienced DUI attorney will tell you, the risk is not from the vast majority of drivers who are over an arbitrary .08% level; it is from the chronic alcoholic who has a .24% BAC.  See my previous post, Time for a Change. 

So what was MADD’s reaction to the newly-released statistics?  From the same U.S.A. Today article:

 

…The most effective way to combat that attitude is with mandatory ignition interlocks for anyone convicted of drunken driving, says Heidi Castle, vice president of communications for Mothers Against Drunk Driving. "People continue to drive drunk because they can, and ignition interlocks stop that," she says.
 

A typically naive and simplistic approach to a complex problem.  See my guest editorial in Business Week:  MADD Announces End to Drunk Driving: A Reply.