The DUI Exception to the Constitution

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Well, there's no question, there were fewer acquittals now and the prosecutors were increasing their conviction rate. But, there were still some acquittals. And so MADD and the federal agencies decided to change the law further. More accurately, MADD came up with another law. This is called the per se law: If we can't convince jurors that a person is under the influence over .08, we can make it a crime to merely drive while having a BAC over .08. The crime is being over .08 per se. We don't care if they're intoxicated or impaired. If the person has a BAC level over .08%, or .10% blood-alcohol perhaps, in your state, that is a crime all by itself. Not only that, let's keep the original law. So, now we give the prosecutors two shots to obtain a conviction whenever a test is taken by a suspect: If they can't convince the jury he's under the influence, well then maybe they can convince them he was over .08, even though he was not under the influence -- and vice versa.

Well, this once again certainly increased the conviction rate, and the number of acquittals continued to drop. But there was a problem. Acquittals were still happening. New, creative and detailed attacks began challenging the technology involved in breath alcohol analysis. The gist of the attacks by defense lawyers was based on the fact that the machine, to put it simplistically, assumed that you are an average person.

The machine is measuring the breath. It is measuring the alcohol in the vapor of the alveolar air in the deep lungs that you expel. But the machine is telling you how much alcohol is in the blood -- not in the breath. So it uses what we call a partition ratio. To put it simplistically, the machine has an old, very primitive computer inside it. There are different machines, but the computers in them will all report, Well, if you've got this result from the breath, there must be 2100 times as much in the blood! Using a multiplier inside the little computer, that's what it prints out.

But the computer is assuming that your partition ratio is 2100. Problem? Very few people have a partition ratio of 2100-to-1. It ranges anywhere from about 1100-to-1 up to 3500-to-1 and higher. And there is no way of knowing at the time of testing what your partition ratio was because medical studies have shown that the partition ratio changes within an individual all the time. One person is going to be very different than the person sitting next to him. Your partition ratio tomorrow is going to be different than what it is right now. Well, what does that mean? It means if you blow, let's say, a .11 and you have a 1300-to-1 partition ratio, that .11 is really 0.07. You're innocent. Your crime, unfortunately, was not being average.

Well, attorneys usually go to law school because they failed physics, chemistry and so on in college, but a few defense attorneys were able to master the technology involved -- were actually learning how this machine worked. And they thought, Whoa! There's an assumption here, 2100-to-1, and they cross-examined the expert from the law enforcement's crime lab and said, Isn't it a fact that...? And the guy would hem and haw, and finally say, Well, yeah. Acquittal. The 2100-to-1 ratio issue is still a viable defense in a lot of states.

Not in California anymore. And not in a growing number of states. In California, our Supreme Court, which is slightly to the right of the U.S. Supreme Court, said, No, not really, because what you're doing is you're measuring the alcohol on the breath. You're not measuring the blood directly, you're measuring on the breath, and therefore we don't have to have a partition ratio. Now, you probably don't appreciate the complete idiocy of that statement, because the California Supreme Court did not understand the technology involved. And it was an 8-1 decision. A dissenting justice in the decision said, Do you realize that we just created a new crime called driving with alcohol on your breath? And she was absolutely right. That's what the Supreme Court of California did.

Result? If I now ask a law enforcement crime lab expert on the stand in front of a jury, Isn't it a fact that the partition ratio you used assumes an average of 2100-to-1? I can be held in contempt of court by the judge. If I try to bring out the truth, I can be jailed. I'm not exaggerating. And I'm telling you that this is true in a growing number of other states. I have lectured in 36 states to lawyers' groups, bar associations, and so on, so I'm familiar with the different states and their different approaches. All of which are becoming much more standardized as the Federal Government continues to step in.

Well, that made things a lot easier for prosecutors to convict in California. Once again, the conviction rate continued to go up. It became more and more difficult to defend people accused of drunk driving. I did not say guilty of drunk driving: Accused of drunk driving. Well, but there are still many defenses left, because, as I hope I will have time to get into, this machine is, to say the least, unreliable.

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