Author Archives: Lawrence Taylor

Whatever Happened to the Presumption of Innocence?

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In America, however, the presumption of innocence has always been a fundamental part of our rights as a free people. This basic protection against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. U.S., 156 U.S. 432 (1895).

So what happened to this presumption of innocence in a drunk driving case? Is this yet another example of "the DUI exception to the Constitution"? Let’s take a look at how our DUI laws have slowly eroded this fundamental right….

Let’s assume you have been arrested for drunk driving, and a Breathalyzer gave a reading of .09% blood-alcohol concentration (BAC). You will probably be charged with two crimes: (1) driving under the influence of alcohol, and (2) driving with over .08% BAC. Let’s look at the .08% charge first.

The .08% offense depends entirely upon the results of the breath machine (often called a "Breathalyzer", although there are many makes and models). These machines are notorously unreliable for any number of reasons. But a funny thing happens when your attorney tries to bring out those reasons for the jury. He tries to point out, for example, that the Breathalyzer computes the results by presuming that the defendant has a "partition ratio" of 2100:1 (the ratio of alcohol in the breath to the alcohol in the blood) — but that this is only an average: the defendant’s ratio is much lower, so the .09% reading should actually be .07%. However, the judge stops him: the law presumes that all men are average — even if they are not.

In fact, the Supreme Court of California has specifically ruled that such scientific facts are irrelevant. People v. Bransford, 884 P.2d 70 (1994). The Court justified its ruling in a rather frank — and amazing — justification: "It (.08%) will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges." In other words, ignoring scientific facts makes it easier to convict.

What about the officer who gave the breath test? Surely, we can question his experience and the way he administered the breath test. And this raises a prosecutrial favorite: the "Offical Duty Presumption". The California Evidence Code (sec. 664) puts it very simply: It is presumed that official duty has been regularly performed." Period. That’s it: Since it was the officer’s official duty to give the test, the law presumes he was qualified and did it correctly. And the burden is on the defendant to prove he didn’t. Interesting twist on the presumption of innocence, huh?

Well, so much for the .08% charge. At least the defendant is presumed innocent of the DUI charge, right? Wrong. The laws of most states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is legally presumed to be under the influence of alcohol. That’s right: the defendant is presumed guilty. This is called a "rebuttable presumption" — that is, the defendant can try to rebut this presumption with other evidence. Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

Ok, but the law says it’s illegal to have .08% BAC when driving — not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove BAC at the time of driving?

Easy: the law presumes the BAC is the same. Let’s take a look at California’s fairly typical law: "In any prosecution…it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her breath at the time of the performance of a chemical test within thre hours of the driving." Well, now, that’s really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with scientific certainty, that the BAC will NOT be the same for three hours after the test.

So much for the "presumption of innocence" in a DUI case….

GERD, Acid Reflux and False Breathalyzer Results

Bryan is presently facing criminal charges for driving under the influence of alcohol. Except that he wasn’t under the influence of alcohol. He had one drink after work and was stopped at a DUI sobriety checkpoint on the way home. The officer smelled the alcohol on his breath and asked Bryan to step out of the car to take some field sobriety tests. He did fairly well on the tests but, to be sure, the officer asked him to breathe into the breath machine that had been set up at the checkpoint. The results: .09%. Bryan was arrested for DUI, handcuffed and taken to jail; his license was immediately confiscated and he was served with a notice of automatic suspension. When finally released six hours later, he was given a notice to appear in court for arraignment on drunk driving charges.

What happened? How could Bryan have only consumed one beer but registered .09% on the machine — at least four times higher than would be expected?

Well, to begin with, breath machines (commonly referred to as "Breathalyzers", although there are many competing makes and models) are notoriously inaccurate and unreliable. Calibration, maintenance, repair and use by inexperienced or poorly trained officers are always problems. And there are inherent design defects, such as being "non-specific" for alcohol — that is, they don’t actually measure alcohol; due to the nature of infrared analysis, they will report thousands of other compounds as "alcohol". Another recurring problem is "mouth alcohol".

What is "mouth alcohol" — and how could this have caused Bran’s false reading? The machine measures alcohol on the breath, and an internal computer then multiplies the reading 2100 times to get a reading of alcohol in the blood. This is because the amount of alcohol in the blood is greatly reduced as it crosses from the blood into the alveolar sacs of the lungs and into the breath; the average person has 2100 times more alcohol in his blood than in his breath (this varies widely among individuals, however, and is another inherent defect in the machines).

But what if the alcohol in the breath sample did not come from the lungs? What if the alcohol came from Bryan’s mouth or throat? Then it will not have been processed through the body, into the blood and finally out through the lungs — and it will not have been reduced 2100 times. But the machine, being a machine, will always multiply it 2100 times. Result: false high reading and Bryan is facing DUI charges.

So what was alcohol doing in Bryan’s mouth or throat?

Well, alcohol will usually stay in the tissue of the oral cavity or esophagus for about 15 minutes until it is finally diluted and flushed down into the stomach by saliva. So if Bryan had "one for the road" just before being tested, he could have a problem. Or the alcohol could have become trapped in dentures or gum cavities and lasted much longer. Bryan may have burped or belched within 15 minutes before taking the test, sending up alcohol from the beer in his stomach into his mouth and esophagus. But what actually happened was that Bryan suffers from a very common condition: GERD, or "gastroesophageal reflux disease". This causes "acid reflux", often experienced as heartburn.

Acid reflux is commonly caused by a "hiatal hernia" – damage to the pyloric valve separating the stomach from the esophagus. When the valve cannot close completely, then liquids and gasses from the stomach can rise into the throat and oral cavity, to remain there until once again flushed back down. Since a bout of acid reflux can be caused by stress, it is not unusual to find that people stopped by police officers for suspicion of DUI and subjected to field sobriety tests experience the condition.

Bryan is now ordered to breathe into the machine’s mouthpiece. With alcohol from his stomach now rising into and permeating his mouth and throat, it is mixed with the breath passing from the lungs through the throat and mouth and into the machine. Since this alcohol is being multiplied by the machine 2100 times, it takes only a tiny — invisible — amount of absorbed alcohol to cause a disproportionately high reading. In Bryan’s case, an "innocent" reading of perhaps .02% became a "guilty" .09%. And Bryan lost his driver’s license….and now has to try to prove his innocence in court.

Prove his innocence? Aren?t we presumed innocent in America? Here we have the notorious "DUI exception to the Constitution" again. Strangely, Bryan is not presumed to be innocent as we all thought: almost all state laws legally presume a person is under the influence of alcohol if if the machine’s reading is .08% or higher.

Yes, we have a system where citizens are convicted by a machine….A very fallible machine.

DUI Fatality Statistics

For years now the "DUI crackdown", along with the accompanying loss of constitutional rights, has been justified by the numbers of deaths on the highways caused by drunk drivers. As the U.S. Supreme Court in Michigan v. Sitz said, for example, DUI "sobriety checkpoints" appear to violate our Fourth Amendment right to be free of suspicionless stops by the police — but this illegal intrusion on our privacy is "outweighed" by the "carnage" on our highways of 25,000 deaths caused each year by alcohol.

From where did these statistics come? Years ago, the statistics kept on traffic fatalities included a category for "alcohol-caused" deaths. To justify such things as sobriety checkpoints, lowered blood alcohol levels and automatic at-the-scene DUI license suspensions, however, these statistics were subtly changed to "alcohol-related". Not "caused", but related.

This meant that a perfectly sober driver who hit and killed an intoxicated pedestrian, for example, would be involved in an "alcohol-related" incident. Similarly, a sober driver who is struck by another sober driver carrying an intoxicated passenger chalked up another "alcohol-related" death. Further, if the officer believes the driver to be intoxicated but chemical tests show he is not, the death is nevertheless reported as "alcohol-related". In fact, if the tests indicate the presence of any alcohol at all, say .02%, the fatality will be chalked up as "alcohol-related".

In 1999, the federal General Accounting Office (GAO) reviewed these figures from the National Highway Traffic Safety Administration — and issued a report stating that they "raised methodological concerns calling their conclusions into question ". The statistics, the GAO report said, "fall short of providing conclusive evidence that .08% BAC laws were, by themselves, responsible for reductions in alcohol related fatalities." In other words, the statistics weren't even valid when applied to alcohol-related fatalities, much less alcohol-caused deaths.

So what are the real numbers? The Los Angeles Times also decided to investigate the validity of these statistics. In 2002, NHTSA's figures claimed 18,000 deaths on the nation's highways attributable to drunk driving. The Times found that only about 5,000 of these involved a drunk driver causing the death of a sober driver, passenger or pedestrian. (Research by other groups, such as "Responsibility in DUI Laws, Inc.", indicate the figure is actually under 3,000.) 5,000. A fraction of the number being used by the government and political pressure groups like MADD.

Despite this irritating little truth, MADD, law enforcement and federal and state governments continue to use the same false statistics to justify the passage of unfair and unconstitutional DUI laws.

DUI, MADD and the “New Prohibition”

Mothers Against Drunk Driving is a well-organized (over 600 chapters), well-funded (IRS Form 990 shows revenue for 2002 of $48,051,441) and dangerous group of well-intentioned zealots — the very same folks who gave us Prohibition decades ago.For many years now, MADD’s agenda has been clear: apply political pressure to get ever-harsher drunk driving laws, law enforcement and punishment.

But what is the final goal? When will we have reached a state when MADD is satisfied that the drunk driving laws are sufficient?

The answer is simple: zero tolerance. No drinking and driving. And, eventually, no drinking. Exaggeration? Paranoia? Let’s look at a little DUI history…..

The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean?They turned to the American Medical Association which, in 1938, created a “Committee to Study Problems of Motor Vehicle Accidents”; at the same time, the National Safety Council set up a “Committee on Tests for Intoxication”.

After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be “under the influence”; those under .15% could not. That’s right, .15%. And that recommendation lasted for 22 years. But certain groups of “concerned mothers” were not happy with the low DUI arrest and conviction rates.

Under increasing political pressure, the committees “revisited” the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law trumping scientific truth?

Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed by Candy Lightner (later to quit the organization and become a spokesperson for the liquor industry). Soon after, legislation began appearing in many states that created a second crime: driving with a BAC of .10% or higher.

This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.

This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard. Since then, Mothers Against Drunk Driving has pressured state legislatures to drop the blood-alcohol level to .05%. In the meantime, they had been successful in getting nearly universal adoption of a .01% BAC standard (termed “ero tolerance”) for drivers under 21.

So where are we headed with MADD in apparent control? A federal .05% DUI standard is on the horizon and, in fact, has already been adopted to some extent in a few states. “Zero tolerance” for adult drivers is clearly on MADD’s agenda.

And then?

In 1999, MADD’s National Board of Directors unanimously voted to change the organization’s mission statement to include the prevention of underage drinking. Not underage drinking and driving — just drinking. Let me say that again: MADD has now formally shifted its focus away from “drunk driving” and towards the broader “problem” of drinking.

Can a new era of prohibition be far behind?

Diabetes and the Counterfeit DUI

Contrary to popular belief, police officers have no inherent skill and little training in detecting levels of intoxication. In fact, they are psychologically predisposed in a drunk driving investigation to "see" what they expect to see, disregarding any alternative explanations.

Let’s take a look at one of those possibilities…..As everyone knows, diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation — in other words, the classic symptoms of alcohol intoxication. This individual will look and act like a drunk driver to the officer, and will certainly fail any DUI "field sobriety tests". As one expert has observed, "Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways…Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver." From "Hypoglycemia: Driving Under the Influence" in 8(1) Medical and Toxicological Information Review Sept. 2003.

But, of course, a Breathalyzer will clear him, right?

Wrong. Ignoring for the moment the inherent inaccuracy and unreliability of these machines, most suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the "methyl group" in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is "probably" alcohol. Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is "acetone". And a well-documented by-product of hypoglycemia is a state called "ketoacidosis", which causes the production of acetones in the breath. In other words, the Breathalyzer will read significant blood alcohol levels on a diabetic’s breath where there may be little or none. See, for example, Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).

But this rarely happens, right? Fact: roughly one in seven sober drivers on the road suffers from diabetes.