Category Archives: Duiblog

DUI in a Wheelchair?

Some time ago I wrote a post about the efforts of police and prosecutors to stretch the DUI net as far as possible — and then some. Entitled "DUI on a Horse?", it reported cases of citizens charged with being under the influence of alcohol while "driving" such "vehicles" as a bicycle, a lawn mower and a horse. How far will law enforcement go? Consider the following excerpt from a story in the St. Petersburg Times (January 4, 2005):

"BROOKSVILLE — A Hernando judge Monday threw out the case against a 46-year-old woman accused of driving drunk while operating her wheelchair. "Judge Peyton Hyslop, in one of his last rulings from the bench, said the wheelchair essentially was the woman's legs and that charging her in this case would be tantamount to bringing DUI charges against anyone who was drunk and standing up…..

Hyslop said under those terms, an able-bodied totally intoxicated person sitting next to the impaired disabled person "would not be subject to such arrest, and only to arrest if disorderly". "(The woman) acknowledged having a few beers while taking her prescription medication. She suffers from degenerative disc disease, osteoarthritis and scoliosis, according to court documents…."

“First They Came for the Drunks…”

I mentioned in an earlier post (“Are Police Watching Your Home? ”) that police agencies, urged on by the the President’s Commission Against Drunk Driving, have begun to assign officers to stakeout the homes of individuals on probation for DUI — sometimes for days — waiting for them to violate their probation by driving.

Aside from the obvious objections, of course, the larger concern is that if police can watch the homes of those with DUI records today, what legally is to stop them from watching your home tommorrow? Do we really want police staking out our homes, waiting for us to make a mistake? Commenting upon this, Scott Henson has reported on his weblog the efforts of the federally-funded Center for Transportation Analysis to require cars to be equipped so they will not start without first inserting a valid driver’s license in an ignition interlock device. This is but one of many ideas proposed to deal with drunk drivers.

What is of greater interest, however, is the CTA representative’s explanation of how Americans’ “historical” concerns about invasion of privacy and Big Brother can be overcome — by initially demonstrating the technology on unsympathetic targets who “have fewer privacy ‘rights’ “:

“American society historically resists excessive government intervention and Big Brother programs that threaten to invade privacy,” Hu says. “One of the biggest challenges to implementing electronic driver’s licenses will be to secure widespread public acceptance and community support.” Hu thinks that the U.S. public will be more likely to accept this technology if it is first demonstrated on high-risk drivers. “Targeting a demonstration project at drivers who might have fewer privacy ‘rights,’ such as convicted DUI offenders, might reduce public concern about invasion of privacy,” she says.”

[Note: the quotes around the word “rights” have not been added.] As Mr. Henson paraphrased: “First they came for the drunks, but I was not a drunk so I did not speak up…..”

Are Police Watching Your Home?

We've all read about oppressive governments, about how the police shadow its citizens, even staking out their homes to watch for any suspect activities.

What if you were to learn that this is being done in the United States today — and it is being encouraged by the federal government? Not possible, you say? Not in this country? The following endorsement of the practice is taken verbatum from the official website of the President's National Commission Against Drunk Driving:

"Persistent drinking drivers have not responded to the threat of legal sanctions or to prevention activities. In order to help curb the traffic safety problem posed by this group of drivers each state should develop a comprehensive system with key features aimed at deterring the persistent drinking driver….

"Special enforcement campaigns, such as developing a "Hot List" of repeat DUI offenders or the "Stakeout" of people who have lost their license due to a DUI conviction should help to detect future violations and reduce impaired driving…..A few states have implemented "stakeout" programs to check if DUI offenders are driving. Police watch the homes of the offenders, usually at times when they would be leaving and returning from work. If they are caught driving, they are arrested. Publicizing these campaigns may increase the perceived likelihood of apprehension and result in better compliance with the law."

Local police agencies are apparently taking the Presidential Commission up on this. The following is from an April 5, 2004, Associated Press story about LAPD entitled "Cops Stake Out Homes of Drunken Drivers":

"Disturbed by soaring drunken driving accidents, police officers are now staking out the homes of habitual DUI motorists to catch them violating conditions of their probation.

"A task force of five San Fernando Valley officers who wait for hours, sometimes days, outside homes have made 18 arrests for probation violations since the novel tactic began in December, officials said. The program is being expanded citywide this week."

I suppose there are a number of reactions to this. One, certainly, is, "Whatever it takes to get them off the road". Another might be, "Is this really an efficient allocation of limited police resources?" A third, hopefully: "But where does it stop? If for DUI today, for what tommorrow? Do we really want the police watching our homes, waiting for us to make a mistake?"


Tuberculosis, AIDS and Breathalyzers

If you are arrested for drunk driving, you will probably be transported to a police station and taken to a room where there is a breath machine sitting on a table. There may already be another arrestee sitting at the table, blowing into the machine. When he is finished, the officer will (hopefully) replace the mouthpiece on the tube connected to the machine, hand it to you and say "Blow in here, and keep blowing until I tell you to stop, then wait and do it again". Afterwards, you may find yourself thinking, "I wonder how many people have used that machine today?" And the uncomfortable thought may follow, "I wonder if any of them had tuberculosis?…or AIDS?" If you are in a metropolitan area, maybe a dozen or more suspects breathed into that machine before you; in the previous month, hundreds. And none of them were screened for communicable disease.

ITEM….From the Minnesota Department of Health's Facts on AIDS: A Law Enforcement Guide: "Use disposable breathalyzer masks on drunk driving suspects (HIV has been found in the saliva of some HIV-infected patients)…These precautions are also intended to reduce one's risk of becoming exposed to other infectious agents including hepatitis."

Assuming that the police do replace the mask/mouthpiece before each test, what about the breath tube? The mouthpiece is connected to a heated tube which carries the breath sample from the mouthpiece into the machine's sample chamber. If microbes can reside in a mouthpiece, they can certainly reside in the connecting tube. And the tube cannot be changed.

ITEM….From the manufacturer of BreathScan, a portable and disposable breath testing device: "The BreathScan tester can be used once and then disposed of, minimizing contamination associated with repeated use of non-disposable units (no AIDS cross-transmission)…." (emphasis added)

Now ask yourself: If arrested, would you blow into the Breathalyzer? p.s. And while you're sitting there at the table, where do you think all of those tuberculosis germs went when the other guy's breath sample was flushed from the breathalyzer out into the room?

DUI, Field Sobriety Tests and “Circadian Rhythm”

Most drunk driving arrests take place at night, often after midnight. One reason for this is that many police officers engage in "cherry picking" — that is, the illegal practice of staking out bars and restaurants from about 10:00am to "closing time", pulling cars over on some pretext as patrons leave and drive away. It is during this period of time that the individual’s circadian rhythm is taking effect. The circadian rhythm is that 24-hour biological alarm clock in each of our bodies, most noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning. It is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not. Specifically, British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555. The researchers concluded that "the differences we have found…must be attributable to circadian change and susceptibility of the body to its effect."