Author Archives: Lawrence Taylor

Warning: Breathalyzer in Use

Have you ever noticed those "Warning: Microwave in Use" signs in restaurants? It’s for folks who have heart pacemakers: There is a risk that the electromagnetic interference (EMI) from the microwave will interfere with the electronic circuitry in the customer’s pacemaker and cause it to malfunction. This phenomenon, often called radio frequency interference (RFI), can be a recurring problem with any instrument containing electronic circuitry.

Now try to think of some place in your neighborhood that is chock full of electronic gizmos constantly transmitting RFI 24 hours a day. How about a police station? Powerful dispatch radio transmitters, radio transmitters in squad cars in the parking lot, walkie-talkies in every officer’s belt, cell phones, computer cathode ray tubes, microwave relays, electronic door locks, microwave ovens, fluorescent lighting — a veritable jungle of RFI. Now let’s put a Breathalyzer smack in the middle of this police station. An instrument filled with sensitive electronic circuitry that has to analyze tiny amounts of alcohol in breath to an accuracy of one tenth of a percent…..

Just a theory of some DUI defense attorney? Consider a report from the National Bureau of Standards, under contract with the National Highway Traffic Safety Administration to conduct accuracy testing on breath machines (referred to in the report as "Evidential Breath Testing" devices, or "EBTs"):

The Washington D.C. Metropolitan Police Department reported to NHTSA that EBTs were found to display erroneous BAC [blood-alcohol content] readings in the presence of electromagnetic fields from radio transmission…. Representatives of NHTSA and NBS were given a demonstration by police officers who routinely conduct breath testing using an EBT in a mobile van. One police officer operated his handheld radio within 1 foot of the EBT and demonstrated that the electromagnetic field could severely affect the analysis of alcohol samples.

The National Bureau of Standards subsequently conducted the testing and subsequently reported that

These results show that EMI is a potential problem with many of the EBT units currently in use….The states may have to take interim measures to determine the extent of their individual problems with EMI affecting EBTs.

The reaction by the federal government to this report was, perhaps, predictable. Afraid that it would undermine public confidence in law enforcement methods, the government classified the document and then buried it. However, it was later resurrected by a Minneapolis DUI law firm’s Freedom of Information Act lawsuit. Most manufacturers of breath machines today quietly offer an "RFI detector" as an option in their products. Unfortunately, these "detectors" are unreliable and, in any event, are rarely purchased by law enforcement agencies.

Note: all 50 states now make it a crime to drive with a blood-alcohol level of .08% or higher. In most cases, the only evidence of this comes from the breath machine. The breath cannot be re-analyzed. The machine cannot be cross-examined.

How to “Drive” Under the Influence While Sleeping

The DUI laws make it unlawful to drive (or, in some states, "operate") a vehicle while under the influence of alcohol (or over .08% blood-alcohol). That seems pretty clear: driving…vehicle…under the influence. Not really very complicated, is it? No, unless you’re an officer, a prosecutor or a MADD lobbyist trying to stretch the language of these laws to fashion a larger net.

How about that little word "driving", for example? Now just what does that really mean? Well, it means driving. Engine on, moving, steering, shifting, braking… that kind of thing, right?

Wrong.

Let’s take a look at a few examples of how law enforcement, prosecutors and courts have increasingly expanded that seemingly simple word to widen the DUI dragnet — by doing violence to the clear language and intent of the law.

- Engine off, car being pushed or towed….Let’s consider a case where the engine was off, but it was in motion — say, being towed? And the defendant was behind the wheel, steering: Is that driving?Yes, say some courts: "While a person is being towed, the person assumes responsibility for steering and braking the vehicle in a safe manner." State v. Dean (Oregon, 733 P.2d 105). Well, ok, maybe it’s not a huge stretch to include a towed car within the term "driving". At least it’s moving.

- Engine on, but vehicle parked….What if the car isn’t moving? What if the individual is just sitting behind the wheel of his car, parked but with the engine on, say, to keep the heater working?Many courts will require some movement of the vehicle, but others consider this "driving" or "operating".

- Engine on, but vehicle inoperable….An Ohio court had no trouble finding "driving" where the defendant was behind the wheel of her car, engine on — but stuck in the mud with two blown tires. City of Columbus v. Seabolt (607 N.E.2d 61).

- Engine off, vehicle parked….How about if the engine is off? If you’re just sitting behind the wheel of a parked car? More disagreement among the courts. The Colorado Supreme Court found "driving" where the defendant was behind the wheel of a car in a private parking lot, engine off — but the lights on. MVD vs.Warman (763 P.2d 558).

- Engine off, and vehicle inoperable….What if the car has a mechanical problem or is out of gas? If the car won’t start, how can it be driven? Not a problem, according to some courts anxious to sustain convictions.

Well, heck, next thing they’ll be arresting folks in their cars for "sleeping under the influence". Actually, hard as it may be to believe, they’ve been doing just that for quite awhile. There are plenty of appellate cases affirming DUI convictions where the defendant was asleep or unconscious in his car. – Engine on, "driver" asleep or unconscious….That’s "driving", say a number of courts. See, for example, Matter of Clayton (Idaho, 748 P.2d 401). Even in those cases where the engine was left on in cold weather so the heater could work.

Well, surely no one can say a person is driving if he is asleep AND the engine is off? – Engine off, "driver" asleep or unconscious….Amazingly, there is no shortage of courts willing to extend the crime of driving under the influence to individuals who are found asleep or unconscious in cars whose engines are turned off. In State v. Lawrence (849 S.W.2d 761), for example, a Tennessee court held that a defendant asleep on the driver’s side with the keys in his pocket was in sufficient physical control of the car to satisfy the statute. And in State v. Peterson (Mont. 769 P.2d 1221), a DUI conviction was sustained where the "driver" was found slumped onto the middle of the front seat; the car was off the roadway and the keys were in his pocket.

Don’t we want to encourage folks who think they may have had too much to drink to pull over and sleep it off? Why would we want to discourage this by arresting them? And what’s going on here with the word game? What does NOT constitute "driving"? Why are some courts so willing to support police and prosecutors from going far beyond the clear wording and intent of the laws?

The answer may be found in a Minnesota case, in which a conviction was sustained where the defendant was found in his pickup, engine off and with his head resting on the steering wheel. "The real purpose of the statute", the court wrote, " is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles." State v. Juncewski (Minn., 308 N.W.2d 316)

Funny, I thought the "real purpose" of laws was to punish people who actually committed the crime — not just to send people to jail who came close. If the "real purpose" of the law is as stated by the Court, why didn’t the legislature just prohibit citizens "who have been drinking intoxicating liquor from getting into their vehicles"? Of course, then the guy working on his engine would get arrested for "getting into" his vehicle. And the guy changing a tire. And…..

Convicting the “Average” DUI Suspect

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .08 but a breath-to-blood ratio of, say, 1:1700 would have a .10 reading on an “accurate” breath testing instrument.

Put simply, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio’that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called “retrograde extrapolation”, or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by “extrapolating” backward’that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing. But this requires two assumptions: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the “nystagmus'’ test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.” The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased’despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased’and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children’the average in the United States.

So why does the state presume facts that are clearly untrue? Simple. It is convenient: it makes prosecution and conviction much easier.

The DUI Officer and “Selective Memory”

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as "Where are you going? What time is it? Have you been drinking? What? When? Where? How much?" Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before I told him to? How many steps out? How did he turn? How many steps back? Which, if any, of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

And the other three or four drunk driving field tests…

In the "horizontal gaze nystagmus" ("Follow my pen with your eyes without moving your head") test, was there "smooth pursuit" of the right eyeball? What did it look like? How many times was it given? Did "onset" of nystagmus occur before 45 degrees? At what degree? Was I able to see the white of the eye at the extreme range of the eye? Was there "distinct nystagmus" at this extreme? And what about all these observations in the left eye?

And maybe two or three other field sobriety tests.

And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two samples? And so on….

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation — and in dozens of other investigations. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath. How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a "DUI arrest report". This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the "gun hand" be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems….

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe? And this is just one test. And what about the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall three or four months later in trial everything that happened? He can’t just read from the report: He has to testify to what he knows — that is, to what he independently remembers happened. But here the law permits him an "out": He can "refresh his recollection" by reading the report after he is asked a question. Then he can testify with a newly "refreshed" memory — in reality, to what he wrote in the report. In most trials, the officer has also "refreshed his recollection" just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s GUILT. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot "refresh his memory" about things that happened but which are not in the report. And there will be little if anything in that report which will give "the other side" of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.

Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?

If you are facing drunk driving charges, you will have taken (unless you refused) a chemical test for blood alcohol concentration (BAC). In the great majority of cases, the test will be done with a breath machine. When you go to court, you will find that you have been charged with not just one, but with two crimes.

The first is the so-called "per se" offense: driving while having a BAC of .08% or greater. No one cares whether you were intoxicated or not. All of the evidence could prove that without question you were sober: the crime is your chemical composition, not your condition. And what is the sole source of evidence upon which you will be either convicted or acquitted? A machine.

The second charge you are facing is "driving under the influence of alcohol" ("DUI"), or in some states, "driving while intoxicated" ("DWI") or "operating under the influence" ("OUI"). They are basically the same thing. In each case, however, the prosecution can prove you were under the influence of alcohol by offering the results of the same breath test into evidence — and the jury will be instructed that the defendant is rebuttably presumed to be guilty unless he can prove otherwise.

That’s right: a presumption of guilt. Based upon what? Again, a machine. So it all comes down to a machine. Your innocence or guilt depends largely if not entirely upon what a machine says. Maybe we should take a closer look at this "breath machine"….

Sometimes generically referred to as "Breathalyzers" after the original Breathalyzer 900, today there are a number of makes and models manufactured by different companies. For many years, the most popular of these has been the "Intoxilyer 5000", manufactured by CMI, Inc. How reliable is this machine at measuring alcohol in a person’s blood by measuring his breath? How accurate?

Well, what do the manufacturers think? How confidant are they that these devices are reliable enough to send a man to jail? Let’s take a look at their manufacturer’s warranty. The following is from their manual’s "Statement of Warranty":

"CMI, Inc., a subsidiary of MPD, Inc., warrants that each new product will be free from defects in material and workmanship, under normal use and service, for a period of one year from the date of delivery to the first user-purchaser…."

One year? These things are warranted for only one year? Model 5000s are commonly found in service at law enforcement agencies for ten years or more. What if there’s a problem with the machine requiring repair by the manufacturer?

"Repaired components are warranted for a period of 90 days from the date of repair."

90 days? The toaster in my kitchen has a better warranty. But the "warranty" continues:

"There are no other warranties expressed or implied, including but not limited to, any implied warranties of merchantibility or fitness for a particular purpose…."

What? CMI, Inc., says this machine is not warranted for any "particular purpose" — which, for the Intoxilyzer 5000, is measuring alcohol on the breath. So they don’t guarantee that it will measure breath alcohol? And this, the law says, is "proof beyond a reasonable doubt"?

Ok, let’s take a look at another of these machines which determine guilt or innocence: the BAC DataMaster, manufactured by National Patent Analytical Sytems, Inc. Their warranty, at least, is for two years –but with that same refusal to guarantee that the thing measures breath alcohol:

"There are no other warranties expressed or implied including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose."

And, as with CMI, Inc., there is the added warning that "In no event shall National Patent Analytical Systems be liable for any loss of profit or any indirect or consequential damages arising out of any such defect in material or workmanship". In other words, if you end up going to jail because of defects in our machines, you can’t sue us.

The simple fact is that, for perhaps the first time in our history, we are convicting people of crimes — beyond a resonable doubt — based entirely upon what a machine says. Are we that sure of their accuracy? Are the manufacturers?