DUI BLOG

Let me tell you about one of my law firm’s DUI cases that ended up in a Los Angeles Times article entitled “DUI Case Botched by Blood Mixup”.

One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab got the vial  of our client’s blood mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory that specialized in DNA testing.

A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys. 

Typically, the police claim infallibility: “We do not make mistakes…It was the nurses”. 

So how could this have happened? The truth is that it probably happens far more commonly than we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.

“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around. 

Otherwise, I guess you’ll never know….

Almost all states now have increased penalties for refusing to submit to blood-alcohol testing, usually involving added jail time and/or longer license suspensions. A few states even make refusing a separate and distinct crime. A large percentage of those charged with “refusing” are innocent.

One of the most common refusals is the failure to breathe hard enough to produce a breath sample.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of the most common machine used today, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

(Thanks to Dr. Ronald Henson.)

For those who think that the previous post about police arresting people in bars before they can drive under the influence (even if they don’t have a car) is just a recent and isolated Texas aberration, consider this past story from the Washington Post:

2 Arrested in Va. Bars Dispute Police Account

Reston, VA.   On karaoke night at a crowded Reston bar just before Christmas, Daniel Crowley had at least six beers at a stage side table where he sat with three friends.

The mortgage broker had no idea that the attractive man and woman eyeing him from their stools were plainclothes Fairfax County police officers. Their mission was to observe drunks in bars so uniformed officers could arrest them on charges of being drunk in public.

No one had complained about Crowley’s behavior, and one of his friends was the night’s designated driver. But Crowley was about to be caught up in a police operation that was designed to deter intoxicated drivers, but has subsequently been criticized as heavy-handed and unfair.

“I didn’t know what was going on,” Crowley testified yesterday in Fairfax County General District Court, where he contested the charge before Judge Michael Cassidy. “I’d paid my tab, and I was ready to go home.”…

Big Mother is watching….

The latest in the War on Drunk Driving: arrest folks before they commit the crime:

Bar Sweep Sparks Controversy

Dallas, March 22. NBC5 News.  The Texas Alcoholic Beverage Commission sent a message to bar patrons last week.

TABC agents and Irving police swept through 36 Irving bars and arrested about 30 people on charges of public intoxication. Agency representatives say the move came as a proactive measure to curtail drunken driving.

North Texans interviewed by NBC 5, however, worried that the sweep went too far. At one location, for example, agents and police arrested patrons of a hotel bar. Some of the suspects said they were registered at the hotel and had no intention of driving. Arresting authorities said the patrons were a danger to themselves and others…

TABC officials said the sweep concerned saving lives, not individual rights.

Individual rights? Haven’t they heard of the “DUI Exception to the Constitution”? (And so much for designated drivers, calling a taxi, walking home, etc.: now you get arrested for being a potential drunk driver — even, apparently, if you don’t have a car to drive.)

(Thanks to Jon Lucca.)

Is the media finally beginning to get it?  From yesterday’s (Sunday) Boston Globe:

Over the Legal Limit

Get-tough laws in Massachusetts and nationwide are cracking down on drunk drivers. Are they also eroding our constitutional rights?

By Mark Schone  |  March 19, 2006

FOR YEARS, CALIFORNIA defense lawyer Lawrence Taylor, who specializes in drunken driving cases, has traveled the country telling anyone who will listen that the decades-long, nationwide crackdown on drunk drivers has posed a significant threat to the Bill of Rights — what he calls a dangerous ‘’DUI exception to the Constitution.”

Whenever he steps outside the echo chamber of his fellow defense attorneys, however, he doesn’t get a very warm reception. ‘’I've pretty much stopped doing radio,” Taylor said recently. ‘’Most of the time it’s a setup. They assure me I’ll be the only one on the show, and then they confront me with a woman from Mothers Against Drunk Driving whose son or daughter was killed by a drunk driver.”

Taylor has learned to expect little sympathy for his clients and his cause — from the public or their elected representatives. As much as 90 percent of the US population supports get-tough measures like highway roadblocks and license revocation for drivers who refuse blood-alcohol tests, and lawmakers are respecting their wishes. Last fall, the Massachusetts Legislature approved the anti-drunken-driving package called Melanie’s Law, and Rhode Island’s governor will sign an even tougher bill by June. Rhode Island’s version will make refusing a breath test a criminal offense, and will empower police to force motorists to provide blood samples.

The next step in the crackdown will be letting the police take the blood samples themselves — something Texas and Utah are already trying. ‘’Would you want a police officer to stick a hypodermic in you?” asks Taylor.

But the point of his crusade, Taylor says, is not saving drunk drivers from a clumsy jab with a needle. It’s not really about drunk drivers at all. Taylor believes that a series of Supreme Court decisions upholding harsh drunken driving laws means that authorities can now abridge civil liberties almost at will, as long as they invoke public safety. The decisions affect the defendant’s right to a jury trial, to examine evidence, to confront an accuser, and, perhaps most notably, to be free from self-incrimination and unreasonable search and seizure.

Taylor thinks the implications extend far beyond cases of driving under the influence to all areas of criminal law, including murder trials, and even to the measures taken by the Bush administration in the war on terror. Taylor likes to close his stump speech with a humorous paraphrase of Martin Niemoeller’s famous warning about creeping fascism — “First they came for the drunks, but I was not a drunk, so I did not speak up” — but he’s quite serious. ‘’Law is based on precedent,” he warned. ‘’When you start dismantling constitutional protections, you’re setting precedents. I don’t think people understand what we’re doing constitutionally.”…

Taylor thinks these measures have led to a Bill of Rights with a few asterisks for those who are accused of driving under the influence. But at the federal level at least, the battle over constitutionality, like the battle for public opinion, is mostly over. Most of the anti-drunken-driving measures that MADD has championed have been vetted by the Supreme Court and survived the ordeal….

Perhaps Lawrence Taylor, for years preaching to the converted, may yet find a new audience for his speeches — if not out of compassion for intoxicated motorists, then out of fear of those who might become intoxicated by power.

The San Diego Police Department’s script for its phlebotomists to recite as “testimony” mentioned in the previous post is not an isolated situation — not even in San Diego. The following, involving a San Diego Sheriff’s crime lab forensic toxicologist, is from a news story appearing just three days ago:

FALSE WITNESS

An expert’s problematic résumé and court testimony could jeopardize hundreds of convictions

San Diego, March 15. A DUI specialist with 30 years at the San Diego County Sheriff Department’s crime lab, it was Raymond Cole’s job to explain to judges and jurors how alcohol and drugs impair drivers and how the police measure levels of intoxication. That was before authorities found out Cole wasn’t who he claimed to be’a revelation that could mean a sizeable number of the convictions he helped secure may be overturned….

According to a report written by Richard Debevec, a crime-lab supervisor, a mid-January audit of employee records revealed a discrepancy in Cole’s résumé. Cole, who claimed to have obtained a premedical degree from the University of California, Berkeley, in 1957, had actually graduated from Berkeley with a bachelor’s degree in political science…

Earlier this month, City Attorney Mike Aguirre’s office began sending letters to lawyers who may have defended clients in cases in which Cole testified. A spokesperson for District Attorney Bonnie Dumanis said her office is in the process of drafting a similar letter…

Actually locating those cases is a different matter. According to testimony from a 2003 DUI trial, Cole estimated he’d testified ‘well over 4,000 times’ during his career, but representatives of Dumanis, Aguirre and the crime lab all say they have no way of tracking those cases. Instead, they put the responsibility for unearthing the trail of their expert witness on defense attorneys…

‘That’s always the heart of perjury’that you don’t know where it stops and where it starts,’ said retired Superior Court Judge Victor E. Ramirez, who said he presided over hundreds of cases in which Cole testified. ‘Looking back on it as a judge, the only real redress that we have is that you have to prosecute Mr. Cole for his [allegedly] perjured testimony, if in fact it can be proved.’

Ramirez and others who have worked with Cole in the past described him as a difficult witness with a history of problematic testimony…

With crime-lab supervisors present, Ramirez expressed ’serious concern about Mr. Cole,’ who he’d previously admonished for attempting to take evidence from the courtroom. ‘The best that I can say’ is that he has given less than complete’ answers or less than thorough answers in his presentation.’…

According to a transcript of a hearing held to sanction [attorney Michael] Freemont for calling Cole a liar, Superior Court Judge Richard Mills, who previously faced Cole as a prosecutor and a defense attorney, declined to make a ruling regarding Cole’s testimony but said it was ‘at least, intentionally misleading’. I’ve been troubled by his testimony more than once’. I just can’t have this type of testimony again’. Somebody’s got to, at least, consider that it’s time to do something, if not past time.’

A key witness in most DUI trials is the prosecution’s crime lab blood-alcohol expert, often called a forensic toxicologist.  He will explain to the jury what the breath or blood test results were and what they mean; what the probable blood-alcohol level was when the defendant was driving; and that the breathalyzer was properly maintained, calibrated and in proper working order at the time of the test.  To say the least, the honesty and accuracy of this expert’s testimony under oath is critical to the outcome of the trial.

Unfortunately, this witness is often less than honest and objective in his testimony.  As a law enforcement employee, he sees his job as helping the prosecutor to secure a conviction — and commonly tailors his testimony accordingly.

The same is true of phlebotomists (technicians who draw a blood from the suspect) who testify as to the procedures used for drawing the blood,  identification of the blood sample, etc.  The expertise and honesty of this witness is equally critical in a DUI trial.

The following is a complete and verbatum (emphasis in the original) copy of a set of instructions given by the San Diego Police Department to their blood-alcohol technicians testifying in a drunk driving trial (presumably, a different script exists for toxicologists):

                                             COURT TESTIMONY

You will be asked your name.

You do not have to remember drawing [blood from] the particular defendant.  Just say you draw many patients each day you work and it is impossible to remember each one.

You may be asked how you draw the blood.  It is the standard procedure you follow for ALL blood draws, EXCEPT that you use a NON-ALCOHOLIC antiseptic wipe (Benzalkolium) to cleanse the phlebotomy site.  You ALWAYS follow the same procedure for every blood draw.  The blood is drawn into grey top tubes provided by the San Diego Police Department.  The tubes contain an anticoagulent (Potassium Oxylate) and a preservative (Sodium Fluoride).  You check the tube for the presence of a loose, slightly pink powder before you use it.  After you fill the tube with blood, you invert the tube 10 times to mix the blood with the anticoagulent/preservative.  You will always mix any tube with an anticoagulent 10 times (you count the inversions).  The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.

The suspect is identified by the police officer and, when possible, you check the ID or ask the suspect their name.  The police officer completes the label with the suspect’s name, DOB, etc.  You put your name, date, draw time, and place on the label and place the label on the grey top tube.  You then place the grey top tube in the plastic chain-of-custody tube, put the cap on it, and seal it with the sealing tape provided by the SDPD.  You then hand it to the officer and he takes charge of it.

These instructions on what to say in trial are given to law enforcement witnesses  testifying under oath.  The witnesses are told to “testify” as instructed — not as to what they actually did and what they know to be true in a specific case. 

(Thanks to San Diego attorney Cole Casey.  A fellow attorney in a recent DUI trial asked a phlebotomist outside the courtroom what he was reading just before going in to testify; surprisingly, the witness showed him — and the attorney shared the document with Mr. Casey.)

Diabetes is, of course, a very common disease in American society. By most estimates, 15-20% of all drivers on the road are diabetics. Unfortunately, the similarity between the symptoms of alcohol intoxication and those of a diabetes attack are striking, and commonly lead to easy — but false — conclusions by law enforcement officers. (See my earlier post, “Diabetes and the Counterfeit DUI”.)

The symptomatic reactions of a person in the early stages of a diabetic attack include dizziness, blurred vision, numbness of lips, weakness, loss of coordination, slurred speech and confusion. These are, of course, symptoms which the patrol officer is looking for: the clear signs of a person under the influence of alcohol. And the officer’s observations are quickly followed by a failing performance on field sobriety tests. To make matters worse, a diabetic who is suffering from an insulin reaction will experience production of acetone in the breath. And acetone is one of those chemical compounds which most breath machines will “see” as alcohol, resulting in a falsely high blood-alcohol test result. (See “Why Breathalyzers Don’t Measure Alcohol”.)

The following is excerpted from an article entitled “Hypoglycemia: Driving Under the Influence”, 8 Medical and Toxicological Information Review 1 (Sept. 2003) by Dr. John Arnold, reproduced in my book Drunk Driving Defense, 6th edition:

Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways, including accidents with personal and material damage. Even more frequently are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver…. With the numbers of people with blood sugar problems and other errors of metabolism rising, it is becoming more important that ever for individuals, medical professionals and law enforcement personnel to recognize both the danger signals of hypoglycemia and to understand that although the condition mimics closely those who irresponsibly abuse alcohol, judicious use of sound science principles can ensure that a health-compromised individual is not unjustly punished for a pre-existing physical condition.

Actually, you don’t even need to be a diabetic to display hypoglycemic-induced symptoms of intoxication. Perfectly normal, healthy individuals can experience temporary conditions of low blood sugar after consuming small amounts of alcohol, resulting in exaggerated but false symptoms of intoxication.

According to Dr. Keith Ryan in his article “Alcohol and Blood Sugar Disorders”, 8(2) Alcohol, Health and Res. World (1983), consumption of even small amounts of alcohol can produce hypoglycemia — either fasting glycemia or reactive glycemia. Fasting glycemia can exist where a person has not eaten in 24 hours or has been on a low-carbohydrate diet. Production of glucose in the liver is stopped while the alcohol is broken down. Result: the blood sugar level will drop, affecting the central nervous system — and producing symptoms of intoxication.

Reactive glycemia occurs when consuming alcohol increases the production of insulin by the pancreas. This rise in insulin causes a drop in blood sugar — again, with the attendant false signs of inebriation. Interestingly, this reaction to alcohol is commonly encountered in chronic alcoholics.

The media, whether out of ignorance or a pro-MADD agenda, consistently misrepresents DUI issues — and in the process often displays a frightening ignorance of (or diregard for) the Constitution.

DUI LAWYER TACTIC: CHALLENGE THE BREATH TEST

MIAMI, March 5  AP - Timothy Muldowny’s lawyers decided on an unconventional approach to fight his drunken driving case: They sought computer programming information for the Intoxilyzer alcohol breath analysis machine that determined he was drunk to see whether the test was accurate.

Their strategy paid off.

The company that makes the Intoxilyzer refused to reveal the computer source code for its machine because it was a trade secret. A Seminole County judge tossed out Muldowny’s alcohol breath test, a crucial piece of evidence in a DUI case, and the ruling was upheld by an appeals court in 2004.

Since then, DUI suspects in Florida, New York, Nebraska and elsewhere have mounted similar challenges. Many have won or have had their DUI charges reduced to lesser offenses. The strategy could affect thousands of the roughly 1.5 million DUI arrests made each year in the United States, defense lawyers say…

�It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, the 5th District Court of Appeal ruled in Muldowny’s case, which resulted in his charges being reduced to reckless driving.

Apparently, investigating whether a machine which determines guilt or innocence was accurate or not is suddenly a "new DUI lawyer tactic", an "unconventional approach", and a "strategy" which "pays off" if they are stonewalled.  Worse, we are now faced with the horror of 1.5 million DUI arrests each year being thrown out — all because of those darned DUI lawyers!  Why can’t we just trust these breath machines?

On the other hand, what is the real reason why the manufacturers won’t reveal the secrets of how these gizmos spit out blood-alcohol readings?  And if the manufacturers of the different models each use their own "trade secrets", are they all equally accurate? How would we know?

Man Arrested After Saving Two People From Burning SUV

Stanton, PA  WLEX-TV  March 8.    A man is being called a hero after pulling two people from a burning SUV, but he is now in jail after police discovered he was driving on a suspended license.

The incident happened Wednesday morning on Highway 15 in Stanton. Police say Bernie Miller, 48, was killed when he was thrown from his car after he crossed the center line and hit an SUV head-on. Passerby Daniel Landrum and another man pulled Clemon Cole, 70, and Heather Cole, 20, from the SUV as it burned. After police and emergency crews arrived, Landrum was then taken into custody for driving on a suspended license because of a past DUI.

That should teach him.