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The Unknown Variable

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence.  It is the individual human differences of the officer himself.

A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer's observations and conduct in the field:

The officer's age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

The officer's personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate—often by a wide margin—the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement—particularly in municipal departments—were found to lack this specialized training.

Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties.

Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.

Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

The suspect's attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

The suspect's race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed—the overwhelming majority of whom were white—reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

Suspect's age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

Suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

Most DUI cases depend largely upon two variables: the officer and the machine.  As has been discussed repeatedly in past posts, the machine is an unknown and unreliable variable.  As the federal study indicates, so is the officer.

The True Purpose of DUI Roadblocks

As I've commented repeatedly in the past, roadblocks ("sobriety checkpoints") are (1) unconstitutional, (2) ineffective at catching drunk drivers, and (3) used primarily to raise revenue for local municipalities... 

DUI Checkpoint Impounds 32 Vehicles

Escondido, CA.  Jan. 13  - Escondido police impounded 32 vehicles and arrested four people at a drunken driving checkpoint, a lieutenant said Saturday.

Police withheld the names of three people arrested on suspicion of drug possession and one person booked on suspicion of drunken driving during the operation at El Norte Parkway and Ash Street between 6 p.m. and midnight Friday.

Of about 1,600 vehicles that passed through the checkpoint, 931 drivers were screened and 82 were pulled aside because they could not produce a license or were suspected of being under the influence, according to a lieutenant.

Police impounded 32 because the driver had no license or a suspended or revoked one, police said. In some cases, those vehicles can be sold to satisfy fines and impound fees.

Police also ticketed 53 drivers for various offenses.

1600 citizens stopped...1 DUI arrest...and a lot of money from tickets and impounds for the City of Escondido.

Does Marijuana Impair Driving?

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving? Interestingly, however, the findings do not necessarily support popular opinion....

On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. "Marijuana and Alcohol: A Driver Performance Study", California Office of Traffic Safety Project No. 087902 (Sept. 1986).

Contradicting these conclusions, however, are two federal studies.

The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana influence was noted. "The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I", DOT-HS-806-414.

A more recent report entitled "Marijuana and Actual Performance", DOT-HS-808-078, noted that "THC is not a profoundly impairing drug....It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving".

The study concluded that:

An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside "sobriety" tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC...

The researchers found that it "appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample".

Note: "THC" stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuna may not impair driving ability at all, and (2) the blood "evidence" only measures an inactive substance which may have been there for days.

OK to Let .14% Driver Go -- If He's Politician

MADD has apparently developed a separate standard for politicians and police in its War on Drunk Driving:

MADD Supports OC Police in DUI Non-Arrest

Ocean City, MD.  Jan. 12  -- Mothers Against Drunk Driving praised the Ocean City Police Department on Thursday for how officers handled the Oct. 29 traffic stop and non-arrest of Delaware State Rep. John C. Atkins.

MADD representatives were particularly quick to support decisions made by Pfc. Douglas A. Smith, OCPD's toughest DUI enforcement officer, who along with trainee Natalie R. Smolko, performed the stop.

OCPD came under fire when news broke that Smith and Smolko stopped Atkins, who was allegedly driving erratically and blew a .14 in his preliminary breath test, but decided against making a DUI arrest...

After Atkins blew nearly double the .08 legal limit, officers did conclude that he was unfit to re-enter traffic. He then contacted a friend, who drove him and his wife to their Millsboro home.

Atkins was arrested hours later by Millsboro police and charged with offensive touching -- a charge to which he pleaded guilty in December -- after a dispute with his wife.

Many in the community believed Atkins, who flashed his legislator ID to police during the stop, received preferential treatment in being let off with a warning...

Though the breath test result has been the sticking point in raising doubts about officers' handling of the incident, MADD Eastern Shore Victim Advocate David Elzey praised the proper use of the tool.

"He administered the (test) after he had decided not to make an arrest and he made the right call by not letting him continue driving," Elzey said. "He probably saved lives by not letting him drive home."

MADD representatives expressed absolute faith in Smith, who lost his mother-in-law to a drunken driver and who was himself struck by one in another incident...

"He's had a couple hundred DUI arrests in a few years," Elzey said. "Doug Smith has done so much. We have faith he knows what he's doing."

Isn't faith a wonderful thing?  If only they had that much faith in the Constitution...

Who Cares About Drunk Drivers?

For many years now I've written and lectured extensively on drunk driving litigation --on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing.  In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about people accused of drunk driving and their constitutional rights?

You should care.  The importance of what is happening in DUI law and procedures can be summarized in one word:  precedent.

We are a nation of laws, more specifically, the common law inherited from the British legal system.  Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law.  When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.  The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation".

The flaw becomes particularly noticeable when dealing with politically unpopular subjects.  And few topics are as politically "incorrect" as drunk driving.  Judges are, after all, politically sensitive animals who want to be reelected.   Put another way, it is very easy to rule in favor of the prosecution in DUI cases -- particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $51 million) are so influential in elections and in legislatures.  There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges with an eye on re-election.  A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights.  To mention but a few examples:

Michigan v. Sitz.  The Court held that sobriety roadblocks were permissible -- that the admitted violation of the Fourth Amendment was "outweighed" by the government's interest in combating drunk driving. 

South Dakota v. Neville.  The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).  

Blanton v. North Las Vegas.  Even though punishable by six months in jail, fines and diver's license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case. 

California v. Trombetta.  Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So...we have seen a steady flow of appellate decisions at all levels taking away the  constitutional rights of those accused of DUI.  Again, so what?

Again, precedent:  What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other offense.  If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened).  If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other crime.

The danger of precedent in the DUI field is not limited to judicial decisions.  Legislatures are also guilty of passing unfair and unconstitutional -- but politically popular -- laws.  We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years:  immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum.  And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?  To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up....." 

Toyota Announces DUI-Proof Cars

The latest half-baked weapons in the War on Drunk Driving:

Tokyo, Jan. 3  -  Japanese auto giant Toyota Motor Corp. will develop a system to stop a vehicle if it detects the driver is drunk as part of efforts to cope with a serious social problem, a report said on Wednesday.   

The system, expected to become available in 2009, analyzes sweat on the palms of the driver's hands to assess blood alcohol content and would then not allow the vehicle to be started if the reading was above safety limits, the Asahi Shimbun said. The system would also analyze the driver's eye movement, driving performance and other factors, the Asahi said.   

European automakers have developed systems that require the driver to blow into a tube attached to a vehicle to detect alcohol in the breath.  Toyota opted not to use that system as it may fail if the driver asks another person to blow into the tube, the Asahi said.

Toyota rival Nissan Motor said last year it was planning similar steps.

Brilliant!  No one will ever think of wearing gloves or dark glasses...

(Thanks to William C. Head and Gary Pirosko.)

Truth, Justice...and Expediency

As any experienced criminal attorney knows, truth, justice and fairness can be rare commodities in our courts when dealing with a drunk driving offense. This has become such a common phenomena that I long ago gave it a label: "The DUI exception to the Constitution". When it comes to cases involving driving under the influence of alcohol or drugs, there seems to be a distinct bias in favor of "streamlining" procedures and facilitating convictions. Cynics might suggest that this may have something to do with political considerations -- with the desire of some judges to get reelected. We’ll talk about that in a moment.....

In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind in a DUI case. In fact, let’s go to the highest court of the most populated state in the country: the Supreme Court of California.

In People v. Bransford, the Supreme Court was confronted with a defendant who was challenging his .08% conviction on the grounds that he was not permitted to offer scientific evidence of defects in the breathalyzer to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average -- and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% -- that is, he would have been innocent.)

The Supreme Court of California affirmed the conviction, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood "as measured on the breath". In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood -- but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood!

An amazing decision. More interesting, perhaps, is language in the opinion -- an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank -- and incredible -- admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment...Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.  People v. Bransford, 8 Cal.4th 894 (1994).

In other words, barring an accused from defending himself with scientific truth serves justice by making it easier to get convictions.

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion in Bransford. She wrote in a separate opinion: "The majority...has on its own created the new crime of driving with alcohol in one’s breath."

A Touch of Sanity

The following is excerpted from a refreshing breath of reason provocatively entitled "Legalize Drunk Driving".  It was written six years ago by Llewellyn H. Rockwell, Jr., of the Ludwig von Mises Institute, in response to the federally-coerced adoption by the states of .08% laws:

...What precisely is being criminalized? Not bad driving. Not destruction of property. Not the taking of human life or reckless endangerment. The crime is having the wrong substance in your blood. Yet it is possible, in fact, to have this substance in your blood, even while driving, and not commit anything like what has been traditionally called a crime.

What have we done by permitting government to criminalize the content of our blood instead of actions themselves? We have given it power to make the application of the law arbitrary, capricious, and contingent on the judgment of cops and cop technicians. Indeed, without the government’s "Breathalyzer," there is no way to tell for sure if we are breaking the law.

Sure, we can do informal calculations in our head, based on our weight and the amount of alcohol we have had over some period of time. But at best these will be estimates. We have to wait for the government to administer a test to tell us whether or not we are criminals. That’s not the way law is supposed to work. Indeed, this is a form of tyranny.

Now, the immediate response goes this way: drunk driving has to be illegal because the probability of causing an accident rises dramatically when you drink. The answer is just as simple: government in a free society should not deal in probabilities. The law should deal in actions and actions alone, and only insofar as they damage person or property. Probabilities are something for insurance companies to assess on a competitive and voluntary basis.

This is why the campaign against "racial profiling" has intuitive plausibility to many people: surely a person shouldn’t be hounded solely because some demographic groups have higher crime rates than others. Government should be preventing and punishing crimes themselves, not probabilities and propensities. Neither, then, should we have driver profiling, which assumes that just because a person has quaffed a few he is automatically a danger.

In fact, driver profiling is worse than racial profiling, because the latter only implies that the police are more watchful, not that they criminalize race itself. Despite the propaganda, what’s being criminalized in the case of drunk driving is not the probability that a person driving will get into an accident but the fact of the blood-alcohol content itself. A drunk driver is humiliated and destroyed even when he hasn’t done any harm...

We need to put a stop to this whole trend now. Drunk driving should be legalized. And please don’t write me to say: "I am offended by your insensitivity because my mother was killed by a drunk driver." Any person responsible for killing someone else is guilty of manslaughter or murder and should be punished accordingly. But it is perverse to punish a murderer not because of his crime but because of some biological consideration, e.g. he has red hair.

Bank robbers may tend to wear masks, but the crime they commit has nothing to do with the mask. In the same way, drunk drivers cause accidents but so do sober drivers, and many drunk drivers cause no accidents at all. The law should focus on violations of person and property, not scientific oddities like blood content.

There’s a final point against Clinton’s drunk-driving bill. It is a violation of states rights.  Not only is there no warrant in the Constitution for the federal government to legislate blood-alcohol content, the 10th Amendment should prevent it from doing so.  The question of drunk driving should first be returned to the states...

Incidentally, I don't believe Llewellyn is arguing against the traditional drunk driving laws (that is, driving under the influence) but only against the new laws of driving with .08% blood-alcohol.  I think everyone will recognize that a truly intoxicated driver is a danger.

Coming Soon to Your Neighborhood...

The War on Drunk Driving continues:

Fresno Cracks Down on DUI

Fresno, Calif. Dec. 21 — Police in Fresno are throwing up roadblocks, conducting stakeouts and using night-vision goggles, satellite tracking devices and video cameras in an extraordinary crackdown aimed not at terrorists or drug lords, but at drunken drivers...

Fresno's attack on drunken driving has been called the nation's best by the International Association of Chiefs of Police. Mothers Against Drunk Driving has pronounced it "among the most aggressive in the nation."

Among other things, Fresno police are putting undercover officers near bars to watch for drinkers stumbling to their cars. They are setting up multiple drunken-driving checkpoints, sometimes even on weeknights. And they are surreptitiously planting Global Positioning System devices on the cars of convicted drunken drivers to monitor whether they are going to bars or liquor stores in violation of their probation or parole.

Officers are using night-vision goggles and cameras to keep track of about 150 people who have been convicted of serious DUI offenses. The terms of their parole or probation often allow officers to search their homes at any time for evidence they have been drinking, and they can be re-arrested should police find alcohol there, no matter who bought it.

"It comes down to what's more important: living in that residence or having alcohol in the home," Van Wyhe said. "We have to keep them away from that temptation. If they're having a bad night, they could take to it again."

Sounds a lot like Germany in the '30s.