DUI Defender

The Legislature passed a bill making it a crime to drive a car with a cellular telephone in your hand. The law will not go into effect until July 1, 2008, the new law will require that all drivers use “hands-free” equipment when driving. While the fines may be low ($20 for the first offense, $50 for each successive offense) the potential for abuse seems very real. If a law enforcement officer can make a stop for suspicion of driving with a cellular telephone as even using the speakerphone function on your telephone violates the law. For more information on this law go to the California Department of Motor Vehicles website, if you are interested in other changes for 2008 visit here.

Increasingly technology is developing new tests for alcohol and the technology trickles down to the common person. Some years ago a new test was developed for a chemical called EtG which seems to be some sort of metabolyte of alcohol. If the EtG shows up in a urine test it is proof of recent alcohol consumption. The test was developed in response to the fact that alcohol is quickly metabolized and vanishes from urine in a very short period of time. The concern was that alcoholics could time their alcohol consumption to meet the demands of a random urine testing program. As it turns out, random urine testing programs are quite common for people involved in the health care industry that have either admitted an alcohol problem, been convicted of an alcohol related offense or otherwise raised a red flag regarding alcohol consumtion. The panels that oversee these professionals realized the shortfalls of conventional urine testing for alcohol and turned to the EtG test.

One problem, false positives. As the EtG test has gained momentum a growing number of persons involved in the EtG testing program have tested positive for alcohol while vigorously denying alcohol consumption. One of the earliest proponents of the test, Dr. Gregory Skipper, the Director of Alabama’s monitoring-and-assistance program for addicted physicians, has conducted independent studies proving that false positives are not only possible but likely. The most likely source of the false positive, Purel Hand Sanitizer. Purel is very common in the health care industry and is composed of 62% alcohol. While the means of cantamination isn’t certain, people involved think that inhalation is the most likely source of the alcohol tested by the EtG test.

In June I wrote about a cop in Florida who was fired by the Hillsborough County Sheriff’s Department for fabricating police reports, generating tons of overtime by working late writing reports on his arrests and had a reputation among prosecutors for handing them weak cases. Over the past few days the Florida State Attorney’s office declined to prosecute the case, allowed the Officer to keep his law enforcement certification and passed the case to the United States Attorney’s office for further investigation and review.

In February of last year I wrote that a DUI was the $10,000 ride ride home. Recently CNBC published an article putting the cost at $20,000. The total takes into consideration many of the underlying costs of a DUI and does not include those that would be quite obvious if there was an accident, injury or death involved in the drunk driving incident.

The costs delieated include the prolonged insurance rate increases, time spent away from work fighting the charges, serving the sentence, attending alcohol education and/or treatment, alternative transportation, the “up-front” costs like bail and getting the towed vehicle out of impound, and of course the fines. Many places charge for jail alternatives, dui education and dui treatment.

Needless to say the article does not include the potential costs such as loss of job or opportunity if a DUI conviction prevents professional licensing or other career advancement.

Unfortunately, the real cost of a DUI is unknown by any particular person, until it happens to them. As an attorney in the DUI defense field, I can also state with confidence that the costs are not going down, they are only going up, and impact a conviction will have is genuine and serious for most people.

As I wrote on October 14 of this year, the requirements for people on probation for DUI or alcohol related driving charges will change to a zero tolerance on January 1, 2009. However, in reading the draft legislation, I didn’t notice that the Legislature added a requirement to provide a breath sample in the field, so while non-probationers have the legal right to refuse the Premininary Alcohol Screen (PAS), a person on probation for an alcohol related driving offense will not.

In changing the law to require persons on probation for drinking related driving offenses to provide PAS tests the Legislature did not change the standards relating to how such evidence is acquired, meaning that the same lax standards that apply to it as an optional test will also apply to it as a mandatory test. What this means is that the standards that California has set in place for evidientiary breath testing will not apply, if the State can demonstrate that the machine was in working order, that the person operating the test was trained and that the proper procedures were follwed the test will be admited. More and more we see tests, that weren’t required under the law, fail to meet the lowest level of scientific protocols and yet, increasingly, we see Judges shirk their role as “gate keeper” and let the test in. Even clear violations of California’s rules relating to chemical testing will be tolerated in some jurisdictions. In these Jurisdictions a person may have their probation violated by a number that was generated by a machine that has a margin of error of .02, that may have been operated by an untrained or improperly trained officer (see, CCR 1221.4(a)(3)(A-E); 1221.4(a)(4)), that may not have been calibrated or maintained in accordance with California State law or that may have been adminstered in a manner that is not scientifically valid (See, CCR1219.3; 1221.1). Unfortunately, the probationer will not have the luxury of a jury to try and convince of the injustice, the decision rests with the Gatekeeper, the Judge.

Saab is currently developing technology to help drowsy drivers be more self aware and hopefully pull over and sleep. The technology observes and evaluates drivers facial expressions, if it determines that the driver is drowsy the car will alert the driver as to the fact that the car thinks the driver is drowsy. Volvo is developing a technology that evaluates the driver’s ability to maintain lanes, if the car determines that the driver is unable to maintain the lane it will warn the driver.

The technology is being developed as a response to the National Highway Traffic Safety Administration statistics relating to the fact that drowsy drivers contributed to 22 to 24 percent of all accidents and near accidents. Interestingly, this technology is also being prepared to fight drunk driving. Perhaps seeing that society might not willingly accept technology that makes a decision about sobriety, maybe the society would be more willing to accept it if it prevents drowsy driving.

It may seem weird for a DUI lawyer to be a proponent of a .00 legal limit but I’m one. Let me explain how I determined that I supported a .00 legal limit. Since our government is intent upon criminalizing conduct that may only cause harm it seems unfair that people “breaking” the law should know when it happens. When a person is out drinking with friends, family, co-workers or others socializing they have no idea when their blood alcohol concentration crosses from being legal to illegal. Each person metabolizes alcohol at their own rate, a rate that depends upon the time of day, the amount of sleep that they got the night before, stomach contents, alcohol level of drink, mixer and many other factors. When people go out they have no idea how much liquor is in their drink and frequently as they cross from below the legal limit to the legal limit, they can’t tell nor can the people they are drinking with. Rarely, does a person exhibit the commonly accepted symptoms of being intoxicated, they aren’t slurring their words or staggering, in fact they look just like you and me, but they are violating the law. They may be stopped by law enforcement for having an equipment violation, or possibly departing their lane while they fumbled for something they dropped, something that isn’t obviously driving under the influence. The simple fact is that most people don’t know when they go from legal to drive to illegal to drive a legal, if the legal limit was zero, we would all know that if we had a drink and chose to drive we were in violation of the law.

For persons looking for a less extreme approach, Stephen J. Dubner wrote a column relating to breath testing technology that other countries employ to help remove the “guess work” from guessing whether its safe to drive.

A professional athlete in Saudi Arabia was sentenced to 80 lashes after being convicted of DUI causing an accident. The only aspect of the crime and sentence is that the defendant/convict retains his privacy

The Salinas Police Department will be setting up checkpoints over the holiday weekend in various locations. Persons successfully passing through the checkpoint will be given a turkey, the Department hopes in convenience 150 to 300 persons, um, I guess I mean they hope to give out 150 to 300 turkeys. The Police Department cites many of the MADD statistics to support its efforts, especially the statistic relating to “alcohol-related” accidents, which as we have commented on earlier include accidents when sober people caused accidents involving a driver who had been drinking (not necessarily at or above the legal limit).

Next time you are listening to court case in which the defendant is proclaiming their innocence and the sole evidence for the prosecution is circumstantial evidence. When suddenly the prosecution trots out an “expert” with some sort of mechanical wizardry that purports to link the defendant to the crime. The scientific method involves some sort of analysis based upon dubious scientific theory, think it doesn’t happen? Think again.

Two years ago the FBI rejected the notion that lead bullets could be linked to a crime scene through analysis of the chemical composition of the bullet and bullets subsequently found on a suspect. This “scientific” technique was based on the theory that each “batch” of lead from which bullets were made had some sort of unique quality that could separate each one batch from another. The technique was initially developed when President Kennedy was assassinated and grew to be a commonly accepted science, then, in 2004, the National Academy of Sciences determined that the technique was unreliable and misleading. Interestingly, the technique was commonly accepted for over three decades before finally it was deemed unreliable.

Now, you would think that the FBI would make it a priority to discover which convictions were based in full or in part upon the misleading “scientific” technique, since our justice system is founded upon “innocent until proven guilty” and a lot of societal lip service is given to the importance of freedom, yet nothing has been done.

It is a sad, sad statement on our legal system that citizen’s who may have wrongly convicted for crimes based on this “scientific” technique continue to sit in jail with no one fighting the wrongful nature of the conviction.

You may ask yourself, why would a blog dedicated to DUI find this interesting? Well, as it turns out we have been fighting over breath testing for decades, the only true measure is that from the blood, every other measure is a “scientific” guess based upon some circumstantial evidence. The breath is measured either by elctrochemical cell technology or by infrared spectroscopy, neither of which measure the actual blood alcohol concentration. Will we eventually prevail on the issue of breath testing as circumstantial evidence as opposed to direct evidence? Will we ever manage to win the challenge that the “technology” is merely a guess? That the foundation of the theory is dubious and that the results are “unreliable and misleading?” One can only hope…