Author Archives: Lawrence Taylor
We all know that if someone is arrested on suspicion of drunk driving, they will be required to take a breathalyzer test, usually later at the police station. And this test result will be the primary evidence used against him in a drunk driving case.
The first problem with this is that the amount of alcohol in the blood is constantly changing — either rising due to absorption from recent drinking or, more likely, falling due to metabolism of the alcohol.
The second problem is that it is only illegal to have a .08% blood-alcohol concentration at the time of driving — not later at the police station. And this breath test may not be given for an hour or two after the driving has ended — particularly in accident cases, where the police may not arrive for some time. So the prosecution has to try to estimate what the blood-alcohol level was when the suspect was driving based upon the later test.
The third problem is that because of this, for the test results to be admissible as evidence in court they have to have been obtained within a certain period of time — in California, for example, within three hours.
But what if there was a breath-testing device which could record what the blood-alcohol level was at the time the suspect is actually driving?
Flexible Wearable Electronic Skin Patch Offers New Way to Monitor Alcohol Levels
San Diego, CA. Aug. 2 – Engineers at the University of California San Diego have developed a flexible wearable sensor that can accurately measure a person’s blood alcohol level from sweat and transmit the data wirelessly to a laptop, smartphone or other mobile device. The device can be worn on the skin and could be used by doctors and police officers for continuous, non-invasive and real-time monitoring of blood alcohol content.
The device consists of a temporary tattoo — which sticks to the skin, induces sweat and electrochemically detects the alcohol level — and a portable flexible electronic circuit board, which is connected to the tattoo by a magnet and can communicate the information to a mobile device via Bluetooth…
Clearly, the government would be very interested in requiring anyone convicted of DUI to wear such a patch for the probationary period (commonly three years).
But what if that government decided to take the next step…..and require everyone to wear these skin patches — as a condition for driving any vehicle?
Law enforcement continues to be frustrated in trying to prove that a possibly impaired driver is under the influence of marijuana (so-called “stoned driving”).
As recent posts on this blog have pointed out, the simple fact is that there is no scientifically valid method for measuring marijuana and its effect. The current method involves drawing a blood sample from the person after the suspect is arrested and analyzing it for marijuana — or, more accurately, for the presence and amounts of the active ingredient, THC (tetrahydrocannabinol), in the blood.
But there are two primary problems with this. First, the marijuana measured may well be inactive and still present in the body from ingestion days or even weeks earlier. Second, there is no generally accepted scientific evidence as to what levels of THC can cause sufficient impairment to the ability to safely operate a motor vehicle. See, for example, my previous post Identifying and Proving DUI Marijuana (“Stoned Driving”).
The latest attempts for a quick-and-easy way to prove “stoned driving” involve developing a “marijuana breathalyzer” — a device that will test for THC on the breath, as is done for alcohol with current breathalyzers. To date, these have proven inaccurate and unreliable. See previous posts Can Breathalyzers Measure Marijuana? and Is a Marijuana Breathalyzer in the Offing?
Today, a company claims to have finally developed the long-hoped-for answer to law enforcement’s dilemma…
Pot Breathalyzer Hits the Street
U.S. News & World Report. Sept. 14 – American police have for the first time used a marijuana breathalyzer to evaluate impaired drivers, the company behind the pioneering device declared Tuesday, saying it separately confirmed its breath test can detect recent consumption of marijuana-infused food.
The two apparent firsts allow Hound Labs to move forward with plans to widely distribute its technology to law enforcement in the first half of next year, says CEO Mike Lynn. Lynn, an emergency room doctor in Oakland, California, also is a reserve officer with the Alameda County Sheriff’s Office and he helped pull over drivers in the initial field tests, none of whom were arrested after voluntarily breathing into the handheld contraption…
The technology, if all goes according to plan, will be welcomed by both sides of the pot legalization debate, those who fear drugged drivers and reformers outraged that pot users in some jurisdictions are subjectively detained and forced to undergo blood tests that don’t prove impairment, especially in frequent users….
There’s a two-part testing challenge now: confirming with laboratory equipment that the device gives accurate results, and then correlating specific measurements (given in picograms of THC) with levels of intoxication, a challenge that will include sending stoned drivers on an obstacle course — something already done informally….
Hound Labs, of course, isn’t the only company that sees an opening as U.S. states increasingly regulate sales of marijuana for recreational or medical use, but it is ahead of the curve, beating another company aiming to introduce a marijuana breathalyzer, Cannabix Technologies….
Hmmmm…..Might there a conflict of interest when the CEO is a reserve police officer involved in field testing his own product? And how can an indirect analysis of THC on the breath done in the field be more reliable and accurate than directly analyzing it in the blood in a laboratory?
Profit and politics has always trumped science and truth in the DUI field. See my post DUI Laws Overrule Scientific Truth.
A conviction in a drunk driving case depends, of course, on the accuracy and reliability of the blood or breath test administered to the suspect. And this depends upon the accuracy and reliability of the government’s crime laboratory — more specifically, on the honesty and skills of the crime lab technicians. It is the crime lab techs who analyze the blood tests, maintain and check the accuracy of the breath machines — and testify in trial.
It is, of course, assumed that these lab techs — who are usually working for the same government that is prosecuting the accused defendant — are objective and honest scientists, with no stake in the outcome. This is certainly what prosecutors reassure their juries.
But what if the crime labs have a financial interest in the outcome of the trial?
New Study Finds That State Crime Labs Are Paid Per Conviction
Huffington Post, Aug. 29, 2013 – I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.
In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded…
The author of this article, Radley Balko, then excerpts the following findings from that study (entitled "The Criminal Justice System Creates Incentives for False Convictions"):
Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’
In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’
Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’
Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.
Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.
The Huffington Post author then concludes:
Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.
Do you still think that a citizen accused of drunk driving can receive a fair trial? Or is this yet another example of "Bad Drunk Driving Laws, False Evidence and a Fading Constitution"?
I’ve posted in the past about the difficulties of testing for marijuana in drunk driving investigations. See Does Presence of Marijuana in Blood Constitute Drunk Driving?, Identifying and Proving DUI Marijuana ("Stoned Driving") and Driving + Traces of Marijuana = DUI. But John Ibanez and I have also posted about the increasing likelihood of roadside marijuana tests in the future. See Roadside Oral Swab Tests Coming? and California Proposes New Law to Allows Roadside Marijuana Testing.
The future is now….
Not Just Your Breath — Police Now Conducting Saliva Swabs to Check Drivers for Cannabis
Michigan, July 23 – Michigan State Police plan to implement one of the most invasive methods of drug testing in the country in a pilot program: saliva tests….Five counties will force their residents into becoming guinea pigs for what must be the worst thwarting of constitutional and privacy rights in recent years. Saliva-based tests will check drivers for cannabis, heroin, cocaine, and more…
However, (the saliva test) is highly problematic — impairment caused by THC can’t precisely be tested by blood, several studies have found. In fact, the Arizona Supreme Court unanimously ruled in November last year the presence of THC (tetrahydrocannabinol) — the psychoactive ingredient in cannabis — in the blood does not necessarily indicate impairment.
Granted, state laws about the presence of certain drugs and in what quantities vary widely, but using what amounts to unfounded ‘science’ to then create a law with even greater invasiveness marks quite the leap of logic…
Attorney Neil Rockind opposed Michigan’s saliva-based drug testing legislation, warning it would set “a dangerous precedent” in the state.
“The criminal justice system wants to take science and turn it into a fast, easy utility,” Rockind advised. “Science is neither fast nor easy.”…
Of course, scientific truth has never proven a deterrent to ever-more invasive criminal laws — most notably in the so-called "War on Drunk Driving". See my post How to Overcome Scientific Facts: Pass a Law.
(Thanks to "Joe".)
So you’re driving home after a dinner…and you’re pulled over by the police. The officer asks you if you’ve been drinking, and when you reply that you have not, he asks you to step out of the car and gives you a field sobriety test.. He then administers a portable breath test. When the results indicate no alcohol in your system, he tells you that he suspects you are under the influence of some type of drug and arrests you.
The officer then drives you to a nearby medical facility and tells you that you have to give him a urine sample. Angry for having been wrongfully arrested, and believing you have a right to refuse, you decline.
What happens next? Well, it could get painful….
Police Use Catheters, Force to Collect Urine Samples
Pierre, SD. July 5 — Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state’s top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation…
It’s unclear how widespread the practice of forced catheterization is in South Dakota. Attorney General Marty Jackley said in an interview that the practice is permitted with a signed court order under state law, and he cited several cases that supported the legality of the practice.
The attorney general said law enforcement would prefer not to collect urine samples by force, but that ultimately it’s up to suspects if they don’t want to cooperate.
“I don’t think anyone wants to go through that methodology,” Jackley said…
Police always take the person to a hospital if they are going to take a forced urine sample, said Tim Whalen, a Lake Andes attorney who has represented a couple of clients who have had urine samples taken without permission. Health care workers at the Wagner and Platte hospitals conduct the procedure on a regular basis, he said.
“They don’t anesthetize them,” Whalen said. “There’s a lot of screaming and hollering.”…
Do you think this practice is limited to South Dakota? Take a look at some of my earlier posts, such as Catheter Forced Up Penis After Arrest (Washington), Another Weapon on the War on Drunk Driving: Forced Catheterization (Indiana) and DUI Suspect Forced to Have Penis Catheterized (Utah).