Shooting a Gun while Intoxicated Less Dangerous than Driving while Intoxicated?

Thursday, April 4th, 2019

The New York Legislature last month voted to lower the blood alcohol limit allowed while hunting to match the threshold for the blood alcohol content someone can have while driving.

On March 26th of this year, the New York Assembly voted 147 – 1 to amend the law that previously outlawed hunting in the state with a blood alcohol content of 0.10 percent or higher. The following day, the New York senate voted 56 – 5 to amend the law. Under the amended law, hunters cannot have a blood alcohol content of 0.08 percent or higher, matching blood alcohol content limit while driving in most states, including California (Utah just became the first state to lower its blood alcohol content limit to 0.05 percent).

Under the new law, hunting with a blood alcohol content of 0.08 percent or more is a misdemeanor and carries a fine of up to $500, up to a year in jail, and a revocation of a person’s hunting license for two years. Additionally, licensed hunters who refuse to submit to a breath or other test for intoxication can also have their licenses revoked.

“These changes were based in part on studies which determined that this level of alcohol in an individual’s bloodstream can result in substantially impaired motor skills, perception and judgment,” Assemblyman Kenneth Zebrowski wrote in his sponsor’s memo. “These are also critical skills used in hunting.”

In California and other states, DUI laws generally include prohibitions against both driving with a per se blood alcohol limit of 0.08 percent or higher (or 0.05 percent or higher in Utah) and driving while under the influence (or some other iteration like “driving while intoxicated” or “operating under the influence”).

The purpose for this is that nobody should be driving while actually under the influence, meaning that they cannot drive like a reasonable and sober person would. And, as Mr. Zebrowski stated, at a 0.08 percent, studies have shown that the motor skills of individuals, albeit very subjectively, are affected to a degree that might impair driving.

Like Zebrowski, lawmakers who approved of New York’s new limit expressly cited the risk of injury and death.

“An individual who is too intoxicated to drive a car or pilot a boat is also unfit to engage in hunting and the increased risk is not only to the hunter, but to everyone else in the field,” Zebrowski, a Rockland County Democrat, wrote. “This bill would ensure a consistent standard for intoxication in state law.”

Sure, it sounds like they’re considering driving with a blood alcohol content limit of 0.08 percent just as dangerous as shooting a gun with a blood alcohol content limit of 0.08 percent or higher.  But are they really?

Let me get this straight. It is illegal to shoot a gun and drive with a blood alcohol content of 0.08 percent or higher. Fine. However, it is also illegal to drive a vehicle while “under the influence” regardless of what a person’s blood alcohol content is. Yet, a person can shoot, say a semi-automatic rifle, if they are “under the influence,” but not necessarily above a 0.08 percent.

Let me give an example. Take a person weighing less than a hundred pounds who has never had a sip of alcohol before in their life. If they have a couple of beers, they may not be above a blood alcohol content of 0.08 percent, but they’re certainly going to be “drunk” or “under the influence.” New York is telling them, “Sure, go shoot that gun, but don’t you dare drive.”

Really?

It seems to me, and I would hope others would agree, that using any firearms with any alcohol seems patently dangerous, and certainly more dangerous than driving a vehicle. Not that I’m saying it’s safe to drive with alcohol in your system. Neither are safe. But if lawmakers are using a driving under the influence as a measuring standard for how they draft other laws, then it should actually be equal at a minimum, if not more restrictive for more dangerous activities. Or is this just another example of the overzealous vilification of DUI’s?

New York’s new law becomes effective September 1st.

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Maine Supreme Court Affirms DUI Conviction Even Though Science Suggests Defendant was Involuntarily Intoxicated

Monday, March 25th, 2019

Apparently, some high courts in this country don’t care whether science can show a person is innocent.

Earlier this month, the Maine Supreme Court denied the appeal of a man who sought to introduce the testimony of a medical expert at trial that he suffers from auto-brewery syndrome.

Believe it or not, there is a rare medical condition that causes a person to “brew” alcohol within their body causing them to become intoxicated even though they haven’t had a sip of actual alcohol; hence the name, “auto-brewery syndrome.”

If you know how beer is made, you’ll know that yeast is added to grain extract (which is essentially sugar). When the yeast eats the sugar, it releases carbon dioxide (which creates the carbonation in beer) and alcohol (which gives beer its intoxicating effects). This process is known as fermentation. A person with auto-brewery syndrome produces unusually high levels of yeast in their gastrointestinal tract which, in turns, eats the sugars that a person ingests creating both carbon dioxide and alcohol in the person’s system even though they haven’t actually ingested any alcohol. In some instances of auto-brewery syndrome, the production of alcohol is so much that it can actually cause a person to become legally intoxicated!

I think you can see where I’m going with this. John Burbank claimed to be such a person afflicted with this rare disorder when he was arrested on suspicion of a DUI in 2016 because his blood alcohol content was 0.31 percent, almost four times the legal limit. In preparation for trial, Burbank sought to introduce an expert who would have testified that he suffered from this condition and that the condition caused him to become intoxicated through no fault of his own.

The trial court judge, however, denied the introduction of Burbank’s expert. And without the expert’s testimony, Burbank opted to plead no contest and filed an appeal challenging the denial of the expert’s testimony.

The Maine Supreme Court concluded that the trial court was correct in not allowing the expert to testify, thus affirming Burbank’s DUI conviction.

The Maine Supreme Court justified its conclusion by saying that, although the expert was a P.h.D. in toxicology and physiology, she was merely basing her opinions several articles regarding the condition, but that she, herself, had not worked directly with cases of auto-brewery syndrome or with Burbank and his condition.  Additionally, the court pointed out, that Burbank’s symptoms were different than those who were the subjects of the articles that the expert was relying on.

Bear in mind that auto-brewery syndrome is extremely rare with far less available research and knowledge about it than many other conditions.

The court went on to say that the denial of the expert’s testimony did not amount to a denial of Burbank’s constitutional right to present a defense because, according to the justices, the denial was a “reasonable restriction.”

I don’t know about you, but this sounds like an unreasonable restriction to me. In law, for expert testimony to be admissible, it must be relevant and reliable. It is relevant because it could show that Burbank did not choose to become intoxicated when he drove. The law should not and, in most cases, does not punish people for things they cannot control. The law should only punish people who, through voluntariness and free will, engage in criminal conduct. And it is reliable because, while the expert may not have specific knowledge as to Burbank’s auto-brewery syndrome, it is nonetheless a legitimate and recognized medical condition, albeit with little research on it because of its rarity. People with rare conditions should not be disadvantaged and punished merely because their condition is rare, which is exactly what the Maine Supreme Court is doing.

What’s more, the concurring justice concluded that the defense of involuntary intoxication should not be allowed in DUI cases because “it may invite many ‘I didn’t know there was vodka in my orange juice’ or similar defenses to [DUI]…charges.”

So what?! So what if it invites future defenses? If it is a plausible defense to a crime for which the government can take away someone’s freedom, a defendant should be allowed to assert it. It’s their life on the line, not the judges. And pardon me, but I thought it was the jury’s job to determine if a defense is true or not. If the jury had heard the expert testimony, but still concluded that Burbank did drink and drive, then so be it. At least he was provided the opportunity to defend himself.  

What’s next? Courts not allowing an alibi defense because it could invite many “I was somewhere else” defenses?

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Can an Unconscious Driver Give Consent to have a Blood Alcohol Test?

Friday, March 8th, 2019

The Founding Fathers drafted the Constitution, specifically the first 10 Amendments, mindful that the government could and may at some point in our country’s future subvert our individual rights, such as the right to be free of unreasonable governmental searches and seizures. Specifically, the Fourth Amendment prohibits the government from “unreasonable searches and seizures.” Simply put, if a person has a reasonable expectation of privacy in a particular place, the government cannot search it unless, amongst other things, it has a warrant to do so or if it obtains voluntary consent to the search.

That was then. Mitchell v. Wisconsin is now.

The United States Supreme Court is currently deciding a case that will determine if police can withdraw blood from an unconscious suspected drunk driver without their express consent.

In May of 2013, Gerald Mitchell was arrested on suspicion of driving under the influence of alcohol. While en route to the police station, Mitchell became lethargic and the officers instead took him to a hospital. There, the officers attempted to read Mitchell his rights as well as a statutorily mandated form regarding Wisconsin’s implied consent law. Mitchell, however, was already too close to unconsciousness to understand, if not unconscious already. That didn’t stop the officers. They ordered hospital workers to withdraw blood from Mitchell without his express consent. The blood test revealed a blood alcohol content of 0.22 percent, almost double the legal limit.

Implied consent laws, which exist in every state, declare that every driver, through merely having a government-issued driver’s license and using state-owned roadways, has impliedly agreed to take a blood-alcohol test if arrested on suspicion of driving under the influence.

Mitchell was charged with a DUI (or OWI – operating while intoxicated – as it’s called in Wisconsin). He moved to suppress the results arguing that the officers did not have a warrant and that he did he did not give his express consent. Prosecutors argued that neither a warrant nor express consent were required because of the implied consent law. The trial court sided with the prosecutors and Mitchell was convicted.

Mitchell appealed and the court of appeals certified the case to the Supreme Court of Wisconsin on the issue of “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law…violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the certification and upheld Mitchell’s conviction. Earlier this year, however, the United States Supreme Court decided to take on the case.

It couldn’t come at better time either. State court stances on the issue have been all over the place.

Some states have struck down laws that allow prosecution of someone who refuses a blood alcohol test in violation of the implied consent law. Some states have held that warrantless, consentless searches are unconstitutional and, therefore, the evidence obtained by the search is inadmissible against the driver at a DUI trial. Others, like Wisconsin, have held that the Constitution and the Fourth Amendment don’t matter as long as implied consent laws allow law enforcement to search DUI suspects carte blanche.

Let’s take this step by step. The officers in Mitchell’s case do not need a warrant if Mitchell does not have a reasonable expectation of privacy in the place that law enforcement is searching. We’re not talking about Mitchell’s garage. We’re not talking about his car. We’re not even talking about his home. We’re talking about the thing that we as humans consider to be the most private; our body. I’ll even take it a step further and say that we’re talking about a search of the contents of someone’s blood. You damn well better believe that we have a reasonable expectation of privacy in our bodies and our blood.

Since Mitchell had a reasonable expectation of privacy, the Constitution requires that the officers either get a warrant or get Mitchell’s consent. They did not have a warrant nor did Mitchell give consent because he was, for all intents and purposes, unconscious. Yet, they searched and found what they were looking for.

Wisconsin’s Supreme Court, in allowing Mitchell’s blood and blood alcohol content to be used against him in a criminal case, has essentially said that unconscious drivers can give consent, and have already done so.

How? Because the state legislature has subjectively and in contradiction to the Constitution of the United States created a law that gives the government the right to search without a warrant or consent.

The Founding Fathers were right to be wary of the government, clearly. Let’s just hope that the United States Supreme Court decides Mitchell’s issue bearing in mind what the Founding Fathers had intended and what they wrote in the Constitution.

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New Jersey Forensic Lab Scandal Likely to Affect Thousands of DUI Cases

Wednesday, February 6th, 2019

People’s opinions and memories are subjective, which is why in the court of law, science and factual evidence is often the nail in the coffin, so to speak. If DNA evidence from a suspect matches the one said to have been found at the scene of the crime, even when the suspect “does not remember” being there, doubt gives way in favor of the DNA evidence. However, what if there was reason to believe that the lab mislabeled the samples, or that the machine that ran the tests were never cleaned or not properly calibrated? Now, what was once factual evidence is now less than reliable, perhaps even completely inaccurate.

Lab technicians are human. Therefore, no matter how careful one may be, it is undisputed that there is always the chance of human error. Unfortunately, however, there is difference between innocent human error and a concerted effort to undermine forensic testing in criminal cases, including DUI cases.  

If you have read our articles in the past, it should come as no surprise that another forensic lab, this time in New Jersey, has made a conscious effort to allow inaccurate evidence to pass through the lab doors and entered in court to convict drivers in drunk driving cases within that state.

Many of the breathalyzers used across the country are manufactured by Alcotest. This machine, although fairly accurate when used correctly, needs to be calibrated to ensure its accuracy. Sergeant Marc Dennis of the New Jersey State Police’s Drug and Alcohol Testing Unit was responsible for conducting tests twice a year on machines for five different counties to determine if recalibration was needed and to administer the recalibration where necessary. It was found that Dennis did not perform the required calibrations and, to make matters worse, he also falsely certified the accuracy of the machines in the paperwork filed with the state. Thousands of people in the state of New Jersey were convicted based on the results of these uncalibrated machines. Dennis was criminally charged with misconduct and tampering with public records in September of 2018 and the New Jersey State Administrative Office of the Courts was notified by the attorney general’s office that over 20,000 breath samples were in question.

The New Jersey Supreme Court ordered an extensive hearing regarding the failure to follow proper calibration procedures by Sergeant Dennis. The state Division of Criminal Justice brought the charge, but the division’s director stated that the omission of the calibration step does not undermine the credibility of any of the State Police test results. However, the New Jersey Supreme Court determined in their opinion issued in December 2018 that the some 20,000 breath tests done by the uncalibrated machines could not be trusted.

All of those cases will need to be reviewed, and there is a high probability that many of those cases will be dismissed.

Whether Dennis’s actions (or lack thereof) came from laziness or as a means to advance his career, such misconduct is sadly not uncommon. There have been other reported cases of forensic misconduct in the New Jersey State Police, as well as other states such as Massachusetts, Oregon and Texas. Although in Dennis’s case, his actions were noticed by a supervisor who is said to have “immediately reported to internal affairs,” the truth is his actions went unnoticed for years.

Back in 2009, the U.S. National Research Council gave a report regarding forensic practices across the country. What they found was a lack of accreditation for crime labs and lack of certification for forensic scientists. Instead of having the ability to rely on evidence being produced by forensic labs, whose precise job it is to produce accurate scientific evidence, we’re left wondering if further investigation needs to be done to determine if the lab is doing what it should be doing to ensure the reliability of the evidence it is processing.

Movement towards forensic reform slowly gained momentum after this report and in 2016, the U.S. President’s Council of Advisors on Science and Technology relayed similar concerns in a report and requested an independent oversight commission for labs across the country. Unfortunately for the reform movement, then-U.S. Attorney General Jeff Sessions, shut down the National Commission on Forensic Science in 2017, effectively also shutting down the idea for a national independent oversight committee.

Although we may have stalled, or possibly even have taken a few steps back, with regard to ensuring the reliability of forensic labs throughout the country, hopefully states will take these scandals as a wake-up call to adopt better measures of ensuring reliability of their forensic testing. In the meantime, the legal system runs the risk of wrongfully convicting drunk drivers, or any criminal suspect for that matter, and defense counsel should do everything in their power to make sure that faulty evidence be identified and thrown out.

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Massachusetts Judge Throws Out More than 400 Breathalyzer Results

Thursday, January 31st, 2019

The topic is nothing new to this blog; breathalyzer results used to try to convict people of a DUI are thrown out because of their lack of reliability.

The latest incident comes from Massachusetts where a judge ruled that breathalyzers in over 400 DUI cases must be thrown out until the machine that police in that state use to determine a driver’s blood alcohol content can be proven as accurate.

In the consolidated case, Judge Robert Brennan found that the Office of Alcohol Testing had failed to release evidence to DUI defense attorneys that breathalyzers used in their client’s cases were inaccurate. As a result, the head of the office was fired, the results of the breathalyzers were thrown out, and prosecutors are scrambling to find additional evidence to prove the intoxication of those drivers.

According to Massachusetts law, if someone refuses a breathalyzer, their refusal cannot be revealed in a DUI trial against that person as a means to avoid prejudicing a judge or jury. When that happens, prosecutors are forced to rely on law enforcement officers’ testimony that a person was intoxicated based on their observations.

“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” said Bellingham Police Chief Gerard Daigle. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”

 Additionally, Judge Brennan said that the Office of Alcohol Testing must undergo significant reform including providing additional training for staff and instituting internal regulations for complying with discovery requests in criminal cases, including DUI cases, similar to those that are followed by the state police’s crime management unit.

“Right now, there’s serious cause to doubt the scientific results,” said Massachusetts attorney, Daniel Cappetta. “Judge Brennan has rightly decided that these tests shouldn’t be used to take anyone’s liberty.”

The Office of Alcohol Testing is planning on applying for nation accreditation by August of this year and district attorney offices will be monitoring the office’s progress.

“We are reviewing yesterday’s ruling,” said District Attorney, Marian Ryan. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”

This is not the first time Massachusetts has dealt with issues of faulty breathalyzers. In fact, this is not the first time Judge Brennan has overseen DUI cases dealing with the reliability of the state’s use of breathalyzers.

In September of last year, I wrote Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts where the same Judge Brennan, who was presiding over proceedings challenging the reliability of breathalyzers since 2015, was provided with an agreement that prosecutors were not use breathalyzer results dating back to 2011. The reason was due to the lack of proper calibration of the breathalyzers since the state purchased them in 2011.

I’ve said it before and I’ll say it again, drivers should never submit to a pre-arrest breathalyzer and they should only submit to required chemical test breathalyzer (rather than a blood test) if they’re unsure whether their blood alcohol content was above or below the legal limit. The reason for this is precisely because they are inaccurate. Whether through inherent mechanical flaws or less-than-trustworthy toxicology labs, if a driver’s blood alcohol content is slightly above the legal limit, it is easier for defense attorneys to argue that there’s a chance that the driver’s blood alcohol content is actually below the legal limit.

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