Category Archives: Duiblog

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?

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.