Blood Sample Analysis: .15%….But Was It Yours?

December 23, 2010 by Lawrence Taylor  
Filed under DUI

Let me tell you about one of my law firm’s DUI cases that ended up in a Los Angeles Times article entitled “DUI Case Botched by Blood Mixup”.

One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower than the police analyss, but still a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared to be in order.

Our client still insisted he was not driving under the influence of alcohol. The only other reasonable possibility was a faulty chain of custody. In other words, the LAPD lab got the vial  of our client’s blood mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in a DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to an independent laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys. 

Typically, the police claimed infallibility: “We do not make mistakes…It was the nurses”. 

So how could this have happened? The truth is that it probably happens far more commonly than we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial will also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.

“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around. 

Otherwise, I guess you’ll never know….

The Blue Cover-Up

December 20, 2010 by Lawrence Taylor  
Filed under DUI

I’ve often posted in the past about a double standard when it comes to enforcing drunk driving laws against police officers.  See, for example, Who Will Guard the Guardians?, The DUI Double Standard, The DUI Double Standard IIGuarding the Guardians.  As news over the weekend reflects, the cover-ups continue….

Drunk Driving Double Standard

Hartford, CT.  Dec. 19 – It opens with a pleasant holiday jingle, and what looks to be some festive Christmas lights.

And then comes a startling screech of metal before the camera pulls back to show police lights and sirens and state police spokesperson Lt. Paul Vance delivering this stern message:

"Nothing shatters the holidays faster than a car crash. The state and local police are cracking down on speeding, unbuckled drivers and drunk driving this season."

"We will stop you," Vance warns over an image of a tombstone, "before you put an end to your holiday or someone else’s."

Unless, of course, you’re a cop in Windsor Locks or Bristol these days. And then, well, the tough guy bit makes way for a kinder, gentler approach.

If you’re a Bristol officer, for example, you apparently get a written warning for driving too fast after slamming your cruiser into a utility pole and knocking out power to a whole neighborhood.

In case you missed that story, here are the highlights: On June 26, former Bristol Police Officer Robert Mosback reported for duty after drinking a beer and two rum and Cokes at a party earlier that evening.

Shortly after his shift began, Mosback totaled his cruiser and caused $100,000 worth of damage. But there wasn’t a peep about possible misconduct from his department until a worker’s comp employee uncovered hospital reports that showed Mosback was intoxicated and denied the city’s claims.

Mosback quit three days after the city got the medical report. And earlier this month, state police who were called in to conduct an independent investigation, charged Mosback with drunken driving.

In an arrest affidavit, Mosback insists he wasn’t drunk: He napped before his shift, he said. And this doozy: His hospital tests must have been switched with another patient’s.

Then there’s the now well-known case of Windsor Locks Officer Michael Koistinen, who struck and killed 15-year-old Henry Dang on Oct. 29 after an apparent night of drinking.

As far-fetched as Mosback’s "switched sobriety test" defense, Koistinen’s claim that he wasn’t drunk when he slammed his car into Dang as the teen bicycled home, is even more suspect. His father, a Windsor Locks sergeant, was briefly in charge of the crash scene and, despite officers on the scene noting a case of unopened beer in his car, Koistinen wasn’t given a sobriety test.

Koistinen, who eventually was fired after state police took over the investigation, now faces a number of criminal charges, including manslaughter. His father, Sgt. Robert Koistinen, remains on paid administrative leave.

"The police are cracking down on drunk driving," warns the spot now airing for the holidays.

Good, except does that apply to everyone – or only to those who aren’t cops?

So who guards the guardians?

Nebraska DUI Leads to Suspension from Huskers Football Team

December 13, 2010 by Fred  
Filed under DUI

The University of Nebraska football team has suspended starting defensive tackle Baker Steinkuhler following an arrest for DUI in Lincoln. Police say the 21-year old was stopped around 1:45 Tuesday morning for driving without his headlights and for making a turn without signaling. Steinkuhler had a blood alcohol content of 0.115 percent. He is of legal drinking age but the threshold for intoxication while driving in Nebraska is 0.08%. Steinkuhler was booked for suspicion of drunk driving in Nebraska and is set to appear in Lancaster County court on January 4.

Coach Bo Pelini said that Steinkuhler will not join the football team for the Holiday Bowl in San Diego on December 30. The 6'6", 290-pound Steinkuhler has played a key defensive role for the Huskers this season, starting all 13 games and collecting 46 tackles and 3-1/2 sacks.

Have you been arrested for a NE DUI and are looking for legal help from a qualified Nebraska DUI attorney?

MADD’s Futile “War on Drunk Driving”

December 13, 2010 by Lawrence Taylor  
Filed under DUI

MADD continues to claim victory in it’s aging "War on Drunk Driving", citing its own self-serving statistics.  See for example, Lies, Damned
Lies and Madd Statistics
, MADD "Statistics Again Debunked and A Closer Look at DUI Fatality Statistics.  But the reality is that unconstitutional laws, unfair procedures, Draconian penalties and rampant denial of due process have done little if anything to reduce the incidence of drunk driving.

40 Million in U.S. Driving Drunk or Drugged

Bloomberg Business News, Dec. 9 – Despite massive efforts to curb drunk driving, some 30 million Americans are driving drunk and another 10 million are driving drugged each year, federal officials report.

In fact, in some states the number of drunk and drugged drivers tops 20 percent, according to a report released Thursday by the Substance Abuse and Mental Health Services Administration (SAMHSA).

"This is a pretty high percentage of people that are operating a motor vehicle under the influence of something," said Peter Delany, director of SAMHSA’s Center for Behavioral Health Statistics and Quality…

On the plus side, there has been a small drop in the rate of drunk and drugged driving in the past few years.

Data from 2002 to 2005 shows the annual rate of drunk driving has dropped from 14.6 percent to 13.2 percent, compared with data from 2006 to 2009. In the same time periods, the annual rate of drugged driving dropped from 4.8 percent to 4.3 percent, according to the report.

In all, 12 states had a reduction in drunk driving, and seven have seen lower levels of drugged driving…

Anna Duerr, a spokeswoman for the advocacy group Mothers Against Drunk Driving, said her organization was pleased to see a decline in the numbers of drunk and drugged drivers. 

MADD is declaring victory in its "War on Drunk Driving" after a slightly more than one-percent drop?  As I wrote over four years ago, perhaps it’s time to take another approach to the drunk driving problem.  See
Time For a Change.

Entrapment in DUI Cases

December 7, 2010 by Lawrence Taylor  
Filed under DUI

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…(Emphasis added.)  State v. Fogarty, 607 A.2d 624 (N.J. 1992). 

This “no win” scenario is fairly typical of what I repeatedly refer to as the “
The DUI Exception to the Constitution”.


New Defense Unveiled

December 6, 2010 by Lawrence Taylor  
Filed under DUI

Not recommended here in the Colonies, but….

Huddersfield, England
.  A self-styled British witch doctor has been fined pound stg. 250 [$583] after refusing to give a blood test when suspected to be driving under the influence of alcohol.

Nyararia Mukandiwa, 33, was stopped after driving erratically in the West Yorkshire town of  Huddersfield last year, but refused to give officers a blood sample on the grounds that as a witch doctor it was likely to send him into a zombie-like state…

Sounded reasonable to me.

(Thanks to Jay Norton of Kansas City)


The Field Sobriety “Eye Test”: Science…or Fraud?

December 1, 2010 by Lawrence Taylor  
Filed under DUI

The critical part of any pre-arrest drunk driving investigation is the administration of the "field sobriety tests" (FSTs).  These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see "Field Sobriety Tests: Designed for Failure?"). 

Although there are many different tests (walk-and-turn, finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three "standardized" FSTs.  The most recently developed of these three is horizontal gaze nystagmus (HGN), commonly known as the "eye test".  It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature.

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  (See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".)

A recent scientific study has now investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, 
developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving whileintoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

Deliberate fraud.  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.


Another Vigilant “DUI SuperCop”

November 22, 2010 by Lawrence Taylor  
Filed under DUI

I’ve posted repeatedly in the past about so-called "DUI Super Cops".  These are officers who rack up record numbers of drunk driving arrests — and are rewarded with MADD awards, departmental awards, promotions and astronomical overtime pay for court testimony. See, for example, Super Cops…and Super Cons, How To Be a DUI Super CopAnother DUI Super Cop and The Latest DUI Super Cop.


Cop Arrests Biker With Cerebral Palsy for DUI

Salt Lake City, UT.  Nov. 9
– A Utah man who suffers from cerebral palsy, epilepsy and other disabilities was stopped while riding a motorized bicycle and charged with DUI after admitting he takes medication. 

As CBS Affiliate KUTV correspondent Chris Jones reports, Mike Tilt was pulled over by Utah Highway Patrol Trooper Lisa Steed on October 28 and asked to take a field sobriety test. 

Tilt, whose left leg is shorter than his right, told the officer that he would likely fail the test (which requires him to put one foot in front of the other), and he did. Tilt told Steed he did not have a driver’s license – he’d given it up 15 years before due to his seizures. 

After asking Tilt if he took medication for his epilepsy, she handcuffed him. 

According to Tilt, when he asked if he were being arrested, Steed replied, "Yeah, for DUI." 

Ironically, Tilt had forgotten to take his medication that night.

In defending the trooper’s actions, Utah Highway Patrol told KUTV that many people drive under the influence of prescription medications. 

They also praised Steed, who was named Trooper of the Year in 2007 for her arrests of drivers suspected of being under the influence. Over the past eight she has made nearly 800 DUI arrests, roughly half that in 2009 alone…

Tilt’s daughter, Courtney Tilt, told Jones, "If she’s proud of taking in an epileptic patient for a DUI, I don’t know what to think of her and her character." 

But further investigation by KUTV found cases where Steed was chastised by judges for allegedly disregarding UHP procedures, in one instance calling her actions "especially troubling." Another judge said she "lacks credibility." 

In some instances (though not in Tilt’s case) Steed conducted field sobriety tests out of view of her police car’s dashboard camera, counter to UHP policy. 

Defense attorney Glen Neeley, who has represented several people stopped by Steed, said to Jones that Steed’s goal is to pull over as many people as possible with the goal of making DUI arrests. 

After KUTV began looking into Steed’s record, UHP contacted the station, telling them they’d started their own inquiry of the trooper’s actions. 

"Was it consistent with what we’re trying to do with our overall perspective of DUI enforcement and review of it? No, it wasn’t," Capt. Mike Rapich told the station of the Tilt case. "This individual is not to be prosecuted for DUI." 

So Tilt is off the hook – but so is Steed. UHP stands behind Steed’s other DUI arrests, saying they "conform to prescribed procedure and the law." 


Whatever happened to ethics, fairness and plain common sense in drunk driving cases? 

New Police Tactic

November 18, 2010 by Lawrence Taylor  
Filed under DUI

In today’s news, the latest insanity from the front lines….

Huntington Beach Might Post DUI Arrests on Facebook

Huntington Beach, CA.  Nov. 18
– Huntington Beach is considering a new tactic in its crusade against drunk driving: public shaming on Facebook.

The city’s Police Department is looking into posting the names of suspected drunk drivers on Facebook, said Lt. Russell Reinhart…

Reinhart said the Police Department began looking for a new way to publicize drunk-driving arrests after the Huntington Beach Independent, a community newspaper published by The Times, stopped running listings of the arrests.


Note:  the police are destroying people’s reputations — based upon an arrest, not a conviction.  There is nothing in the plans for retractions when those arrested are acquitted or have their cases dismissed.  

Note #2: Huntington Beach is not some quirky little town, but a metropolitan city of over 200,000 in Orange County, California – about 10 miles from my law offices.

MADD Lobbying for Breathalyzers as Standard Equipment in All Future Cars

November 15, 2010 by Lawrence Taylor  
Filed under DUI

In the wake of their recent success in requiring mandatory ignition interlock devices (IIDs) in the cars of drivers who have been convicted of drunk driving, Mothers Against Drunk Driving has been planning the next push: requiring IIDs in all cars. In other words, no car could be sold in the U.S. without devices which would require you to pass a breath test every time you wanted to start the vehicle.  See All U.S. Cars To Have Ignition Interlock Devices?

I’ve posted in the past about how such devices are, at best, inaccurate and problematic. See, for example, Will Ignition Interlock Devices End Drunk Driving?  These are not the expensive, constantly-calibrated high-tech machines used in police stations, but rather assembly-line equipment made by car manufacturers, subject to endless sources of false readings and failures — which can, ironically, cause accidents.  See Ignition Interlock Devices: Dangerous But Profitable.

And I’ve documented that 3 of MADD’s 6 biggest corporate contributors are auto manufacturers who stand to make big profits from mandatory IIDs (another of the 6 major contributors is MADD’s telemarketing company).  See The Truth About Ignition Interlock Devices..

MADD is now finally making their push for federal legislation.  And based upon past successes with legislators unwilling to oppose MADD, the their chances are good.  In today’s news:

MADD Lobbying for Device to Keep Cars From Starting in Driver is Intoxicated

Dallas, TX.  Nov. 15
— …Now in its 30th year, MADD has a new plan and wants to end drunken driving for good. The nonprofit is pushing for the development of alcohol-sensing technology that prevents cars from starting if the driver is intoxicated.

Some say the group is going too far. The $60 million proposed federal legislation to develop the technology has led to the latest round of charges that the group is "neo-prohibitionist."…

And the American Beverage Institute, a restaurant industry group, criticized MADD’s fund-raising techniques this year. MADD relies heavily on expensive telemarketing, which led to poor marks from two charity watchdog groups…

MADD is lobbying Congress to pass an amendment to the Motor Vehicle Safety Act to provide the $60 million needed over five years for the sensor technology. Cars would not start if the driver has a blood alcohol level above the legal limit, at .08 or higher…

MADD’s top critic, the American Beverage Institute in Washington, D.C., says the group is now going after social drinkers.

"They are no longer a mainstream organization," said Sarah Longwell, the institute’s managing director. "Many of their policies are extremely fringe at this point."

The institute fears the alcohol sensing technology will be used against people just having a drink or two.

"When they talk about alcohol sensing technologies, ultimately what it does, it eliminates people’s ability to drink anything before driving," Longwell said. "It’s not about drunk driving anymore, it’s about trying to demonize any drinking prior to driving."…

Would you trust Detroit to mass-manufacture sophisticated breathalyzer technology for your dashboard?


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