I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.

According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”

With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”

Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.

In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution.  In some instances, there were no standards on how to prepare and operate the machines.

The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.

Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.

In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.

The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.

At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.

“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”

The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.

Unfortunately, the California Supreme Court sided with Goldsmith.

“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”

The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”

Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.

Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.

In late August, a Montebello police lieutenant was taken into custody in San Bernardino County on suspicion of driving under the influence of drugs. He had previously been arrested on suspicion of driving under the influence of prescription drugs, although charges were never filed. The arrest serves as a reminder that someone can be arrested for a California DUI with drugs, both illegal and legal.

On August 21^st, Montebello Police Lt. Christopher Cervantes, 47, was arrested after police believe he rear-ended another car in the city of Montclair.

Neither Cervantes nor the other driver were injured in the collision, Cervantes was booked on suspicion of DUI at the San Bernardino County Jail, and he was subsequently placed on paid administrative leave.

In 2015, Cervantes was arrested following a collision with a tree in Diamond Bar. Although he tested positive for a combination of pain-relieving prescription drugs acetaminophen, butalbital, codeine, and morphine, the Los Angeles County District Attorney’s Office declined to file charges citing a lack of evidence.

In 2011, Cervantes was detained after resisting arrest at a San Diego hotel party where he falsely claimed to police that he was a federal agent. Charges were never filed for this arrest either.

“I’m aware of everything in his personnel file and as I was the one who promoted him, I was confident that he was a great candidate for promotion to lieutenant,” said Montebello Police Chief Brad Keller. Cervantes was promoted by Keller after

 Cervantes’s 2015 arrest.

As a high-ranking police officer, Cervantes should have been acutely aware that a person can still be arrested for driving under the influence of drugs, including prescription drugs. Many people, on the other hand, often believe that a DUI can only occur if a driver has alcohol in their system. Some people believe that a DUI can occur with only alcohol or illegal drugs, and because a drug might be legal, whether prescription or over-the-counter, a driver cannot get a DUI if they have legal drugs in their system.

California Vehicle Code section 23152 (f) states, “It is unlawful for a person who is under the influence of any drug to drive a vehicle.”

“Any drug” includes those that are illegal as well as legal, both prescription and over the counter.

The important consideration here is the phrase “under the influence.” Although, prescription drugs and other legal drugs fall within the definition of “any drug,” a person must also have his or her mental or physical abilities impaired to such a degree that he or she is unable to drive a vehicle with the caution of a sober person to be “under the influence.”

What kinds of medications can cause you to be under the influence? Tranquilizers, narcotic pain pills, sleep aids, antidepressants, cough medicines, antihistamines, and decongestants to name a few. And how might they cause you to be under the influence? Drowsiness, dizziness, nausea and vomiting, blurred vision, and confusion, to name a few. Kind of sounds like being drunk, doesn’t it?

A few years back, the AAA Foundation for Traffic Safety found that almost half of people 70 years old and above take up to five medications per day. Additionally, a survey from the foundation found that 72% of people 55 and over, the demographic most likely to take medications for chronic conditions, had no idea that their driving performance could be affected by their prescription medications.

Remember, a DUI does not just mean driving under the influence of alcohol, or even illegal drugs, but all drugs including prescription and over-the-counter drugs. If it is capable of affecting a person’s driving ability, then it’s best to wait until after a driving excursion is over.

According to the California Highway Patrol, the number of arrests for driving under the influence of marijuana has increased since recreational marijuana in California became legal in 2018. Yet, determining when someone is under the influence of marijuana to a degree that makes them incapable of safely operating a motor vehicle remains as difficult as it always has been…or has it?

California Vehicle Code section 23152(f) makes it “unlawful for a person who is under the influence of any drug to drive a vehicle.”

Quite clearly, marijuana is a drug even if it is recreational. Whether a transportation device qualifies as a “vehicle” for purposes of this law is a different subject for a different day. The bigger question, however, is whether someone is “under the influence” after having smoke marijuana.

To be “under the influence” as the result of consuming marijuana, a person must have his or her mental or physical abilities so impaired that he or she is unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While this definition might sound nice, it is still difficult to determine how much marijuana an individual must consume before they are so “high” that they are unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

Unlike alcohol, there is little correlation between the amount of marijuana someone has consumed and how impaired a person is.

Alcohol is water soluble, which means that it enters and leaves the bloodstream fairly quickly. Additionally, a person’s blood alcohol content, which can be determined rather quickly and accurately, has scientifically been shown to correlate with how drunk (i.e. impaired) someone is. Every state, with the exception of Utah, has a blood alcohol content limit of 0.08 percent because, generally speaking, that is the point at which alcohol begins to affect a person’s motor skills, thus making them “under the influence” for purposes of a DUI with alcohol.

THC (tetrahydrocannabinol), the psychoactive component to marijuana, on the other hand, is fat soluble. Therefore, unlike alcohol, it can stay in a person’s system for much longer than alcohol. In fact, regular users of marijuana can still have THC in their systems weeks after having consumed marijuana and certainly long after being high, which necessarily means that it cannot and should not be used to determine how high someone is, and whether they are “under the influence.” Yet, current blood tests only detect the amount of THC in a person’s system, but there is no way to determine how “high” someone is.

Oakland based Hound Labs is trying to change this by creating the first breathalyzer to measure “recent” marijuana and alcohol use on the breath.

“When you can you find THC in breath, and that can require some incredibly sensitive tools, but when you can find it, then you know that the person used very, very recently,” said Dr. Mike Lynn, emergency room physician, reserve deputy sheriff, and founder of Hound Labs.

Working in conjunction with UCSF, Hound Labs determined that THC can be found on a person’s breath.

“We found THC in all twenty test subjects, and what was really interesting, is that the THC peaked at about 15 minutes, and then it went out of the breath within 2 to 3 hours,” said Dr. Lynn.

According to Dr. Lynn and Hound Labs, if THC is found on the breath, it means that a person had smoked within the last few hours. They also determined that the first two to three hours following marijuana consumption is when a driver is at the greatest risk for being impaired.

Hound Labs were granted $30 million in funding to continue to develop and manufacture the marijuana breath test to be used by law enforcement by the end of the year.

While it may be a step in the right direction in finding the elusive answer to the question, “When is someone too high to drive?” issues remain. When Hound Lab’s device detects that someone consumed marijuana “recently,” how recent is it? Does “recent use” account for even negligible amounts of marijuana consumption? Will “recent use” change the way we draft our DUI of marijuana laws?

Bottom line is that, before we get too carried away, we need to make sure that whatever safeguard and/or preventative measures we put in place to stop high drivers do not infringe on the rights of people who consume marijuana safely and lawfully.

Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.

According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1^st to September 5^th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.

Last year, California saw two deaths and 31 injuries on Labor Day.

Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.

The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.

So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?

In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:

1. The decision to conduct checkpoint must be at the supervisory level.
2. There must be limits on the discretion of field officers.
3. Checkpoints must be maintained safely for both the officers and the motorists.
4. Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official nature of the roadblock.
7. Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).

Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.

Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.

If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?

The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.

Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.

At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.

As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.

This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.

The Maui Police Department hope to be able to start enforcing their DUI laws in a more time efficient manner with the purchase and arrival of six new high-tech breathalyzers.

The current Intoxilyzer 8000 models have been used by the department since May 2015 and the introduction of the newer Intoxilyzer 9000s will hopefully allow the officers to spend less time documenting their tests results.

The new device is equipped with a touchscreen rather than a keyboard for easier data entry and its updated software will allow for some of the departmental forms to be incorporated into the device. This will allow the device to create reports rather than the officers manually typing out the reports as they did previously.

A grant totaling $63,000 through the state Department of Transportation allowed for the purchase of the new devices, and the Maui Police Department will be the first department in the state to transition to the Intoxilyzer 9000. The Honolulu Police Department also hopes to soon make the same transition.

DUI Task Force Sergeant Nick Krau has been tasked with the training as well as the writing of policy and operating procedures for the Intoxilyzer 9000 that will eventually be reviewed by the state Department of Health before being distributed. Official training and use of the new devices will take place soon thereafter.

A total of twelve officers, coming from multiple islands, spent time at a two-day training course at the Kihei Police Station in order to familiarize themselves with the new devices. The attending officers will be the ones primarily training other officers.

According to Lieutenant William Hankins, the commander of the police Traffic Section, “The technology is still the same as far as how it analyzes breath readings. It just makes it easier for the officers. Everything’s going to be faster.”

Six devices may not seem like a lot for an entire police department. however, these are not the same devices that patrol officers will have out on the street. The new Intoxilyzer 9000 devices will be analyzing results after the preliminary tests are administered and are to become the tests that are admissible in court.

Each police station in Maui County will have a new Intoxilyzer.

“We always strive to have the most updated technology possible for our officers and our community. It will allow us to get our officers back on the road faster,” said Krau.

I hope that the state departments and various police department heads do their very best to make sure that statement rings true.

A quick Google search revealed that the Intoxilyzer 9000 series has been in circulation as early as 2013. Some of the first states to implement the new model were Georgia and Colorado. Texas made a slower transition as there where a few deficiencies with the device that became apparent after other states had already begun using it but aimed for full implementation in 2015.

Although not quite as new and novel as Krau made it out to be, Hawaii’s implementation of the Intoxilyzer 9000 might signify an emerging trend of modernizing breathalyzers. Perhaps they were merely waiting for all of the deficiencies of the earlier 9000 series to work themselves out.