Monthly Archives: September 2014

DUI and Drunk Monkeys

Just when I thought I’d seen it all in the "War on Drunk Driving", I read this recent article in the Washington Times….

Feds Spend Millions of Tax Dollars Getting Monkeys Drunk

Washington, DC.  Sept. 11 – There’s a whole lot of drinking going on in the name of government science, and some watchdogs think it’s the American taxpayer who is getting hammered.

Right now the National Institutes of Health is spending $3.2 million to get monkeys to drink alcohol excessively to determine what effect it has long term on their body tissue…

Alcohol and other vices have long been a favorite of NIH research grants.  Between 2008 and 2010 the NIH granted Yale University and Arizona State University a combined $154,688 to determine if drinking excess amounts of alcohol leads to losing more money while gambling.

To perform the study, researchers plied 21- to 30-year-old volunteers with enough alcohol for them to become legally intoxicated. Researchers then measured how well the twentysomethings performed gambling on video poker machines while drunk compared to when they were sober….

(A) Portland-based university also received $84,908 to breed mice that are genetically susceptible to binge drinking. Experiments included forcing the mice to drink while reducing a certain gene in hopes of getting that mouse to drink less. After the study is performed, the mice are dissected so their brains can be studied and mapped.

Hmmm… the government’s objective is to genetically modify humans so they won’t drive (or gamble) drunk? 

(Thanks to Joe.)

California DUI for Sleep Driving

We’ve all heard crazy stories about the things people do when they sleepwalk. Robert Wood, a 55 year old chef sleepwalks over to his kitchen to cook on a regular basis. Rachel Ward, a teenager, stepped right out of her second story window while sleeping and fell 25 feet to the ground (she was okay). A woman by the name of Rebekah Armstrong woke to find her husband, Ian, mowing the lawn naked while sleepwalking.

People have also been known to hop into their vehicles and take a drive while sleeping. Under these circumstances, DUI law doesn’t come into play because no intoxicants have been ingested. However, what if the “sleep driving” was induced by sleep aid medication?

California DUI law prohibits people from driving “under the influence” of, not only alcohol, but drugs as well. This includes legal sedative-hypnotic sleep aids like Ambien, Halcion, Sonata, Rozerem and Lunesta.

Now it’s one thing to take one of these drugs and voluntarily drive while conscious. The sedative effects of the drugs can certainly prevent someone from driving with the same caution as that of a sober person of ordinary prudence under the same or similar circumstances.  Therefore, California’s “under the influence” DUI law applies.

But what if someone unconsciously sleep drives as the result of taking sleep aids?

According to the FDA, sleep driving occurs when someone “[drives] while not fully away after ingestion of a sedative-hypnotic product, with no memory of the event.” In 2007, the FDA recognized sleep driving as an “involuntary” act. This was significant because unconsciousness is a complete defense to a criminal charge where the defendant’s actions are the involuntary and the product of the unconsciousness.

The caveat to this principal, however, was that the unconsciousness must not have been produced by voluntary intoxication. This was exactly the issue in the 2012 California Court of Appeals case of People v. Mathson (2012) 210 Cal. App. 4th 1297.

Terry Jack Mathson took prescribed Ambien in an amount that exceeded the prescribed dose. Mathson claimed he was sleep driving when he was arrested for driving while under the influence. The charge was a felony because Mathson suffered three prior convictions within 10 years. He was also charged with being a habitual traffic offender, driving with a suspended license, and driving a vehicle that was not equipped with an ignition interlock device.

Mathson was convicted after the trial judge rejected a jury instruction that they had to find that Mathson was involuntarily intoxicated if it determined that he did not know or have reason to know that the Ambien would cause him to sleep drive.

On appeal, the trial court determined that the proposed jury instruction would give people one “free” sleep driving incident without legal consequences because they would not have reason to know the Ambien would cause them to sleep drive.  Prior to that first incident, sleep driving would be considered involuntary. This would essentially make driving under the influence a specific intent crime, which it is not.

The court concluded that Mathson was liable for driving under the influence because, after taking Ambien for seven or eight years, he should have had reason to know of the drug’s intoxicating effect. In other words, the court rejected the notion that Mathson had to specifically know that he would sleep drive.

Although this is what the court concluded, I question whether Mathson should have reasonably known about his propensity to sleep drive if this was the first incident of sleep driving after seven or eight years of taking the drug.

So a word of caution for those readers out there who take sleep aids: If you sleep drive after taking a sleep aid, you can be convicted under California’s DUI laws even though you are unconscious and may have no recollection of hopping into your car.

PAS Test vs. Chemical Breath Test

People are often confused about whether the law requires them to take a breathalyzer during a California DUI arrest. Unfortunately, the answer is just a little more complicated than just “yes” or “no.”

Let me clear up the confusion.

I often use the term “breathalyzer” in my posts for both a preliminary alcohol screening test and a chemical breath test. They, however, are not the same thing. In fact, the type of test being administered will determine whether a person is required to take the test or not.

For chronological clarity, let’s start with the preliminary alcohol screening (PAS) test.

When an officer stops a driver and begins investigating a possible California DUI, they may conduct several field sobriety tests. These tests include the horizontal gaze nystagmus test, the one-leg stand test, or the walk and turn test. The PAS test is a breathalyzer test which is considered a field sobriety test. Like the other field sobriety tests, the PAS test is optional.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

As a field sobriety test, the PAS test is not required. Law enforcement is required to advise that the PAS test is, in fact, voluntary. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

In other words, the PAS test is only used as a means to determine if there is enough probable cause to arrest a person for a California DUI.

However, once a person is lawfully arrested for a California DUI, California’s Implied Consent Law requires a person to submit to a chemical test which can be either a breath or a blood test.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

This essentially means that if you are licensed to drive in California, you have impliedly given consent to submit to a chemical test if you have been lawfully arrested for a DUI. The operative words here are “lawful arrest.” The obligation to submit to a chemical test only attaches once a person is lawfully arrested. Before that point, no obligation exists.

So then what does it mean to be lawfully arrested for a California DUI?

An officer can arrest someone if they have probable cause to believe that the person is driving drunk. Probable cause exists when an officer has reasonable and trustworthy facts that would lead a reasonable person to believe that the person has been driving drunk.

Officers obtain probable cause for a DUI arrest through the driver’s statements that they have been drinking, driving patterns consistent with intoxication, observations of signs of intoxication, and failure of field sobriety tests…including the PAS test.

Okay, let’s put this whole process into a nutshell.

The officers use the PAS test, which is optional, to determine if there is probable cause for a DUI arrest. If there is probable cause for an arrest, and a person is arrested, they must submit to a chemical test which can be either a blood or a breath test.

Bottom line is: Don’t give the officers the probable cause when you don’t have to. Like other field sobriety tests, always respectfully decline the PAS test.

The Dirty Skin Defense

A few years ago, I assisted in a DUI trial where the jury acquitted the defendant partly because of the reasonable doubt raised by a defense expert who testified that the defendant’s “dirty skin” could have created a false positive blood test.

It would have been the defendant’s second California DUI conviction

Although I don’t remember the specifics of the stop or the DUI investigation, what I do remember is that the defendant opted for a blood test following his DUI arrest. When the results of the blood test came back, he was at a blood alcohol content level of 0.08 percent or slightly over.

The defendant took the case to trial.

Testimony at trial revealed that it took the prosecutor’s crime lab over a month to analyze the defendant’s blood. As the result of a backlog in cases, this is not an uncommon practice in Southern California county crime labs. This seemingly innocuous fact, opened the door for the defense to raise reasonable doubt that the defendant’s blood alcohol content was actually 0.08 percent or higher.

The defense introduced an expert witness to testify that, at the time the needle is injected into the arm to withdraw blood, it is possible that microorganisms located on the skin at the injection site can be extracted along with the blood sample into the vial. Although it is common practice for technicians who withdraw the blood to swab the injection site with hydrogen peroxide, contamination of the blood sample is still, nonetheless, possible. For obvious reasons, they don’t use rubbing alcohol to disinfect the injection site.

The expert further testified that, when analysis of the blood occurs a month or more after the blood is extracted, it is possible that the microorganisms which were extracted into the vial can cause the fermentation of glucose, which is a sugar, located in blood.

Simply put, fermentation occurs when microorganisms convert sugars into alcohol and carbon dioxide. I don’t need to tell you that this is the process by which people make the alcoholic beverages that we know and love.

Voila! The delay in crime lab’s testing of the blood allowed the stowaway microorganisms time to convert glucose in the blood sample into alcohol, thus producing falsely elevated blood alcohol content levels.

The prosecutor will argue that the blood vials contain a preservative, usually sodium fluoride, to preserve the integrity of the blood sample. However, studies have shown that sodium fluoride is ineffective against the most common microorganism, candida albicans.

Is the dirty skin defense enough to raise a reasonable doubt that a DUI suspect’s BAC was actually above a 0.08 percent?

While outcomes will vary on a case-by-case basis, it certainly was in the trial I assisted in.

Are Breathalyzers Accurate?

Most states have two criminal charges relevant to “drunk driving”.  The first is the original law, making it a crime to drive under the influence of alcohol or drugs — also known as “DUI”.  In more recent years, and under pressure from the federal government, all 50 states passed the so-called “per se statute”, making it a crime to drive with a blood alcohol concentration (BAC) of .08% or more — regardless of whether the driver was under the influence of alcohol or not.  In most states, both crimes can — and usually are — charged (assuming there was a blood alcohol test).

With the first offense, the prosecution can offer various kinds of evidence: erratic driving, flushed face, bloodshot eyes, slurred speech, poor balance and/or coordination, failing the “field sobriety tests”, etc.  In addition, if the blood alcohol test indicated a BAC level of .08% or more, the judge would instruct the jury that the defendant was rebutably presumed to be under the influence — that is, he was presumed to be guilty, but could offer contradicting evidence of his own.

With the second offense, the blood alcohol level is the crime: regardless of intoxication or sobriety, it is a criminal offense to have .08% or more while driving.  Unless the defendant could prove that the breathalyzer was unreliable in some way — incorrectly maintained, calibrated or operated or otherwise defective —  the crime was proven.  

In other words, the machine is judge, jury and executioner.

So….just how accurate are these so-called breathalyzers?

Not very.  These machines are susceptible to hundreds of different problems.  To give you some idea, a good survey of the more common potential defects inherent in any breath alcohol test can be found on the website of my DUI defense firm,The Law Offices of Lawrence Taylor.  The 3-page discussion is located in the “Police Evidence” section, under the heading DUI Breathalyzer Accuracy.

The problem is that these defects can only be revealed through extensive investigation by an experienced DUI defense attorney, usually through the legal procedure known as discovery.  This is the use of subpoenas, motions in court, and other proceedings involving, among other things, the testing police officer’s operation, the individual machine’s data, law enforcement crime lab procedures and calibration records, machine usage logs, and even video cameras in the testing room.

In other words, it takes an experienced DUI attorney in this complex field who is prepared to devote the time and resources necessary to reveal the flaws.  And such attorneys don’t come cheap. So if you suddenly need a DUI attorney, ask yourself:  If I needed heart surgery, would I try to find the cheapest surgeon?