Total DUI

In many DUI cases, the results of the breath test administered at the time of arrest are considered strong evidence. But how accurate are breathalyzers, really? Maybe not as accurate as you (or your arresting officer) once thought. Check out the details here.

News from Portsmouth, New Hampshire calls attention to a potential thorn in the side of the extremely popular DUI sobriety checkpoint that law enforcement officials have used with some frequency across the nation over the past few years.

Sobriety checkpoints are placed along stretches of the road that have a high incidence of drunk driving, especially during heavy drinking periods, such as weekends and holidays.

Typically, a sobriety checkpoint works in one of two ways: either police officers employ a quick breath test and the drivers for each car that passes are tested, or officers will stop only certain drivers for sobriety tests.

The problem of Portsmouth stems from a series of such roadblocks set up in July 2005.  The local Seacoastonline reports that the DUI arrests made during the five-agency team effort are languishing in courts.

Instead of DUI charges, the plea agreements so far have involved reckless driving pleas with a small fine and short suspension of license (generally, just a couple of months).  If the remaining please hold form, the end result of the roadblock effort will be NOT ONE DUI conviction.

Of course, roadblocks have faced scrutiny for allegations of unconstitutionality, since officers are stopping and investigating cars and drivers without cause.  The United States Supreme Court found that that sobriety checkpoints are constitutional, but eleven states have individually outlawed them.

Read more at Total DUI about the challenges to DUI checkpoints.

Of course, the Portsmouth case could warrant a different kind of scrutiny.  If they're questionable under civil rights laws, and ALSO unable to convict DUI suspects, then how effective are they anymore?

Chad Trebby thought that he had his man.

As the Gillette, Wyoming police officer watched a seemingly-drunk man stumble to his car, Trebby waited for the suspect to turn on his vehicle and drive away. Once the unnamed suspect did so, Trebby pulled him over on suspicion of DUI.
 
Imagine Trebby's dismay when a judge later dismissed the DUI case on the assertion that Trebby had reasonable suspicion to think that the man was drunk and thus endangered the safety of the public by letting the suspect drive away.

The following article not only imagines Trebby's dismay but examines the reasoning behind the judge's decison.

Two Wayne County, Ohio judges are issuing search warrants for drivers suspected of DUI who refuse to submit to breath tests. Municipal Judge Stuart Miller said the warrants are aimed at repeat DUI offenders because first time offenders typically consent to a breath test. Miller said he wants to cut down on the number of jury trials required for people who refuse a breath test.

Ohio is one of the leading states for excessive repeat DUI offenders, with over 38,000 drivers with five or more convictions for DUI. Ohio has drivers, former drivers that is, with more than 20 DUI convictions.

Judges can order blood drawn from drivers because Ohio is an implied-consent state, meaning that all drivers consent to a search of their blood, breath, or urine when they apply for a drivers license.

An Arkansas driver being arrested for DUI, decided it might be a good idea to pretend to be his brother. Sebastian Nabor gave police his brother’s name, instead of his own, after he was stopped for DUI. The ruse was discovered when Nabor’s brother arrived to bail him out of jail.

Nabor now faces charges of a second-offense DUI and felony criminal impersonation.

A new DUI breath testing machine, the Alcotest 7110, was approved by a committee appointed by New Jersey’s Supreme Court. The Court appointed a retired justice to review the Alcotest after its results were challenged by defense attorneys. Unlike the Breathalyzer, which must be configured by hand, the Alcotest is fully automated and connected to a computer.

The Breathalyzer has been so widely used, since 1954, that DUI breath test devices are generically know as a ‘breathalyzer.’ A DUI breath test device measures the amount of alcohol in a person’s breath and mathematically converts the alcohol concentration to blood alcohol content (BAC). Every state’s DUI law declares that a driver with a BAC of 0.08 percent is presumptively DUI.

Following a yearlong review, retired Appellate Judge Michael King recommended that the new device should be considered “acceptable for evidentiary breath tests in New Jersey.” King wrote in his report, “indeed, we find the Alcotest 7110 with proper foundational proofs much more scientifically reliable and independent of operator influence, intentional or inadvertent, than the Breathalyzer.”

Many states have replaced Breathalyzers with new devices relying on chemical processes or using infrared light readings

Fresno California police are using roadblocks, stakeouts, night-vision goggles, satellite tracking devices, and video cameras to track and arrest drivers for DUI. Police officers are using night-vision goggles and satellite tracking devices to keep track of drivers already convicted of serious DUI offenses. The terms of parole for some drivers convicted of DUI allow police to enter their homes at any time to see if they’ve drinking and they can be arrested if police find alcohol in the home.

Fresno police say they are permitted to secretly plant GPS devices by the DUI offender’s parole agreement. The ACLU finds such secret surveillance troubling.

Police in Fresno California have begun an aggressive crackdown on DUI, raising privacy issues among the City's bar patrons. Undercover police officers stake out bar parking lots at closing time and call ahead to marked squad cars when they observe a likely drunk driver. Fresno Police have even gone so far as secretly planting GPS tracking devices on vehicles owned by convicted drunken drivers.

The New Mexico Court of Appeals recently threw out DUI evidence when the arresting officer was unable to testify in court about how the road side breath-testing machine he used during the arrest was maintained to assure its accuracy. Without the officer's testimony regarding the maintenance and accuracy of the breathalyzer, the breath test was inadmissible as evidence against the driver. The driver was consequently acquitted and the charges dropped.

Beer magnate and former candidate for the US Senate Pete Coors had his driver's license suspended for three months from the date of his arrest for DUI when he pled guilty to driving while alcohol impaired, a lesser version of DUI. Coors was arrested in May with a breathalyzer reading of 0.088 BAC. Coors was also ordered to pay a $200 fine, $495 in court costs, and attend Mothers Against Drunk Driving (MADD) courses at his expense.

It is typical in Colorado to allow a drunk driver to plead from DUI to DWAI when he has no previous arrests for DUI and does not have an excessive BAC.

Recently, we reported that several South Carolina counties were piloting a program that would eliminate the value of refusing a breathalyzer test by obtaining a warrant for a blood sample in refusal cases. The program is intended to reduce the effectiveness of strategic breathalyzer refusal to avoid a DUI conviction.

Delaware law provides for such warrants, but for years officers have been unable to make effective use of the process because they lacked resources to get blood drawn. A new program already underway in some counties and just being introduced in others provides on-call phlebotomists.

Breath test refusals have long created complications for law enforcement, and have been advocated as a strategic means of beating a DUI charge in some states. Two states have recently acted to address that problem in very different ways: Rhode Island, where the refusal rate had climbed to 85%, has enacted increased penalties for breathalyzer refusal. At the same time, South Carolina is piloting a program to reduce the benefits of breath test refusal by making a request for a warrant for blood testing the next step in a refusal case.

The question as to whether or not a DUI defendant has refused a breathalyzer or blood test might sound simple, but in fact "refusal" has very different meanings depending upon state law.

For instance, a Missouri appellate court ruled in February that a man who had explicitly stated that he was not refusing the breathalyzer test but would not take it until he was allowed to use the restroom had refused the test. The court cited a prior ruling explicitly stating that a refusal need not be "knowing".

In contrast, a Pennsylvania trial court recently suppressed evidence of a blood test refusal where the defendant had been asked three times whether she would go to the hospital for a blood test, but had not been asked directly after the refusal consequence warnings had been read to her.

Georgia DUI attorney Rob Leonard has been trained to administer field sobriety testing--and when he tried it out at home, he made an interesting discovery: 2/3 of the sober people he tested failed! Read more about Rob's experiment on his Georgia DUI Blog.