The DUI Exception to the Constitution

I would like you to imagine for a moment that you’ve gone to a friend’s house for dinner. In the course of a very good dinner you’ve had a couple of glasses of a good Merlot and it is now time to drive home. I would like you to imagine that you are on your way home — and, I will tell you, by the way, that two glasses of wine will not, in any state, put you under the influence of alcohol or over the legal limit of .08. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars cordoned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, “Breath on me. Have you been drinking tonight? Please step out of the car.”

Some of you say, “Well, that can’t happen in the United States. We have the Fourth Amendment to the Constitution, which says police officers have to have probable cause to stop you. They have to have a reason to believe you’ve done something criminal before they can stop and detain you.” And so said the Michigan Supreme Court in 1990 in the case of Sitz v. Michigan. The Court said, “The Fourth Amendment does not permit these types of roadblocks” — and reversed the DUI conviction. The case went up to the United States Supreme Court, unfortunately, and that august body decided that somewhere in the Constitution there is something called a “DUI Exception.” And in a 5 to 4 vote sent it back to Michigan saying there is no violation here. What’s interesting is that the Michigan Supreme Court — bless them, for there are fewer and fewer of them — said, “Well, if you will not protect our citizens in the state of Michigan from this kind of police conduct, we will. And we again reverse the conviction and this time we rely upon our own state constitution.”

The state of Washington and three other states have followed suit. In 44 states today, however, it is legal to stop you for absolutely no reason other than the fact that you are driving a car. The only purpose is to check you out for drunk driving.

You have been stopped, you have been taken out of the car and you have been handcuffed. You are placed in a police vehicle and you are on your way back to the police station. About this time you’re probably wondering: I’ve seen this TV show somewhere — they’re supposed to read me something aren’t they? Something called Miranda? Aren’t I supposed to have a right  to an attorney? Don’t I have the right to remain silent? That becomes an issue because, as you’re being driven to jail, the officer’s asking you all kinds of questions. Like, “Where have you been?” “Where are you coming from?” “How much have you had to drink?” “How long ago was it?” “When was the last drink?” “Do you feel the effects?” “Where are you now?” “What time of day is it?”

Well, again, a state Supreme Court said, “Hey, this person’s handcuffed and under arrest, you’ve got to advise him of his constitutional rights under Miranda.” And again, it went to the United States Supreme Court. In 1984 in Berkemer v. McCarty, the United States Supreme Court fooled around for about 20 or 30 pages of opinion and finally concluded that there was apparently a DUI exception to the constitution. And that, “Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations.” So, the U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases.

Well, about this time you arrive at the police station and the officer takes you into a room and there is this little metal box about the size of a desktop computer.  And he says breathe in here. And you say, “Wait a minute, I have a right to an attorney. Can I make a phone call?” “No,” says the officer. And, he’s right. However, this denial of access to an attorney is only applicable in DUI cases. He’s right. You’re about to give the most incriminating evidence possible to give in a DUI case and you have no right to seek the advice of an attorney as to whether to breathe into that machine or, in the alternative, to agree to submit to a urine or a blood test.

And I’m only touching on a few of the problems. In California, for example, and in many other states, the law says you have a right to choose between breath and blood. It is your choice. We have discovered in California, however, through our own Supreme Court that when the officer doesn’t give you that choice — just makes you breathe into that little black box — that’s okay. They’re not supposed to do it, but there’s no remedy. There’s nothing that can be done about it, so says the California Supreme Court. You can’t suppress the evidence. Well, police are not stupid, so now about half of them simply don’t give you that choice, since nothing is going to happen if they don’t.

Your next thought is, I don’t know if I trust that little machine. Maybe I should refuse to breathe into it. I think I’m okay because, because as I remember, there’s a Fifth Amendment right in the United States Constitution that I don’t have to incriminate myself, and, not only that, but if it goes to trial, the prosecutor can’t even refer to the fact that I’ve exercised my Fifth Amendment right.

The South Dakota Supreme Court agreed a few years ago and they said, This gentleman refused to incriminate himself by breathing into that machine and it was reversible error for the prosecutor to comment upon that to the jury and tell them that he refused because he knew he was guilty. Now you’re probably ahead of me, guessing the outcome here. It went to the United States Supreme Court. The United States Supreme Court, in South Dakota v. Neville in 1983 said, There’s a DUI exception to the Fifth Amendment. There is no right to refuse and the prosecution can comment freely in trial upon that refusal. And they sent it back to South Dakota. And. like Michigan, South Dakota said, If you folks in Washington, DC will not protect our citizens, we will rely upon our own state constitution, and they reversed it again based upon the South Dakota constitution’s provisions against self-incrimination. Unfortunately, that’s the last story I have of a state supreme court protecting of its own citizens.

So, you decide you’re going to breathe into that machine. And you do. You breathe into one end and out comes a piece of paper at the other end that says your blood alcohol concentration is .13%. Now, at this point, in most states, the police are supposed to give you a choice as to whether you want a blood sample taken and saved as well, so that you have something for your defense attorney to have examined for an independent analysis.

This is called the Trombetta advisement. They don’t give it usually. They’re supposed to, but if they don’t, no harm, no foul and so it is rarely done. It’s called the Trombetta advisement because a few years ago, in 1984, a defendant in California said, Wait a minute, that machine captured my breath and minutes after analyzing it, just purged it into the room air. It could have saved the breath. [Very easy to do: costs about $4.50 per sample utilizing a special kit to preserve it.] It could have saved the breath and then my attorney could have had it analyzed by a separate laboratory by a more exact and reliable testing method. You have destroyed evidence that I could have analyzed and may have been proven my innocence.

This went to the United States Supreme Court too, and in 1984 in the landmark case of Trombetta v. California, the Supreme Court found yet another DUI exception to the Constitution and said Well, it would be nice if they saved the breath, but there’s no obligation to do so. And, destruction of that evidence, unless you can prove that it would have been exculpatory, has no impact. But how do you prove it would have been exculpatory if it has already been destroyed? So, today it is all right to destroy the evidence and make sure the defense doesn’t get access to it.

Finally, you’re rather outraged because you know you’re not under the influence. You know you’re not over .08% — which is the standard in California. And in 5 years will be the standard in all of your states because the federal government is telling you that’s what it’s going to be. Because the Mothers Against Drunk Driving are ensuring that happens.

You decide to go find one of these criminal defense lawyers you’ve always resented and ask them to represent you in trial. You want to tell a jury of 12 of your peers what happened. You want to give your version. So you tell your attorney, I want a jury trial. Your attorney says, I’m really sorry, but you can’t have one. You see we don’t have jury trials for DUI cases in this state, because in 1989 the United States Supreme Court in Blanton v. North Las Vegas, a DUI case, said, There is no Constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail.

So, in several states today, including Nevada, Louisiana, New Jersey and Hawaii you have no right to a jury trial. And the Mothers Against Drunk Driving and a few other organizations are doing everything they can to make sure there are no jury trials in other states as well.

All right, we’ve taken a look at what happens to you as you go through the process in terms of any Constitutional rights you thought you had. And if you’d been charged with burglary, murder, rape, you would have had those rights. At least for now, until those rights are taken away as well, utilizing the same necessity argument used for DUI prosecutions.

Now, let’s take a look at what the crime of DUI really is. What is the offense you just committed? I will tell you that when I have clients come in the door, almost none of them know what the crime is, and probably half of them don’t know if they’re guilty or not.

In the beginning there was a law. That law said Thou shalt not drive under the influence of alcohol. Period. It was a good law. We needed it. It addressed the problem. It was fair. Unfortunately, there were some defendants being acquitted. And so an inventor came along and said, Well, I’ve got this great little gizmo here. I call it the Breathomatic. It’s a box and if you breathe in this end, out the other end comes this piece of paper and it’ll tell you exactly how much alcohol is in the person’s blood.

Well, that sounded pretty neat. And so legislators and prosecutors approached the American Medical Association and said, We’ve got this wonderful machine. Can you tell us at what level of blood alcohol concentration a person is impaired in their ability to drive a vehicle? And the AMA said, After extensive research, it is 0.15 grams percent. This was about 60 years ago… 0.15 percent.

Well, that was okay for a while, but a whole lot of people still were not getting convicted. Part of the problem was there was only a presumption that you were under the influence. In other words, if you were over .15% the jury could accept that you were under the influence, or they could reject it and say other evidence shows that you weren’t. The second problem was that a lot of people were coming in at .13, .14, .12. And a third problem is that you may have been .15 at the time of the test in the station, but what were you an hour earlier when you were driving?

So, they went back to the American Medical Association a few years later and said, Are you sure about that .15? Couldn’t it really be a little lower? And the AMA said, You know, you’re right. It’s .10. Now, the human body, to my knowledge, had not changed in those 20 years, but certainly the AMA’s research did. And responded to considerable political pressure. So, now jurors were told that they could presume guilt if there was a .10%. A dramatic change in the number.

Unfortunately, there were still criminal defense lawyers out there and there were still acquittals, and the Mothers Against Drunk Driving, a very effective, very well financed organization, as some of you here know, was very successful by working through a federal agency called National Highway Traffic Safety Administration in putting pressure on states to further drop it to .08%. And as I indicated earlier, about a third of the states have done exactly that, the others are rapidly following suit.

One of the problems is called retrograde extrapolation. It’s all well and good the the suspect was a .11 at the time that he breathed into the machine at the police station. But it’s not against the law to be over a .08 in a police station. It’s against the law to drive a car over .08. What was the blood alcohol level at the time he was driving?

Well, that caused prosecutors a lot of problems. And so most states, almost all states, passed a new law — at the urgin of the Mothers Against Drunk Driving. And that law said, If any test within three hours of driving results in a blood alcohol reading of .08, it shall be presumed that it was the same at the time of driving. Even though we know absolutely, as a matter of scientific fact, that it was not.

Well, that again raised the conviction rate, except that it was a rebuttable presumption. In other words, you could introduce evidence that that simply wasn’t true. And so now, to make a depressingly long story short, some states are beginning to pass laws saying that the crime is having over .08 at the time you breath into the machine. And they don’t care what you were when you were driving the car.

Notice how we’ve gotten further and further and further away from the evil we were trying to cure in the beginning: Were you impaired by alcohol when you were driving your car?

Okay. Let’s take a look at this machine. And in most cases, because it’s cheaper, easer and faster than blood analysis, the police are going to have you breathing into one of these machines. Let me just give you a real quick rundown on breath test device theory. Incidentally, the book I wrote, Drunk Driving Defense, is about 1200 pages in length, of which nearly 400 pages are just on the technology of breath machines, so this is going to be very cursory. But, I think, for purposes of illustrating some of the problems, it will help.

Basically, these machines capture breath from your lungs into a sample chamber. In the common Intoxilyzer 5000, for example, it’s a little 81 cc nickel-plated tube. And, by the way, there are a lot of different manufacturers of these different machines, different types, but we’ll get into that in a moment. These machines rust and corrode inside. The sample chamber gets pitted, and it absorbs or retains in these pits alcohol from previous subjects. But let’s just say for purposes of theory it captures a sample, a given volume of alveolar air from the lungs. At one end it has a projector that sends a beam of infrared energy, infrared light, through the chamber. The light passes through the breath sample that is passing through that little chamber. Now, at the other end of the chamber is a detector that receives the light from the other side. It then measures how much of this infrared energy gets through — that is, is not absorbed by the breath and does not reach the other side of the chamber. It measures this dmunition of light energy by comparing the original intensity of the light to the diminished intensity of the light, multiples it by 2100, and spits out the blood alcohol concentration.

Now the theory of infrared spectroscopy, as applied to DUI cases, is based upon the fact that any compound containing the methyl group of molecules will absorb the energy from this 3.61 micron light wave. One of those compounds is ethanol, also called ethyl alcohol. Molecules of ethyl alcohol contain the methyl group as part of its structure. It is resonant with this particular frequency of light wave. So, the more ethyl alcohol in the sample chamber, the more energy is going to be absorbed, the less will get through to the receptor, the higher the blood-alcohol reading will go. Actually, the concept is fairly simple. Except, again, the light waves are absorbed not only by ethyl alcohol, but also by any methyl group in any compound. In other words, it is a stupid machine. It does not differentiate between ethyl alcohol and any other compound containing the molecular group. It is what we call non-specific for ethanol. Any compound on your breath that contains the methyl group will be detected as alcohol — and reported as alcohol. If you happen to have 32 different compounds containing the methyl group on your breath, it not only will report them all as alcohol, it is cumulative: the machine will add all of those compounds, including any ethyl alcohol, and then report it as alcohol in the blood.

So, do any of these methyl groups exist in the human breath? There are a number of scientific studies — one of which indicates that there are 102 different compounds found in the human breath that can contain the methyl group. So what you are getting is not necessarily alcohol. What you are getting is some unknown cumulative reading of any of these compounds on your breath. If you had been painting a house yesterday, today you would be registering alcohol on our breath machine. If you had been using solvents, or thinners or glue or anything like this, same result. If you had pumped gasoline into your car and inhaled any of the fumes, hours, even days later, you could be breathing out vapors containing compounds with the methyl group in it. If you are a diabetic, or have been on a low-carbohydrate diet, youo would be getting high blood alcohol readings.

Now, I can go on for quite awhile, but the last example I will give you is called the mouth alcohol problem. The machine assumes that the alcohol, or whatever it is measuring, comes from the air in your lungs, and that’s why it’s multiplying by 2100. Obviously, if it is getting alcohol directly from your stomach or your throat or your mouth, it’s going to fool the machine and the results are going to be extremely high. It would take a minuscule amount of alcohol in your mouth, throat or stomach to fool the machine and create a pretty high BAC reading, since it would be incorrectly multiplied 2100 times. This is called the trapped alcohol or mouth alcohol problem.

So, for example, if you burp or belch, and any gases from your stomach come up, or you have an acid reflux condition, or a hiatal hernia, and any of those gases or liquids come up to your esophagus or mouth, remnants of the saturated gas will stay there for about 15 to 20 minutes before saliva dissipates it. It will be breathed into the machine, if you are being tested. The machine will report a reading, which will be falsely high. It does not mean you’re under the influence. It does not mean you’re really an .08. It’s simply that you had alcohol in your mouth or your throat. The police officers are supposed to guard against this by observing you for 15 minutes and making sure you don’t burp. They are supposed to sit down and watch you for a quarter of an hour before giving the test. In all the years that I have been defending DUIs, or for that matter prosecuting them, I don’t think I’ve ever encountered an officer who actually did that. They are far too busy to fool around with things like that. They will check the box, and say they did, but it rarely happens; I’m not sure they could even tell if a belch did happen. The 15-minute observation period is a safeguard, but one that the police ignore.

So, these are just a couple of examples. There are hundreds of things wrong with these machines, not just theoretically, but applied to the machines themselves. How accurate are they? They’re close enough for government work. In California, for example, the legal standards of accuracy are that you must have duplicate analysis (two sequential tests) and each result must be within .02% of the other. That means you’d have to take two tests. If the first one (just to use a number to make it mathematically easy) is .10%, the next one has to be .08, .09, .10, .11 or .12. Think about it: a 40% range of error is scientifically accurate in a case where the state must prove your guilt beyond a reasonable doubt. In most states, a 40% range of error is considered to be acceptable accuracy. Close enough for government work.

The people that make these machines keep coming out with new models. They’ll come out with a model and call it state-of-the-art, foolproof, fail-safe, and then two years later they come out with a new model that takes care of all of the problems found to have existed with the earlier model. Meanwhile 100,000 people have been tested on the old device (which is quietly retired from service), yet none of those convicted can re-open their guilty pleas, or undo the damage done to their lives and careers by the machine. Then a competing breath manufacturing company comes out with a new and improved model that takes care of the problems with their competitor’s new model. And this has become a fairly regular battle of the manufacturers, year after year.

If you look at the warranties on these devices, few of the manufacturers warrant these things to actually test blood alcohol. If you read the warranties, they specifically say that there is no warranty of fitness for a particular purpose. That’s a legal phrase. Basically it means they don’t want to get sued by somebody if there is a false reading. So they will not even warrant these things to do what they’re selling them to do. The standard warranty, for a total breakdown of the device, is about one year — about what your toaster is warranted for. The difference between the two machines? Your toaster is warranted to toast bread.

Okay. Let’s talk about science and the law. Right off the bat we’ve got a problem. Science, if you can define it, would be, I would say, the systematic pursuit of truth. The objectives of law are very different. It is a governmental mechanism for imposing order, structure, predictability, security, and confidence of the public in its institutions. The law is not concerned with truth. That distinction is important in understandking what is happening in the DUI legal arena.

To understand it you must understand the difference. Hundreds of years ago a guy named Galileo said, the universe is really not flat, the way Rome says it is. You saw what happened to Galileo. Have we progressed? Not if a lawyer tries to tell the truth to a jury about the limitations of a breath machine, and, in doing so, is held in contempt for properly and zealously representing his/her client. I would say we have not come all that far since Galileo’s days.

Again, the legal system is not concerned with truth. And it may come as a shock, but it is not. It is concerned with order, stability. If the legal system were seeking truth, the government would not falsely assume that there’s a 2100-to-1 partition ratio. If the legal system cared about truth, they would not presume that your blood-alcohol was the same number three hours earlier, when the government knows it is not. If they sought truth, they would recognize that these machines are non-specific, among other problems. The legal system is not concerned with justice, either. It is concerned with expediency, not justice. If they were concerned with justice, they would not permit roadblocks. They would not presume guilt. They would not pass laws refuting scientific truth.

I just said, They would not presume guilt. That was another DUI exception to the constitution that I didn’t tell you about. One other thing the police officer does after he has you breathe into that machine, if you’re over .08, is that he immediately grabs your license and confiscates it. This is another contribution from MADD. Immediate seizure of the license in 48 of the states today. On the spot. Justice administered by the police officer. No judge. No jury. You are presumed guilty. Your license is confiscated and you are given a notice of suspension. What happened to the presumption of innocence?

After you have been given this suspension, you will be facing further punishment in criminal court — possibly including another suspension. Does this sound like double jeopardy? Of course it does, but after some initial disagreement, the courts decided that the first suspension was not a punishment: it was only an administrative sanction.

How far can things go? Some of you may have heard about a case recently in North Carolina. Now, we have never executed people, we’ve never, until recently, given the death penalty for a crime unless there was pre-meditation of the offender. Intention to kill and time to reflect upon that and then to carry out the plan and cold-bloodedly murder. Some exceptions have been added: Killing a police officer; multiple murders; murder by torture; murder for ransom. In North Carolina this year there was a DUI case involving an accident and a fatality It would, in any other case, in another state, likely be a vehicular manslaughter case. It was not an intentional act. It was negligent; it may have been reckless. And the prosecutor sought the death penalty. The death penalty. The law permitted it and the judge let him go for it. Fortunately, they didn’t get it.

So, in the DUI arena, you have unfair procedures. You have false evidence. You have wholesale erosion of rights. But, some may rationalize, at least the DUI-caused fatalities are falling, correct? If you believe the statistics from the Mothers Against Drunk Driving and National Highway Traffic Safety Administration, that would be correct. If you look at it more closely, however, you’ll find they start using terms like alcohol-involved, alcohol-related, and those statistics start changing to justify what they have been doing for the last few years. The numbers have been manipulated so that if any person involved in any way in the accident had any alcohol in his/her system — even .01 per cent — MADD and our federal government counts that as an alcohol-related death. If a pedestrian or the deceased driver had been the only one drinking, it would have been an alcohol-related fatality.

So, what is happening in the DUI field? Same thing that’s always been happening. The real danger to your lives, to my children’s and your children’s lives, are from recidivists. Statistically, the risk lies with recidivists — people that have driven drunk repeatedly. Which is, despite what MADD says, a relatively small percentage of those who are arrested. Problem? How do you reach those people? Can you affect the incidence of death caused by DUIs by increasing the punishment? As to those recidivists, and I tell you: no.

We are trying to use the legal system to address what may be partially a medical, perhaps psychological, but in my opinion certainly a genetic problem. Now that sounds like an easy cop-out. I wrote a book about 15 years ago called Born to Crime, The Genetic Causes of Criminal Behavior, so I suppose that I am a bit biased, but I’m basing what I say upon defending thousands and prosecuting thousands of DUIs and I’m absolutely convinced that alcoholism is largely genetic in origin, at least a strong genetic predisposition. And I think the studies, and one of the chapters of Born to Crime was devoted to alcoholism — the studies are overwhelming. And so long as you have a system that is geared to behavioral modification — that is, we’re going to change his drinking habits by putting him in jail for six months — or deterrence — we’re going to stop other recidivists from driving drunk because of their fear of jail — then you’re fooling yourselves.

Do I have an answer? No, I don’t. But I know that system isn’t working, and in the meantime we are slowly dismantling the Constitutional rights that are our birthright. Is this just about drunk drivers? The simple fact is that our legal system is based upon precedent: rights that are lost in a DUI case today can be lost in any other case tomorrow.

To paraphrase a famous quote from pre-war Germany, First they came for the drunks, but I was not a drunk, so I did not speak up….