Lawyers Tribune

Most cases involving drunk driving are actually heavily dependent on the opinion of the police officer in charge of the arrest. Unfortunately this opinion tends to be subjective more often than not. It is more than a little bit disturbing therefore that it is this officer who is largely responsible for determining what type of criminal charges the driver in question will have to face, whether or not the driver’s license will be

You may have been aware of the increased efforts to target DUI suspects in recent years. This development has come at the cost of the curtailment of various civil and individual liberties and the most common justification given is the need to lessen the numbers of accidents caused by drunk drivers on the nation’s roads and highways.

A common scenario that unfolds when you are stopped and subsequently arrested for drunk driving is that you are subjected to a breathalyzer test that results in a blood-alcohol reading of .12%, for example. After this, your driver’s license will probably be confiscated and you will be given a piece of paper to this effect. The question that this scenario would of course bring up is whether or not that is actually legal. What of being presumed innocent before proven guilty and other concerns with regard to due process? And why were you not even given a chance to defend yourself in court before your license was revoked? The answer to those questions lies with the laws governing the Department of Motor Vehicles.

One of the tools that are typically used by police officers in the investigation of suspected DUI cases are field sobriety tests or FSTs. These are usually comprised of 3 to 5 tests, all of which are supposedly designed to determine whether a driver is incapable of driving due to alcohol intoxication. These tests can include anything from having the driver walk and turn, stand on one leg, recite the alphabet, touching the finger to the nose and many more. A standardized scoring system is then used to help the officer decide whether or not the subject passes or fails the test.

While it would seem that these field sobriety tests are rooted in scientific study, that this is not quite the case. What many people do not realize is that the police officer’s decision to arrest the driver is actually made even before the field sobriety test is conducted. These test therefore only serve to give the police officer in question enough evidence to arrest the driver. What does this mean?

Well, obviously since the police officer has already decided upon administering the field sobriety test that the subject is in fact guilty of drunk driving, he or she is already is conditioned to see any results of the test as evidence that the subject is indeed guilty of DUI. In addition, there are many factors that make the results of the field sobriety test almost sure to be flawed. These tests are almost always conducted late at night, with less than optimal road and lighting conditions, all of which make it virtually impossible for any subject to pass the test convincingly. Add to that the fact that the situation is often quite stressful to an already agitated driver who is possibly unfamiliar with the tests, and you have the makings of a test that is almost certain to be skewed from the outset.

But that is not all that is wrong with field sobriety tests. These tests have actually been deemed irrelevant to DUI investigations, and are in fact inaccurate enough to render them destined for failure. A research institute in California has even been commissioned to come up with a standardized set of DUI tests that were intended to be more accurate than the test currently used by police officers nationwide. Yet after long months of research and money, even this company was forced to conclude that a huge majority of drivers on the road would fail these tests even if they were well below the legal .10% blood alcohol limit!  In other words, there was simply no way that standardized field sobriety tests could produce results with any usable degree of accuracy. Subsequent efforts by the research institute in question to revamp their test fared no better and an inordinate number of non-drunken drivers still failed the tests.

All this however pales in comparison to a research that was conducted to determine the reliability of field sobriety tests. In the study, a number of subjects were administered field sobriety tests and videotaped. The videos were then shown to police officers and they were asked to pinpoint which of the “suspects” were actually drunk. What the police officers did not know however was that all the subjects in the videotape were in fact totally sober, with zero alcohol levels in their blood. The results were astounding to say the least. Close to half of these sober subjects were seen as drunk by the police officers, which effectively demonstrated the inaccuracy of field sobriety tests.

You may have heard about the organization known as Mothers Against Drunk Driving or MADD. MADD is actually composed of many different chapters-around 600 at last count-and their earnings have been estimated at nearly $50 million in 2002 alone. What you may not know about MADD however is that they actually have pretty much the same agenda as the proponents of the Prohibition did in the 1920s and 1930s, namely exert their considerable clout into pressuring the government to pass stricter laws and penalties with regard to drunk driving. One has to wonder what the eventual goal of MADD is in all of these efforts. At this point in time, it would seem that they would not be satisfied with anything less than zero tolerance for drinking. It is not enough that they have managed to force the implementation of laws that curtail drinking and driving. History seems to bear out that the outlawing of all drinking is what they are indeed ultimately after.

It is interesting to note that drunk driving laws were originally quite simple, and simply stated that drinking under the influence-or what is commonly known as DUI today-is illegal. Trouble was brewing however, and things eventually came to a head with the introduction of the breathalyzer, a device that was intended to measure the amount of alcohol on the breath of suspected drunk drivers. Among other things, a blood-alcohol concentration level or BAC of .15% was deemed the legal limit by which a person could be said to be DUI. Several organizations in 1938 then-among them The American Medical Association and the National Safety Council-determined that a blood alcohol reading of .15% BAC or higher could be legally considered driving under the influence. These findings were used as the basis for the drunk driving laws for 22 years, until certain concerned citizens (who would later form the basis for MADD) questioned the low numbers of arrests and subsequent convictions for drunk driving. They began applying considerable pressure to lawmakers to lower the acceptable level of blood alcohol to .10%.

Now the question is what is the reason for this adjustment? It was not as if the human body had undergone any significant physiological changes in that period after all! Nor had the organizations in question been lacking in their research. It would seem therefore that scientific fact had taken a backseat to politics and politicking.

While you would think that “concerned citizens” would be satisfied with these developments, they were not done yet…not by a long shot. MADD was subsequently established by Candy Lightner and some of the first steps of the group was to pressure lawmakers into implementing a law that stated that a .10% or higher blood alcohol level was the NEW legal limit for drunk driving! It did not matter if the suspect was affected by alcohol or not. A blood alcohol level of .10% was in most cases enough to secure a conviction for drunk driving! This new law basically sidestepped such issues as actual intoxication, impairment and alcohol tolerance. In addition, people could even be charged according to the old DUI as well as the new .10% laws! This naturally resulted in a staggering increase in the number of DUI arrests and convictions.

But MADD was still not done yet. Subsequent lobbying by the group resulted in the further lowering of the legal blood alcohol level to .08% in four states in 1990. A few other states followed suit, and it was only ten years later when a bill was passed that effectively ordered all states to adopt .08% as the new blood alcohol level. Astoundingly enough, MADD has even begun efforts to reduce this already unrealistic level to.05%, and have even been successful in pressuring many states to adopt a .01% BAC standard for drivers under the age of 21!

It is clear at this point that MADD will not stop until they have achieved the goal of implementing a “zero tolerance” law for all adult drivers. With the changing of MADD’s mission statement to include provisions against underage drinking, it is only a matter of time before the true intent of the group becomes revealed. And that is the abolition of all drinking. When that happens, how far off from true prohibition will we be?

This may come as a surprise to many people, but most police officers are no better at determining intoxication levels in DUI suspects than any other person on the street. They have very little training in that regard for one thing, and they in fact are at a strict disadvantage for making such rulings since they are already conditioned to see signs of drunkenness in suspected DUI persons, regardless of any other conditions. On condition that has often been mistaken for drunkenness in particular is diabetes. Most people who suffer form this condition typically experience low levels of sugar in the blood or hypoglycemia. This condition manifests itself in any number of symptoms that can easily be mistaken for alcohol intoxication, among them a slowing and slurring of speech, impaired balance, decreased motor control, stumbling, sleepiness, and many others. To a police officer that is conditioned to see these symptoms as clear signs that the suspect is drunk, a ruling of drunk driver will almost surely be given. When you add to that the fact that hypoglycemia is so often the cause of driving related accidents on the road, you can begin to see how easy it is to mistake diabetics for drunk drivers.

Now you might be thinking that a breathalyzer test will be enough to determine that the driver in question is indeed diabetic and not drunk. While this would appear to be the case, the unfortunate fact is that breathalyzers are by their nature inaccurate and unreliable devices. In addition, breathalyzers do not even actually measure the level of alcohol in the breath. Instead, they use infrared light which is absorbed by any substance in the breath of the suspect, containing any of the “methyl group” substances. These substances include ethyl alcohol as well as many other chemical compounds. That is where the problem lies for diabetics. Regardless of what substances are actually present in the breath, the more infrared light is absorbed, the higher the resulting reading is. Since breathalyzers are programmed to consider whatever compounds present as alcohol, diabetics will come put positive for the presence of alcohol in their breath, whether or not they have actually had anything to drink.

There are actually many different compounds within the methyl group that can be detected as alcohol by breathalyzers-thousands in fact. Acetone is only one of these compounds, which is unfortunately a scientifically documented by-product of a hypoglycemic condition. Diabetics routinely experience a condition known as “ketoacidosis”, which results in considerable levels of acetone in the breath. As you can imagine, this can potentially result in a positive alcohol reading in a breathalyzer test, regardless of how little the subject has actually drunk-or even if he or she has not had any alcohol at all. When you consider the fact that one out of every seven drivers in the Untied States are diabetic, the possibility of potentially skewed breathalyzer results becomes all the more real.

It is written in the Constitution that police officers have no legal right to stop and search someone without the presence of facts that indicate possible criminal actions. The question that this then brings up is why DUI roadblocks do just that. There has in fact been a case wherein the Michigan Supreme Court deemed such roadblocks illegal. In an overwhelming decision however, the U.S. Supreme Court decided that DUI roadblocks were in fact permissible. Permissible maybe but hardly constitutional, for while Chief Justice Rehnquist did admit that DUI roadblocks can be defined as a “seizure” under the terms of the 4th Amendment-and therefore illegal-he considered it a minor issue and that the incidences of drunk driving on the nation’s roads warranted the reversal of the Michigan Supreme Court decision. Rehnquist went so far as to say that this only constituted a minimal intrusion on liberties, and that the need to address drunk driving concerns far outweighed the need for these roadblocks.

What Rehnquist is in effect saying is that the benefits of the end result weigh far heavier than the means, whether or not they are illegal! Many justices however were quick to point out that the Constitution is not subject to such exceptions, and that the overriding concern is whether or not police officers have a justifiable reason to detain and investigate suspected drunk drivers. Justice Brennan has stated that while the detention and investigation every single car on the road will no doubt lessen the incidences of drunk driving, it does not make enough of a case to disregard individual civil liberties. Brennan goes on to say that the decision of the U.S. Supreme Court was disturbing in its apparent disregard for the protection of citizens from baseless investigation and detention.

With the stand of Rehnquist in justifying the disregarding of Constitution based on the supposition that these roadblocks were effective deterrents to drunk driving, the question that this brings up is are they really? Justice Stevens for his part has stated that the Michigan Supreme Court already studied numerous statistics on the DUI checkpoints prior to making their decision, and the results were that the benefits of these roadblocks were in fact insignificant and possibly even detrimental. The case was subsequently returned to the Michigan Supreme Court with the expectation that they would rule in favor of the roadblocks. In a surprising move however, the Michigan Supreme Court decided that while DUI roadblocks were allowed under the U.S. Constitution, they were illegal under THEIR constitution. They subsequently ruled in favor of the defendant, and Washington has since adopted Michigan’s rulings on the checkpoints.

Much has been said about breathalyzers in the past, particularly with regard to their unreliability. Just to take one example, breathalyzers typically work by multiplying the alcohol that is present in the breath of the DUI suspect 2100 times in order to derive the blood alcohol concentration or BAC. Now the question that this brings up is why “2100″? This is where the problem lies. The computer in the breathalyzer is programmed with the assumption that the ratio of alcohol units in the blood of a DUI suspect versus alcohol units in his or her breath is 2100 to one, in a measurement that is more commonly known as the partition ratio. The problem is that this ratio is only the average at best, with real world ratios varying widely from as low as 900 to 1 to as high as 3500 to 1. Now obviously, the differences in individual ratios mean that the BAC will be radically different as well. If the DUI suspect’s BAC is actually .06%–which means that he or she is well below the legal definition of DUI–and the partition ratio is 1300 to 1, the breathalyzer reading will come out .10%, which IS legally DUI.

Now obviously that kind of result is skewed to say the least. The suspect in this case is guilty of nothing more than not conforming to the average blood alcohol ratio. When faced with this type of scenario, jurors typically hand out a not guilty verdict. Unfortunately many prosecutors objected to this and subsequently, the state of California–as well as many others–revised the drunk driving law to include a clause to the effect that the percent of alcohol in the blood would be based upon the number of grams of alcohol in 210 liters of breath, regardless of what the actual amount in the blood is. What this in effect means is that the legal basis for determining the blood alcohol level in DUI suspects now disregarded scientific fact, and ALWAYS assumed that it is 2100 times the amount that is present in your breath.

This has naturally polarized the legal system, with conservative judges on the one hand supporting this new law and others being staunchly against it. Today, the mention of partition ratios has been basically banned from courtrooms across the country, and there has been a resulting rise in convictions for drunk driving.