DUI Defender

A study recently funded by the Robert Wood Johnson Foundation, an organization whose goals are to improve the health and health care of all Americans, recently concluded that increased penalties for DUI do not deter DUI. Researchers looked at the changes in law and policies from 1976 to 2002 and dui arrest and accident fatality data for the same period. The study was conducted at the University of Florida and concluded that despite an increase in penalties the number of DUI’s committed were not reduced. The researchers concluded that the increased penalties had no deterrent effect on DUI.

It comes as no surprise as researchers delve further into GERD, the causes and possible treatments that also should discover other symptoms. It has been recently published (GERD and Chronic Cough) that a chronic cough may be indicia of GERD in patients that are non-smokers and aren’t taking ACE inhibitors. This is currently being described as silent GERD and may account for 43 to 75% of all GERD cases, it also referred to as larygopharyngeal reflux disease. Just because a person isn’t symptomatic in a typical fashion (chronic heartburn, burping/belching, regurgitation) does not mean that they do not suffer from GERD. The reality is that a far greater number of people may have undiagnosed GERD which means that a larger percentage of the population may not be good subject’s for breath testing due to the mouth alcohol contamination caused by GERD.

There has been a lot of discussion recently regarding diet and alcohol. Some in the medical community have documented the fact that diabetics can enter a state of ketosis wherein their breath will test positive for alcohol on many types of breath analyzers that have specificity issues (devices that are not alcohol specific). In a recent Swedish study researchers found that low calorie diets can result in false positives that prevent ignition interlock devices from allowing cars to start. If the devices can’t tell the difference between ethyl alcohol, ketones and isopropyl alcohol, how can we trust the results of blood alcohol measurements made by similar machines used in law enforcement?

In February of this year legislation was introduced to require an Ignition Interlock Device on any car owned by a person convicted of Driving Under the Influence.  Earlier this month I wrote about why I thought this was a bad idea.  In an on-line post “The Spitzer Report” an article regarding the legislation was quoted.  The article cites statistics to support the effectiveness of IID in preventing future DUI’s.  The statistics misrepresent reality.

1)  Spitzer is quoted as saying “California Highway Patrol statistics that show from 2005 to 2006 there was a 14 percent increase in the number of people convicted of driving under the influence with a suspended license for a prior DUI.”  If these driver’s don’t regard the suspended status of their license, why on earth, would they install an ignition interlock device on their vehicle?  The fact of the matter is a certain number of persons will drive with complete and total disregard to the legal status of their driver’s license or sobriety.  I’m not certain why this particular statistic supports the legislation, nor am I sure why this statistic is relevant to deterring future DUI.

2)  “In 2005, there were 23,500 convictions, compared with 26,900 in 2006.”  This statistic again misrepresents the truth.  In 2006 the “lookback” period for prior DUI’s was changed from seven (7) years to ten (10) years. 

The “lookback” period is the amount of time a prosecutor can look back in time to determine if a particular defendant has a prior conviction for DUI.  In 2005, the “lookback” period was seven (7) years meaning that a person who was convicted of DUI in 1998 could be charged with a prior however a person convicted of a DUI in 1997 could not.  In 2006, the lookback period was changed to ten (10) years, meaning that while a person convicted of DUI in 1997 could not be charged with a prior conviction in 2005, they could be charged with a prior conviction in 2006.  This increased the number of driver’s who could potentially be charged with a prior offense rather dramatically as it added every person convicted of DUI between 1996 and 1999 liable for a prior conviction.  This change in the law would easily make up the increase in repeat offenders.

Finally, the article which Spitzer cites in his on-line post concedes, “However, the [DMV] study also found that the device is not effective in reducing DUI convictions or incidents for first-time DUI offenders.”  Which leaves me scratching my head since the ignition interlock is already required for second offenders who wish to be licensed following a one year suspension.  The legislation just seems unduly punitive with no statistical support for the goals it intends on supporting.

A bill is currently working its way through the California State Legislature (Senate Bill 177) that will require every person found guilty of DUI to install an ignition interlock device on their car.

Ignition Interlock Device-

An ignition interlock device is a machine that is installed in a car between the key and the starter.  The driver must blow into the device prior to the car starting.  If the machine determines that the driver is not “sober” it will not start.  These devices also require periodic testing of the driver, meaning that while the car is on the road the driver must blow into the device.  In the event that the vehicle detects alcohol, it initiates an alarm, the lights and horn will sound until the vehicle is shut off, it does not shut off the engine immediately.

Why this is bad-

The number one reason cited by MADD and the proponents of this change in the law is the increased rate of repeat DUI’s.  The statistic most recently cited by the proponents of this law (who include the lobby group for the manufacturer’s of these devices) includes all of the new repeat offenders added to the statistic since the “look back” period was changed from seven years to ten thereby increasing (by at least a third) the number of persons subject to inclusion in any repeat offender statistics.  The statistics in New Mexico, the only State to have a mandatory IID requirement for first offenders have been seriously manipulated to create the illusion of effectiveness.

This law will unfairly effect the working poor more significantly than the rich.  The Ignition Interlock Device must be purchased or leased from a provider.  The device must be brought in to a licensed provider every so often to have data downloaded and have its calibration verified, this too costs money.  What will the people who can not afford these devices do?  They will either sell their existing car (and purchase another car in someone else’s name), or transfer ownership to another person.  Once the title is no longer associated with the convicted driver, the Ignition Interlock is no longer required.  It doesn’t matter who’s driving the car, only to whom the car is registered.  While this will not satisfy the requirement that a device be on any car driven by the convicted driver, it is only possible to verify that any car owned by the driver has an ignition interlock installed.

The law will adversely impact the lease car industry.  The IID is hard wired into a car meaning that it must be bolted to the car, the damage caused by the installation violates the terms and conditions of most automobile leases.

The device is non-specific for alcohol.  I have had client’s who could not start their car shortly after smoking a cigarette or using mouth wash.  Many of the defenses we use to challenge criminal cases are applicable to these machines as there are no safeguards.  Some gums and other breath fresheners will cause positive measurements; again the car will not start.  The lack of specificity could result in sober people not being able to start their car to drive to work or appointments.

Well it’s that time of year again, law enforcement steps up its annual crack down on drunk driving. In the San Francisco Bay Area it’s called “avoid the” campaign and throughout the bay area local police department’s, sheriff’s and highway patrol officer’s will be extra vigilant for drunk driver’s. It’s also the time of year when the rights of motorist’s are most significantly impacted. Beware as you travel this holiday season you will encounter sobriety checkpoints and extra officer’s will be on duty looking for any reason to stop driver’s, including expired registration or vehicle equipment problems. The 125 law enforcement agencies will be placing extra emphasis on drunk driving over the next 18 days. The special effort will conclude on January 2, 2007