Monthly Archives: September 2008

Police Roadblocks in the New America

When the U.S. Supreme Court in a 5-4 decision validated DUI "sobriety checkpoints" (aka police roadblocks), Chief Justice Rehnquist admitted that they were a clear violation of the Fourth Amendment to the Constitution.   However, he wrote in Michigan v. Sitz, the "minimal intrusion" into citizens’ protected right to privacy was "outweighed" by the government’s interest in reducing DUI-caused fatalities.

Although the decision limited the use of roadblocks to apprehension of drunk drivers, it was not difficult to foresee that police would soon go beyond this.  And, in fact, there has been a growing increase in the use of roadblocks for purposes other than DUI detection.  See, for example, my earlier posts Sobriety Checkpoints: The Slippery Slope and The Slow Death of the Fourth Amendment.  Or just look around you….

Police Checkpoint Seeks Illegal Guns

Mt. Vernon, NY.  Sept. 28  -  Drivers entering the city from the Bronx via First Avenue last night encountered the first police checkpoint searching for illegal guns.

Amid flashing lights and flares in the roadway, more than a dozen officers were pulling over every third car to ask for permission to search for guns and check for other crimes such as drunken driving.

Hmmm…..Roadblocks to check for guns "and other crimes" — in other words, stopping you on the highways without probable cause to see if you’re doing anything wrong or have anything illegal in the car.  So much for the Fourth Amendment. 

But then, you don’t have to give the police your "permission to search", right?  Wrong.  Does anyone seriously believe that if you refused permission, you would be sent merrily on your way?

(Thanks to David O’Shea.)

DUI…or Anemic?

I’ve commented repeatedly in the past about the inaccuracy and unreliability of breath-testing devices used in DUI investigations. This is due to a wide range of factors, including inherent design defects (see, for example, my previous post “Why Breathalyzers Don’t Measure Alcohol”); ineffective calibration and maintenance of the machines; improper administration of the test; radio frequncy interference; and, most importantly, physiological variability in humans.

The main problem with breath machines is that they are designed to assume all human beings are the same (see “Convicting the ‘Average’ DUI Suspect”). In fact, we are all very different from one another in ways that are critical to such testing — and we are ourselves physiologically different from one moment to the next.

Each of us, for example, is inherently different in our partition ratio — the ratio of alcohol in our breath compared to alcohol in our blood — and this ratio differs within ourselves from hour to hour (see “Breathalyzers — and Why They Don’t Work”). This is critical, as the breathalyzer will automatically compute the amount of alcohol in the blood based upon the measured alcohol on the breath — using a uniform ratio that (falsely) assumes we are all the same. Another human variable is the existence of such conditions as diabetes (see “Diabetes and the Counterfeit DUI”), acid reflux (“GERD, Acid Reflux and False Breathalyzer Results”)…. and anemia.

A person suffering from anemia has a low red blood cell count, perhaps half as much as would be normal. Put simply, when there are fewer red blood cells, the body will increase the amount of plasma to fill the void. Red and white blood cells are solid; plasma is liquid. Alcohol is attracted to liquid in the body, not muscle, bone, or other solids. It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer.

The male-female average hematocrit is 45% (men average 47%, women 42%), but the range varies for men from 42 to 52%, and for woman from 37 to 47%. The machine, of course, assumes that all suspects have a hematocrit of 45%. The effect of an individual’s hematocrit on breath analysis can be mathematically computed. The partition ratio of alcohol in blood to alcohol in breath uniformly used in breath testing is 2100:1. If the suspect’s hematocrit is, say, 54%, the breath test result could be computed by multiplying it by 45/54. Assuming a breath test result of .09%, for example, the true blood-alcohol concentration could be determined by the formula .11 x 45/54 = .07%.

In other words, a person with a true BAC of .07% but a hematocrit of 54% would test on an otherwise “accurate” machine as .09%.  The machine "proves" the innocent citizen guilty - just because he or she is anemic (or simply varies from the statistical norm).

Do DUI Laws Discriminate Against Women?

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are guilty. It does not matter, of course, whether you are a man or a women: the laws do not discriminate. Maybe they should…

Researchers at the University School of Medicine in Trieste, Italy, found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less than men. To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much; with weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists’ conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, “High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism”, 322(2) New England Journal of Medicine 95 (1990).

Yet another study has found that women have lower “partition ratios” of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person’s breath. But the what we really want to know is the amount of alcohol in the person’s blood. So how do we get that? Simple: a small computer in the Breathalyzer multiplies the amount of alcohol it detects in the breath sample by 2100 times. This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath. (Note: that’s an average — but it varies from person to person.)

According to the study, women have a significantly lower partition ratio. Jones, “Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma”, Analytical Toxicology 193 (July/August 1983). And the lower the ratio, the higher the reading — even though the true BAC does not vary. Example: a woman with a true BAC of .06% and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09% — above the legal limit. Put another way, the breath machine will show an average man accused of drunk driving to be innocent — but a woman with the same blood alcohol level to be guilty.

And then there’s the problem of birth control….

Scientists in Canada have found that “women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S.” Papple, “The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman, 15(1) Canadian Society of Forensic Science Journal 17 (1982). That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one hour later.

Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases. So what? Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don’t really measure alcohol, rather they measure any compound which contains the “methyl group” in its molecular structure. And acetaldehyde is one of these compounds. Result: a higher “blood alcohol” reading on the Breathalyzer. Jeavons and Zeiner, “Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans”, 8(4) Alcoholism: Clinical and Experimental Research 352 (1984).

It’s always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same.

Perspectives and Priorities

Now if MADD were truly interested in saving lives on our highways rather than in eradicating the “evils of alcohol”…

Study: Texting More Dangerous Than DUI 

 LONDON, Sept. 19 (UPI) — Young drivers who send text messages while operating a motor vehicle are at more risk than those who drive drunk, a British study released Thursday finds.

The study was carried out by a research group TRL for the Royal Automobile Club Foundation. TRL used an automobile simulator to compare the effect of texting on reaction time and other measures of driving ability to those of cell-phone use, drinking and drug use.

An engineer involved in a deadly crash between a Los Angeles commuter train and a freight train is believed to have been sending text messages while operating the train, officials said. He was one of 25 people killed in the collision.

"The participants in this study were almost unanimous in their view that drunk driving was the most dangerous action on the road," said Stephen Glaister, head of the RAC Foundation. "Yet this research clearly shows that a motorist who is texting is significantly more impaired than a motorist at the legal limit for alcohol."

Judge Orders Secrets of Breath Machine Revealed

As I’ve written in past posts (Secret Breathalyzer Software Still Secret), defense attorneys have repeatedly tried to gain access to the secret software used to run the various models of breath-testing machines.  As the geeks say, "garbage in, garbage out":  erroneous or badly written software will result in erroneous test results — and thousands of citizens wrongfully convicted of DUI.  Yet, manufacturers have refused to turn the software code over, claiming "trade secrets".  The real reason: neither they, the police nor the prosecution want the loss of public confidence that would result from disclosure of inaccurate and unreliable software.

Bottom line:  Profits trump justice.

This wall of silence was breached some time ago when the New Jersey Supreme Court ordered the manufacturers of the AlcoTest 7110 to turn over the source code.   See Secret Breathalyzer Software Finally Revealed.  That code was analyzed by a software laboratory.  To no one’s great surprise, the laboratory found the software to consist of no "trade secrets", but rather of non-proprietary and very primitive and defective code.  As the experts concluded in their report:

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…

Despite this beacon of light in the judicial darkness, the courts of other states continue to ignore the pleas of the accused to confront their accusers.  Remember:  in the courts of most states, a citizen is rebuttably presumed by law to be guilty if one of these machines reads .08% or higher.  See my post Whatever Happened to the Presumption of Innocence?  But cracks are appearing in the wall of silence.  Courts in Florida, for example have ordered the source code turned over to the defense – a court order the manufacturers have refused to follow.

Yesterday, an Arizona court ordered the manufacturers of another breath-testing device, CMI Corporation’s Intoxilyzer 8000, to turn over the software code to the defense.

Lawyers Win Access to DUI-Test Software

Defense wants to test if Intoxilyzer is accurate

Tucson, AZ.  Sept 13  -  Defense attorneys scored a major victory Friday when a Pima County Superior Court judge ruled they should be given access to the software that powers a breath-testing machine used on suspected drunken drivers.
For the past several months, defense attorneys throughout the county have been arguing that they should be given the "source code," or software, used in the Intoxilyzer 8000.
The attorneys say the source code is needed to determine whether breath tests administered by the Tucson Police Department and the University of Arizona Police Department are accurate and reliable. (The Pima County Sheriff’s Department and the Arizona Department of Public Safety take blood samples.)
The defense attorneys maintain the issue is a constitutional one; defendants have the right to cross-examine and confront their accusers.
Prosecutors have maintained that experts have other ways to determine if the test results are reliable. They also say the source code is a trade secret and shouldn’t be disclosed.
On Friday, Judge Deborah Bernini ruled that the source code is not a trade secret. She noted that the president of CMI, the company that manufactures the machine, testified that the Intoxilyzer 8000 is not patented, and neither is its copyright on the source code.
Bernini ordered CMI to turn over the source code to attorney James Nesci, who is the lead counsel on all of the cases…
City Court judges have split on the issue, with six siding with the defense attorneys, two siding with prosecutors and one not yet issuing a ruling. Justice Court judges have refrained from issuing any rulings, preferring to wait for Bernini to issue her ruling.
In the City Court cases, the judges not only ruled that the defense attorneys should have been given the source code, but they prohibited prosecutors from using breath-test results against about 170 defendants…
"An inaccurate machine is of no benefit to anyone," Nesci said. "Inaccurate results could mean imprisonment for innocent people and exoneration for the guilty. People have the right to know how these machines get their results."
Pima County attorneys aren’t the only ones battling with CMI, the producer of the Intoxilyzer 8000, Nesci said.
Law enforcement officers across Arizona began using the Intoxilyzer 8000 last year, Nesci said.
Police like the device because it weighs half of what its predecessor weighs and can be powered by a squad car’s cigarette lighter, Nesci said.
Six other states have been battling CMI over the source code — Minnesota, Florida, Louisiana, Massachusetts, Tennessee and New Jersey.
"CMI has currently racked up over $1.2 million (in fines) in a civil contempt order for not disclosing the source code" in Florida, Nesci said.
The machine also failed to meet precision and accuracy testing in Tennessee, so law-enforcement agencies there are prohibited from using it, Nesci said…
 Are the days of secret trial by machine finally nearing an end?