Tag Archives: Breathalyzer

Saliva Test for THC Level Detection in Development

In recent years, cannabis and its derivatives having been gaining traction in the United States. Cannabis has become a serious competitor to alcohol’s long-lived reign as Americans’ recreational drug of choice. This competition primarily stems from several progressive cities and states’ decisions to relax the legal restrictions on the long-outlawed drug. Although the relaxation of laws surrounding cannabis and its byproducts results in plenty of benefits, there are drawbacks as well.

A Highway Loss Data Institute study in April of 2018 found that car crashes were up in states that had recently relaxed their laws concerning cannabis. For instance, car collisions were up as much as six percent in Colorado, Oregon, and Washington when compared with neighboring states that had not legalized the recreational use of cannabis. In an attempt to grapple with the issue, state legislators are looking into drafting laws targeting marijuana users who drive while intoxicated.

However, laws targeting stoned drivers are not as clear cut as those targeting drunk drivers. Tetrahydrocannabinol (THC), the psychoactive component of marijuana that causes intoxication, can stay in an individual’s bloodstream for days—sometimes even weeks. Alcohol, on the other hand, only stays in a person’s system for a couple of hours. Additionally, legislators have been able to create “per se” laws, or laws that punish a person for merely having a certain amount of alcohol in their system (0.08 percent BAC in all states except Utah where it is 0.05 percent BAC) regardless of intoxication level because science has proven that the per se levels correspond to the point at which a person cannot operate a vehicle as a sober person would. Since THC can stay in a person’s system well after they have sobered up, most states do not have per se laws for THC. Doing so creates the possibility that marijuana users be arrested for a DUI weeks after they have ingested the drug and well after they have sobered up from it. In other words, such laws would allow officers to arrest completely sober drivers for a DUI simply because they had THC in their system from smoking days, possibly weeks ago.

So how can law enforcement officers get an accurate measure of which drivers are THC-impaired and thus reduce collisions in the states that have legalized recreational use of the drug?

Researchers at the University of Texas, Dallas believe they have a solution. They have engineered THC sensor strips and accompanying electronic readers. The THC sensor strips contain two electrodes that are coated with an antibody that binds THC and isolates it from other compounds found in an individual’s saliva. When an individual’s saliva is put on the test strip, the strip is put into the electronic reader. A strip with THC on it rather than just normal saliva will result in a different electrical current that increases with the amount of THC in that individual’s saliva. The test takes about five minutes from start to finish, making it appealing to law enforcement for use during traffic stops. As of now, it is not clear whether the method of ingestion of THC makes a difference and how long exactly THC will remain on an individual’s tongue.

The saliva THC test is still in its early stages, but researchers say it is accurate for THC levels ranging from 100 picograms per milliliter to 100 nanograms per milliliter. One of the study’s lead researchers, Dr. Shalini Prasad, stated that preliminary clinical reports seem to suggest that one to fifteen nanograms of THC per milliliters of blood would make a driver impaired. Again, although the suggestion that a person can be impaired merely by having THC in their system may be true, the fact that a person can also still be sober while having the same levels of THC suggested by Dr. Prasad means that laws still cannot be based on THC alone without some indication of impairment as well. The hope is that this saliva test closes the gap between the mere presence of THC in a person and their intoxication from it.

While drivers have no need to worry about the saliva THC test in development at the moment, it is certainly something to keep an eye on. If the history of the breathalyzer and its rise to prominence tells us anything, the saliva THC test will soon be an important component in a law enforcement officer’s toolkits. Perhaps it will be used as frequently as breathalyzers are.

The Historical Development of Today’s DUI Laws

Ask any U.S. citizen today if they know that it is against the law to operate a motor vehicle under the influence of drugs or alcohol. Of course, most would answer, “yes” immediately. However, this has not always been the case. Not long ago, states enacted the first wave of DUI laws, which would become a mainstay in our society as a means to make the streets safe.

In 1906, New Jersey became the first state in the union to criminalize driving an automobile while intoxicated. The New Jersey law stated no “intoxicated person shall drive a motor vehicle.” Any violation of this law amounted to a $500.00 fine (quite a large amount of money in 1906) or up to 60 days in county jail. In 1910, New York followed suit, and eventually, so did all the other states. The original DUI laws were much different than today’s versions because they simply prohibited driving while intoxicated. The laws did not specify what blood alcohol concentration (“BAC”) level constituted being intoxicated. As a result, the laws lacked a clear definition as to what qualifies as drunk or intoxicated driving. It took lawmakers quite some time to address the ambiguity problem of when someone was “intoxicated.” At the time, there was no way to properly measure an individual’s BAC. Additionally, even if a driver’s BAC could be determined, there lacked an understanding as to the correlation between BAC and the motor skills necessary to safely operate a vehicle. Thus, appropriate BAC level recommendations could not be made. However, an unlikely invention eventually paved the way to clarity.

In 1936, Rolla N. Harper invented a device called the “Drunkometer,” which incorporated a balloon in its design to indicate with decent accuracy a person’s BAC. Then, Robert Borkenstein, an American scientist and police officer, collaborated with the Indiana University School of Medicine to expand the Drunkometer for law enforcement purposes. Authorities were finally able to establish a correlation between BAC and intoxication. Therefore, in 1938, the American Medical Association and the National Safety Council suggested establishing 0.15 percent as the proper BAC level to consider an individual drunk.

Borkenstein’s ingenuity did not stop with the Drunkometer. In 1953, he introduced the Breathalyzer—which has become an important component of a police officer’s tool kit. The Breathalyzer was superior to the Drunkometer in that it used chemical oxidation and photometry to more accurately measured the alcohol vapors in an individual’s breath. From this point on, there was a fairly accurate way to measure the alcohol in an individual’s system, which meant that authorities could also tell, better than they ever had before, whether someone was intoxicated. Next, it was up to states to modify their existing testing standards to account for this technological breakthrough.

For the subsequent decade, law enforcement officers rarely enforced DUI laws. The potential penalties for driving under the influence were relatively harsh, and perhaps that is why officers were initially reluctant to enforce them. The officer’s reluctance led to backlash among public interest groups that advocated for stricter enforcement of DUI laws. Eventually, the National Highway Traffic Safety Administration (“NHTSA”) convinced some states to lower their DUI BAC levels to 0.10 percent. 

In the 1970s, the federal government and state governments sought to further prevent the increasing spread of DUI-related traffic accidents across the United States. This led to the development and passage of per se DUI laws—where, to be convicted of a DUI, a state does not need to prove that alcohol in the driver’s system is what affected the driver’s ability to safely operate a motor vehicle. The only thing a state needed to prove was that driver was operating the vehicle while his or her BAC was above the respective state’s legal limit. Per se DUI laws combined with a growing public interest in preventing DUI-related deaths shaped the severity of current penalties for drunk driving.

In the 1980s and 1990s, groups like Mothers Against Drunk Driving (“MADD”) and Students Against Destructive Decisions (“SADD”) began receiving national attention for their efforts to combat drunk driving. Activist Candy Lightner arguably did the most to shed light on the dangers of driving under the influence by founding “MADD.” In 1980, a drunk driver with three previous DUI convictions hit and killed Ms. Lightner’s 13-year-old daughter while she was on her way home from a school function. The driver was out on bail at the time of the accident from a hit-and-run arrest two days earlier. The public outrage associated with this tragedy was quite severe. MADD continues to be influential in shaping DUI legislation throughout the country.

In 2000, the Clinton administration used congressional spending powers to require all states to lower their BAC legal limit to 0.08 percent. If a state decided not to adopt the new nationwide standard, they would lose a substantial amount of federal highway construction funds. The federal government rationalized this decision by stating it was a bipartisan public policy goal to decrease DUI-related deaths, and it used statistics to show that decreasing the BAC limit from 0.10 percent to 0.08 percent would save roughly 500 lives per year. Accordingly, most states complied with the federal government’s new, universal BAC limit. 45 states passed laws lowering the permissible BAC limit to 0.08 percent by October 2003. The final five states did not hold out much longer as all 50 states were on board by July 2004.

The 0.08 percent BAC limit and the per se component of DUI law is the minimum standard of all 50 states’ DUI laws today. However, some states have gone beyond what the federal government suggests in order to combat and deter driving under the influence. For instance, Utah boasts the strictest BAC limit in the nation. The state adopted a BAC limit of 0.05 percent in late 2018. Furthermore, many states have added harsher penalties for excessively high BAC levels. For instance, Arizona, California, Texas, Washington and many other states have harsher penalties for DUI convictions where the driver’s BAC was 0.15 percent or more.

DUI laws are constantly evolving. As government authorities seek new ways to reduce DUI-related deaths, other states will undoubtedly also look to lower their legal limits. If the trend from the 1960s to today tells us anything, we should prepare for stricter DUI laws in the future.

Police Misconduct in DUI Cases

Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.

After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.

Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”

All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.

Some examples of police misconduct, include:

  • Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
  • Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
  • Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
  • Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
  • Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
  • Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
  • Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?

Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.

 

Determining BAC Through Skin Sweat

You had that extra glass of wine right before the dessert course, but was it too much? Do you make a trip to the bathroom to see if you can make it there in a straight line? Stare at yourself in the mirror to see if you can determine if your eyes are glazed over? Or perhaps attempt to text a friend to see if you can still string together a coherent sentence? Whatever your previous methods may have been, in the near future, it may be as simple as wearing a wristband.

Researchers at the University of Illinois at Urbana-Champaign have been working on a wearable device that can track the wearer’s level of inebriation and they believe it is showing some promise.

The wearable wrist devices have begun to be put to the test, and current data is showing that they can fairly accurately measure how much alcohol a person drank and how intoxicated they may be.

The wristbands have sensors built in that collect raw transdermal alcohol concentration (TAC) data which essentially measures how much ethanol is in your sweat on your skin. The data is then sent to an app via Bluetooth and a graph to shows the amount of alcohol in the wearer’s system. Another version of the wristband works with Apple Watches by swapping the bands with a sensor-equipped band.

The system is not yet perfect as it is no surprise that TAC is not quite as accurate as law enforcement-used blood tests in determining someone’s blood alcohol content (BAC). Studies maintain that the most accurate way to determine the amount of alcohol in one’s system is through a BAC reading from a breathalyzer, blood, or urine test.

Researchers are working to perfect the correlation between the TAC numbers taken from the device and actual BAC. The current data shows that the numbers are close, but aren’t identical. The hope is that by being able to find an accurate correlation between the data points, they will be able to offer a less invasive method of blood alcohol content testing. 

One of the issues that researchers are still trying to work out is the initial time lag of the device. It currently takes between 24 and 30 minutes for the readings to start from the start time of drinking. Medical journals have pointed out that “More reliable and robust prototypes will be required. Also, field testing in large and diverse groups of people drinking variable alcohol doses in real-world conditions will be necessary for comprehensive assessment of the relationship between transdermal and blood alcohol concentrations.”

It will be interesting to see how quickly the analysis can be processed with the progress of science. It will also be interesting to see if the integration of such products into the mainstream public will help to reduce the incorrect assumption of some drivers believing that they are not impaired and can safely drive themselves and others home. Or perhaps the first official integration will not be to the public at all, but rather in the hands of law enforcement who will start to use a simple touch to quickly and accurately determine a person’s alcohol level.

Breathalyzers in Michigan Called into Question Amid Suspicions of Fraud

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.