Tag Archives: BAC
We’ve been saying it for years: breathalyzers are inaccurate for a multitude of reasons. Recall just a few months ago The New York Times confirmed exactly this stating that after interviewing “more than 100 attorneys, scientists, executives and police officers and [reviewing] ten of thousands of pages of court records, corporate filings, confidential emails and contracts,” it revealed “the depth of a nationwide [breathalyzer] problem that has attracted only sporadic attention.”
In January of last year, a Massachusetts judge threw out the breathalyzer results of over 400 DUI cases as the result of inaccurate results.
In late 2018, New Jersey’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the defendant’s blood alcohol content was used to secure the defendant’s conviction.
As if breathalyzer accuracy wasn’t unreliable enough already, now state police in Michigan are looking into the alleged fraudulent certification of breathalyzers used throughout that state.
Accuracy of breathalyzers thrown into question amid Michigan State Police investigation
January 14, 2020. Detroit Metro Times – Michigan State Police are investigating three contract employees who ensure the accuracy of breathalyzers used during traffic stops after authorities discovered “performance-related issues” and possible fraud.
State police notified law enforcement officers across the state to stop using more than 200 breathalyzers from longtime vendor Intoximeters.
The investigation focuses on three Intoximeters contract employees, who were responsible for certifying and calibrating Datamaster DMT breathalyzers to ensure they are accurate.
Investigators said they suspect fraud after finding discrepancies in paperwork.
Stopping the use of the breathalyzers “is an absolutely necessary move to safeguard the integrity of the criminal justice process,” Michigan State Police Director Col. Joseph Gasper said in a news release.
“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” Gasper says.
In a letter to law enforcement officers across the state, state police said prosecutors have been alerted to the suspected fraudulent activity.
“Prosecutors with cases impacted by the contractor errors identified by the MSP have already been notified,” Michigan State Police Maj. Greg Zarotney wrote to law enforcement officials. “However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors.”
The following law enforcement agencies were using breathalyzers with “possible discrepancies”: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.
In California courts, a person cannot challenge the accuracy of breathalyzers in general. If, however, an individual breathalyzer was inaccurate during a DUI stop, that person may challenge the accuracy of the individual breathalyzer used on them during the stop.
Why risk the uncertainty of a breathalyzer result when so much is on the line?
If an officer requests that a driver submit to a pre-arrest breathalyzer, that breathalyzer is optional. Although the officer may make it seem as though it is mandatory, the law does not require that the driver submit to a pre-arrest breathalyzer.
What is required, however, is that a driver submit to a chemical test, which can either be breath test or a blood test, but only after that driver is lawfully arrested on suspicion of a DUI. Until then, don’t do it.
It’s that time of year when we all scramble to find last minute stocking-stuffers, or perhaps we’re still looking for a gift for that person who already has everything. Look no further.
It goes without saying that, for all the good that the holiday season brings, the unfortunate reality is that it also brings with it the very real and dangerous potential for drunk driving. Every year, we warn of the dangers of drunk driving during the holiday season. We also warn of heightened law enforcement efforts to catch drunk drivers and suggest alternative methods home from work holiday parties and the like. While we have in the past talked about personal-use breathalyzers, it’s worth discussing them again, and even suggest them as the perfect gift this holiday season.
Breathalyzers are no longer accessible to law enforcement. Breathalyzers are so readily available nowadays that, in addition to the standard multiple-use breathalyzer, they have developed single-use disposable breathalyzers and breathalyzer apps for the smartphone.
As you can imagine, the range in the quality and price of personal breathalyzers is quite large. Costs will vary between $15 and several hundred dollars. Breathalyzers under $50, and those coming on key chains have questionable accuracy from the start and accuracy continues to decrease after multiple uses.
Unlike novelty breathalyzers, quality breathalyzers will be backed by the Food and Drug Administration (FDA). This means that the FDA conducts research to confirm that the breathalyzer does what its literature says it does.
Just because I believe that personal breathalyzers can prevent a DUI, it doesn’t mean that they are 100% accurate. Almost all quality breathalyzers, like those the police use, require calibration after repeated use to ensure accuracy. Some products allow for owners to calibrate themselves and some require that the breathalyzer be sent to the manufacturer for calibration. Heavily used and non-calibrated breathalyzers will likely not be accurate.
It is possible for a person’s blood alcohol content to continue to rise after a breathalyzer reading, especially if they’ve only recently stopped drinking. Therefore, it is also possible for a person to have a blood alcohol content of 0.07 when they leave the bar (and when they test themselves) and a 0.09 after they’ve been driving for a while. If that is the case, you can still be arrested and charged for a California DUI.
Lastly, a person does not necessarily need to be above a 0.08 blood alcohol content to be arrested and charged with a California DUI. A person can be arrested and charged with a California DUI if they are above a 0.08 percent blood alcohol content or if they are “under the influence.” In other words, you can be a 0.07 percent, but if an officer determines that you cannot safely operate a vehicle as a sober person could, you can still be arrested and charged with a California DUI. A breathalyzer may determine if you are under the legal limit, but it cannot determine whether you are “under the influence.”
At a minimum, however, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving simply because they now know that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess. This Christmas why not give the stocking-stuffer that just might save the recipient’s life?
Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.
If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?
I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.
Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.
Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.
Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.
According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.
However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.
Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.
There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?
When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence. As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.
Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.
Yes, you read that title correctly. The United States Supreme Court just ruled that police can withdraw blood from an unconscious person suspected of driving under the influence.
Six years ago, police found Gerald Mitchell on a beach in Wisconsin and suspected he was intoxicated after a neighbor reported that he was drunk and suicidal. After being arrested, Mitchell was transported to a hospital. However, by the time he arrived at the hospital, he was unresponsive and law enforcement ordered hospital staff to draw his blood, which revealed a blood alcohol content of 0.22 percent.
Although Mitchell tried to exclude his blood alcohol content from evidence, he was denied and ultimately convicted of driving under the influence. After losing in the Wisconsin state courts, he appealed to the United States Supreme Court arguing that the withdrawal of his blood while he was unconscious without a warrant violated his 4th Amendment right against unreasonable searches and seizures.
Justice Samuel Alito, writing for the majority which included Chief Justice John Roberts, Justice Stephen Breyer, Justice Brett Kavanaugh, and himself, concluded that the 4th Amendment, generally, does require a warrant to conduct a search. However, he went on to say that there are exceptions to the warrant requirement including “exigent circumstances” where, as here, a warrantless blood withdraw was necessary to “prevent the imminent destruction of evidence.” Alito continued that the alcohol in a person’s system is “literally disappearing,” which justifies the need to obtain the evidence before taking the time for law enforcement to obtain a warrant.
“Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk,” Alito wrote. “It would be perverse if the more wanton behavior were rewarded — if the more harrowing threat were harder to punish.”
Alito also noted that the condition of a driver who is unconscious creates additional burdens on law enforcement since the driver will likely be taken to a hospital rather than the police station where a breath test can be administered.
“It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interest served by BAC limits,” he wrote. “This is just the kind of scenario for which the exigency rule was born – just the kind of grim dilemma it lives to dissolve.”
Justice Clarence Thomas concurred with the result, but not Alito’s rationale. Thomas maintained that since alcohol automatically leaves a person’s blood within a certain amount of time, police should be able to forcibly withdraw blood whether the driver is conscious or not.
Justice Sonia Sotomayor wrote a dissenting opinion that was joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan. Sotomayor argued that Alito’s rationale had missed the point. Sotomayor emphasized that, in this case, law enforcement admitted that there was time to obtain a warrant for Mitchell’s blood, but that they didn’t because of “implied consent.” Implied consent, which exists here in California, is a law that a driver has impliedly agreed to a chemical test by mere virtue of having a driver’s license.
“Wisconsin has not once, in any of its briefing before this Court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote. “In fact, in the state proceedings, Wisconsin ‘conceded’ that the exigency exception does not justify the warrantless blood draw in this case.”
She went on to say, correctly so in my opinion, that, while “drunk driving poses significant dangers that Wisconsin and other States must be able to curb…the answer is clear: If there is time, get a warrant.”
Justice Neil Gorsuch dissented separately also taking issue with the fact that the case had been decided on grounds that were not the basis for the appeal; whether implied consent laws violate the 4th Amendment.
“We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests thanks to a state statute,” Gorsuch wrote. “That law says that anyone driving in Wisconsin agrees — by the very act of driving — to testing under certain circumstances. But the Court today declines to answer the question presented. Instead, it upholds Wisconsin’s law on an entirely different ground—citing the exigent circumstances doctrine.”
Take a second to ask yourself what place you expect to be more private than any other place, including your home. I expect that the most prevalent answer is “our bodies.” Yet, for the place that we consider to be the most private, law enforcement does not need a warrant to intrude into it as long as we have a driver’s license.
Sound like a loophole for law enforcement? It is!
I am not saying that we shouldn’t be testing the blood of suspected drunk drivers. But the Constitution protects all of us, suspected drunk drivers included. And if the Constitution requires a warrant to search, especially the thing most of hold to be the most private, then law enforcement should have to get one.
It’s not like law enforcement is sending the warrant application by raven! How long (or difficult) would it really take to obtain a warrant? A few minutes if done digitally? Alito and the majority don’t seem to care as they continue to make it easier for law enforcement to violate constitutional rights.
Justice Sotomayor said it best. If there is time, get a warrant.
We often spend so much time talking about unique DUI-related topics, many of which discuss the complicated intricacies of DUI’s and DUI law, that we forget to go back and just remind our readers about the basics of a California DUI. Therefore, every so once in a while, I like to go back and just discuss the basics of a California DUI. Before I go any further, I’ll preface this post by saying that the below information is not for DUI’s where aggravating circumstances were present such as prior DUI convictions, collisions, injuries to third parties, an unusually high BAC, a refusal of a chemical test, and so on.
In order to be stopped and arrested on suspicion of a California DUI, officers need probable cause to believe that a person is driving under the influence. For an officer to have probable cause, they need to have reasonable and trustworthy facts that a person is driving under the influence. Officers obtain the probable cause needed to make a DUI arrest by observing poor driving patterns, observing signs of intoxication (slurred speech, smell of alcohol, bloodshot eyes), poor performance on field sobriety tests, and/or failure of a pre-arrest breathalyzer known as a “preliminary screening alcohol test” (PAS test).
A driver can limit the probable cause that the officers are looking for by taking steps to enforce their rights. If pulled over on suspicion of driving under the influence, the driver should not say anything to police except to invoke their 5th Amendment right to remain silent and request an attorney. The field sobriety tests are optional and should not be performed. See any of our numerous articles on the inaccuracies of field sobriety tests. Lastly, the PAS test is also optional and also should not be taken. By limiting the probable cause, the driver will give their defense attorney the ability to argue that the arrest was illegal because the officer did not have the required probable cause to make the DUI arrest.
I should note that a driver will likely still be arrested whether they take measures to protect their rights or not. Again, the purpose of protecting your rights is to help with the DUI defense in court, not to prevent an arrest. I repeat, the officers will almost always still make the arrest.
Once arrested, the driver will be required to submit to a chemical test which can either be a breath or a blood test. Do not confuse this test with the roadside breathalyzer (PAS) test. The PAS test is optional. The chemical test is required, but is only required after a driver is lawfully arrested.
After the driver is arrested, they will be held until they sober up and released with a court date. In the time between the arrest and the court date, the law enforcement agency will send its police report to the appropriate prosecuting agency to make the decision about whether to file charges.
If a DUI is charged, it will typically be under California Vehicle Code section 23152(a) and/or 23512(b). Simply put, Vehicle Code 23152(a) makes it illegal to drive while under the influence of alcohol and Vehicle Code 23152(b) makes it illegal to drive with a blood alcohol content of 0.08 percent or higher. If a person is arrested having been suspected of driving while under the influence of an intoxicant other than alcohol, they will likely be charged with California Vehicle Code section 23152(e).
The filing of charges triggers a criminal case in the appropriate courthouse. The court will schedule a hearing called an arraignment. At arraignment, the DUI suspect, who is now a DUI defendant, will enter a plea, be advised of their rights, and the charges pending against them.
Following the arraignment, there may be several or no pretrial hearings to allow the prosecutor and any defense attorney, either private or a public defender, to assess the merits of the case and negotiate a plea deal. A plea deal may include a reduction in charges to a “wet reckless,” “dry reckless,” or some other lesser charge. It may also include a reduction in sentence.
If no deal can be reached, the case proceeds to a trial where the prosecutor will have to prove to a jury beyond a reasonable doubt that the DUI defendant drove a vehicle either under the influence of alcohol, under the influence of a drug, or with a blood alcohol content of 0.08 percent or higher.
If the jury finds the person not guilty, the DUI defendant will suffer no legal penalties. However, if the finds the person guilty, they face a minimum of three years of summary probation, a fine between $390 and $1,000 plus penalties and assessments, and a three-month drunk driving program known as AB-541, and up to six-month in county jail. Other penalties that a defendant might face are a longer DUI program, a longer probationary period, a hospital and morgue program, a Mothers Against Drunk Driving Victim Impact Panel, AA meetings, and a SCRAM device (alcohol detecting anklet).
I’ve only scratched the surface of the basics of a California DUI, and I haven’t even mentioned the DMV consequences of a DUI arrest and/or conviction, which, by itself, could take up several stand-alone articles. See any number of previous posts about the DMV consequences of a DUI.
Needless to say, just the basics of a DUI are extremely complicated. Factor in other intricacies not mentioned here and it goes without saying that a person who has been stopped, arrested, and charged with a DUI should absolutely not try to take on the system by themselves. Hire a qualified and experienced DUI attorney who knows the process inside and out, and who will give you the best chance at a favorable outcome.