Category Archives: Current Events

Give a Breath Sample — or Be Strapped Down and Jabbed With Needles

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by ForceForced Blood Draws by Cops: Constitutional?Forced Blood Draws by Cops SpreadingBlood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.



Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…



Hmmm…Threatening to strap a suspect down and "poke" him with a needle actually "encourages" him to submit to a breath test?  Welcome to MADD's "War on Drunk Driving".   
 

“Sleep Driving”

DUI defense attorneys across the country are encountering clients arrested for driving under the influence of drugs — but who do not recall driving.  The common thread appears to be that the last thing they recall is taking prescription sedatives of some type and falling asleep.  There have been reports of sleep walking and "sleep driving".  And, of course, police and prosecutors have scoffed at this latest "defense lawyer trick"…just as they scoffed at mouth alcohol problems, chemical interferents on the breath and radio frequency interference – before breathalyzer manufacturers quietly began installing mouth alcohol detectors, interferent detectors and RFI detectors on their machines) .

Does "sleep driving" exist?  Well, consider the following press release from the U.S. Food and Drug Administration:



FDA Requests Label Change for All Sleep Disorder Drug Products

For immediate release. 

The U.S. Food and Drug Administration (FDA) has requested that all manufacturers of sedative-hypnotic drug products, a class of drugs used to induce and/or maintain sleep, strengthen their product labeling to include stronger language concerning potential risks. These risks include severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.



What is the legal significance of all of this?  Well, there are two components to a crime: the guilty mind (mens rea) and the guilty act (actus reus).  As for the mental element, unlike most crimes drunk driving is a strict liability offense: it is categorized as a general intent offense, and the lack of specific intent to drink too much and drive is not a defense.  But an underlying requirement of all offenses is that there be a volitional physical act.  In other words, although there does not need to be an intent to do a specific act, there must be conscious control of that act.  An epileptic, for example, would not be criminally charged with assault if the incident occurred during a seizure: even if there had been a preexisting intent, there was no conscious control.

So….If you take a prescription such as Ambien or Restoril to help you sleep, you may well wake up in a jail cell falsely charged with DUI.  (For a list of the 13drugs which the FDA has found may cause "sleep driving", see the FDA's "Sleep Disorder Drug Information".)