DUI Defender

In an often quoted statement, better that 10 guilty persons escape, than one innocent suffer, penned by English jurist William Blackstone, we set forth the notions of criminal justice in both England and later here, in the United States. A recent study by researchers at Northwestern University concluded that Juries may reach the wrong verdict as often once in every six trials. The study found that juries get it wrong 17% of the time and Judges get it wrong 12% of the time. The study also demonstrated that it more frequently the case that an innocent person is convicted rather than a guilty person is exonerated. This conclusion seems to support recent releases of death row inmates based on DNA evidence and other high profile. While the study that illustrated these conclusions only evaluated 290 cases in four major cities, it is troubling enough to warrant further investigation.

More glaring is the spotlight that shines on the supposed presumption of innocence and the prosecutors burden to prove their case beyond a reasonable doubt. These corner stones of our criminal justice system appear to eroded both from within the system (the on-going erosion of civil liberties for the criminally accused) and within the society as a whole (the popularity of criminal justice television). In the 1950’s and ’60’s our television hero was Perry Mason a criminal defense attorney who pointed out the weakness of the State’s case and always won justice for his client. I appears that we have lost our way, many great minds have taken “Blackstones Ratio” of 10:1 and reinterpreted it, Benjamin Franklinn thought that it was better that 100 guilty persons escaped. The current data suggests that if you are innocent your chances are 1:6 that you will be convicted.

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.

The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.

In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

In an on-going effort to highlight the statistical ineptitude that drives MADD (Mother’s Against Drunk Driving) and other groups leading the charge to enact legislation curtailing our civil liberties, I present part 1 of my series, “how to lie with statistics.” These groups are leading the fight for legislation that will, at some point in the not to distant future, allow law enforcement to stop, at random, any citizen driving, for any reason. Remove these otherwise law abiding citizens from their car, force them to blow into some sort of alcohol measuring device before being allowed to continue on their way. It may seem drastic but that’s where we are heading, the “war” on DUI has resulted in the suspension of many of our basic civil rights and Constitutional protections and it seems that the proponents of “tougher” drunk driving laws won’t stop until there are no constitutional protections for everyday drivers. While is would be wrong for me to say I favor drunk driving (and, for the record, I do not), it is safe to say that I do not support MADD’s methods. However, in the battle that has thus far taken place, it seems that anyone standing in the way, or arguing against the mad mothers, must therefore support drunk driving.

In an article written recently, Ron De Young, brilliantly analyzed the statistics cited by MADD and NHTSA (National Highway Traffic Safety Administration) to reach the conclusion that we are actually safer drink and drive and not wear our safety belts than we are to be sober and seat belted into our cars. While this proposition may seem ludicrous, the author actually took the statistics cited by MADD and NHTSA to perpetuate their war on our civil liberties, and turned them into a statistical argument that we are actually safer when we are drunk driving. That simple fact being a corollary of the statistic that 61% of all traffic fatalities occur in accidents with sober people. Mr. De Young goes on to pick apart the actual statistics, challenging the fact that someone in every alcohol related fatal accident must have a blood alcohol concentration of at least .01 (the legal limit in every state is .08, with few exceptions) and doesn’t necessarily require that the driver in any alcohol related fatality be the one with the alcohol measurement. Further, at least 12% of the “fatal accidents” involve drunken bicyclists or pedestrians (in other words, sober drivers hit drunk non-motorists).

The purpose of this series of articles is not to promote drunk driving but to try to be a sober voice in the on-going hysteria surrounding drunk driving and the efforts of some groups to use statistical analysis to spread their message and impact legislation that erodes the civil liberties we all hold dear… or at least our Founding Fathers did.

Toward the end of last year, Time magazine published an article regarding people who use cell phones while driving. The analysis they presented supported the conclusion that whether the phone was hand-held or hands free it was just as distracting. In fact the article concluded that using a cellular telephone while driving was as distracting as driving with about a .08 blood alcohol concentration. A .08 blood alcohol concentration would be in violation of the DUI statutes in every state in the United States, and subject the individual to arrest and prosecution for DUI.

In driving simulations drivers participating in telephone conversations had reduced reaction times and slower responses to situations requiring braking than drivers who were not involved in telephone conversations. Statistics from non-simulated driving (real life) indicate that talking on the telephone may rival drowsy driving as a major cause of automobile accidents.

The Canadian Broadcaster CBC is reporting that two Canadian firms are on the cutting edge of the “in-car” alcohol testing equipment market. These companies are developing technology to test alcohol concentrations while people are driving. The technologies being tested are similar to those reportedly in development by Toyota. (see my blog 1/10/07). One of the technologies being tested is a skin/perspiration measurement that will allegedly detect the alcohol concentration of whoever is steering the car. A similar technology is apparently in development in California. These technologies seem to be somewhat useless as driving gloves would render them ineffective.

Needless to say, the business opportunities for these companies are significant considering the size of the U.S. market and the European Markets. The drive is on to develop technology to test driver’s for alcohol (or any other compound/chemical that the device “thinks” is alcohol).

See this cautionary tale.

It has been recently reported that Toyota and Nissan are experimenting with alcohol detecting devices that would be part of the standard equipment on their cars. The Toyota design currently being developed relates to modifications to the steering wheel. The Toyota steering will would include sweat sensors located on the steering wheel perimeter where drivers hold the wheel. Another sensor would be located in the center of the steering wheel, it would analyze the breath of the driver, steering movements could be analyzed as could the pupils of the driver.

These products, currently in development, represent one more step toward a “big brother” state. The technologies in these devices are not proven, many other compounds will trigger these sensors, thereby preventing the car from starting. It doesn’t take much to envision a scenario where a parent has been home working with a solvent or paint and a family emergency requires a trip in the car and the car won’t start. Further, these technologies, as currently employed by law enforcement for criminals, require regular maintenance and service to verify their accuracy and continued effectiveness.

Is drinking and driving prevalent enough to put your family at risk?

Recently new technology was introduced in Japan, a cell phone that measures alcohol concentrations. The telephone accessory allows employers to measure the breath alcohol concentration of their employees remotely. The device which attaches to the cell phone, takes a breath sample, photographs the test subject and sends current location information from a GPS satellite. The technology is especially useful for employers who run transportation companies. One can only assume that it will coming to a Best Buy near you…

President Bush has declared that December is “National Drunk and Drugged Driving Prevention Month.” I feel much safer knowing that one month per year is selected to elevate awareness of this issue. It is also of note that this month the Federal government will be partnering with local authorities to increase enforcement efforts and education. Beware, it seems that the revenuer’s are after you again…

A study conducted in New Mexico, analyzing the arrest records for individuals having been arrested for DUI at least twice in the preceding ten years. The study concluded that the majority of the subjects had at least one mental illness. Almost sixty percent suffered from major depression, OCD, B-Polar Disorder or Post-Tramatic Stress Disorder.

Unfortunately, the State Legislatures and various political groups (MADD) have emphasized the punishment aspect of Drving Under the Influence and neglected factors that may underlie the majority of repeat offenses, mental illness. Our society has taken a kinder approach to drug addiction and the use of illicit drugs, maybe we should reevaluate our approach to repeat DUI offenders. By failing to take into consideration, and treat, the underlying mental illness present the majority of our multiple offenders, we are essentially doomed to fail in our societal goal of reducing DUI.