Monthly Archives: September 2015
I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers"). See, for example, How Breathalyzers Work — and Why They Don’t, What Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged. And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.
Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines. See my posts, Lab Fraud Discovered in Breathalyzer Accuracy Checks, How to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.
As an example, consider the following recent ABC-TV news story:
Forensic Failures at State Crime Labs May Jeopardize Cases
Chicago, IL. Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.
The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.
Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.
James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.
Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.
State police officials tell the I-Team their tests results were accurate. But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."
Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors. "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.
Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…
The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."
But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.
"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…
Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t. And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty. See my post, Whatever Happened to the Presumption of Innocence?.
We see it on T.V. and in the movies; officers arresting someone and immediately reading them their Miranda Rights. Unfortunately it is a common misconception that a California DUI case will be thrown out because an officer does not read a DUI suspect the Miranda Rights after a DUI stop. Unbeknownst to many, the law is very specific as to when Miranda Rights must be read.
In the landmark case of Miranda v. Arizona, the United States Supreme Court said that a confession that is the fruit of an interrogation after someone is arrested is not voluntary if the suspect does not know that he or she has the right to remain silent under the 5th Amendment. And only voluntary confessions are allowed as evidence. Therefore, all suspects must be advised of their rights before a "custodial interrogation.”. Voila! The Miranda Rights were born.
From what we’ve seen on T.V. and in the movies, most of us can recite the Miranda Warnings verbatim. However, if you’re one of the rare few who haven’t watched Law and Order recently, they go a little something like this:
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
According to the United States Supreme Court, two things must occur before Miranda Rights attach; 1.) a custody and, 2.) an interrogation.
Having said that, most of the questions asked during a California DUI stop occur after a traffic stop, but before the person is arrested. Questions that occur during this time are merely for investigatory purposes. The officer cannot arrest someone for a California DUI unless they have probable cause to believe that the person is driving drunk. The pre-arrest investigatory questions are aimed at obtaining this probable cause.
“Where are you coming from? Where are you going to? Have you been drinking? How many drinks have you had? Have you taken any medication?”
Even though a person is not yet advised of their right to remain silent, they still need not answer the questions. In fact, you never need to speak with officers.
If the officer obtains the probable cause to believe that the person is driving drunk, either through incriminating answers to the pre-arrest questions, performance on field sobriety tests, or the officer’s observation of the signs of intoxication, they will conduct a DUI arrest.
Even after a person is arrested for a California DUI, the officer still need not read a person their Miranda Rights, although they almost always do. If the driver is arrested, the officer only needs to advise someone of their rights before they conduct any questioning.
“I do not consent to any search, I am invoking my 5th Amendment right to remain silent, and I want my lawyer now.”
Many are saying that California will be the next state in the Union to legalize recreational marijuana. If their predictions are correct, that would make California the sixth state to do so. Currently, Washington, Colorado, Alaska, Oregon, and Washington D.C. have all legalized recreational marijuana. Although California has not yet legalized recreational marijuana, it has decriminalized marijuana and allows the use of medical marijuana for medical purposes.
With California and other states on the cusp of legalization of recreational marijuana, law enforcement agencies are clamoring for technology that will help them determine how stoned someone is for purposes of driving under the influence.
In June of this year, Cannabix Technologies Inc., a company based out of Vancouver, issued an update on what it hopes to be the first widely used marijuana breathalyzer. According to Cannabix’s website, a prototype has been developed and is currently undergoing testing. According to the company’s founder, retired Canadian police officer Kal Malhi, the device will be able to detect the use of marijuana within two hours.
Lifeloc, a Colorado-based company which already makes and distributes alcohol breathalyzers is also in the race to develop a marijuana breathalyzer.
“I think the first breathalyzer on the market will be a simple ‘yes’ or ‘no’ for the presence of THC at the time of the test, and in that sense it won’t provide a quantitative evidential measure,” Barry Knott, the chief executive of Lifeloc, told Reuters.
If developed, the new marijuana breathalyzer would replace the rather inefficient blood test to determine how much THC (tetrahydrocannabinol), the active component of marijuana, is in a person’s system.
Many states that have legalized marijuana either recreationally or medically have set a “per se” limit, or bright line rule on how much THC can be in a person’s system while driving ranging from 0 to 5 nanograms per milliliter of blood.
It is well known that the “per se” limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.
So can the same be said for nanograms of THC per milliliter of blood? Unfortunately, no.
Notwithstanding “per se” THC limits in many states, the correlation between nanograms of THC per milliliter of blood and marijuana intoxication is extremely weak.
Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Alcohol, on the other hand, is water soluble and dissipates at a rate of about 0.015 percent per hour. This means that, depending on how much alcohol someone drank, a person can sober up within hours.
This means that someone who has smoked marijuana three weeks ago can still be arrested in states with a “per se” THC limit even though they are no longer under the influence of marijuana and perfectly sober.
It is unclear whether the marijuana breathalyzers currently being developed will quantify how much THC is in a person’s system. Not that it matters. The amount of THC in a person’s system has nothing to do with how intoxicated they are and, consequently, how much of a danger they are to the roads.
Until a marijuana breathalyzer can determine how intoxicated someone is, we run the risk of arresting sober people for DUI.
September 10th marks the 118th birthday of the DUI arrest. As September 10th approaches, I would be remiss not to post a little bit of history of the DUI and what it has become since.
118 years ago, on September 10th 1987, a London taxi driver by the name of George Smith became the first person to be arrested for driving under the influence after he crashed his vehicle into a building. Smith pled guilty and was fined 25 shillings. By today’s standards, 25 shillings amounts to about 40 British pounds which is about 67 U.S. dollars.
Today, DUI laws seem almost as ubiquitous as cars themselves. That, however, was not always the case. Prior to 1910, no state had any law against driving drunk. That changed when, in 1910, New York became the first stated to adopt a law against driving under the influence of alcohol. Of course, at that time, science had not allowed law enforcement to know what a person’s blood alcohol content was. Consequently, the law could not provide a per se blood alcohol content limit like we have today. Rather, a determination of whether a driver was intoxicated was left to the interpretation arresting officer.
The difficulties facing law enforcement in determining whether a person was drunk and, if so, how drunk took a step forward in 1938. That year Indiana University professor, Rolla Harger invented the “drunk-o-meter” in an attempt to quantify intoxication. The person being tested would blow into a balloon. The balloon was then attached a tube containing chemicals and the air in the balloon released. The alcohol in the air from the balloon would react to the chemicals and create a color. The higher the alcohol content, the greater the change in color.
The “drunk-o-meter” became the predecessor to the modern breath test. In 1954, Robert Borkenstein, chairman of Indiana University’s department administration, invented a more portable device than Harger’s “drunk-o-meter” and that also actually measured a subject’s blood alcohol content. The device would come to be known as the “breathalyzer.”
In 1939, Indiana became the first state to pass a law that made it illegal to drive with a specific blood alcohol content. At that time, the legal blood alcohol limit was 0.15 percent. Other states began to follow suit.
The late 70’s and early 80’s saw an influx of public awareness on the dangers of drunk driving. Much of this awareness was due to the creation of the group Mothers Against Drunk Driving (MADD) in 1980. The group was founded by Candy Lightner after her 13-year-old daughter was killed by a drunk driver. The group has since pushed for tougher legislation regarding DUI laws and penalties.
MADD’s efforts did indeed begin to impact DUI laws throughout the country. In 1984, The National Minimum Drinking Age Act was passed. It required that states pass legislation raising the legal drinking age to 21.
MADD’s influence also partly led to the lowering of the legal blood alcohol limit to 0.08 percent in all states.
In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent. Whether states adopt the recommendation is yet to be seen.
Currently, in California the legal limit is 0.08 percent. A person can also be charged and convicted of a DUI if they are “under the influence” even though they may not be above a 0.08 percent.
The statutory minimum sentence for a first-time DUI conviction is three years of informal probation, $390 in fines and fees plus penalties and assessments, and a 3-month DUI program. While this is the minimum, punishments may also include AA meetings, a MADD-sponsored “Victim Impact Panel,” a “Hospital and Morgue Program,” or CalTrans.