DUI Defense

Field Sobriety Tests: Designed for Failure?

2006-06-22T06:48:00.000-07:00

Dui Defense
"Field Sobriety Tests": Designed for Failure?

Roadside field sobriety tests ("FSTs") are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as walk-and turn, one-leg stand, "nystagmus" ("follow the pencil with your eyes"), finger-to-nose, alphabet recitation, "Rohmberg" (eyes-closed-position-of-attention), etc. The officer may subjectively decide whether the individual "failed", or he may decide after applying recent federal "standardized" scoring.
These DUI tests have an aura of scientific credibility. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case. First, as any traffic officer or DUI attorney knows, the decision to arrest is made at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of gathering evidence. Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will "see" what he expects to see. Third, the conditions under which the field sboriety tests are taken almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting -- and given to a person who is nervous, frightened and completely unfamiliar with the tests.
Fourth, field sobriety tests are irrelevant and, in fact, designed for failure.
What scientific basis exists to validate FSTs in a DUI investigation? Only a "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests. To earn their money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI -- even though they were under the .10% limit. (Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.) The company was sent back to the drawing board and, in 1981 came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.)
Well, SCRI was paid to put their stamp of approval on a set of field sobriety tests. But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00%, stone sober. The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).
Dui Defense

Convicting the "average" DUI Suspect

2006-06-21T09:24:00.000-07:00

DUI Defense
Convicting the "Average" DUI Suspect

One of the greatest sources of error in breath-alcohol testing is the consistently recurring fallacy that the individual tested is perfectly average in certain critical physiological traits. Put another way, obtaining an accurate blood-alcohol reading in a DUI case is completely dependent on the validity of a number of assumptions. Unfortunately for the person being tested, these assumptions are usually incorrect: The person tested is rarely "average" in even one of these critical characteristics, let alone in all of them.
For example, all breath testing devices depend on the assumption that the ratio between alcohol in the exhaled breath and alcohol in the blood is 1 to 2100. In fact, the machine is designed to produce a reading based on that assumption; the accuracy of the reading is directly tied to the accuracy of the presumption. Yet, the actual ratio in any given individual can vary from less than 1:1300 to more than 1:3000. So a DUI suspect with a true blood-alcohol level of .08 but a breath-to-blood ratio of, say, 1:1700 would have a .10 reading on an "accurate" breath testing instrument.
Put simply, these machines do not test individuals. Rather, they test the same "average suspect" over and over again, but using the individual subject's breath.
Another example of the assumption of "averageness" can be found in urinalysis. When a DUI suspect's urine is analyzed for blood-alcohol, a presumption exists that there are 1.3 parts of alcohol in the bladder's urine for every 1 part of alcohol in the blood. This 1:1.3 ratio is as fallacious as the 1:2100 ratio—that is, it is based entirely on the ratio found in the average person. In fact, however, the actual ratio found in any given individual can vary greatly. And as the ratio is in error, so will be the final blood-alcohol reading.
Another example of this constant reliance on averages shows itself when the prosecutor in a DUI trial offers evidence of so-called "retrograde extrapolation", or guessing backwards. The blood-alcohol level at the time of testing is not relevant to the charge, of course, and so the state will offer evidence to show what the level was when the defendant was driving. This is commonly done by "extrapolating" backward—that is, computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or "burned off" in the period between driving and testing. But this requires two assumptions: The blood-alcohol level was declining and the rate of elimination is known. This second assumption involves the further assumption that the "burn-off" rate was .015 percent per hour (sometimes the assumed rate is .02 percent). How does the prosecution know that the defendant was eliminating (assuming he was eliminating rather than absorbing) at that rate and not at .005 percent or .3 percent? Quite simply, the prosecution does not know: It merely assumes that the defendant eliminates at the average rate. And, of course, error in such an assumption translates into error in the extrapolation.
This ever-present "average person" in the DUI arena is not limited to chemical analysis. We even find him with the arresting officer in the field. When the officer administers the "nystagmus'' test ("follow my finger with your eyes") as part of the battery of field sobriety tests, he operates on the assumption that the suspect is "Mr. Average." The officer has been trained to "read" at what angle the suspect's eyes begin jerking. If it begins before 45 degrees, the suspect fails. And where does the magic figure of 45 come from? The average person.
Don Nichols, a pioneer among DUI defense attorneys, would point out to juries that his client is female, Chinese and deceased—despite obvious evidence to the contrary. He then explains that statistically there are more women than men in the world, more Chinese than any other nationality and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased—and so, according to the prosecution, must be his client. He also asks the jury how many of them have 2.3 children—the average in the United States.
So why does the state presume facts that are clearly untrue? Simple. It is convenient: it makes prosecution and conviction much easier.
Dui Defense

DUI Defense: Breathalyzers

2006-06-20T06:22:00.000-07:00

DUI Defense:Breathalyzers -- and why they don't work

So what did I mean in my earlier post by "unreliable breath machines" and "passing laws against science"? Here's just one of many examples...
The computers inside Breathalyzers actually multiply the amount of alcohol in a DUI suspect's breath sample 2100 times to get the blood alcohol concentration ("BAC"). This is because it is programmed to assume that the suspect has 2100 units of alcohol in his blood for every unit of alcohol in his breath. This is called the "partition ratio". But this ratio is only an average: actual ratios vary from as low as 900:1 to as high as 3500:1; if individual ratio is different, the BAC result will be different. Translation: If a suspect has a true BAC of .06% ("not guilty") and a partition ratio of 1300:1, for example, the machine will give a result of .10% ("guilty"). Convicted by a machine. His crime? He was not average.
Well, when juries hear this kind of evidence, they tend to return "not guilty" verdicts. This did not sit well with MADD's and prosecutors' lobbyists. The result: in California and other states, drunk driving laws were changed by adding "Percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 210 liters of breath". In other words, the law no longer cared what the actual amount of alcohol was in your blood: it was legally (not scientifically) presumed to be 2100 times what is in your breath -- even though we know it is not.
The conservative California Supreme Court later found the new DUI law constitutional in People v. Bransford. But a dissenting Justice pointed out the obvious: "The majority...has on its own created the new crime of driving with alcohol in one's breath". (Justice Joyce Kennard, 8 Cal.4th 894)
Result: today, defense attorneys are prohibited from mentioning anything about partition ratios to a jury. Scientific truth has been banned from the courtroom. And the conviction rate in drunk driving cases has risen dramatically.
Dui Defense

Dui Defense: Checkpoints

2006-06-20T06:20:00.000-07:00

Dui Defense:DUI Sobriety Checkpoints: Unconstitutional?

The Constitution of the United States pretty clearly says that police can’t just stop someone and conduct an investigation unless there are "articulable facts" indicating possible criminal activity. So how can they do exactly that with DUI roadblocks?
Good question. And it was raised in the case of Michigan v. Sitz (496 U.S. 444), in which the U.S. Supreme Court reviewed a decision of the Michigan Supreme Court striking down drunk driving roadblocks as unconstitutional. In a 6-3 decision, the Court reversed the Michigan court, holding that roadblocks were consitutionally permissible. Chief Justice Rehnquist began his majority opinion by admitting that DUI roadblocks (aka "sobriety checkpoints") do, in fact, constitute a "seizure" within the language of the 4th Amendment. In other words, yes, it’s a blatant violation of the Constitution. However....
However, it’s only a little one, and there’s all this "carnage" on the highways MADD tells us we’ve got to do something about. The "minimal intrusion on individual liberties", he wrote, must be "weighed" against the need for and effectiveness of roadblocks. In other words, the ends justify the (illegal) means....aka, "the DUI exception to the Constitution".
The dissenting justices pointed out that the Constitution doesn’t make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, "That stopping every car might make it easier to prevent drunken driving...is an insufficient justification for abandoning the requirement of individualized suspicion." Brennan concluded by noting that "The most disturbing aspect of the Court’s decision today is that it appears to give no weight to the citizen’s interest in freedom from suspicionless investigatory seizures".
Rehnquist’s justification for ignoring the Constitution rested on the assumption that DUI roadblocks were "necessary" and "effective". Are they? As Justice Stevens wrote in his own dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: "The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative".
p.s. The case was sent back to the Michigan Supreme Court to change its decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, if permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant -- in effect saying to Rehnquist, "If you won’t protect our citizens, we will". The State of Washington has since followed Michigan.
Dui Defense

DUI Defense: MADD and the New Prohibition

2006-06-19T10:27:00.000-07:00

DUI Defense: DUI, MADD and the "New Prohibition"

Mothers Against Drunk Driving is a well-organized (over 600 chapters), well-funded (IRS Form 990 shows revenue for 2002 of $48,051,441) and dangerous group of well-intentioned zealots -- the very same folks who gave us Prohibition decades ago. For many years now, MADD’s agenda has been clear: apply political pressure to get ever-harsher drunk driving laws, law enforcement and punishment. But what is the final goal? When will we have reached a state when MADD is satisfied that the drunk driving laws are sufficient? The answer is simple: zero tolerance. No drinking and driving. And, eventually, no drinking.
Exaggeration? Paranoia? Let’s look at a little DUI history.....The original drunk driving laws were simple and fair: Don’t drive under the influence of alcohol (DUI). Then, years ago, law enforcement came up with crude devices to measure alcohol on the breath of drunk driving suspects. But what did, say, a .13% blood-alcohol concentration (BAC) mean? They turned to the American Medical Association which, in 1938, created a "Committee to Study Problems of Motor Vehicle Accidents"; at the same time, the National Safety Council set up a "Committee on Tests for Intoxication". After some study, these two groups came up with their findings: a driver with .15% BAC or higher could be presumed to be "under the influence"; those under .15% could not.
That’s right, .15%. And that recommendation lasted for 22 years. But certain groups of "concerned mothers" were not happy with the low DUI arrest and conviction rates. Under increasing political pressure, the committees "revisited" the question in 1960 and agreed to lower the presumed level of intoxication to .10%. Had the human body changed in 22 years? Had the AMA been negligent in their earlier studies? Or were politics and law trumping scientific truth?
Well, the arrest and conviction rates shot up, but there were still too many people escaping the DUI net. Then MADD was formed by Candy Lightner (later to quit the organization and become a spokesperson for the liquor industry). Soon after, legislation began appearing in many states that created a second crime: driving with a BAC of .10% or higher. This new crime did not require the driver to be affected by alcohol: even if sober, he would be guilty if his blood-alcohol was .10%. In effect, it completely ignored the questions of intoxication, driving impairment and individual tolerance to alcohol. And, despite questions of double jeopardy, the individual could be charged and even convicted of both the traditional DUI and the new .10% crimes! This gave police and prosecutors a powerful new weapon, and drunk driving arrests/convictions jumped once again.
This was not good enough. Under increasing pressure from an ever more powerful MADD, in 1990 four states lowered the blood-alcohol level in DUI cases to .08%; others soon followed and, ten years later, federal politicians (with one eye on MADD) passed an appropriations bill in effect coercing all states into adopting the new .08% BAC standard.
Since then, Mothers Against Drunk Driving has pressured state legislatures to drop the blood-alcohol level to .05%. In the meantime, they had been successful in getting nearly universal adoption of a .01% BAC standard (termed "zero tolerance") for drivers under 21.
So where are we headed with MADD in apparent control? A federal .05% DUI standard is on the horizon and, in fact, has already been adopted to some extent in a few states. "Zero tolerance" for adult drivers is clearly on MADD’s agenda. And then?
In 1999, MADD’s National Board of Directors unanimously voted to change the organization’s mission statement to include the prevention of underage drinking. Not underage drinking and driving -- just drinking. Let me say that again: MADD has now formally shifted its focus away from "drunk driving" and towards the broader "problem" of drinking.
Can a new era of prohibition be far behind?
Dui Defense

Questions About DUI Defense

2006-06-18T07:18:00.000-07:00

DUI Defense: THE 20 MOST FREQUENTLY ASKED QUESTIONS ABOUT DUI DEFENSE

1. What do police officers look for when searching for drunk drivers on the highways?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

Turning with a wide radius
Straddling center of lane marker
"Appearing to be drunk"
Almost striking object or vehicle
Weaving
Driving on other than designated highway
Swerving
Speed more than 10 mph below limit
Stopping without cause in traffic lane
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Driving into opposing or crossing traffic
Signaling inconsistent with driving actions
Slow response to traffic signals
Stopping inappropriately (other than in lane)
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.

3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.

4. What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
Flushed face
Red, watery, glassy and/or bloodshot eyes
Odor of alcohol on breath
Slurred speech
Fumbling with wallet trying to get license
Failure to comprehend the officer's questions
Staggering when exiting vehicle
Swaying/instability on feet
Leaning on car for support
Combative, argumentative, jovial or other "inappropriate" attitude
Soiled, rumpled, disorderly clothing
Stumbling while walking
Disorientation as to time and place
Inability to follow directions

5. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable"fails"; Thus, in most cases a polite refusal may be appropriate.

6. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.

7. Should I agree to take a chemical test? What happens if I don't?
The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results:
Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This is true even if you are found not guilty of the DUI charge.
In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense.
The fact of refusal can be introduced into evidence as "consciousness of guilt" Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

8. Do I have a choice of chemical tests? Which should I choose?
In most states, you have a choice -- usually, of breath, blood or urine (some states, however, do not offer urinalysis). If you choose breath, many jurisdictions permit you to have a second test or blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.

9. The officer never gave me a Miranda warning: Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

10. Why am I being charged with TWO crimes?
The traditional offense is "driving under the influence of alcohol" (DUI) or, in some states, "driving while intoxicated" (DWI). In recent years, however, 46 or 48 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one. If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged.

11. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?
Agreed, it is blatantly unfair. But the law in most states having a "per se" statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit).

12. Can I represent myself? What can a lawyer do for me?
You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

13. How can I find a qualified drunk driving lawyer?
The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving? Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list. An excellent indication of quality and experience is membership in the NATIONAL COLLEGE FOR DUI DEFENSE, INC., located in Atlanta, Georgia (404-853-5080). Completion of that organization's intensive annual summer seminar at Harvard Law School is another clear sign of ability. When you meet with the attorney, make sure of three things:
He has extensive experience in DUI/DWI litigation;
He has a reputation for going to trial in appropriate cases, rather than just "copping out" his clients; and
The financial terms of representation are clear.

14. What will it cost to get a lawyer?
This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each. The range of fees is huge. A general practitioner in a small community may charge only $300; a DUI specialist with a national reputation may charge $7500 and up. In addition, the fee may vary by such other factors as:
Is the offense a misdemeanor or felony?
If prior convictions are alleged, the procedures for attacking them may add to the cost.
The fee may or may not include trial or appeals.
Administrative license suspension procedures may also be extra.
The lawyer may charge a fixed fee, or he may ask for a retainer in advance -- to be applied against hourly charges.
Costs such as witness fees, independent blood analysis, service of subpoenas, etc., may be extra. Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

15. What is the punishment for drunk driving?
Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle. For an example of punishment in DUI cases, see the sentencing chart for California in the main menu.

16. What is a sentence "enhancement"?
Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:
A child was in the car at the time.
The defendant was traveling 20 or 30 miles over the speed limit at the time.
The blood-alcohol concentration was over .20%.
The defendant refused to submit to a chemical test.
There was property damage or injury. In most states, the existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states, second degree murder charges.

17. What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.
18. What is "mouth alcohol"?

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.

19. What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.
Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.
"Under the influence". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.
Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

20. I have some questions about my DUI case. Where can I go for answers?
An experienced drunk driving lawyer is the best source, of course. Short of that:
Go to a law library (at courthouses and law schools) and research DUI law and blood-alcohol analysis.
Retain an experienced DUI Defense Attorney.
DUI Defense

DUI Defense

2006-06-17T14:35:00.000-07:00

This blog provides an opportunity for interested individuals to discuss their DUI Defense experiences. DUI is the only crime in America where an individual is presumed guilty until PROVEN innocent!!! Share your thought here. DUI Defense