Police ramp up DUI enforcement during holiday season

PHOENIX (KSAZ) - The Governor's Office of Highway Safety is working to make sure people stay safe this holiday season.

Governor-elect Doug Ducey and law enforcement leaders from around the state kicked off this year's "Holiday DUI enforcement" and "Sober designated driver" campaigns.

Extra officers and deputies will be out most nights through the end of the year cracking down on impaired driving.

Police will also be ensuring motorists are driving safe by using seatbelts

In 2013, officers made 14,284 DUI arrests; of those 1,693 were for aggravated DUI, an additional 3,726 arrests were made for extreme DUI.

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The Next Step in “The War on Drunk Driving”?

I suppose it was inevitable….

Passengers Get Prison Terms in Fatal Drunk Driving Accident

Saitama, Japan.  Feb. 15 — Two men were sentenced to two years in prison Monday for abetting a fatal traffic accident caused by another man who had given the pair

a ride in his car after drinking alcohol in Kumagaya, Saitama Prefecture, in 2008.

The Saitama District Court ruled that the two men’s consent to the third man’s offer to give them a lift had encouraged him to drive, despite their obligation to stop him

from getting behind the wheel while under the influence…

In the ruling, presiding Judge Makoto Tamura said the two men’s acceptance of the driver’s offer after drinking together had helped him to decide to drive.

Prosecutors had demanded eight years’ imprisonment for both. Oshima and Sekiguchi had pleaded innocent during their trial.

The focus of the trial was whether the pair were aware that the driver had been intoxicated at the time, and whether they had turned a blind eye to his drunken driving…

Guess what Mothers Against Drunk Driving’s next brilliant idea will be to end drunk driving driving?

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Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines

If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol.  In essence, either way you will be facing a "trial by machine".

So how good are these machines?  Good enough to constitute "proof beyond a reasonable doubt"?  Or are they just "close enough for government work"?

As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers).  See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable. 

D.C. Attorney General Drops Drunk Driving Cases

Wash. DC.  Feb. 8 — The District’s attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city’s breath analyzers were first revealed in February 2010, when it was discovered the machines’ results were inaccurate. Since then, the D.C. medical examiner’s office has refused to sign off on the accuracy tests of new analysis machines, officials said.

"The alcohol breath-analysis program? It doesn’t exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city’s breath-analysis program on Feb. 1, 2010. Paegle’s contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It’s a royal mess," Paegle said.

A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn’t be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.

City policy requires the medical examiner’s office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.

The medical examiner’s office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.

Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.

Meanwhile, the two police officers who account for a third of the city’s 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.

Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn’t signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general’s office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.

In December, the case was turned over to internal affairs.

"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.

The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".

The breathalyzers involved are the most commonly used across the country.  Do you really think only those in Washington D.C. are giving false results? 

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The Metamorphosis of a Crime

Drunk driving is bad.  It’s potentially dangerous to human life.  It should be punished.  So, many years ago a law was passed: 

"Thou shalt not drive drunk."

It was a fair law and it addressed the problem.  So…what happened?  Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"? 

"Drunk"

The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI".  In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence).  In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws.  Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence.  So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving.  First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination.  All they had to do was produce a number: .10%.  Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%.  Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%).  And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%.  The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUIand .08%.  This had two big advantages.  First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other.  Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other.  Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood.  See Bransford v. California.  (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")

"Driving" 

The second half of drunk driving is…"driving".  This would seem obvious: how can you be driving under the influence if you’re not…well, driving?

No problem.  If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means.  And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition.  A couple of examples:

Sleeping in (or near) the car.  See my posts Sleeping Under the Influence, How to "Drive" Under the Influence While Sleeping, Convicted of Drunk Driving Without Driving and When Does the Insanity End?

Sitting in a parked car.  See Parking Under the Influence and Sitting in a Parked Car  

"Vehicle"

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle".  Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades.  But this, too, has been slowly expanded to include such "vehicles" as:

Bicycles.  See my posts DUI on Bicycles, Felony DUI Bicycle and DUI While Walking a Bicycle

Lawnmowers.  See More News From the Front and The "War on Drunk Driving" Marches On

Horses. See DUI on a Horse

Wheelchairs.  See DUI in a Wheelchair

Toy bikes.  See DUI on a Foot-High Toy Bike 

Golf carts.  See The War on Drunk Driving Continues

Zamboni ice machines.  See News From the Front

As Humpty Dumpty explained to Alice so many years ago:

"When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens.  Whatever happened to them?

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Women and Breathalyzers

If you are arrested for DUI and a breath test shows a blood alcohol concentration (BAC) of .08% or higher, you are presumed guilty. It does not matter, of course, whether you are a man or a women: the laws do not discriminate.

Maybe they should…

Researchers at the University School of Medicine in Trieste, Italy, have found that the stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol, and that women have less of this enzyme than men.

To determine the relative effects of the enzyme, they gave alcohol both orally and intravenously to groups of alcoholic and non-alcoholic men and women. They found that women reached the same levels of blood alcohol as men after drinking only half as much.  With weight differences taken into account, they found that women reached BAC levels illegal in a DUI case after drinking 20 to 30 percent less alcohol than men.

The scientists’ conclusion: legislatures may need to consider sex differences in drunk driving laws when defining safe levels of drinking for driving motor vehicles. Frezza and Lieber, "High Blood Alcohol Levels in Women: The Role of Decreased Gastric Alcohol Dehydrogenase Activity and First-Pass Metabolism", 322(2) New England Journal of Medicine 95 (1990).

Yet another study has found that women have lower partition ratios of blood to breath. What kind of ratios? Well, all breath machines in DUI cases measure the amount of alcohol in a person’s breath. But the what we really want to know is the amount of alcohol in the person’s blood. So how do we get that? Simple: a small computer in the Breathalyzer multiplies the amount of alcohol it detects in the breath sample by 2100 times.

This is based upon the theory that, on average, there are 2100 units of alcohol in the blood for every unit of alcohol in the breath.  Of course, that’s only an average:  it varies from person to person.) According to the study, women have a significantly lower partition ratio. Jones, "Determination of Liquid/Air Partition Coefficients for Dilute Solutions of Ethanol in Water, Whole Blood and Plasma", Analytical Toxicology 193 (July/August 1983).  And the lower the partition ratio, the higher the reading — even though the true BAC does not vary. For example, a woman with a true BAC of .06% — below the legal limit — and a ratio of 1500:1 (rather than the presumed 2100:1) will get a reading on the machine of .09% — above the legal limit.

Put another way, the breath machine will show an average man accused of drunk driving to be innocent — but a woman with the same blood alcohol level to be guilty.

And then there’s the problem of birth control….

Scientists in Canada have found that "women taking oral contraceptive steroids (O.C.S.) appeared to eliminate ethanol significantly faster than women not taking O.C.S."  Papple, "The Effects of Oral Contraceptive Steroids on the Rate of Post-Absorptive Phase Decline of Blood Alcohol Concentration in the Adult Woman", 15(1) Canadian Society of Forensic Science Journal 17 (1982).

That means that women will reach peak BAC faster, and return to lower levels more quickly. This, of course, can create serious problems in a DUI case when attempting to estimate BAC at the time of driving based upon a breath test administered one or two hours later.

Making the problem worse, researchers have also discovered that women who were taking birth control pills or who were pregnant had higher levels of acetaldehyde on their breath, due to the decreased ability to metabolize the enzyme as the level of sex steroids increases.

So what?

Well, most breath machines use infrared analysis in measuring the breath sample of a DUI suspect. But these machines don’t really measure alcohol, rather they measure any compound which contains the methyl group in its molecular structure — and simply assumes that it is alcohol. And acetaldehyde is one of these compounds. Result: a higher "blood alcohol" reading on the Breathalyzer. Jeavons and Zeiner, "Effects of Elevated Female Sex Steroids on Ethanol and Acetaldehyde Metabolism in Humans", 8(4) Alcoholism: Clinical and Experimental Research 352 (1984).

It’s always a problem when the law, in its infinite wisdom, assumes that all of us are exactly the same.  (See How to Convict an Average Man)

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Close Enough for Government Work

How crazy have things gotten in MADD’s "war on drunk driving"? 

Court: Key Enough for Drunk Driving Conviction

Boston, MA.  Jan. 25 — The state Appeals Court has ruled that someone who inserts a key in a car’s ignition and turns on the vehicle’s electricity without starting the engine can be convicted of drunken driving.

Robert S. McGillivary of Salisbury appealed his 2007 drunken driving conviction on the grounds that he was not operating the vehicle when an officer found him slumped over the steering wheel with the key in the ignition and the dashboard illuminated.

The court said Tuesday that turning the key is the first step in a sequence to set the vehicle in motion and "was sufficient to permit the jury to conclude that he ’operated’ the motor vehicle."

So…if you point a gun at someone, you’re guilty of murder?

There may be some logic to charging attempted drunk driving for putting a key in the ignition and then falling asleep, but it’s a corruption of the legal system to pretend that the crime actually took place.  

Unfortunately, this kind of legal and legislative corruption is common in the DUI arena.  See, for example, The DUI Exception to the Constitution.

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Driving Under the Influence of…Binaca?

So you’re driving along and suddenly there are flashing red lights in your rear view mirror. You recall that glass of wine with dinner: not nearly enough to be over .08%, of course, but enough to cause an odor of alcohol on the breath. As you pull over, you grab the breath freshener and quickly spray it into your mouth. The officer asks you to step out of the car, holds out a portable breath testing device and asks you to blow into it. A moment later you are being handcuffed.

What happened? One of the many problems with breath machines is that they cannot tell the difference between alcohol coming from the lungs and alcohol which is already in the mouth or throat. This problem is referred to as mouth alcohol, and is particularly troublesome because, believing it to be alcohol from the lungs, the breath machines will incorrectly multiply the detected alcohol by 2100 times (see my earlier post, Breathalyzers — and Why They Don’t Work).

One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.

This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled "Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic", published in the July 1985 issue of The Police Chief . Seven alcohol-free individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes.

The results indicated an average reading of .43% blood-alcohol concentration — indicating a level that, if accurate, approached lethal proportions. After three minutes, the average level was still .20%, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11% — well over the legal limit.

In another study, reported in 8(22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81% — far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes.

Don’t spray and drive.

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How to Convict an Average Man

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions.

Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely “average” in even one of these critical characteristics, let alone in all of them.

For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .07% but a breath-to-blood ratio of, say, 1:1500 would have a .10% reading on an “accurate” breath testing instrument.  In other words, the machine would show an innocent subject to be guilty.

Put simply, these machines do not test individuals. Rather, they test the same “average suspect” over and over again, but using the individual subject’s breath.

Another example of the assumption of “averageness” can be found in urinalysis. When a DUI suspect’s urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder’s urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio– that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.

Yet another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called retrograde extrapolation — a fancy word for guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by “extrapolating” backward — that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between driving and testing.

But this requires two assumptions: (1) the blood-alcohol level was declining, and (2) the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015% per hour (sometimes the assumed rate is .02%). How does the prosecution know that the defendant was eliminating at that rate (assuming he was eliminating rather than absorbing) and not at .005% or .30%?

Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.

This ever-present “average person” in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the nystagmus test (“follow my finger with your eyes”) as part of the battery of field sobriety tests, he operates on the assumption that the suspect is “Mr. Average.” The officer has been trained to “read” at what angle the suspect’s eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.

Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased — despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased — and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children – the average in the United States.

So why does the state presume facts that are clearly untrue? Simple: Since the prosecution doesn’t know anything about the defendant’s physiology, legally assuming the critical facts makes prosecution and conviction much easier.  

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Crackdown on…Bicycling Under the Influence?

The latest in MADD’s "War on Drunk Driving"….

5 Bicyclists Arrested on Suspicion of DUI in L.A.

Los Angeles, CA.  Jan. 13 – Five bicycle riders have been arrested on suspicion of riding under the influence in South Los Angeles after officers gave sobriety tests to a pack of pre-dawn bikers.

California Highway Patrol Officer Travis Ruiz says officers were called to the Baldwin Hills area at around 1:30 a.m. Thursday after a bicycle lost control and crashed to the pavement.

Ruiz says while officers were there, 15 bicyclists came up to check on their friend. Ruiz says they were riding on both sides of the street without helmets and were barely visible to motorists.

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“I observed the defendant weaving within his lane”

Undoubtedly the most common observation of impaired driving that officers make — and the one most commonly used to justify stopping the driver — is that the suspect was "weaving within the traffic lane", sometimes combined with "erratic driving".  At the same time, e xperienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as "black-and-white fever"?…

That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted black and white in many jurisdictions). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensive and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.

The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator).  And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.

In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI. And after the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we all tend to see what we expect to see: normally veined eyes appear "bloodshot"?, normal but nervous speech sounds "slurred"?, normal pink complexion appears "flushed"?, etc.

These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….followed predictably by an arrest for drunk driving.

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A Fading Constitution?

I believe in the Constitution.  And I have railed long and hard in books, lectures and this blogsite about the damage being done to that great document in the name of fine-sounding schemes like "homeland security" and the so-called "war on drunk driving".  

Our Constitution is a marvelous document, the cornerstone of a great nation, and one which is admired and emulated around the world.  But it is only a document; it has no magic.  The Constitution gives the people no more than what is already within them.  When the Supreme Court approves warrentless stops and searches of citizens at DUI roadblocks and there is no outcry, the people are getting what they deserve; the document will not save them.

My blog’s banner above says that our Constitution is "fading".  That is, of course, inaccurate. The document is quite clear; it is the will and courage of the people that is fading.

The following is from a speech given by the renowned Judge Learned Hand in New York’s Central Park on May 21, 1944:

I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women.  When it dies there, no constitution, no law, no court can save it.  No constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.

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Are DUI Roadblocks Constitutional?

The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are “articulable facts” indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?

Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka “sobriety checkpoints”) do, in fact, constitute a “seizure” within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However….

However, it’s only a "minor violation", and there’s all this “carnage” on the highways MADD tells us we’ve got to do something about. The “minimal intrusion on individual liberties”, Rehnquist wrote, must be “weighed” against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means….aka, “the DUI exception to the Constitution”.

The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, “That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.” Brennan concluded by noting that “The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures”.

Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were “necessary” and “effective”.  Are they?  As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks:

“The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative”.

p.s. The case was sent back to the Michigan Supreme Court to change its previous decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution!  TheCourt ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”. 

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The DUI Double Standard In China

I’ve posted often in the past about the hidden double standard in enforcing drunk driving laws against cops, judges and politicians.  See, for example, The DUI Double Standard, The DUI Double Standard II, The Blue Cover-Up, Guarding the Guardians and Who Will Guard the Guardians?.    

Is Criminalizing Drunk Driving Unfair to Public Servants?

China, Dec. 26 — Chinese lawmakers have proposed making drunk driving a criminal offense in China, no matter the degree of damage caused. But some members of the National People’s Congress Standing Committee argue that criminalizing drunk driving would be unfair to public servants, because if they committed such a crime, they would not only face criminal punishment but also lose their jobs. They argue that the consequence is too severe…

Hmmm…..Sounds a lot like the double-standard applied to our own civil servants, but at least the Chinese are a lot more open about it.

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Blood Sample Analysis: .15%….But Was It Yours?

Let me tell you about one of my law firm’s DUI cases that ended up in a Los Angeles Times
 article entitled “DUI Case Botched by Blood Mixup”.
One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.
Now what?
We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower than the police analyss, but still a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared to be in order.
Our client still insisted he was not driving under the influence of alcohol. The only other reasonable possibility was a faulty chain of custody
. In other words, the LAPD lab got the vial  of our client’s blood mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case.
So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.
We decided to try something different, something that, to our knowledge, had not been done before in a DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to an independent laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came back: the blood tested by LAPD was conclusively not
 that of our client.
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times
 article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys. 

Typically, the police claimed infallibility: “We do not make mistakes…It was the nurses”.
So how could this have happened? The truth is that it probably happens far more commonly than we suppose.
When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody
 be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.
It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph
 instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial will also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.
“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around.
Otherwise, I guess you’ll never know….

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The Blue Cover-Up

I’ve often posted in the past about a double standard when it comes to enforcing drunk driving laws against police officers.  See, for example, Who Will Guard the Guardians?, The DUI Double Standard, The DUI Double Standard II, Guarding the Guardians.  As news over the weekend reflects, the cover-ups continue….

Drunk Driving Double Standard

Hartford, CT.  Dec. 19 – It opens with a pleasant holiday jingle, and what looks to be some festive Christmas lights.

And then comes a startling screech of metal before the camera pulls back to show police lights and sirens and state police spokesperson Lt. Paul Vance delivering this stern message:

"Nothing shatters the holidays faster than a car crash. The state and local police are cracking down on speeding, unbuckled drivers and drunk driving this season."

"We will stop you," Vance warns over an image of a tombstone, "before you put an end to your holiday or someone else’s."

Unless, of course, you’re a cop in Windsor Locks or Bristol these days. And then, well, the tough guy bit makes way for a kinder, gentler approach.

If you’re a Bristol officer, for example, you apparently get a written warning for driving too fast after slamming your cruiser into a utility pole and knocking out power to a whole neighborhood.

In case you missed that story, here are the highlights: On June 26, former Bristol Police Officer Robert Mosback reported for duty after drinking a beer and two rum and Cokes at a party earlier that evening.

Shortly after his shift began, Mosback totaled his cruiser and caused $100,000 worth of damage. But there wasn’t a peep about possible misconduct from his department until a worker’s comp employee uncovered hospital reports that showed Mosback was intoxicated and denied the city’s claims.

Mosback quit three days after the city got the medical report. And earlier this month, state police who were called in to conduct an independent investigation, charged Mosback with drunken driving.

In an arrest affidavit, Mosback insists he wasn’t drunk: He napped before his shift, he said. And this doozy: His hospital tests must have been switched with another patient’s.

Then there’s the now well-known case of Windsor Locks Officer Michael Koistinen, who struck and killed 15-year-old Henry Dang on Oct. 29 after an apparent night of drinking.

As far-fetched as Mosback’s "switched sobriety test" defense, Koistinen’s claim that he wasn’t drunk when he slammed his car into Dang as the teen bicycled home, is even more suspect. His father, a Windsor Locks sergeant, was briefly in charge of the crash scene and, despite officers on the scene noting a case of unopened beer in his car, Koistinen wasn’t given a sobriety test.

Koistinen, who eventually was fired after state police took over the investigation, now faces a number of criminal charges, including manslaughter. His father, Sgt. Robert Koistinen, remains on paid administrative leave.

"The police are cracking down on drunk driving," warns the spot now airing for the holidays.

Good, except does that apply to everyone – or only to those who aren’t cops?

So who guards the guardians?

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MADD’s Futile “War on Drunk Driving”

MADD continues to claim victory in it’s aging "War on Drunk Driving", citing its own self-serving statistics.  See for example, Lies, Damned
Lies and Madd Statistics, MADD "Statistics Again Debunked and A Closer Look at DUI Fatality Statistics.  But the reality is that unconstitutional laws, unfair procedures, Draconian penalties and rampant denial of due process have done little if anything to reduce the incidence of drunk driving.

40 Million in U.S. Driving Drunk or Drugged

Bloomberg Business News, Dec. 9 – Despite massive efforts to curb drunk driving, some 30 million Americans are driving drunk and another 10 million are driving drugged each year, federal officials report.

In fact, in some states the number of drunk and drugged drivers tops 20 percent, according to a report released Thursday by the Substance Abuse and Mental Health Services Administration (SAMHSA).

"This is a pretty high percentage of people that are operating a motor vehicle under the influence of something," said Peter Delany, director of SAMHSA’s Center for Behavioral Health Statistics and Quality…

On the plus side, there has been a small drop in the rate of drunk and drugged driving in the past few years.

Data from 2002 to 2005 shows the annual rate of drunk driving has dropped from 14.6 percent to 13.2 percent, compared with data from 2006 to 2009. In the same time periods, the annual rate of drugged driving dropped from 4.8 percent to 4.3 percent, according to the report.

In all, 12 states had a reduction in drunk driving, and seven have seen lower levels of drugged driving…

Anna Duerr, a spokeswoman for the advocacy group Mothers Against Drunk Driving, said her organization was pleased to see a decline in the numbers of drunk and drugged drivers. 

MADD is declaring victory in its "War on Drunk Driving" after a slightly more than one-percent drop?  As I wrote over four years ago, perhaps it’s time to take another approach to the drunk driving problem.  See Time For a Change.

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Entrapment in DUI Cases

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…(Emphasis added.)  State v. Fogarty, 607 A.2d 624 (N.J. 1992). 

This “no win” scenario is fairly typical of what I repeatedly refer to as the “The DUI Exception to the Constitution”.

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New Defense Unveiled

Not recommended here in the Colonies, but….

Huddersfield, England.  A self-styled British witch doctor has been fined pound stg. 250 [$583] after refusing to give a blood test when suspected to be driving under the influence of alcohol.

Nyararia Mukandiwa, 33, was stopped after driving erratically in the West Yorkshire town of  Huddersfield last year, but refused to give officers a blood sample on the grounds that as a witch doctor it was likely to send him into a zombie-like state…

Sounded reasonable to me.

(Thanks to Jay Norton of Kansas City)

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The Field Sobriety “Eye Test”: Science…or Fraud?

The critical part of any pre-arrest drunk driving investigation is the administration of the "field sobriety tests" (FSTs).  These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see "Field Sobriety Tests: Designed for Failure?"). 

Although there are many different tests (walk-and-turn, finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three "standardized" FSTs.  The most recently developed of these three is horizontal gaze nystagmus (HGN), commonly known as the "eye test".  It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature.

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  (See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".)

A recent scientific study has now investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving whileintoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

Deliberate fraud.  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.

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Another Vigilant “DUI SuperCop”

I’ve posted repeatedly in the past about so-called "DUI Super Cops".  These are officers who rack up record numbers of drunk driving arrests — and are rewarded with MADD awards, departmental awards, promotions and astronomical overtime pay for court testimony. See, for example, Super Cops…and Super Cons, How To Be a DUI Super Cop, Another DUI Super Cop and The Latest DUI Super Cop.

Cop Arrests Biker With Cerebral Palsy for DUI

Salt Lake City, UT.  Nov. 9 – A Utah man who suffers from cerebral palsy, epilepsy and other disabilities was stopped while riding a motorized bicycle and charged with DUI after admitting he takes medication. 

As CBS Affiliate KUTV correspondent Chris Jones reports, Mike Tilt was pulled over by Utah Highway Patrol Trooper Lisa Steed on October 28 and asked to take a field sobriety test. 

Tilt, whose left leg is shorter than his right, told the officer that he would likely fail the test (which requires him to put one foot in front of the other), and he did. Tilt told Steed he did not have a driver’s license – he’d given it up 15 years before due to his seizures. 

After asking Tilt if he took medication for his epilepsy, she handcuffed him. 

According to Tilt, when he asked if he were being arrested, Steed replied, "Yeah, for DUI." 

Ironically, Tilt had forgotten to take his medication that night.

In defending the trooper’s actions, Utah Highway Patrol told KUTV that many people drive under the influence of prescription medications. 

They also praised Steed, who was named Trooper of the Year in 2007 for her arrests of drivers suspected of being under the influence. Over the past eight she has made nearly 800 DUI arrests, roughly half that in 2009 alone…

Tilt’s daughter, Courtney Tilt, told Jones, "If she’s proud of taking in an epileptic patient for a DUI, I don’t know what to think of her and her character." 

But further investigation by KUTV found cases where Steed was chastised by judges for allegedly disregarding UHP procedures, in one instance calling her actions "especially troubling." Another judge said she "lacks credibility." 

In some instances (though not in Tilt’s case) Steed conducted field sobriety tests out of view of her police car’s dashboard camera, counter to UHP policy. 

Defense attorney Glen Neeley, who has represented several people stopped by Steed, said to Jones that Steed’s goal is to pull over as many people as possible with the goal of making DUI arrests. 

After KUTV began looking into Steed’s record, UHP contacted the station, telling them they’d started their own inquiry of the trooper’s actions. 

"Was it consistent with what we’re trying to do with our overall perspective of DUI enforcement and review of it? No, it wasn’t," Capt. Mike Rapich told the station of the Tilt case. "This individual is not to be prosecuted for DUI." 

So Tilt is off the hook – but so is Steed. UHP stands behind Steed’s other DUI arrests, saying they "conform to prescribed procedure and the law." 

Whatever happened to ethics, fairness and plain common sense in drunk driving cases? 

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