Category Archives: Duiblog
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.
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?
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.
The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are “articulable facts” indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were consitutionally permissible. Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka “sobriety checkpoints”) do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However….
However, it’s only a little one, and there’s all this “carnage” on the highways MADD tells us we’ve got to do something about. The “minimal intrusion on individual liberties”, he wrote, must be “weighed” against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means….aka, “the DUI exception to the Constitution”.
The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.” Brennan concluded by noting that “The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures”.
Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were “necessary” and “effective”. Are they? As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: “The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”.
p.s. The case was sent back to the Michigan Supreme Court to change its decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”. The State of Washington has since followed Michigan.
So what did I mean in my earlier post by "unreliable breath machines" and "passing laws against science"? Here’s just one of many examples… The computers inside Breathalyzers actually multiply the amount of alcohol in a DUI suspect’s breath sample 2100 times to get the blood alcohol concentration ("BAC"). This is because it is programmed to assume that the suspect has 2100 units of alcohol in his blood for every unit of alcohol in his breath. This is called the "partition ratio". But this ratio is only an average: actual ratios vary from as low as 900:1 to as high as 3500:1; if individual ratio is different, the BAC result will be different.
Translation: If a suspect has a true BAC of .06% ("not guilty") and a partition ratio of 1300:1, for example, the machine will give a result of .10% ("guilty"). Convicted by a machine. His crime? He was not average.
Well, when juries hear this kind of evidence, they tend to return "not guilty" verdicts. This did not sit well with MADD’s and prosecutors’ lobbyists. The result: in California and other states, drunk driving laws were changed by adding "Percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 210 liters of breath". In other words, the law no longer cared what the actual amount of alcohol was in your blood: it was legally (not scientifically) presumed to be 2100 times what is in your breath — even though we know it is not.
The conservative California Supreme Court later found the new DUI law constitutional in People v. Bransford. But a dissenting Justice pointed out the obvious: "The majority…has on its own created the new crime of driving with alcohol in one’s breath". (Justice Joyce Kennard, 8 Cal.4th 894)
Result: today, defense attorneys are prohibited from mentioning anything about partition ratios to a jury. Scientific truth has been banned from the courtroom. And the conviction rate in drunk driving cases has risen dramatically.
This website is about the other side of the story….
For years we have read about the “slaughter on the nation’s highways”, watched tragic stories of promising lives cut short by drunk drivers. Pressure groups such as MADD have been wildly successful in fomenting public hysteria and, with no politican daring to oppose them, pushing through ever stricter laws and harsher punishments. As a result, we are repeatedly assured, the number of “alcohol related” traffic fatalities continues to drop dramatically.
My name is Lawrence Taylor. I’m a lawyer in Southern California. I defend those accused of driving under the influence. I see the other side of the story every day.
I see the politicans stumbling over themselves to prove who is the toughest on drunk drivers. I see the judges nervously watching members of MADD in the audience as they pass sentence in a DUI case. I see the the steady erosion of our Constitutional rights in DUI cases, a phenomenon that has come to be known as “the DUI exception to the Constitution“: illegal DUI sobriety checkpoints, forceful and violent seizure of blood, no right to see a lawyer, double jeopardy, denial of the right to jury trial, presumptions of guilt, defective breath tests blindly accepted into evidence, scientific facts banned by law from the courtroom, routine violations of due process and basic fairness in trial….all because “the ends justify the means.”
But there is a cost to this perversion of the American system of justice. There are unseen victims: you and I. And I would like to talk about that. I invite your comments….
So, you ask, who is this guy? And what makes him such an expert? The following is from promotional materials for a seminar at which I recently spoke:
Lawrence Taylor is the most respected DUI attorney in the country today. A former Marine and graduate of the University of California at Berkeley (1966) and the UCLA School of Law (1969), he served as deputy county counsel, deputy public defender and deputy district attorney in Los Angeles before entering private practice. He was the trial judge’s legal advisor in People vs Charles Manson, was Supreme Court counsel in the Onion Field murder case, and was retained by the Attorney General of Montana as an independent Special Prosecutor to conduct a one-year grand jury probe of governmental corruption.
Turning to teaching, Mr. Taylor was a member of the faculty of Gonzaga University School of Law, where in his second year he was voted “Professor of the Year”; served as Visiting Associate Professor at Pepperdine University Law School; and was appointed Fulbright Professor of Law at Osaka University in Japan.
Mr. Taylor is also the author of over thirty articles and 14 books, including the standard textbooks on DUI litigation, Drunk Driving Defense, 6th ed., and California Drunk Driving Defense, 3rd ed., and over the past 25 years has proven a popular lecturer on trial tactics and techniques at over 200 legal seminars in 38 states. He was one of the original 12 founders of the National College for DUI Defense, later serving as its Dean. On July 25, 2002, at Harvard Law School, Mr. Taylor was presented with the College’s “Lifetime Achievement Award”.
Mr. Taylor currently limits the practice of his 11-attorney California DUI Law Firm to drunk driving defense exclusively.