DUI info Original Article How You Breath Into the Breathalyzer Affects the Results Previous topic: DUI License Suspensions: Guilty Until Proven Innocent Next topic: How You Breath Into the Breathalyzer Affects the Results topic started 8/31/2005; 6:08:45 AM last post 8/31/2005; 6:08:45 AM Lawrence Taylor - How You Breath Into the Breathalyzer Affects the Results 8/31/2005; 3:08:45 AM (reads: 784, responses: 0) How You Breath Into the Breathalyzer Affects the Results As Ive indicated with numerous examples in earlier posts, these breath machines which determine guilt or innocence in drunk driving cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies. In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied. The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. "How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses", 22(4) Medical Science and the Law 275. For another study with similar findings, see "Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing", 51(1) Journal of Studies on Alcohol 6. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded: By far, the most overlooked error in breath testing for alcohol is the pattern of breathing....The concentration of alcohol changes considerably during the breath...The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level....Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%." 9(6) The Champion 16 (1985). Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they wont look good. So when they tell the arrestee to blow into the machines mouthpiece, theyll yell at him, "Breathe harder! Harder! Keep breathing until I tell you to stop!" As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol -- giving a higher (but inaccurate) reading. Posted by Lawrence Taylor on 09/01/2005 Trackback [1] DUI License Suspensions: Guilty Until Proven Innocent Previous topic: Stretching the Language of DUI Statutes Next topic: How You Breath Into the Breathalyzer Affects the Results DUI License Suspensions: Guilty Until Proven Innocent topic started 8/31/2005; 6:03:51 AM last post 8/31/2005; 6:03:51 AM Lawrence Taylor - DUI License Suspensions: Guilty Until Proven Innocent 8/31/2005; 3:03:51 AM (reads: 2, responses: 0) DUI License Suspensions: Guilty Until Proven Innocent So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .11%, the officer confiscated your drivers license and handed you an official DMV document that said it was immediately suspended. What happened? you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself? Good questions. The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the drivers license of anyone arrested for (not convicted of) DUI who either (1) has a .08% breath reading, (2) takes a blood test (which will be analyzed later), or (3) refuses to take any test. This means immediately: the license is grabbed at the police station and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you. Viewed another way, the officer in a DUI case is investigator, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they dont even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it! So, again: How can they do that in America? Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW -- and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol). They justified this by saying that a license was a privilege, not a right -- and since the license holder had no rights, the state could do what it wanted. Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is initially a privilege. However, once the state gives someone a license, that person then has a property right in it -- and that right cannot be taken away from a citizen without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property. The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.) And MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions -- or else no highway funds Do these APS hearings in DUI cases provide due process? In other words, how fair are they? Lets take Californias APS hearings. They are conducted by a hearing officer. Is this an impartial judge? Well, hes hardly impartial: Hes an employee of the DMV -- the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isnt a judge. Actually, he isnt even a lawyer; hes only required to be a high school graduate. So who is the prosecutor? He's, well, the same guy. Thats right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to any evidence offered by the driver -- and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings. Thats called "due process" in a drunk driving case. Posted by Lawrence Taylor on Not yet posted to home page. Stretching the Language of DUI Statutes Previous topic: A Fading Constitution Next topic: DUI License Suspensions: Guilty Until Proven Innocent Stretching the Language of DUI Statutes topic started 8/30/2005; 2:21:59 PM last post 8/30/2005; 2:21:59 PM Lawrence Taylor - Stretching the Language of DUI Statutes 8/30/2005; 11:21:59 AM (reads: 19, responses: 0) Stretching the Language of DUI Statutes It has long been a basic tenet of law that the language of criminal statutes must be reasonably interpreted, and if there is any ambiguity in that language the statute must be interpreted in favor of the defendant. As the United States Supreme Court has clearly stated: First, as we have recently reaffirmed, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity."....This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear."...Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. (cites) Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. [Emphasis added.] U.S. v. Bass, 404 U.S. 336 (1971). Except, apparently, in drunk driving cases. In yet another example of what I have repeatedly referred to as "the DUI exception to the Constitution", police, prosecutors and judges continue stretching the language of drunk driving statutes to ludicrous extremes in their effort to encompass as many citizens in the DUI dragnet as possible. Most states have statutes with language essentially similar to that of California: It is unlawful for any person who is under the influence of any alcoholic beverage or drug...to drive a vehicle. The meaning of "drive" would seem fairly clear to any reasonable person. Yet, I have reported cases where citizens have been convicted of pushing the vehicle after running out of gas, of sitting in a parked car with the engine off, and even of sleeping in a parked vehicle. In each case, judges have ruled that the language of the DUI statute applied to the conduct. Similarly, the word "vehicle" would seem fairly clear. Yet, I have posted about cases involving bicycles, lawn mowers, wheelchairs -- and, yes, even horses. Somehow, the words of Lewis Carroll keep coming to mind: "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." Posted by Lawrence Taylor on Not yet posted to home page. The Diabetic "DUI" Contrary to popular belief, police officers have no inherent skill and little training in detecting levels of intoxication. In fact, they are psychologically predisposed in a drunk driving investigation to "see" what they expect to see, disregarding any alternative explanations. Lets take a look at one of those possibilities.....As everyone knows, diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation -- in other words, the classic symptoms of alcohol intoxication. The diabetic will look and act like a drunk driver to the officer, and will certainly fail any DUI "field sobriety tests". As one expert has observed: Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nations roads and highways...Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver. "Hypoglycemia: Driving Under the Influence", 8(1) Medical and Toxicological Information Review Sept. 2003. But, of course, a Breathalyzer will clear him, right? Wrong. Ignoring for the moment the inherent inaccuracy and unreliability of these machines, most suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the "methyl group" in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is "probably" alcohol. Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is acetone. And a well-documented by-product of hypoglycemia is a state called ketoacidosis, which causes the production of acetones in the breath. In other words, the Breathalyzer will read significant levels of alcohol on a diabetics breath where there may be little or none. See, for example, Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993). But this rarely happens, right? Fact: roughly one in seven sober drivers on the road suffers from diabetes. Posted by Lawrence Taylor on 08/26/2005 Trackback [0]