Monthly Archives: July 2014
With the amount of law enforcement and checkpoints out on the streets this past weekend, it was inevitable that I would be asked questions at the party I attended for the 4th of July. Over the years, I’ve gotten used to being the go-to person for legal questions even on my days off. In discussing checkpoints with another guest of the party, they were surprised to learn that they were legally allowed to turn away from a checkpoint. They reacted like most do when learning that it is, in fact, completely legal to turn away from DUI checkpoints.
The United States Supreme Court, in the landmark case of Michigan Department of State Police vs. Sitz, held that, unlike a normal “seizure” which requires probable cause, checkpoints need not have such probable cause. The Court reasoned that the slight intrusion into the motorist’s privacy rights was outweighed by the government’s interest in keeping drunk drivers off the road.
The California Supreme Court held in Ingersoll v. Palmer that random sobriety checkpoints are “administrative procedures” rather than “criminal investigations” and, as such, are akin to agricultural checkpoints and airport screenings. The Court went on to say that there are factors which must be weighed to help determine the constitutionality of the checkpoint:
1.) The location of the checkpoint should be made at the supervisory level.
2.) The selection of vehicles stopped should be based on a neutral mathematical formula (such as every third car) rather than officer discretion.
3.) The checkpoint must be safe with proper lighting and signs.
4.) The checkpoint must be visible to oncoming motorists.
5.) The location of the checkpoint must be reasonable and in area most likely to yield DUI arrests.
6.) The time and duration of the checkpoint should minimize intrusiveness and maximize effectiveness.
7.) The length of the detention of motorists should be no longer than necessary to determine if a person is driving drunk.
8.) Law enforcement should publicize the checkpoint to minimize intrusiveness and maximize the deterrent effect of the checkpoint. In 1993, the California Supreme Court, in People v. Banks, stated that although publicity is not a requirement of checkpoints, it helps.
In addition to these factors, the Court stated that motorists who seek to avoid the checkpoint must be allowed to do so. Most checkpoints have officers waiting in idle patrol cars ready to chase after motorists who attempt to leave. It goes without saying that if an officer sees a motorize attempt to avoid a checkpoint, they’re automatically suspicious that the person is driving drunk.
But here’s the catch: They cannot pull someone over unless they have probable cause to believe the motorist committed a crime or a traffic violation.
Merely avoiding a checkpoint does not give them that probable cause.
Making an illegal U-turn does. Driving improperly does. A malfunctioning break light does. And it doesn’t matter that the officer has the ulterior motive of investigating for a DUI as long as the officer has the probable cause to pull someone over independent of the motorist’s avoidance of the checkpoint. But you can be sure that if the officer does pull someone over, they’ll be looking for the telltale signs of a drunk driver: bloodshot eyes, smell of alcohol, slurred speech, etc.
In fact the Court in Ingersoll said, “A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint.”
So if you decide to avoid a DUI checkpoint, make sure that you do so legally and know that even if you do, law enforcement will be watching you and waiting for you to slip up.
Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison. When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law. There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.
In time, the magic science of the box became the subject of scrutiny. Experts questioned its accuracy, both internally and theoretically. After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood. It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.
Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages. And this black box made it easy-peasy to nail the culprits.
And then there was the question of why the digital readout number was a real number in any event. Courts blindly relied on the integrity of the magic box, because it seemed very sciency and lawyers love science, even if we know nothing about it. It removes the dilemma of having to think too hard about evidence. Thinking too hard gives people headaches. So does booze. Headaches are bad. Stop the headaches…
But there was a chance, a tiny crack, that we could revisit the efficacy of the beloved black box when a petition for a writ of certiorari was submitted to the Supreme Court of the United States in the case of Terry Vangelder out of San Diego.
The case comes from San Diego County, where Terry Vangelder was stopped by a highway patrolman in December 2007 after driving his pickup truck at speeds of more than 125 mph. With Vangelder’s consent, the officer administered two breath tests that registered .095 and .086 percent.
At Vangelder’s trial, the defense offered testimony by Michael Hlastala, a University of Washington professor of medicine and physiology. He said breath-testing machines are unreliable because they measure the content of exhaled air, which can be affected by the rate of breathing and other variables, rather than air that is deep in the lungs and closer to the bloodstream.
Vangelder’s lawyer, Charles Sevilla, argued that the California ruling was “unduly trusting in the infallibility of government testing of these machines.” Unduly, as in the box was handed down to Moses on Mt. Sinai…That argument was, as we now know, rejected by the Court. Thus, the black box continues to be immune to question. Or, as Greenfield writes, “No peeking behind that curtain. The black box retains its magic.” Unchallenged, the box will continue to send innocent citizens to jail.
The United State Supreme Court recently refused to hear what might have been a landmark DUI case. In doing so, the United States Supreme Court essentially denies the ability of DUI defendants to introduce facts at their trials.
A San Diego trial court prevented Terry Vangelder from introducing expert testimony that breathalyzers are inherently inaccurate and Mr. Vangelder was convicted of drunk driving. The California Supreme Court upheld the trial court’s decision and Mr. Vangelder’s conviction. Mr. Vangelder, through his attorneys, appealed to the United State Supreme Court. The United State Supreme Court denied review of Mr. Vangelder’s case leaving the California Supreme Court’s decision intact: defendants cannot broadly challenge the accuracy of breathalyzers in DUI cases will stand.
While DUI defendants may still challenge the accuracy of the particular breathalyzer used in their respective cases, they may not introduce evidence that breathalyzers are generally inaccurate…even though they are.
So why are breathalyzers inaccurate? Let me count the ways…
The breathalyer cannot differentiate between the alcohol in an alcoholic beverage and the alcohol produced after the ingestion of some foods. Common foods which contain yeast or sugar, if caught in the teeth, can produce low levels of alcohol called “mouth alcohol.” If a person suffers from gastroesophageal reflux disease (GERD) or heartburn, the contents of their stomach gets regurgitated (via a burp or mild vomiting of stomach fluid) into the mouth. This too produces low levels of alcohol. Under both circumstances, a breathalyzer can provide an inaccurate elevated breath reading.
Several studies have shown that elevated body temperatures can cause an elevated reading on a breathalyzer. Researchers in one such study entitled “The Myth of Breath Test Accuracy, What the Studies Have Really Shown” concluded that one degree centigrade change in breath temperature can cause a change in blood alcohol content reading by 6.5 percent. Other studies have estimated the change to be as high as 9 percent.
No two people are the same. Breathalyzers however, cannot account for every single person’s differences. Breathalyzers collect air, which contains alcohol, from deep within the lungs. The alcohol gathered from the breath is multiplied by 2,100. This number is called the “partition coefficient” and represents the “average” multiple to calculate the amount of alcohol in that person’s blood.
Certain diets, such as the low-carb diet, can create false breathalyzer readings. When a person goes on the low-carb diet, their body performs “ketosis.” During ketosis, the body burns fat for energy. The molecules generated by process are called ketones. Ketones create isopropyl alcohol. Breathalyzers cannot tell the difference between isopropyl alcohol and ethanol, which is the alcohol consumed when drinking an alcoholic beverage.
Breathalyzers, through repeated use, begin to malfunction. As a result, breathalyzers must be frequently calibrated. This is done using known air with known amounts of alcohol. If a breathalyzer is not calibrated properly or frequently enough, it may produce inaccurate results.
The abovementioned shortcomings of breathalyzers are not speculation, conjecture, or theory. They are facts, scientific facts. With so much at stake for DUI defendants, why the United States Supreme Court and the California Supreme Court refuse to allow facts to be introduced in DUI cases is beyond me.