Monthly Archives: March 2011

Driving Under the Influence of…Bath Salts?

Just when you thought it couldn’t get more ridiculous….

DUI Arrest May Be a First; Case Seen as a Legal Challenge

Wilkes-Barre, PA.  March 31 — The arrest of a Throop woman on evidence of driving under the influence of bath salts is believed to be the first in the region and possibly the state.

As the case against Michele Pace, 39, begins a slow process through the court system, a defense lawyer believes there is a good chance it may end sooner than later.

City police charged Pace as the driver of a Chevrolet that was pursued from the busy intersection of Kidder and Scott streets to George Avenue on Monday. Police alleged Pace was swerving in traffic and nearly struck a utility pole and other vehicles before being boxed in a driveway by a detective and another officer, according to charges filed.

Police said in the criminal complaint that Pace and a passenger, Donna Zilla, 40, of Dunmore, were under the influence of bath salts. Two children in the vehicle were not injured, police said.

Pace and Zilla “appeared highly euphoric, aggressive and agitated. They were unable to control simple body movements, and when answering questions, both were flailing and talking quickly,” the complaint says.

Pace was charged with driving under the influence of bath salts…

"Friends don’t let friends bathe and drive!" 
(Thanks to David Baker.)

Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia

As regular readers of this blog are painfully aware, over the past 7 years I’ve posted ad nauseum about the inaccuracy and unreliability of breath machines used in drunk driving cases.  See, for example, How Breathalyzers Work – and Why They Don’t, Breath-Alcohol Testing: "State of the Art"?Report: Breathalyzers Outdated, Unreliable, Unstable and "Close Enough for Government Work".  In fact, a few days ago I wrote about the Washington D.C. Attorney General throwing out dozens of DUI cases and investigating hundreds of others because of breathalyzer accuracy issues.  See Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines.

For those doubters out there who thought this was just an isolated instance, consider today’s news:

Philadelphia To Review All Breathalyzer-DUI Cases From 15 Months 

Philadelphia, PA.  March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams  declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete. 

Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

The real bill will be some time in coming.

Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.

Thousands of citizens are convicted every day of driving with a blood-alcohol level of .08% — based entirely upon the readings of these machines.  In a "trial by machine", the results of these devices legally establish a rebuttable presumption of guilt and are considered proof beyond a reasonable doubt.  See Whatever Happened to the Presumption of Innocence? and Trial by Machine

(Thanks to Ari Weiner.)

U.S. Senators Want Apple to End DUI Checkpoint Apps

Senators are now pressuring Apple and others companies to remove internet applications which warn motorists of drunk driving roadblocks.

Senators Ask Apple, Google, RIM to Pull Checkpoint Apps 

Washington, DC.  March 22
— Four Democratic senators on Tuesday penned a letter to Apple, Google, and Research in Motion to urge the companies to remove apps that provide users with information about DUI checkpoints.

"With more than 10,000 Americans dying in drunk-driving crashes every year, providing access to applications that alert users to DUI checkpoints is harmful to public safety," according to the letter, which was signed by Sens. Harry Reid, Chuck Schumer, Frank Lautenberg, and Mark Udall.

The senators asked the companies to remove the apps, unless the app creators remove DUI or DWI checkpoint functionality.

"One application contains a database of DUI checkpoints updated in real-time. Another application, with more than 10 million users, also allows users to alert each other to DUI checkpoints in real time," they wrote. "Giving drunk drivers a free tool to evade checkpoints, putting innocent families and children at risk, is a matter of public concern.

How conveniently memories fade….

As I’ve summarized in past posts (see, for example, DUI Sobriety Checkpoints: Unconstitutional?), a number of years ago the Michigan Supreme Court held that DUI roadblocks (aka "sobriety checkpoints) were unconstitutional.  Such warrantless stops, the court correctly concluded, were a violation of the Fourth Amendment to the Constitution since American citizens cannot be stopped in their cars without reasonable suspicion to believe that they had committed a crime.  

The United States Supreme Court thereafter reversed the state court.  In Michigan v. Sitz, Chief Justice Rehnquist essentially admitted that the stops were violations of citizens’ rights — but found that these were only minimal violations.  And these minimal intrusions, Rehnquist found, were outweighed by the more important interests of the government in ensuring safety on the highways.  However, the Court left to the states the role of determining how to minimize these intrusions.

The first state supreme court decision to define these regulations was Ingersoll v. Palmer.  In that landmark case, the California Supreme Court laid down the safeguards mentioned in Sitz.  These mandatory procedures specifically included "advance publicity":

Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, at page 1001 explained the value of advance publicity: "Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning may well decrease the chance of apprehending ‘ordinary’ criminals, but should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.

Any one of these goals, if achieved, would have the salutary effect of interfering with the lethal combination of alcohol and gasoline. Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening." (663 P.2d 992, 1001, conc. opn.Feldman, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.)  Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists. Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the observation, consistent with finding reasonableness under the Fourth Amendment, that [43 Cal. 3d 1347] "’[A]dvance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.’ [Citation.]" (Id., at p. 1080.)

Maybe the senators need a crash course in constitutional law….

Cops Caught Rubber-Stamping DUI Reports

I’ve posted repeatedly in the past about the increasingly common practice of police agencies using "templates" in drunk driving cases. See, for example, Pre-Written DUI Police Reports, Xeroxed DUI Symptoms and Ready-Made DUI Police Reports.  Instead of writing an official police investigation report after the arrest that summarizes the observations of the officer, they are essentially written before the arrest — containing such "facts" as driving symptoms, physical appearance and performance on field sobriety tests. This saves time, of course, but also ensures that commonly observed incriminating "evidence" is included — whether present or not.

A related issue involves the common requirement in law enforcement agencies of having all arrest reports reviewed and approved by a more experienced supervising officer. However, as with pre-written reports, the safeguards in DUI cases are increasingly being bypassed by rubber-stamping these "approvals"…

City Suspends DUI Cases While Police Investigate Rubber-Stamping of Arrest Reports  

Seattle, WA. March 21 — Seattle police have launched an internal investigation into the alleged mishandling of dozens of drunken-driving cases by members of the department’s DUI Squad, prompting city attorneys to put some prosecutions on hold.

City Attorney Peter Holmes said in a statement that his criminal division will review current and past driving-under-the-influence (DUI) cases to determine whether they may be affected by the pending findings of the police investigation.

The investigation, disclosed by sources familiar with the matter and later confirmed by the department, is focused on accusations that arrest reports weren’t properly screened and approved by a sergeant in the DUI Squad, as required under department policy. The investigation has forced the department to pull all but one member of its five-member DUI Squad from the street and assign them to desk duties, according to police…

Among the allegations is that the sergeant, David A. Abe, a 32-year veteran, routinely did not report to work and approved DUI arrests by telephone, one source said.

A rubber stamp then was used by DUI officers to affix the sergeant’s name to reports, the source said.

The practice has been going on for about a year, another source said.

The Police Department is looking into the possibility that the sergeant’s name was put on reports without first contacting him, the department said…

"The scope of the investigation at this point focuses on the administrative policy violation of screening all arrests with a supervisor in person, which department policy requires," the statement said. "This investigation is in its infancy. The scope may change as new information is developed."

Whenever officers arrest or detain someone in any type of crime, the Seattle Police Department manual states that a sergeant "shall be notified so that an in person review of the incident can occur … "

Once at the scene or the precinct, supervisors are supposed to review the circumstances of the arrest and the condition of the suspect. The supervisor is supposed to evaluate the appropriateness of any allegation, sign off on any jail booking or release, and ensure evidence is properly collected and preserved, according to the manual.

"It’s just an opportunity to have a second set of eyes look at the facts and circumstances of an arrest," said Sgt. Sean Whitcomb, the Police Department’s chief spokesman.

(Thanks to Ari Weiner.)

High Blood-Alcohol?….or Zinc Deficiency?

So you only had two beers, but the breathlyzer read .11%. What happened? Well, for starters, breath machines are generally inaccurate and unreliable. Then again, maybe you had a dietary deficiency. Scientific research appears to indicate that a high blood-alcohol level may not reflect high alcohol consumption, but rather a deficiency of zinc in the blood.

In a study conducted at the University of North Dakota, researchers discovered that the metabolism of alcohol was dramatically affected by zinc intake. For example, they found that for those subjects on a low zinc diet, blood-alcohol levels increased rapidly within 15 minutes of consumption of measured amounts of alcohol: roughly twice as much alcohol was present in their blood as was present in those subjects on normal zinc diets. Further, greater amounts of alcohol remained in the blood for longer periods of time when there was a zinc deficiency. 46 American Journal of Clinical Nutrition 688.

Interestingly, it has been discovered that individuals who regularly consume large amounts of alcohol develop zinc deficiencies. This deficiency will, of course, cause the higher alcohol concentration and slower elimination. In other words, it is the problem drinker who is most likely to have abnormal absorption and elimination of alcohol — and abnormally high blood-alcohol test results.