DUI BLOG

Four days ago I posted about a case, Missouri v. McNeely, that was to be argued to the United States Supreme Court.  See The Slow Death of the 4th Amendment in DUI Cases.  The case involved the forceful use of hypodermic needles on drunk driving suspects.  Following are comments from the Washington Post on the arguments yesterday and the justice's questions which may provide a window into this important issue:

Supreme Court Seems Unlikely to Let Police Order Blood Tests for  Drunk Driving Suspects

Washington, DC – Jan. 9 — The Supreme Court on Wednesday seemed unlikely to allow police to routinely force suspected drunk drivers to give a blood sample without the officers at least trying to obtain a warrant from a judge.

There seemed to be little, if any, support for the proposition that the usual constitutional protections that require a warrant for searches do not apply in drunk-driving arrests. Missouri, backed by the Obama administration, argued that a suspect’s dissipating blood-alcohol content meant that, in effect, evidence was being lost and thus drawing blood should not require consent or a judge’s order.

That argument drew fire almost immediately.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked. The justice, interestingly, is a diabetic who has given herself daily shots of insulin since childhood.

Justice Antonin Scalia immediately signaled that he considers a blood test different from other procedures the government may require.

“Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved . . . in his arm?” Scalia asked John N. Koester Jr., the Missouri prosecutor presenting the case for his state. Koester replied that a breathalyzer requires the suspect’s participation.

For most of the hour-long argument, the justices seemed to be debating among themselves what emergency circumstances — an inability to contact a magistrate late at night, for instance — might allow taking blood from an uncooperative suspect…

Courts nationwide are divided about whether a 1966 Supreme Court ruling created an emergency exception to the warrant requirement for taking blood or whether ”special facts” must be present to make a warrant unnecessary.

Koester and Assistant Solicitor General Nicole A. Saharsky argued that the rapid dissipation of alcohol was enough to relieve law enforcement from the warrant requirement.

“The police are facing a destruction of critical blood-alcohol evidence,” Saharsky told the court. “Every minute counts, and it’s reasonable for the officers to proceed.”

But Justice Ruth Bader Ginsburg said that it is relatively easy and quick for police to get a warrant — a phone call is often enough — and that police could attempt to secure one in the time it takes to drive a suspect to a hospital for the procedure. If 30 minutes passes without an answer, perhaps the officer could proceed, she suggested.

Steven R. Shapiro, legal director of the American Civil Liberties Union, represented McNeely and told the court that Missouri, the states supporting it and the U.S. government are asking for too much.

“The issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent,” Shapiro said.

He has noted that states may revoke a driver’s license for a suspect who refuses to take a test, so there is an incentive to agree. Shapiro said half of the states — Maryland and Virginia as well as the District of Columbia are not among them — prohibit blood draws without warrants…

For a clearer picture of what we're talking about, see my posts Forced Blood Draws by Cops in Back Seat, Suspect Resisting Forced Blood Draw is Tasered, Dies and Catheter Forced Up Penis After DUI Arrest.
 

Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge.  Yet, as I've written repeatedly in the past, these machines are neither accurate nor reliable.  See, for example, How Breathalyzers Work — and Why They Don't, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.   

And in today's news:

JudgeThrows out Breath Machine Evidence

County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range

Dauphin Co., PA.  Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number. 

"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled. 

In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to $5000 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.

Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.

"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.

Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent. 

"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.

Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
 

Because of their unpopularity, drunk driving cases are often used by police and prosecutors to chip away at the constitutional guarantees of our citizens.  See The DUI Exception to the Constitution.   Every once in awhile, however, the media shows a little courage and gets it right.  From an editorial in yesterday's New York Times:

Is the Driver Drunk?

Jan. 5.  New York, NY - The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.

Proponents of the so-called “standardized” field sobriety tests (SFSTs) have long pointed to field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC).  A new study now calls those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery.  SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to  corroborate the accuracy of her own findings.  Burns accompanied a small number of San Diego police officers conducting actual DUI investigations in the field.  After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol  concentrations (BAC) over or under .08%.   Burns reported a 91% correlation between SFSTs and BAC over-under estimates, arguably validating the battery of tests she had helped create.

A subsequent scientific article called Burns’ conclusions into question.  In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1, the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act.  The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects.  For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance.  For another, there was no attempt to isolate the influence of SFST performance from other factors:  officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers  participating in the study were equipped with NHTSA-approved portable breath testing devices”.  In other words, the San Diego officers already had the results of portable breath tests when they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed.  The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time. 

In other words, officers relying upon field sobriety tests were far more likely to overestimate  BACs than underestimate — particularly with those suspects having low BACs. 

(T)he utility of the SFST depends very much on how intoxicated an individual is.  Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.

In other words, in borderline cases involving persons at or under the legal limit, officers were very poor at estimating levels over .08% based upon SFSTs.  And it is these cases, of course, that are critical.  Suspects with high BACs are relatively easy to single out without the help of field tests; it is for the closer cases, particularly those who are innocent (below .08%), that the SFSTs are designed.  And it is with these very cases that the tests apparently fail. 

Put another way, accuracy in using field sobriety tests is high when they are not needed — and low when they are. 
 

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 “DUI 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….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! The Court ruled again in favor of the defendant — in effect saying to Rehnquist, “If you won’t protect our citizens, we will”. 
 

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.

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.

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 term 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: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate used is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than absorbing) at that rate and not at .005 percent or .3 percent? 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. It's convenient: it makes prosecution and conviction much easier.
 

Maybe MADD's "War on Drunk Driving" has gone a bit too far….

D.A. Reviewing Death of West Allis Man After Taser Incident

Milwaukee, WI.  Dec. 6 — Prosecutors are investigating how West Allis police officers handled a drunken-driving suspect found dead the day after they used force and a Taser on him to obtain a blood draw…

The Milwaukee County medical examiner's office is awaiting autopsy results before determining a cause of death.  According to court and medical examiner's records:

Robert Wayne Maurina, 46, had come to the West Allis Police Department early on Nov. 28 to pick up his girlfriend after she was arrested on a drunken driving charge. Police suspected Maurina also was intoxicated and arrested him about 4 a.m. He was later charged with fifth-offense drunken driving.

At Aurora West Allis Medical Center, Maurina resisted attempts to take a blood sample, according to court records, and had to be restrained and stunned with a Taser.

Shortly before noon the same day, Maurina was released to his brother, in whose basement Maurina lived. The brother told a medical examiner's office investigator that Maurina had complained about pain to his ribs and kidney on his left side, and that he heard Maurina coughing about 7 p.m. that day.

The next morning, the brother said, he found Maurina dead in his basement room. The medical examiner's report indicated that Maurina was on several medications.

The funeral for Maurina, an Air Force veteran, was Tuesday…

No comment necessary.

(Thanks to John Kruzelock.)
 

What if an individual drinks from a punch bowl at a party — not knowing that the punch has been secretly “spiked” by a prankster — and is later pulled over for DUI?  What if another person takes a medication prescribed by his doctor — without being told that it will cause impairment — and is subsequently arrested for driving under the influence of drugs?

Are these people guilty of DUI — or can they assert the legal defense of involuntary intoxication?

A no-brainer, right?  After all, a person should not be punished for something that was not their fault — that they weren’t even aware of. 

Not surprisingly, however, the courts in their infinite wisdom have taken contradictory approaches to these situations.  Some take the position that DUI is a “strict liability” offense, and so any mental element such as intent or even knowledge is irrelevant.  See, for example, State v. Pistole, 476 N.E.2d 366.  Others permit the involuntary intoxication defense only where the intoxication was caused by use of force or threat of force from a third party.  A few recognize the defense on the grounds that some mens rea (mental culpability) must exist in any crime.  See, for example, State v. Wallace, 439 N.E.2d 851.  And at least one likens a claim of involuntary intoxication to an insanity defense:  Did the defendant know the difference between right and wrong?  See Commonwealth of Pennsylvania v. Smith, 831 A. 2d 636. 

In those states which permit the defense, however, the prosecution need not prove that the intoxication was voluntary:  The defendant has the burden of proving by a preponderance of the evidence that it was involuntary — that is, he must prove his own innocence or stand convicted.
 

It is a cardinal rule of ethics in the legal profession that the duty of a prosecutor is not to seek convictions, but to pursue justice — even if that pursuit leads to a dismissal or acquittal of charges.  Sadly, that is less and less true in today’s world of winning at any cost….as the following news story illustrates:

19th Judicial District Attorney Offers Cash for Convictions

Arapahoe County, CO. – The 18th Judicial District Attorney, Carol Chambers, is giving bonuses to her deputy attorneys who tried more than five cases last year and have a conviction rate higher than 70 percent, 9Wants to Know has learned.

Critics say it’s unethical to give prosecutors a financial prize for winning a trial and may give defense attorneys a reason to appeal a case.

"The prosecutor’s ethical obligation is to seek justice for everyone," Colorado State Public Defender Douglas Wilson said. "Basing bonus pay of conviction rates flies in the face of that obligation and sounds a lot like the Old West bounties."…

The DAs for both of the metro area’s biggest districts believe paying for performance could leave the prosecutor interested in the outcome of the case.

"Our job is not to directly tie the conviction rate, trials or plea bargains to a monetary figure," First Judicial District Attorney Scott Storey said. "That would be like working on commission or something. And that’s not what we do."

The American Bar Association standards say a prosecutor’s duty is to seek justice, not conviction.

"What matters is that you go in there and you seek justice. And you do the best job you can and then you leave it up to 12 citizens to make a decision," Morrissey said.

How would you like to be accused of a crime…and know that the prosecuting agency has a bounty on your head — guilty or not?
 

Most drunk driving arrests take place at night, often after midnight. One reason for this is that many police officers engage in the illegal practice of staking out bars and restaurants from about midnight to "closing time", pulling cars over on some pretext as patrons leave and drive away.

It is during this period of time that the individual’s circadian rhythm is taking effect. The circadian rhythm is that 24-hour biological alarm clock in each of our bodies, most noticeable when we experience "jet lag".

Researchers have found that individuals will perform more poorly in tests during the low point of the circadian rhythm — that is, during the hours after midnight and into the early morning. It is just such tests — called "field sobriety tests" — that officers use to determine whether a driver is intoxicated or not.

Specifically, British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological funtioning when achieved in the very early morning hours." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555. The researchers concluded that "the differences we have found…must be attributable to circadian change and susceptibility of the body to its effect."