DUI Defender

The attached “quick facts” are excerpted from the CDC website. I have commented several times on “how to lie with statistics” and encourage you to visit those posts. The simple fact is that the problem isn’t anywhere near as severe as Mother’s Against Drunk Driving would lead you to believe. In fact, one of the alcohol related deaths counted in this years statistics will be a man who, while drunk, fell asleep beneath a parked car, the sober driver drove off, killing the sleeping the drunk.

Quick Facts About Drunk and Drugged Driving

In 2005, 16,885 people died in alcohol-related motor vehicle crashes, accounting for 39% of all traffic-related deaths in the United States (NHTSA 2006).

An alcohol-related motor vehicle crash kills someone every 31 minutes and nonfatally injures someone every two minutes (NHTSA 2006).

Drugs other than alcohol (e.g., marijuana and cocaine) are involved in about 18% of motor vehicle driver deaths. These other drugs are generally used in combination with alcohol (Jones et al. 2003).

Each year, alcohol-related crashes in the United States cost about $51 billion (Blincoe et al. 2002).

Most drinking and driving episodes go undetected. In 2005, nearly 1.4 million drivers were arrested for driving under the influence of alcohol or narcotics (Department of Justice 2005). That’s less than one percent of the 159 million self-reported episodes of alcohol–impaired driving among U.S. adults each year (Quinlan et al. 2005).

There are actions that work to prevent injuries due to impaired driving. To further decrease alcohol-related fatal crashes, communities need to implement and enforce strategies that are known to be effective, such as:

Sobriety checkpoints. Fatal crashes thought to involve alcohol dropped a median of 22% (with random breath testing) and 23% (with selective breath testing) following implementation of sobriety checkpoints.

0.08% BAC laws. Fatal alcohol-related crashes showed a median decrease of 7% following the implementation of 0.08% BAC laws in 16 states.

Minimum legal drinking age (MLDA) laws. Raising the MLDA, such as from 18 to 21, decreases crash-related outcomes a median of 16% for the targeted age groups.

“Zero tolerance” laws for young drivers. One study found that fatal crash outcomes decreased 24% after implementation of “zero tolerance” laws (Elder et al. 2002, Howat et al. 2004, Shults et al. 2001, Shults et al. 2002).

The Governor has signed into law a statute that will impact anyone on probation for DUI. Effective January 1, 2009, if you are on probation for an alcohol related driving offense (DUI [V.C. 23152(a) or (b), DUI with injury [V.C. 23153(a) or (b)). The law changes means that the old probation requiring a probationer “not to drive with a measurable amount of alcohol” will now require a probationer’s blood alcohol measurement to be zero, meaning that a measurement of .01 or more can result in a probation violation.

The statute doesn’t change the legal requirement that the probationer be lawfully stopped, however, it does mean that the odor of an alcoholic beverage alone will most likley serve as grounds for a probation violation prosecution.

Many times we have client’s in our office who don’t know the names of the drugs they are taking (under medical supervision). We frequently need to match the description with the actual prescribed drug, this information helps our forensic toxicologist’s determine what if any drug interaction may be responsible for either physical observations of law enforcement or chemical test results. The website provided by the Medical University of South Carolina allows the user to select the shape, color, pattern and other identifying information that may be known. Upon entering some or all of the known information, the search engine provides the likely drug.

The Department of Justice in Watsonville revealed that two separate times in 2006 their breath testing program was flawed, so seriously that the 355 DUI cases affected may be dismissed. The issue arose because the Lab failed the proficiency testing conducted by the State Department of Health Services, while the District Attorney and Crime Lab down played the effect the failed proficiency tests had on the cases involved, the simple fact remained that the machines were not functioning properly, the results are tainted and the prosecutions should be dropped. If we can’t have faith in our prosecutor’s to do the right thing and protect the public from flawed chemical testing, who can we trust.

The Denver Post reported a “voluntary” checkpoint that was set up by a non-profit organization attempting to collect data from driver’s. The check point was volutary but operated under the auspices of the Sheriff’s Department. The checkpoint sought to analyze persons blood, breath and/or saliva. While voluntary in description, many particiapnts felt that they didn’t have the right leave, felt pressured to provide samples and were offered as much as $100 to participate in the “study.”

This raises an interesting question, with law enforcement watching over, and the subjects not being allowed to leave is the Sheriff’s Department and the Non-Profit Pacific Institute open to civil liability for false imprisonment or some other civil liability. It is amazing to me that a law enforcement agency would permit, let alone participate, in a “check point,” just who exactly are they “protecting and serving?”

As I wrote earier, the source code battle has expanded beyond Florida and New Jersey, in Minnesota prosecutor’s and CMI missed the deadline to provide the defense with the source code for the Intoxilyzer 5000 EN. The court may dismiss the “per se” charge as a result of the failure.

The source code is the software that underlies the basic operation of the breath testing device. It essentially determines how the measurement is converted into blood alcohol concentration measurements used in criminal prosecutions. The reason why the code is important is that the software averages the readings taken during the sample to create a number, many scientists think that the breath alcohol measurement will vary dramatically depending upon where in the breath sample the measurement is taken. This variance could result in an overstatement of the blood alcohol measurement. The software also converts the breath alcohol measurement into a blood alcohol measurement. Many manufacturer’s of breath alcohol testing equipment have used the “proprietary” software defense, however, it seems to be failing in some court’s.

The “per se” charge as discussed above is a secondary charge that most persons arrested for DUI face, it states that you were DUI because your blood alcohol concentration was .08 or above. The so-called legal limit is now in effect in all 50 states since the award of federal highway funds was tied to legistlature’s enacting the limit. The importance of the “per se” charge should not be underestimated as it provides the prosecution with an alternative theory when a person is stopped for an equipment violation and performs well on field tests and has few if any of the “objective symptoms of intoxication.” (Odor of an alcoholic beverage, thick or slurred speech, red/watery eyes, unsteady gait, etc.).

In New Jersey, the Appellate Division of the Superior Court has upheld the conviction of a man arrested for DUI despite the fact that he did not have any pharmacologically active substance in his system. Essentially, the man was prosecuted for driving while hungover. While he may be prosecuted for speeding, weaving or other vehicle code violation, he was definitely not driving under the influence. This leads to other scenarios where person “under the influence” may be arrested and taken for testing. If a person was woozy from Claritin, would they be prosecuted for DUI? What if a police officer mearly suspected a person was recovering from drug use, would he have the legal right to place them under arrest for DUI and demand a chemical test? Where will it end?

Yesterday, Federal experts released data demonstrating an increase in Drunk Driving deaths in 22 states in 2006. The headline is increased deaths, the reality is fewer deaths. 28 states experienced fewer deadly accidents in 2006 than in 2005. The interesting qualifier is that these accidents involved legally drunk drivers. The facts do not state that these accidents were caused by the “legally drunk” driver only that a legally drunk driver was involved. They also fail to highlight

Headlines like these fuel the hysteria associated with MADD and other anti-drunk driving organizations. They more vividly reflect the reality that more harsh laws and punishment aren’t going to end this problem. Many times criminalizing the conduct prevents persons from seeking the treatment they otherwise might obtain. Once a convicted person has “paid their debt to society” they move on, never receiving the care they need.

Recently, the Department of Health published the 2007 list of approved DUI program providers. The schools may be found on line. These provider’s are the only provider’s authorized by the Department of Health and accepted by the Department of Motor Vehicles for satisfying requirements related to license suspensions, license restrictions and license reinstatements.

Late last month, the Supreme Court of Minnesota agreed with defense attorney’s regarding the source code for the Intoxilyzer 5000 EN. The defense argued, successfully, the the source code (the operating software inside the breasth test device) was the property of the State not CMI and was therefore subject to discovery, the Supreme Court agreed and set a date in September for CMI (the manufacturer of the breath test device) to turn over the source code. This is a big win for the defense as the source code is the software that determines how the breath alcohol concentration is determined by the breath tester.