Monthly Archives: August 2012

Is a Citizen Accused of DUI Permitted to Defend Himself with Scientific Facts?

I’ve expounded on this blog at great length in recent years on the unreliability and inaccuracy of the various machines used to measure the breath of citizens accused of drunk driving.  See for example,  "Trial by Machine "– But How Good Are the Machines?.  I’ve also blasted the unconstitutional laws of most states which presume the accuracy of these machines.  See If You Can’t Prove It, Make the Defendant Disprove It.   In many cases, as in my home state of California, the defense is even prohibited from offering critical scientifically-accepted evidence of the machine’s defects.  See DUI and the Presumption of Guilt.

A classic example of this law-trumps-science is the banning of evidence of partition ratio.  Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect.  The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood.  Problem:  We are not all average.  And ratios vary from 1100:1 to 3500:1.  This can cause blood-alcohol test results to vary by as much as .05%.  An accused with a BAC reading of .11% (over the .08% limit), for example, might actually have a true BAC of as little as .06% — well under the limit.

A couple of years ago, the California Supreme Court finally ruled that a defendant should be permitted to defend himself with that widely-accepted scientific fact. (And, I’m proud to say, the Court cited my book California Drunk Driving Defense three times as authority in its decision.)

California Supreme Court Says Defendants Can Challenge 

Breathalyzer Results

The court permits drunk-driving defendants in some cases to question blood-alcohol findings, which are sometimes inaccurate depending on factors such as gender and medical conditions.

Los Angeles Times
.   July 9
  – Accused drunk drivers now have more ammunition for challenging Breathalyzer findings as a result of a unanimous ruling Thursday by the California Supreme Court.

The ruling is expected to make drunk-driving cases more complicated and possibly more difficult to prosecute, lawyers said. Courts in two other states, Arizona and Vermont, have reached similar conclusions.

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual’s medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

"The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence" in certain cases, Justice Carol A. Corrigan wrote. The court’s answer was yes.

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday’s ruling permits defendants in some cases to challenge those results based on mathematical ratios.
"Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing," Corrigan wrote.

San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was "going to make DUI trials a little more difficult to put on" because more technical evidence will be permitted.

"The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt," Vos said.

Jamie L. Popper, the appellate defense lawyer in the case, said the ruling will ensure that juries have the information they need to judge a case.

"The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure," Popper said…


Amazing.  It takes a Supreme Court ruling to allow a citizen accused of DUI to defend himself with established scientific truth. 

But….in a typical retreat from logic, the Court limited the admissibility of partition ratio evidence to defending against the charge of driving under the influence — not to the accompanying charge of driving with .08% blood-alcohol concentration (BAC).  So…you can use scientific facts that the BAC reading is faulty to defend yourself against the BAC-based presumption of being under the influence – but not against the charge that your BAC was .08% or higher.


How Accurate is Detection and Evidence of Drugged Driving?

I’ve written long and hard over recent years about the inaccuracy and unreliability of breath alcohol and blood alcohol testing.  See, for example, How Breathalyzers Work – and Why They Don’t.

Increasingly, however, cops are confronted with a different kind of impaired driving:  driving under the influence of drugs (or under the combined influence of drugs and alcohol), also known as "drugged driving".  In almost all states, this is a criminal offense treated the same as drunk driving, even if the drugs are legally prescribed.

So how accurate and reliable is law enforcement in detecting driving impairment from drugs?  How good are crime labs at determining levels of impairment with quantitative and qualitative analysis?

Not every.

The following is part of a report from the National Highway Traffic Safety Administration of the U.S. Department of Justice.  Entitled "Priorities and Strategies for Improving the Investigation, Use of Toxicology Results, and Prosecution of Drug-Impaired Driving Cases — Findings and Recommendations" (DOT HS 810 708), the internal report paints a bleak picture not intended for public awareness. 

There is no clear correlation between blood drug concentrations and impairment for many drugs.

In DUI cases involving alcohol, a clear understanding has developed over the past 50 years regarding the relationship between increasing blood alcohol concentration and impairment. Tolerance to the effects of alcohol have been well characterized. Morever, the limitations it places on expert testimony are consistent and generally accepted by toxicologists.

The same cannot be said for drugs. The amount of research carried out is significantly more limited, and in the case of recreational drug use, researchers cannot ethically administer the doses of drugs typically taken by regular users. Other confounding factors include the common practice of combined drug or drug and alcohol use, where the interactions are not well known or understood. Additionally many drugs, particularly stimulants and narcotics, have markedly different effects in the acute phase from the later or withdrawal phases, even though the concentrations may be similar.

These limitations are a challenge. However research on this topic must continue and should be supported by laboratories, universities, drug companies, and funding agencies. This area of research is currently neglected. Because of these limitations, standard approaches to DUI prosecution that work well for alcohol, where there is a known relationship between alcohol concentration and impairment, may not be the optimum approach for DUID. Alternatives such as drug per se statutes, particularly for illicit drugs that are illegal in all circumstances, should be considered.

Does that last sentence sound familiar?  Years ago, the Feds put pressure on the states to adopt new DUI laws:  drunk driving per se statutes.  Since accurately detecting alcohol impairment was often difficult, the "driving under the influence" or "driving while impaired" laws were supplemented by a so-called per se law: it was illegal per se (in and of itself) to drive with a blood-alcohol level of .10%.  With intense pressure from MADD, this was later lowered to .08%.  

Thus, if a citizen were suspected of drunk driving and was tested at above .08%, in most states he would be charged with both crimes — DUI and the per se offense — and could even be convicted of both.  It did not matter whether or not he was "drunk" or his ability to drive was impaired.

The whole point of the per se laws is to avoid the difficulties of proving a driver was impaired.  Impaired ability to drive is no longer relevant:  the crime is simply  in having alcohol in the system. 

In this report, the Feds are now recognizing that the situation is even worse for drugged driving: there is no known way to determine for many (if not most) drugs how much is required to render a driver impaired.  As with alcohol per se laws, then, the Feds are recommending "solving" the problem by simply ignoring impairment and calling for laws making driving with the mere presence of the drug a crime.  And since they can’t determine what levels of hundreds of different drugs to outlaw, they will simply treat them the same and outlaw any amount of any of those drugs.

Easier to arrest, easier to prosecute, easier to convict…even if the driver was never a danger to anyone.


Thanks to attorney Troy McKinney  of Houston, Texas.

Cop Frames Citizens for DUI – for the Overtime

A cop makes a good DUI arrest, writes an honest report, and the suspect usually ends up pleading guilty or plea bargaining; the cop never appears in court.  But if a cop makes a bad drunk driving arrest — and falsifies the report to get charges filed — the innocent suspect will probably refuse to plead guilty and demand a jury trial.  Result:  the cop ends up in court and, since most arrests occur during the night shift, racks up time-and-a-half overtime payments.  

4 Officers Charged with Falsifying Reports on OT Scheme Plead No Contest

Honolulu, HI.  Aug. 13 - Four Honolulu police officers, charged with falsifying DUI arrest reports so that officers who weren’t pres­ent would qualify for possible overtime, have pleaded no contest and have the chance to clear the charges from their criminal records.

Duke Zoller and Aaron A. Bernal, both sergeants, and officers Christoper and Patrick Bugarin were members of what used to be called the Selective Enforcement Unit, which conducted nighttime DUI checkpoints. It’s now called the Night Enforcement Unit.

All four were scheduled to stand trial on charges of tampering with a government record and being an accomplice in state court Monday.

Unusual?  Hardly.  See, for example, my post Cop Makes $172,000/year on DUI Arrests (this Houston DWI Task Force cop’s normal salary was $72,000). 

Cops and Common Sense

When you gotta go….

Ohio Cops May Not Prevent a Call of Nature

Columbus, OH.  Aug. 10
– The Ohio Court of Appeals late last month overturned a man's conviction for public indecency after police refused to allow him to use the restroom during an overly long traffic stop. On March 7, 2011, Springfield Police Officer William Evan pulled over a car that passed that had a stuck horn which blew continuously. Robert S. Wilcox was a drunk passenger in the vehicle. During the stop, he refused to identify himself to the officers.

This annoyed the patrolmen who ordered him out of the vehicle for a frisking. Wilcox did finally give them his name and asked urgently for permission to use the nearest restroom, which was five blocks away at a gas station. The police refused. Wilcox was told he was not under arrest but that he needed to sit inside the stopped vehicle. Wilcox could not hold it.

While the officers were busy writing up citations for the driver, Wilcox relieved himself on the grass next to the car. Officers then arrested him for public indecency. In the process of a search, he was found to be carrying cocaine and heroin. At trial, a Clark County Court of Common Pleas judge sided with Wilcox.

"He was not committing acts, but rather responding to a natural biological function, for which, under his intoxicated condition, he had diminished capacity to control and under circumstances which were acerbated by the refusal of the officers to allow him to leave to find a more appropriate facility, even though there were no facts justifying the defendant's further detention," the lower court wrote.

Prosecutors appealed, insisting the officers did nothing wrong. A three-judge panel ruled instead that it was Wilcox who had been treated improperly.

"A passenger, unlike the driver of a vehicle, is not legally obligated to carry identification or to produce it for a police officer," Judge Jeffrey E. Froelich wrote for the appellate panel. "An officer making a traffic stop may order passengers to get out of the car pending completion of the stop due to the added danger to an officer when a passenger is present and the minimal additional intrusion on the passenger."

The appeals court found that there was no reason to suspect Wilcox had been engaged in illegal activity.

"While the officers acted lawfully in stopping the car and asking basic questions of Wilcox, the passenger, they violated his constitutional rights when they insisted that he remain in the car or at the scene of the traffic stop while the driver's citation was issued," Froelich wrote. "When the police determined that Wilcox would not be allowed to drive the stopped vehicle, they had no basis to keep him at the scene while the citation of the driver was completed. Wilcox should have been allowed to walk away from the scene when he expressed a need to do so."…

From the definition of the legal defense of "duress" from Black's Law Dictionary:  "Unlawful constraint exercised upon a man whereby he is forced to do some act against his will".  And from Black's definition of the legal defense of "coercion":  "Where the relation of the parties is such that one is under subjection to the other, and is thereby constrained to do what his free will would refuse."

Not to mention the cop's lack of probable cause to detain, false imprisonment….and criminal stupidity.

Would You Want This Cop Stopping You on the Highway?

If only this cop was the rare exception to the norm.  What makes it newsworthy is that the prosecutors finally did something about this one….

Transferred for Bad DUI Arrests, Pinellas Deputy Fighting to Get Old Job Back

Largo, FL.  July 30 – Pinellas County sheriff’s deputy John Hubbard is fighting to get his old job back after being transferred from patrol to bailiff last year.

That happened after an internal affairs investigation determined Hubbard’s DUI investigations "lacked important/sufficient information to prosecute the cases."

"Upon review of the COBAN videos relating to several of your DUI cases, you were found to be demeaning and abrasive towards citizens," Hubbard was told in a disciplinary memo. "… During meetings with Assistant State Attorneys, you made inappropriate and unprofessional comments."

Hubbard is appealing those findings and has a hearing scheduled for Aug. 9. He told Bay News 9 there are many reasons why he wants to get back to "keeping the streets safe."

“One, I’m very effective there, and two, I make a lot more money,” Hubbard said. “I had a take-home car, which was taken from me. I made 10 percent differential and I made a lot of overtime.”

According to an inter-office disciplinary memo, Hubbard was also suspended for 160 hours and had to undergo a fitness-for-duty evaluation.

Internal affairs officials investigated 38 arrests deputy Hubbard made between January 2010 and June 2011, all but one of which was for DUI. In 24 of those cases, the investigation found, the DUI charge was either dropped or reduced because either the suspect’s blood-alcohol content was barely at or under the legal limit of .08 or the driver refused the tests after interacting with Hubbard…

According to the report, internal affairs began investigating Hubbard when the assistant state attorney in charge of misdemeanors at the time, Holly Grissinger, called Lt. Glenn Luben at the Pinellas County Sheriff’s Office and notified him of a list of cases that were "either refusals or a low blow."…

Grissinger said prosecutors were not comfortable playing Hubbard’s videos for a jury because of Hubbard’s demeanor, according to the deposition.

"I felt that if those videos were broadcast, if the public saw those videos, that they would have a huge problem with his behavior and how he treated the people during a criminal investigation, whether they should have been arrested or not," she said…

Internal affairs investigators interviewed a couple more assistant state attorneys who complained about Hubbard.

According to the report, while assistant state attorney Dyana Sisti and Hubbard were watching a video together of a woman he arrested for DUI, the deputy said, “Yeah, yeah, shake your (expletive) honey,” as the woman stood in front of the cruiser…

According to the report, assistant state attorney Tony Carlow told investigators Hubbard told him he relies solely on the HGN test to determine sobriety in all his DUI investigations. "He does not care about the outcome of the field sobriety exercises," Carlow is quoted as saying…

During the investigated period, the report found, Hubbard arrested six drivers for DUI whose blood-alcohol content was under .08 and urine tests results for drugs came back clean. On the videos, Hubbard can be seen telling three of those drivers he believes they’re impaired based on their eyes.

"Well, the HGN that I checked your eyes … you miserably failed that," Hubbard said to one of those drivers.

According to the report, DUI expert Capt. Teresa Dioquino and Carlow both said Hubbard was doing the HGN test wrong.

“Deputy Hubbard is moving his pen from side to side too quickly to do the test properly,” Carlow said…

“I do feel like I do know what I’m doing,” Hubbard said. “I can check your eyes, a lot of people’s eyes, and I can tell … if it’s alcohol only and what their breath result will be.”

Dioquino, however, doesn’t agree.

"The training deficiencies are quite evident," she said…

This is the second time Hubbard has been demoted in his 24-year career with the sheriff’s office. According to reports, Hubbard was demoted from sergeant to patrol deputy in 2009 after it was determined he created a hostile work environment…

Sounds like this cop creates a hostile investigating environment, too.