DUI Defender

By now most people have heard of the source code litigation taking place in Florida, Minnesota, New Jersey, and elsewhere. Few people however understand what the fuss is all about. Let me put it to you in simple terms.

It is almost the same investigation that was used in evaluating voting machines. That investigation, and software evaluation, revealed a number of flaws which were felt to undermine the reliability of the machines.

In other words, the same type of information that is being sought by people ACCUSED OF CRIMES was turned over for evaluating voting machines. Upon analysis it was determined the machines didn’t pass muster. I am not sure about you, but seems to me that putting people in jail is at least as important as putting someone in office, and that if a machine is not sufficient for the latter it certainly is not for the former.

Suppose you were accused of a crime? Further, suppose that the only witness against you states under oath that they ran a test that proves your guilt beyond a reasonable doubt. In fact, in some courts, you can not even present evidence against this witness.

Would you consider this fair? Wouldn’t you like to know how the test was conducted? Wouldn’t you like to know how it was graded? Wouldn’t you like to know that the math, answers and all other aspects were legitimate?

That is what source code litigation is all about. Simply put it is the right to find out how the breath machines work. All that is being sought is how do the machines do what they claim they can do.

Is this just a fishing expedition, an exercise in futility and merely an excuse to use up resources and cause delay? You be the judge.

Throughout the time of the Intoxilyzer use in California and elsewhere the manufacturer indicated that these machines performed regular ‘self diagnostics’. For years it was assumed that this was true. Then one December a group of defense attorneys and experts decided to test this program by removing a number of the critical parts of the breath machine and running the program. Turns out that 13 critical parts of the machine can be removed and the self diagnostic still gives an “OK” message.

Think about this; the machine can have a vital part disconnected and it will still tell the police it is operable, still give a reading and STILL CONVICT CITIZENS. In fact, this author brought this to the attention of the Contra Costa crime lab, AND THEY STOPPED USING THOSE MACHINES.

Additionally, it was discovered, through experiments, that when the machine clears itself in between tests, it does not really do so. What the machine truly does is LIE. It prints out that there is no residual alcohol in the machine which would lead one to believe it is empty, and that is exactly what the manufacturer warranted, but what it really does is measure the residual alcohol and allegedly subtracts that from the next sample.

Wouldn’t you like to know if this works? Does the machine round up or down?

Now, given these two examples, BOTH CONTAINED IN THE SOFTWARE, isn’t it reasonable to allow the accused the right to see what other shenanigans may be going on? In every other aspect of criminal defense the accused can see the witness against them, test or retest the evidence, and obtain a full report of how the expert for the government came to its conclusion. But not when it comes to a DUI. The breath is destroyed, the machine is immune from questioning and the manufacturer will not tell anyone, INCLUDING THE GOVERNMENT, how it works.

All that the source code litigation is demanding is disclosure and fairness. Besides, if you had faith in your processes, why would you try to hide them?

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.

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…

San Diego is experimenting with a machine that automatically scans a license plate and checks it against a data base of stolen cars. Detective le Ribeus stated in an interview that the eqipment picks up nearly every license plate it passes. The technology replaces the earlier method which required that an Officer write down and call in a suspicious license plate before recovering the car or inconveniencing the driver.

The technology is currently only used to run license plates against a list of stolen cars, it doesn’t take much to swee the possibility of running licenses against other data bases, cars without insurance, drivers with suspended licenses, how about just tracking citizens on the road?

Check out this video, the lawyer demonstrates a flaw in the design and manufacture of the Draeger handheld breath test. The video supports the defense that law enforcement, by blocking the exit port of the device, can manipulate a below the legal limit test into an above the legal limit test. The video is a remarkable demonstration of a simple but effective method of producing incriminating evidence from an otherwise innocent person.

Nissan unveiled a concept car intergrating “anti-drunk driving” technology. The car will be equipped with three different types of alcohol analysis, “breath odor analysis”, facial analysis and driving analysis. The breath odor analysis will be based on two separate technologies, first it will have sensors built into the shifter that will sense alcohol in sweat, second, it will have odor detectors built into the seats that will sense alcohol in the cabin. The second system for preventing drunk driving will be a facial camera mounted in the dash, it will analyze a driver’s facial movements and eyes, if the eyes start to sag or the device otherwise “thinks’ the driver is nodding off or DUI, it will communicate through the navigation system and tighten the seatbelt to get the driver’s attention. Finally, the car will analyze the driving behavior, if it “thinks” the driver is exhibiting inattention it will communicate therough the navigation and tighten the seatbelt to gain the driver’s attention.

What I am curious about is, who will buy this car? If Nissan thinks a person who drinks and drives will purchase it, I think they may be mistaken. At what levels will the car set off its warning systems? While .08 is the legal limit some States have levels at which sobriety is presumed. If a drunk driver is involved in an accident driving one of these cars, will Nissan have liability? For further information on the car click here.

A company in New Mexico has patented and is now field testing a device that measures blood alcohol concentrations non-invasively. The device appears to operate in a fashion like a pulse oximeter, a small clamp like device that hospitals use to measure the amount of oxygen in patients experiencing respiratory distress. The compay webite describes the technology as employing near-infrared (NIR) absorption spectroscopy to measure the concentration of alcohol by introducing NIR light into the skin and collecting the light that returns to the tissue surface (often referred to as diffuse reflectance).

We haven’t had the opportunity to see one of these devices in action to determine how accurate it is in its measurements or ability to determine whether what it is rteading is ethyl alcohol or some other compound with a similar molecular structure. Alcohol specificity is a common problem for non-invasive blood alcohol measuring devices. Trutouch Technologies must also get Federal approval and join the list of “conforming devices.”

While we have not seen this technology used by any law enforcement agencies that we work with it is important to note that it may be coming to a police force near you.

A few weeks ago I wrote about the on-going litigation in New Jersey regarding various issues relating to the Draeger Breath Testing equipment. The New Jersey Supreme Court ordered Draeger to provide the computer code that runs the device. This is an important development as the code determines how the machine reaches conclusions regarding the measurements that it makes. Having a third party authenticate the software is a huge win for the New Jersey lawyers litigating this issue. The importance can not be underestimated as the outcome of this litigation may have far reaching impact, perhaps even to California where the Draeger is growing in popularity.

How Roadside Breath Machines Work

Roadside breath test devices typically use an electro-chemical reaction to measure breath alcohol content. Air, from a suspect or calibration machine, is blown over a porous disc. This disc is a wafer of materials, one of which will react with the alcohol, freeing electrons and causing a small electrical current. This current is measured and then translated in to an alleged Breath alcohol content.

In order to ensure a “good” breath sample, the devices measure the flow time of the air sample and “capture” a sample near the end of the “average” persons breath. Some devices are also equipped to allow a “manual” capture by the officer if the flow rate and time is not met. This is done by the simple pushing of a button.

Typically in breath testing, not all of a person’s breath is tested, only a small portion is reviewed. This is done by a simple piston popping closed once blow time or manual trapping has occurred. This sample is then analyzed and the results displayed.

Problems with Roadside Breath Machines
Because these devices only sample the air stream, they can easily end of measuring mouth alcohol instead of true breath (also known as deep lung alcohol). Laboratory machines typically have a “slope detector” that allows a trained operator to distinguish between the two. With a slope detector there is constant monitoring of the breath as it passes through the sample chamber and an evaluation made. Any rapid falling off of the alcohol level, or “slope”, triggers the sensor to indicate mouth alcohol.

Next, these machines are subject to more calibration problems. Unlike their big brothers, these machines are not being kept and maintained by laboratories and their staff. Most are housed by local cops or CHP. The maintenance, or more appropriately, calibration is being done by police officers with no scientific back ground.

Depending on the underlying technology, some roadside breath analyzers might be subject to other serious problems. For example, with fuel cell devices there is a lack of specificity: the devices will detect a large number of chemical compounds, indiscriminately “reading” them as ethanol. Although the manufacturers of the passive alcohol sensor claim in their advertisements that it “is unaffected by acetone, paint and glue fumes, foods, confectionery, methane and practically any other substance likely to be found in the breath,” the fact remains that any device using fuel cell oxidation is not specific for ethanol; the manufacturer’s use of the term “practically” should certainly create suspicion.

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?