Monthly Archives: August 2014

Can a Person Be Charged and Convicted of Attempted DUI?

Let’s envision a scenario: a man is drinking rather heavily at a bar. Barely able to stand, the man closes out his tab and stumbles to his car intending to drive home. However, after getting into his car, the man unsuccessfully attempts to fit the key into the ignition because he’s just that drunk. The man then passes out before he is able to start his vehicle. Unbeknownst to the man, an officer has witnessed the man’s unsuccessful attempts at driving home.

Since California DUI law requires that a person actually drive a vehicle, the question becomes, “can a person be arrested for attempted DUI?” Does such an offense even exist?

States are divided as to the answer. However the issue in California was addressed by the California Appellate Court in the 1989 case of People v. Garcia, 262 Cal. Rptr. 915.

In People v. Garcia, the defendant was found in the driver’s seat of her vehicle. Her vehicle, at the time, was in the fast lane of the highway with the hazard lights on. Her vehicle began to roll backward and the defendant unsuccessfully attempted to start the car. She was, however, able to stop the vehicle from rolling backward by putting it in park. Unfortunately, for the defendant, officers were observing and arrested her.

The court held that the California Penal Code sections dealing with the crime of “attempt” are applicable to DUI cases.

California Penal Code section 21(a) states that an “[a]ttempt requires a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”

Driving under the influence is, what is called, a “general intent” crime because it only requires that a person intend to commit the act of driving. A “specific intent” crime, on the other hand, requires that a person intent to commit a crime. Murder, for example, is a specific intent crime because it requires that the person have the specific intent to kill someone. If someone is killed unintentionally, say during a traffic collision, the crime becomes involuntary manslaughter which is a general intent crime.

In applying California’s attempt laws to DUI, the court in Garcia essentially made attempted DUI a specific intent crime. In doing so, the court created an interesting paradox.

If attempted DUI requires the specific intent to commit the crime of driving drunk, the mere fact that a defendant was drunk may serve to negate the possibility that they specifically intended to commit the crime of DUI.

Perhaps this paradox is exactly what the Garcia court was referring to when it said that it was “not unmindful that there might be some troublesome questions which will have to be resolved in later case.”

Troublesome questions indeed…


Law Enforcement and the Confirmation Bias

While I have a bachelor’s degree in psychology, I’m by no means a psychologist. Nor can I say that there’s much that I remember from my college studies except those things that are proving to be particularly relevant in my law career. One of those things is the “confirmation bias.”

The confirmation bias occurs when a person has beliefs or expectations and unconsciously seeks out and interprets information to confirm those beliefs and expectation while ignoring contradictory information. Put in simple terms, people see what they want to see.  

The confirmation bias is proving to be particularly relevant in criminal law because unfortunately, it affects law enforcement decisions, particularly in DUI cases, more often than I’d like to admit.

Although proven to be unreliable, the purpose of field sobriety tests are to allow officers to obtain information sufficient to establish probable cause that a person has been driving drunk. However, often is the case that the officers have already decided that a person is guilty of drunk driving even before the field sobriety tests are conducted.

Regardless of how the DUI suspect performs on the field sobriety tests, the officers will interpret the performance to justify their own expectations about the DUI suspect. This is exactly why I always advise my clients and anyone else who may happen to find themselves in the unfortunate predicament of being stopped on suspicion of DUI: never agree to perform field sobriety tests.

While I’ve seen this psychological phenomenon play out in more than a number of California DUI cases that I’ve handled, until recently I was unaware that the confirmation bias effect on law enforcement in DUI cases has actually been empirically tested.

In 1977, the National Highway Transportation Safety Administration (NHTSA) commissioned a study by the Southern California Research institution to test the best field sobriety tests. Ten police officers observed several hundred subjects who were given varying amounts of alcohol. Neither the officers nor the participants knew how much alcohol was ingested by each participant. Based on the subject’s performance on the field sobriety test, the officers incorrectly identified subjects as having a blood alcohol content above 0.10 percent a whopping 47 percent of the time.

In 1994, Dr. Spurgeon Cole, a researcher at Clemson University, conducted a study which tends to confirm the 1977 study. Dr. Cole videotaped 21 sober individuals performing six field sobriety tests. Fourteen police officers, with a median experience level of 11.7 years, viewed the videotapes. I would be remiss not to mention that all of the officers had completed state-mandated DUI detection training courses. Even though the subjects were completely sober, the officers determined that the subjects were too drunk to drive an astonishing 46 percent of the time.

Leo Tolstoy once said, “The most difficult subjects can be explained to the most slow-witted man if he has not formed any ideas of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of a doubt, what is laid before him.”

Extensive Errors in FBI Crime Labs for Over 20 Years

I've posted unendingly in the past about the inaccuracy and unreliability and of breathlayzers in DUI cases.  See for example, How Breathalyzers Work (and Why They Don't) and What Makes Breathalyzers Inaccurate?  Yet, without these machines — and a public confidence in them — convictions for drunk driving can be difficult for prosecutors to obtain.

Even with the machines, their accuracy relies completely upon (1) the training and honesty of the officer giving the test, and (2) the efficiency and honesty of the forensic crime laboratories calibrating, maintaining and repairing the devices. See, for example, Attorney General Finds Widespread Breathlayzer Inaccuracies: Police Shut Down All Machines and Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers.

Bear in mind that mosty states have two different drunk driving charges — and most defendants will be charged with both:

1.  Driving under the influence of alcohol (or of drugs, or the combined influence of alcohol and drugs); and 

2.  Driving with a .08% or greater blood-alcohol level (BAC).

In the first charge, the jury will usually be instructed that if the breathalyzer shows .08% or more BAC, the defendant is presumed to be under the influence — that is, guilty.  In the second charge, the jury is instructed that the crime itself consists of the .08% BAC — and that the machine is presumed to be accurate

In other words, the guilt or innocence of the accused is largely determined in a DUI case by one of these machines: it is, in a real sense, a "trial by machine".  

So…how accurate are these machines?

These legal presumptions are rebuttable — that is, the defense attorney can offer evidence to show that the machine in question was not reliable and/or accurate.  This may be done through, for example, evidence of contaminated breath samples or videotapes showing incorrect operation by the officer.  More commonly, though, it is accomplished through subpoenaing calibration, maintenance and repair records from the government's forensic crime lab to challenge its accuracy. 

Problem #1:  Very few defense attorneys are skilled and experienced DUI specialists with the necessary technical know-how; and 

Problem #2:  The records from the crime labs are often inaccurate, incomplete — or fraudulent.

So….how reliable are the crime labs in maintaining, calibrating and keeping accurate records on thse all-important machines?

Federal Review Stalled After Finding Forensic Errors by FBI Lab Unit Spanned Two Decades

Washington, DC.  July 29 – Nearly every criminal case reviewed by the FBI and the Justice Department as part of a massive investigation started in 2012 of problems at the FBI lab has included flawed forensic testimony from the agency, government officials said.

The findings troubled the bureau, and it stopped the review of convictions last August. Case reviews resumed this month at the order of the Justice Department, the officials said.

U.S. officials began the inquiry after The Washington Post reported two years ago that flawed forensic evidence involving microscopic hair matches might have led to the convictions of hundreds of potentially innocent people. Most of those defendants never were told of the problems in their cases….

Revelations that the government’s largest post-conviction review of forensic evidence has found widespread problems counter earlier FBI claims that a single rogue examiner was at fault. Instead, they feed a growing debate over how the U.S. justice system addresses systematic weaknesses in past forensic testimony and methods.

“I see this as a tip-of-the-iceberg problem,” said Erin Murphy, a New York University law professor and expert on modern scientific evidence.

“It’s not as though this is one bad apple or even that this is one bad-apple discipline,” she said. “There is a long list of disciplines that have exhibited problems, where if you opened up cases you’d see the same kinds of overstated claims and unfounded statements.”

Worries about the limitations and presentation of scientific evidence are “coming out of the dark shadows of the legal system,” said David H. Kaye, a law professor at Penn State who helped lead a Justice Department-funded study of fingerprint analysis and testimony in 2012. “The question is: What can you do about it?”…

Responding to the FBI review, the accreditation arm of the American Society of Crime Lab Directors last year recommended that labs determine whether they needed to conduct similar reviews, and New York, North Carolina and Texas are doing so….

Again:  if you are accused of DUI, the case against you will depend primarily upon the reading of a breathalyzer.  And the accuracy and reliability of that machine — which is totally dependent upon a government crime lab's accuracy and efficiency – will be presumed by law!