Coming To You Soon: Limitless Police Stops and Breath Tests

November 5, 2010 by Lawrence Taylor  
Filed under DUI

How would you like to be stopped by the police anytime, anywhere, and tested on a breathalyzer — for no reason except that the cop felt like it? 

MADD Would Like to See Random Breath Tests for Drivers

Toronto, Canada.  Nov. 2 –  If Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

And Murie may get it…

Murie has some big backers in the random breath testing debate.

Federal Justice Minister Rob Nicholson has endorsed such a change in the law, echoing a June 2009 recommendation from the Standing Committee on Justice and Human Rights that Ottawa amend the criminal code to allow police across Canada to conduct random breath tests.

RBT would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive.

Ottawa said it would talk to the provinces first, then consider the changes…

But RBT is a slippery slope for a “free and democratic country” such as Canada, said Nathalie Des Rosiers of the Canadian Civil Liberties Association.

Increasing police power to that point, she said, would send the truth north strong and free toward becoming a police state.

“It’s about giving the power to the police to arrest someone anywhere, anytime and subject them to a criminal investigation where they have to comply, even though there is no reasonable grounds that they’ve done anything wrong,” said Des Rosier.  

This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights — here and, apparently, in Canada. Look for MADD USA to make random stops and breath tests their next legislative goal.


Videotaped Falsification of Breath Test Documents

November 2, 2010 by Lawrence Taylor  
Filed under DUI

In my last post I presented a videotape from breathalyzer expert Stephen F. Daniels showing the falsification of monthly breath machine reports in the Hillsborough County (Florida) Sheriff’s Office.  

The following is another videotape from Mr. Daniels, depicting officers falsely signing a document verifying compliance with breath test regulations before the test of an arrested suspect.  The regulation involves the requirement that the suspect must be kept under constant observation for a period of at least 20 minutes before the test is administered.  This is to ensure that the suspect has not burped, belched or regurgitated — which can tremendously increase a breath test reading; it takes up to 20 minutes for the "mouth alcohol" to be dissipated.

The videotape on YouTube:  Falsify Notary and Violate the 20-Minute Observation Period – Officer Cooper and Deputy Glover.   

As the video clearly shows, none of the officers signing the document (which was blank) under penalty of perjury observed the suspect for more than a few seconds, if at all.  This was later confirmed by a Florida court, which stated in its ruling in favor of the accused: "The lack of candid disclosure concerns this court.  The affirmation of Officer Cooper (DD9) of constant observation of the Petitioner from 5:58 am until 6:17 am is clearly not true…Officer Cooper failed to maintain observation of Petitioner and falsely states that he observed her when he did not."  

It should be understood that what happened on this videotape is not an isolated instance.  Cutting corners and falsifying documents in drunk driving cases is common in police agencies across the country.

Videotaped Manipulation of Breathalyzer Inspections?

October 27, 2010 by Lawrence Taylor  
Filed under DUI

I have written ad nauseum about the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work (And Why They Don’t).

Sources of inaccuracy occur, among other reasons, because of inherent design defects, defective and inaccurate software, physiological variability of subjects tested, improper administration by police, and unreliable maintenance and calibration.  

The latter is a continuing problem in police agencies across the country — including the tendency to falsify maintenance and calibration records.  This is done to validate questionable test results — to permit admissibility as evidence in court and to support  public and judicial confidence in the machines.  These behind-the-scenes procedures are, of course, difficult to detect.

One of my readers, Stephen F. Daniels of Treasure Island, Florida, has recently contacted me with fascinating videotape of what appears to be one of those procedures.  

Mr. Daniels holds a certificate from the Florida Department of Law Enforcement  as a "Breath Test Operator and Agency Inspector".  He informs me that the videotape — which he has posted on YouTube — shows a police agency inspector of the Hillsborough County Sheriff Office in Tampa "intentional falsifying the failing monthly inspection reports and making up false excuses which allowed her to retest and keep the failing Intoxilyzer on-line". 

The full 14-minute videotape can be viewed at:  Fake O-Ring Excuse by Hillsborough County Sheriff Office Alcohol Inspector.     

For those who may question this, consider the following Tampa TV news report:

Misuse of DUI Machines at Hillsborough Jail?

When a law enforcement officer arrests someone for DUI and takes that person to the Hillsborough Orient Road Jail, we have seen there can be problems.

Wanda Sullivan, who was arrested for DUI, found that out when she was pulled from a chair and dragged across the floor. However, our 3-month investigation also shows there are problems with the way law enforcement authorities have used the breath testing machine, the Intoxilyzer 8000.

We ran a control test with DUI consultant Stephen Daniels, using the Intoxilyzer 8000. The result of the test had his blood alcohol at .000.

Then we had Daniels eat some Wonder Bread, and he blew a .033. Although still under the legal limit, Daniels was registering alcohol after only eating bread…

This isn’t the first time the accuracy of the breath testing machines and the way the Florida Department of Law Enforcement monitors them has been called in to question. Within the past year, an inspector had to be dismissed after she was caught telling other police agencies how to get around the guidelines if the machine failed the state-mandated test.

"We found that they actually fudge on the machines," says defense attorney Richard Hersch.

We showed Hersch an inspection test from Hillsborough County on July 19 2007. The inspector logs in at 8:58 and then conducts that test a 9:06. The inspector then says the inspection was not completed, because of a power failure.

So the inspector performs another test at 9:41, and then logs back in at 9:43. The FDLE says doing that is impossible; you can’t inspect a machine after a power failure without re-logging in first.

"By turning it off, all of the failed inspection data didn’t get written to the memory. It disappeared," Hersch explains.

That means a machine that could be out of tolerance could be used as evidence to convict you of a DUI, if you are pulled over and possibly under the legal limit.

For a YouTube videotape showing Mr. Daniels taking another breath test after eating a slice of bread, see Wonder Bread Blow With a 0.405% BrAC (over half of the legal limit).  


A Voice of Reason

October 25, 2010 by Lawrence Taylor  
Filed under DUI

I posted a few days ago about yet another example of MADD’s influence in pressuring legislators to pass ever-more Draconian laws:  proposed DUI laws in Manitoba giving police unlimited power to pull over any driver they wish and administer field sobriety tests – regardless of whether there are any indications of drunk driving.  The following is a newspaper staff editorial standing up to similar pressures from MADD in another province, British Columbia:

Liberties Infringed

Vancouver, BC.  Oct. 25 –Drunk driving is a scourge on society. It kills innocent people and maims others. But the B.C. government has taken stern measures to combat it, including the imposition of some of the toughest penalties in Canada.

That’s one reason we have strong reservations about the call by Mothers Against Drunk Driving for random testing that would allow police to pull citizens over for breathalyzer tests, even without suspicion a driver is impaired. This gives police too much power. And we have all seen what transpires when that’s allowed to happen.

Irish poet Brendan Behan may have overstated it when he said: "I have never seen a situation so dismal that a policeman couldn’t make it worse." But we don’t want a police state, and there should be reasonable limits on their authority. Let’s not further curb precious liberties.

If only the editorial staffs of our own newspapers had the courage to stand up to MADD…

“I Don’t Need No Stinkin’ Convictions!”

October 21, 2010 by Lawrence Taylor  
Filed under DUI

  What’s wrong with this picture…besides the macho "top gun" stuff?

Local Officers Honored as "Top Guns" for DUI Arrests

York, PA.  Oct. 20 – Local law enforcement officers will be honored for taking more than 380 impaired drivers off York roads last year.

The Pennsylvania Driving Under the Influence Association will honor 48 officers statewide with 2010 DUI Top Gun Awards…

"We are taking this opportunity to honor those officers in Pennsylvania who were leaders during 2009 in either making DUI arrests or conducting drug influence evaluations on impaired drivers," C. Stephen Erni, executive director of the Pennsylvania DUI Association, said…

So….why are cops being given awards for making arrests — rather than for arrests resulting in convictions?  (For a discussion of the problem, see my earlier post Officers Rewarded for Arrests – Not Convictions.)

Goal: Eliminate Drinking…or Dangerous Driving?

October 18, 2010 by Lawrence Taylor  
Filed under DUI

Two stories in today’s newspapers say a lot about where the focus is for saving lives on the highways:

Random Tests Go Too Far

Winnipeg, Canada.  Oct. 18 — Police powers to check for impaired driving have encroached relentlessly upon civil liberties, such that innocent motorists are randomly, routinely pulled over and questioned, absent of cause. If an officer suspects any drinking has occurred, drivers must take a test. The penalties for refusing are equal to failing the test...

Now the Harper government wants to eliminate the need for any suspicion of drinking, allowing police to randomly demand a roadside test.

Advocacy group Mothers Against Drunk Driving is celebrating, saying this should make the glass of wine with dinner a thing of the past…

MADD, however, has been strangely silent about the proven greater dangers to human life of talking or texting on cell phones while driving.

Texting and Driving a Costly Business Risk

Miami, FL.  Oct 18 — Cellphones and driving don’t mix.

According to the National Safety Council, an estimated 200,000 crashes a year are caused by drivers who are texting. And that doesn’t include the near-misses. Added to that, a recent Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers...

Perhaps Candy Lightner, the founder and first president of MADD, was right when she quit the organization, claiming that it its focus had shifted from saving lives to prohibition.

How Body Temperature Changes Breathalyzer Results

October 13, 2010 by Lawrence Taylor  
Filed under DUI

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.

The March Toward .05%

October 7, 2010 by Lawrence Taylor  
Filed under DUI

As I’ve explained in past posts, the original legal limit for drunk driving was set in 1938:  0.15%.  This was based upon studies and recommendations from the American Medical Association.  Many years later, this was lowered to .10% and finally, after intensive lobbying by Mothers Against Drunk Driving, to 0.08%.  See DUI, MADD and the "New Prohibition".

MADD’s agenda is to get it lowered further — to .05%.  The eventual goal is .00% — conviction for drunk driving if there is even a trace of alcohol in the system, regardless of the absence of any indication of impairment.  (Note: MADD has already been successful in achieving .01% "zero tolerance" laws nationwide for drivers under 21.) This bears out the reasons why MADD’s original president, Candy Lightner, resigned from the organization she founded, saying it had become essentially prohibitionist rather than dedicated to saving lives.

In today’s news, the latest in MADD’s strategy:

Austin Chief Pushes for New Drunk Driving Charge

Austin, TX.  Oct. 7 — A campaign to create a new category of driving while intoxicated is being promoted at the Capitol as one way to curb growing problems in Texas’ system of punishing drunken drivers.

Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of “driving while ability impaired” — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.

That would be less than the 0.08 level required before police can charge a motorist with drunken driving…

Acevedo…noted that one person may drive dangerously at the 0.08 level — the nationally accepted standard for being drunk — while others “may be at 0.05 or 0.06. It depends on the person.”

“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo said. “It varies. … A person may be intoxicated at 0.05, and you don’t want them out driving.”

In his written testimony (to the Senate Criminal Justice Committee), Acevedo said he thinks the changes would make it easier to process and convict drunken drivers “as well as preventing others from making that initial mistake to drink and drive.”

Bill Lewis, the legislative director for Mothers Against Drunk Driving, which has led the charge in recent years to toughen Texas DWI laws, said the group has not reviewed or endorsed the proposed new charge of DWAI. He added, “I don’t see how it would hurt.”

Hmmm….Some people will be intoxicated at .08%, but "others may be at 0.05%".   May be?  So everyone with .05% is convicted and punished for drunk driving — because some of them might be intoxicated? 

MADD marches on….

(Thanks to Murphy Mack.)

DUI As Murder

September 29, 2010 by Lawrence Taylor  
Filed under DUI

I’ve mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment.  See for example, DUI Murder?, How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?

The most recent example concerns a DUI murder case this past week in Orange County, California, reported in an Associated Press news story entitled Murder Charges Increasing in Fatal DUI Cases.  In the trial, the defendant was only charged with murder, not with manslaughter.  After extensive deliberations, the jury returned a verdict of guilty.

During the trial, I granted two interviews with the reporter.  As so often happens, however, I was misquoted.  The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:

Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving:  vehicular manslaughter.  It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.  They also passed a law for murder:  "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought".  The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree".  Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"  

So….What is "malice"?  Much like the legal definition of "obscenity", no one seems to know.  The California statutes fumble with the definition, settling on:  "…when the circumstances attending the killing show an abandoned and malignant heart".  Ok, but how do you define an "abandoned" heart"?  How do you prove or disprove a "malignant heart"?  What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter.  He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of  "malice".  He was right, and the practice began to spread.  This was accelerated by the California Supreme Court’s decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.  

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case.  The result:  it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don’t we all know that?  

Clearly, these are vague terms which can mean what you choose them to mean.  As the Mad Hatter said to Alice in Through the Looking Glass:

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter.  There is no mention of DUI in the murder statute, nor was it ever intended for that situation.

Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in last week’s Orange County case used an increasingly common but clever tactic: don’t charge the defendant with the usual murder and manslaughter — just with murder.  If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn’t that a big gamble by the prosecutor?  If the jury doesn’t buy the murder theory, the defendant goes free.

Exactly!  And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime.  He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice".  And they are never told that there is a manslaughter law intended for this kind of case.  

Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office:  "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….

A Look Into Our Future

September 24, 2010 by Lawrence Taylor  
Filed under DUI

From our neighbors to the north, a preview of things to come…

Cops Now Judge, Jury, Prosecutor

Vancouver, B.C.  Sept. 24 –  B.C.’s tough new drunk-driving laws are giving police too much power and are putting a serious chill on the restaurant business, critics say.

There’s also widespread confusion over what the average person can consume, and safely drive. But supporters of the new penalties rolled out this week, which are the toughest in Canada, say one drink at dinner is one too many.

Under the new rules, testing for a blood-alcohol reading of 0.08 and failing a roadside test means an immediate 90-day driving ban, along with a 30-day vehicle impoundment. Drivers may face a criminal charge, and up to $4,060 in penalties.

And being in the warning range of 0.05 to 0.079 means an immediate three-day driving ban, a $250 fine, $200 to get your licence back and a possible three-day vehicle impoundment — all for a first offence.

David Eby, executive director of the B.C. Civil Liberties Association, says everyone wants drunk drivers off the road — but handing police the sole power to impose fines, plus take away cars and licences without giving the driver a day in court, is dangerous.

"The police officer at the side of the road has become judge, jury and prosecutor," Eby said.

SFU criminologist Neil Boyd said on the one side, too many drunkdriving charges were being "evaded" in court by well-heeled citizens in B.C. — a problem the government can solve with new powers and penalties.

But "there has to be some recourse to the courts," he said. "There’s something a little awry with giving the police a rather extraordinary administrative power."…

By drunk driving charges being "evaded in court", I assume the criminologist meant defending yourself against charges — "a problem the government can solve with new powers and penalties".  By turning the "trial" over to the cop. 

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