Monthly Archives: November 2013

Defendants Can’t Challenge Reliability of Breathalyzers

I don’t even know what to say about this latest ruling from my state’s Supreme Court — except the obvious:  our constitutional rights, at least in drunk driving cases, are quickly disappearing.

State Supreme Court Upholds Ruling in DUI Case

San Diego, CA.  Nov. 25 — The California Supreme Court has upheld a San Diego County man’s drunken-driving conviction, ruling that DUI suspects may not call expert witnesses to challenge the overall reliability of breath-alcohol tests.

The opinion, authored by Chief Justice Tani Cantil-Sakauye, says lawmakers have determined Breathlyzer-type tests to be fundamentally reliable as evidence in court, and that they shouldn’t be questioned in court. However, expert defense witnesses are permitted to question the calibration and use of specific machines used in a particular case.

The defendant, Terry Vangelder, was arrested by a California Highway Patrol officer for driving 125 mph on state Route 163 in 2007. He told officers he had two to three glasses of wine with dinner, according to the court document.  A handheld device calibrated his blood- alcohol content to be 0.095 percent and 0.086 percent. At the police station, an Intoximeter test showed readings of 0.08 — the minimum amount to be considered legally drunk in California.

At trial, the judge struck the testimony of a doctor who said that such instruments are scientifically flawed in accurately testing alcohol amounts in the body.  
The jury found Vangelder guilty of DUI based on the 0.08 result.

The state 4th District Court of Appeal reversed that verdict and ordered a new trial, but the San Diego City Attorney’s Office appealed to the higher court.

City Attorney Jan Goldsmith called the opinion, filed Thursday, another “victory in the war” against drunken driving…

Charles Sevilla, Vangelder’s attorney, said Friday the panel’s opinion was disappointing.

“This seems to be an extraordinary ruling, and we may have to test that in federal courts,” Sevilla said.

Imagine that.  I’ve repeatedly posted about the inaccuracy and unreliability of these breath machines.  See How Breathalyzers Work (and Why They Don’t), Breath Alcohol Testing: “State of the Art”?, Report: Breathalyzers Outdated, Unstable, Unreliable and “Close Enough for Government Work”.  Yet, these machines are the most critical evidence in a DUI case — to the point where it is becoming a “trial by machine”.  And now our state’s Supreme Court has simply said that you can’t question their reliability.  Whatever happened to the constitutional right of confrontation?  To the right to present evidence?  To scientific facts??

Another “victory in the war on drunk driving”?  Or yet another example of what I’ve termed The DUI Exception to the Constitution?  

More Crime Lab Breath Testing Errors Discovered in Orange County

I posted a few days ago about recently-discovered flaws in the Orange County (California) Crime Lab's breath calibration procedures.  This resulted in hundreds of citizens who were convicted on the basis of inaccurate breath test results — falsely high results.  See 900 Convicted of DUI in Orange County – Using Inaccurate Breath Tests.  

Apparently, further investigation has discovered more extensive defects in the crime lab's procedures. From the Los Angeles Times:

O.C. Crime Lab Finds More Errors in DUI Testing

The Sheriff and Board of Supervisors have asked the state health department to review the lab's standard's and procedures

Orange County, CA.  Nov. 22 — State officials are being asked to review the work of the Orange County Crime Lab after more errors were found in its blood-alcohol testing — mistakes that could potentially affect dozens of DUI cases.

The new discoveries come just weeks after the lab acknowledged inaccurate blood-alcohol test results in 2,200 driving-under-the-influence cases. Prosecutors responded by sending letters to drivers charged with DUIs, including 900 who already had been convicted.

Now, Sheriff Sandra Hutchens and the county Board of Supervisors have requested that the state department of health review the lab's procedures and case standards and present the results to elected leaders, officials said…

Do you really think these errors don't occur — undetected — in the crime labs where you live?  How would you know?  And how many innocent citizens have been falsely convicted based on such false evidence?

The “Nystagmus” Field Sobriety Test: A Fraud?

The critical part of any drunk driving investigation is the administration of the "field sobriety tests" (FSTs).  These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see "Field Sobriety Tests: Designed for Failure?"). 

Although there are many different tests (finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three "standardized" FSTs.  The most recently developed of these is horizontal gaze nystagmus (HGN), commonly known as the "eye test".  It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature.

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  (See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".)

A scientific study (144(3) Science and Justice 133-139) has investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, 
developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

"Deliberate fraud".  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on 
proof of merit, but upon 
qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.

Cops and the DUI Double Standard

I've written often in the past about the "double standard" in DUI law enforcement — particularly, the policy that cops get a free pass when it comes to driving drunk.  See, for example, The DUI Double Standard, The Blue Code: Cover-Up of a Cover-UpAnother Drunk Driving Cop Gets a "Blue Pass", "Professional Courtesy", Guarding the Guardians and The DUI Double Standard Continues

In today's news, yet another example of the double standard:

Some Cops Allowed to Work After Drinking 

Butler County, OH.  Nov. 18 — Law enforcement officers in some area communities can strap on a gun and issue tickets for drivers who are more sober than they are, a Journal-News investigation found.

The newspaper reviewed union contracts for local public safety offices, including the Ohio State Highway Patrol, and found that officers and firefighters are sometimes protected from discipline when they are at work with alcohol in their system.

These rules are often enforced by union contracts.

In Lebanon, where officers and firefighters can work with a .04 blood alcohol level, Police Chief Jeff Mitchell said he’s actively pursued more stringent alcohol rules to be written into the city’s union contracts.

Mitchell, who’s been in charge for nearly two years, said he negotiated his first union contract this past summer. He got the unions to remove a clause that allowed officers to suck on a breath mint before they were tested for alcohol, but couldn’t get union representatives to reduce the .04 limit to zero.

“When I came across that, I thought, ‘Wow, that’s different,’ ” Mitchell said, adding that breath mints can distort breathalyzer readings.
“Doesn’t that sound odd to you that you would have that in a contract with police?”

Mitchell said he’s never had to discipline an officer for using alcohol on the job and he believes the alcohol provision was added to the contract decades ago.
“My thought process is, ‘How does that look if the public looks at this and sees our contract?’”

Attorney Patrick Mulligan, who handles drunk driving cases across southwest Ohio, pointed out that drivers under age 21 can be cited for drunk driving with a blood alcohol content above .02. This means an officer could issue a ticket to someone more sober than he or she is.

“It’s an interesting double standard,” he said. “I don’t think it’s one the general public would appreciate.”

Mulligan said he handles two or three cases a month of drivers cited for drunk driving with a blood alcohol content less than .08. He said he currently is representing a man who was ticketed east of Cincinnati after being pulled over because of a loud exhaust system before being hauled in for drunk driving with a BAC of .053…

Doug Scoles, executive director for Mothers Against Drunk Driving in Ohio, said he doesn’t understand what would drive public safety agencies to include alcohol limits in their union contracts.

“I can’t, for the life of me, think of why it would be so important to have an acceptable level of alcohol permissible, Scoles said. “If I’m a law enforcement officer, I would be the last person in the world who would want to have alcohol on my breath when I pull someone over.”…

For those who find this shocking, you might want to look at the practices and policies in your own jurisdictions.  This double standard is far from limited to Ohio.

(Thanks to Joe.)

Don’t Smoke Pot and Drive…for a Month

So this is how insane it's all gotten….

Evidence of Pot Smoking Weeks Earlier Enough for DUI Charge, State Says

Phoenix, AZ.  Nov. 6 — A prosecutor argued Tuesday there’s nothing wrong with charging a motorist who smoked marijuana up to a month earlier with driving while drugged.

In arguments to the Arizona Supreme Court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. And she did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver’s license for a year.

Chief Justice Rebecca Berch questioned how far that logic can be stretched, asking Luder whether her argument falls apart if it turns out that Carboxy-THC can be measured a year, or even five years, after someone smoked the drug.

Luder said she understands arguments about why it may not be fair to charge someone 30 days later, “But that’s up to the Legislature to decide,” she said.

Justice Robert Brutinel also questioned where the line is drawn. He said some otherwise illegal drugs eventually metabolize all the way down to water.

“Where do you draw the line to when the metabolite’s no longer illegal?” he asked.

“It’s hard to say,” Luder responded.

The court ruling affects whether any of the 40,000 Arizonans who are legal medical marijuana users will effectively be banned from driving, given how long metabolite remains in the system. And it also makes potential criminals out of anyone else who drives and also has used marijuana in the last 30 days, including those who might be visiting from Washington or Colorado, where recreational use of the drug is legal.

The immediate court case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.

A trial judge threw out the charge. But the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”

Attorney Michael Alarid said that ruling effectively bans driving by anyone with the slightest amount of Carboxy-THC in the blood, “which is an absurd result.”

But Justice Scott Bales said the fact remains that anyone who tests positive for that drug had, in fact, used marijuana. And he said there is no way for police to “extrapolate backwards” to determine exactly when that person was impaired.

“If we don’t know that, wouldn’t it be reasonable for the Legislature to prohibit driving while you have Carboxy-THC in your system?” Bales asked.

Bales acknowledged some people who test positive for Carboxy-THC never drove when they were impaired. But he said, “if it’s a choice between erring on over-inclusive or under-inclusive, why isn’t that … a policy question for the Legislature rather than one for us?’’

Alarid, however, said the only issue is whether there is specific evidence of impairment while someone is driving, which police could determine.

A simple ban on driving with Carboxy-THC in the blood is not rationally related to the purpose of the statute, which is to protect the public from “impaired’’ drivers, he said.

The justices gave no indication when they will rule.


To put this into perspective, imagine the legislature in your state passing a law defining drunk driving to include anyone who the prosecution can prove has had a drink of alcohol within the previous month.  Of course, this is the logical extension of MADD's endless "War on Drunk Driving":   laws designed not to punish criminals or protect the public, but to make it easier to convict — guilty or not.

As for the deputy county attorney in this case, when I was a deputy D.A. many years ago we were taught that the canons of ethics required us to seek truth and justice — not just to win or convict as many people as possible.  Today, the running joke in prosecutors''s offices is, "Anyone can convict a guilty man, but it takes skill to convict an innocent one."

Times change…

(Thanks to Joe.)