Tag Archives: supreme court
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.
Imagine the following scenario: A person drives to a bar only expecting to have a couple of drinks, certainly not enough to keep them from being able to drive home. Lo and behold, the person has more than expected and, instead of driving home, they decide to sober up by sleeping it off in the car. While the person is asleep in their vehicle, a police officer walks by and notices the person in their vehicle.
Can the officer arrest the person for a DUI when they were attempting to sober up in their car, but not actually driving?
As a preliminary matter, the police officer would have to have probable cause (reasonable and trustworthy facts that the person was driving under the influence) before the officer could investigate them for a DUI. Let’s assume for discussion purposes that the officer had probable cause to investigate for a DUI.
Whether the officer could arrest the person for a DUI for merely sobering up in a vehicle depends on the state where the incident occurred.
Some states hold that a person can be arrested, charged, and convicted of a DUI if they are in “dominion and control” of their vehicle with the ability to drive it, even though they may not have actually driven it.
California, on the other hand, requires at least some proof that the person actually drove the vehicle.
In the 1991 California Supreme Court case of Mercer v. Department of Motor Vehicles, the court held that the word “drive” in California’s DUI law means a person must volitionally and voluntarily move the vehicle. The court has held that even a “slight movement” is enough to meet the requirement that the defendant drove the vehicle as long as it was voluntary.
Having said that, just because an officer doesn’t see someone drive, as is the case with many DUI arrests, doesn’t mean that the person can’t be arrested for a DUI or something else.
Just because the officer did not see an intoxicated person drive a vehicle doesn’t mean that they didn’t actually drive the vehicle, and if the officer can obtain circumstantial evidence that a person drove, then that might be enough to support the “driving” requirement for a DUI arrest and conviction.
For example, an intoxicated person is found asleep in their vehicle which is in the middle of the road or an unconscious and intoxicated person in their vehicle after crashing it, can still be arrested for a DUI. The vast majority of these types of cases, the officer does not observe the person drive and then stop in the middle of the road. That, however, is not necessary. The prosecutor only needs to introduce facts that can create the inference that the intoxicated person drove without directly proving that the intoxicated person drove.
In other words, if the prosecutor introduces the fact that the person was found intoxicated in the middle of the road, the prosecutor can argue that the person would not have come to the middle of the road had they not driven there. The same thing can be said for someone who is unconscious at the steering wheel of a vehicle involved in an accident.
What about when there is no circumstantial evidence to suggest that the person drove?
In the 1966 case of People v. Belanger, officers found the intoxicated defendant asleep in his vehicle which was located in a parking lot. Although the facts in that case were not enough to create the inference that the defendant had driven to the location while under the influence, the officers still arrested the defendant for drunk in public.
The Court concluded that, in order to prevent the defendant from waking up and driving away drunk, they needed to arrest him on suspicion of being drunk in public.
Although California requires that a person actually drive a vehicle before they can be convicted of a DUI, no person should be in a vehicle, whether they’re driving it or not, if they are intoxicated. Why risk a California DUI, or some other charge like drunk in public?
Maine Supreme Court Affirms DUI Conviction Even Though Science Suggests Defendant was Involuntarily Intoxicated
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?
[October 28, 2019]
Another case of auto-brewery syndrome has appeared in the news, and this time, the courts took it seriously. Read about it more here: https://ktla.com/2019/10/25/north-carolina-man-pulled-over-for-dui-said-he-hadnt-been-drinking-researchers-found-his-body-produced-alcohol/
I’m sure most of you have heard of Waze, possibly even use it yourself. On the off chance that you haven’t heard of it, Waze is a smartphone app developed by Google that provides real-time traffic information for drivers. Users simply plug in their destination address or location and Waze provides the quickest possible route using GPS and real-time user input while en route. While driving, not only are users directed to the fast route, but they are also made aware of upcoming traffic, obstacles in the road, street closures, and yes, police presence, including the location of DUI checkpoints.
The New York Police Department is not happy about it and is seeking to stop it.
The NYPD has sent a letter to Google demanding that it stops allowing users to post the location of DUI checkpoints claiming that the app is “encouraging reckless driving.”
“Individuals who post the locations of DWI checkpoints may be engaging in criminal conduct since such actions could be intentional attempts to prevent and/or impair the administration of the DWI laws and other relevant criminal and traffic laws. The posting of such information for public consumption is irresponsible since it only serves to aid impaired and intoxicated drivers to evade checkpoints and encourage reckless driving,” NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated February 2.
Although Waze does not have a feature that specifically alerts drivers about upcoming DUI checkpoints, it does notify drivers of upcoming police presence.
“We believe highlighting police presence promotes road safety because drivers tend to drive more carefully and obey traffic laws when they are aware of nearby police. We’ve also seen police encourage such reporting as it serves as both a warning to drivers, as well as a way to highlight police work that keeps roadways safe,” a Waze spokesperson said in a statement to CNN last week. “There is no separate functionality for reporting police speed traps and DUI/DWI checkpoints — the Waze police icon represents general police presence.”
However, in Waze’s feature that displays upcoming police presence, users can report the presence of a DUI checkpoint as a comment about what they have observed including whether the police presence is a DUI checkpoint.
Law enforcement complaints on the posting of DUI checkpoint locations is nothing new. In July of 2016, the National Sheriff’s Association released a statement which said, “Evidence on social media shows that people who drink and drive use Waze’s police locator feature to avoid law enforcement. …The facts are clear. It is just a matter of time before we start seeing the dangers that lurk within the Waze app’s police locator feature.”
The California Supreme Court in the 1987 case of Ingersoll v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the following criteria:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- 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.
- 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.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.
The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.
The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.
By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.
The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.
At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.
The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.
The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.
In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”
The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.
In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.
“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.
Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”